I begin the formal stage 3 debate by thanking the members and clerks of the Justice Committee, the Finance Committee and the Delegated Powers and Law Reform Committee for their careful consideration of the bill.
I also thank the external stakeholders who took the time to engage in the bill and scrutiny processes and share their knowledge of and views on the various issues with which the bill deals.
It is fitting that the final piece of legislation to be dealt with in the chamber in this parliamentary session relates to abusive behaviour and sexual harm. There are few more important issues for the Parliament to deal with than taking the necessary, important and far-reaching steps to improve how our justice system can respond to such distasteful behaviour as domestic abuse and sexual offending.
The bill contains provisions in six areas. The provisions that introduce statutory jury directions have probably been most debated, and it is worth spending some time explaining why we consider that they are so important.
We know that some members of the public who make up juries that decide sexual offence cases hold preconceived and at times ill-founded beliefs about how sexual offences are committed. Those unenlightened views concern the way in which someone who is sexually assaulted or raped will be likely to react when the offence is being committed and afterwards. Some people assume quite wrongly that anyone who commits a sexual offence will always have to use physical force to overcome their victim, and some people think that a victim will always try to physically resist their attacker. Some people think that a victim will always make an immediate report to the police after an offence has been committed against them.
No one seriously doubts that some people in our society hold these views. People do not necessarily hold those views as a result of malice or ill will towards victims of sexual assault; they may be held simply because of a lack of understanding of what the research has told us about the reactions of victims to sexual assaults both during the assaults and in the aftermath.
We know from that extensive research that the reality of what can be expected from a victim of a sexual offence is quite different from those unenlightened views. We know that there is no standard type of reaction and that people react in many different and normal ways. Therefore, jurors who start with preconceptions about how sexual offences are committed and how a victim may react may assume, without considering the specific evidence, that a delay in reporting or the absence of the use of physical force by the attacker or physical resistance by the victim is an indication that an allegation is false.
The intent behind the statutory jury directions is to ensure that the focus of the jury is on the evidence that is laid before it and that any misconceptions that jurors hold about how people react to sexual crime should play no part in how evidence in a case is considered.
That point was raised at stages 1 and 2, and I will come to it in my speech. The issue was identified by the Crown, and I recognise that Margaret Mitchell and Christine Grahame, who is the convener of the Justice Committee, have raised a valid point.
At stage 2, comments were made that providing for statutory jury directions would somehow threaten the independence of the judiciary and the separation of powers between the legislature and the judiciary. I find it hard to reconcile such comments with the fact that other jurisdictions have already legislated in the area without interfering with judicial independence. In addition, the provisions in the bill are deliberately framed to ensure continuing judicial discretion, in any case, on whether it is necessary to use the directions. That means that directions are not required to be given when they are not relevant to a given case.
Would the cabinet secretary concede, however, that the Lord President and Sheriff Gordon Liddle, who is vice president of the Sheriff’s Association, had very serious views that this is a constitutional crossover that should not take place and that it will result in a breach of the constitutional distinctions between the legislature and those who put legislation into action?
I recognise that they raised some concerns regarding the provisions, but I do not recall them saying that they would not take them forward if Parliament was minded to include them in the bill. If I recall correctly, in their evidence they said that if Parliament was minded to do that, they would have to consider how the provisions would be taken forward.
In Scotland, judges are already required by case law to give jury directions on relevant law and on certain evidential matters, for example on dealing with expert evidence or identification evidence. This common law on jury directions has developed incrementally by way of appeal cases challenging trial judges’ directions or the lack of relevant directions. The reason why we have included in the bill statutory jury directions is that we have taken the view that the courts have not been sufficiently innovative in this area and it is necessary for statute law to intervene to deal with such an important matter.
There are many precedents for Parliament moving into areas of law that have, until then, been entirely based on the common law. For example, the Sexual Offences (Scotland) Act 2009 restated and codified the common law on sexual offences. Similarly, the law of evidence is largely common law, but it is supplemented by statutory provisions in the Criminal Procedure (Scotland) Act 1995.
Let us remember that the provisions in the bill do not attempt to prescribe the form that such a direction must take, and they give the judge the freedom to tailor any direction to fit the facts and circumstances of the particular case. The bill also provides that where such a direction is clearly inappropriate—for example, in a case where the alleged victim could not have reported the offence at the time it happened because they were in a coma, or because the alleged victim was a very young child—there is no requirement for the direction to be given. Nothing in the bill affects the ability of expert evidence to be led in a given case, and the Crown Office indicated during stage 1 scrutiny of the bill that it will continue to use expert evidence as it considers it appropriate in relevant cases.
We are pleased that at stage 2 the Justice Committee supported the retention in the bill of the jury direction provisions, as we consider that they will help to make a real difference in ensuring that jurors consider the evidence laid before them in sexual offence cases without allowing any pre-conceived or ill-founded views to cloud their judgement.
We are pleased with the broad support for the intimate images offence, which will help to ensure that perpetrators and victims understand what is against the law and will improve how victims can access justice. We have heard arguments for extending the offence to cover the non-consensual disclosure of intimate written and recorded sound communications, such as texts, emails, letters and voice mail messages. It has also been suggested that the offence should be extended to cover the distribution of voyeuristic images taken in public places. We have some sympathy with the intent behind those suggestions. We know that there are a myriad of ways in which a person can seek to abuse or control someone—especially a partner or ex-partner. However, the offence was developed to deal with the problem of people—usually partners or ex-partners—sharing images that are likely to have been taken with consent, either with the intention of causing that person fear, alarm or distress, or else with recklessness as to whether that would have that effect. As I outlined earlier, extending the offence to cover written communications or voyeuristic photographs taken in public could risk unintended consequences.
We consider that it would be difficult to amend the offence to cover written and sound communications and to put in place appropriate defences without inadvertently providing a loophole for people who distribute intimate images. As with all legislation, there might be issues that the Parliament will wish to revisit in due course, and the scope of the offence might be one such issue. However, we believe that the offence that is set out in the bill strikes the appropriate balance at this time and that it will help our justice system to deal with such behaviour.
The bill also introduces a new domestic abuse aggravator, which will help to improve the recording of such crimes and will ensure that courts take the domestic abuse circumstances of an offence into account when they decide on an appropriate sentence.
The bill strengthens protections for victims of harassment in cases in which the person who harasses them is unfit to stand trial or lacked capacity to commit an offence because of a mental disorder, and it gives our courts new powers to hold perpetrators of child sexual abuse to account for offences committed elsewhere in the United Kingdom by extending extraterritorial jurisdiction to apply to England, Wales and Northern Ireland, just as it already does to the rest of the world.
The bill modernises and reforms the powers of our courts in relation to the orders that are available to help to protect our communities from those who pose a risk of sexual offending. Those reforms will streamline the operation of the powers that our courts already have in that area and will expand their ability to impose orders to protect our communities.
The bill makes a number of important reforms to address specific issues to improve the way in which our justice system responds to abusive behaviour and sexual crime.
That the Parliament agrees that the Abusive Behaviour and Sexual Harm (Scotland) Bill be passed.
I am honoured to open the stage 3 debate for Scottish Labour on the last bill to be considered in the fourth session of the Scottish Parliament. I would like to thank the clerks, the Scottish Parliament information centre and the witnesses who wrote to or attended committee for their contributions to our deliberations, not just on the Abusive Behaviour and Sexual Harm (Scotland) Bill but over the session as a whole.
I joined the Justice Committee in 2013, but I understand from the committee’s legacy report that since May 2011 the committee has considered 13 Government bills and four members’ bills. That has been a considerable burden of work not just for committee members, but for the clerks and the members of the legislation team who have helped us with our amendments. I also thank the committee’s convener, Christine Grahame, and fellow committee members. It has been an interesting and informative committee to be a member of, and it has often also been quite a lot of fun—although that might seem to be rather unlikely.
Parliament’s committees have attracted some negative comments in the press recently for not holding the Government to account. I do not consider that to be a fair criticism of the Justice Committee, which I believe has continued to scrutinise legislation effectively. The composition of the committee does not give the Government a majority, and the convener—as ministers know—is capable of independent opinion.
I would also like to thank the Cabinet Secretary for Justice and the Minister for Community Safety and Legal Affairs, who is sitting beside him, for being prepared to work with the committee and Opposition members on amendments not just to the bill that is before us but to others that we have considered.
It is pleasant to conclude the session on a consensual note, given that we will all be fighting like cats and dogs for the next six weeks. The Abusive Behaviour and Sexual Harm (Scotland) Bill has been generally welcomed, despite the division of opinion on the provisions on judicial directions.
Scottish Labour would have liked the forms of communications that are covered by the offence of distribution of intimate photographs and films to have been extended, as my colleague Margaret McDougall argued when she moved her amendments on the issue. We had also hoped that it might have been possible to address the matter of the distribution on unsavoury websites of sexual images that are taken without consent in public places, but we can understand why that has not been possible in this bill, and we look forward to further discussion on that.
Scottish Labour members are pleased that amendment 29 in my name, which was agreed to earlier, will mean that anyone who takes a photograph in a public place of a person who has been deliberately placed in an intimate situation without their consent, and distributes it, will not be able to use the fact that the photograph was taken in a public place as a defence. I thank the cabinet secretary for agreeing to have his officials look into that issue. Although it has not been possible to achieve everything that we would both have liked to achieve, we have been able to make progress.
Labour is very supportive of the provisions on judicial directions, because we believe that they may help to achieve justice for rape victims and victims of other sexual offences. When the complainer at a trial has not told, or has delayed telling, another person or the police about the offence, or when evidence is led on the absence of physical resistance, the judge must now advise the jury that there can be good reasons for the complainer’s behaviour and that it does not discredit their evidence. Amendments to remove judicial directions were lodged at stage 2, and we opposed them. I note that similar amendments were lodged but not selected for debate at stage 3.
Juries are made up of members of the public, and research demonstrates that the public often have misconceptions about how victims of rape ought to behave—believing, for example, that physical resistance will always be given or that a victim will always report rape to the police immediately. That is not the case. Victims of sexual attacks may blame themselves and may hold themselves to be partly responsible. Often, women who are affected by unwanted sexual advances or sexual attacks think that they have done something to ask for it: it is quite common. Victims may feel ashamed, they may feel partially responsible and they may feel far too ashamed to come forward straight away. Victims can be far too shocked or scared about what else could happen to them to offer any physical resistance. Who knows what else could happen? They could end up being murdered as well as attacked. They may offer no physical resistance through fear or through being in a state of shock.
We know that, in about 15 per cent of rape cases, a “not proven” verdict is returned, which is the highest percentage for that verdict. Also, it is more difficult for rape cases to come to court due to the difficulty in presenting corroborating evidence. We have had a lot of discussion about abolition of the requirement for corroboration in the session of Parliament that is about to end, but corroboration is still a problem in such cases.
We consider that the provision for judicial direction will help rape victims to achieve justice; for example, it will enable a judge to advise the jury not to be swayed by misconceptions about the reaction of rape victims. [Interruption.] Excuse me.
I have had this cough since 5 January. I wish it would go away.
Opponents within the judiciary argue that similar directions will creep into other areas of legislation, but that can happen only if Parliament agrees that it should happen. I do not think that mission creep is going to happen by itself. Decisions to extend judicial direction would have to be made by Parliament.
The bill also brings into effect a number of measures that have attracted less comment. For example, it extends courts’ ability to award non-harassment orders for domestic abuse offences to circumstances in which the alleged offender has not been fit to stand trial, although the evidence suggests that the person is guilty of the offence.
The bill also extends the jurisdiction of Scottish courts to prosecute offences that are committed against children elsewhere in the UK; amendments at stage 2 clarified how that will operate. The bill abolishes sexual offences prevention orders, foreign travel orders and risk of sexual harm orders, none of which were used often—there was a petition lodged in Parliament about that—and replaces them with sexual harm prevention orders and sexual risk orders. That change is similar to provisions in the rest of the UK, and we hope that the new orders will be easier to use.
Although we welcome the bill and will support it tonight, we do not by any measure consider that the job is now done. The wider issue of coercive control, which exists in cases of domestic abuse but also in abuse of children and older people, is yet to be tackled. We appreciate the difficulty in defining such a broad offence that can be committed in many different circumstances, but we all know that behaviour of that nature can be very damaging to the victim. Such victims are often not aware of what is being done to them and, again, may blame themselves for what happens.
Whatever the shape of forthcoming legislation, there is a need for awareness raising. There is work to be done in our society and in our schools on respect and consent in intimate situations. The education programme that will accompany the bill is much needed in the light of recent evidence about the amount of sexting that is reported to be taking place in Perth and Kinross schools, and I am sure that Perth and Kinross is no different from any other local authority area in Scotland in that regard. I read today that there have been similar reports in England, and I believe that the Labour Party at UK level has proposed that there should be compulsory sex education on the subject. We might wish to return to that in this Parliament. Although the bill is not intended to prevent the activity of sexting, young people need to be aware of their vulnerability both to bullying and exploitation.
My colleagues have raised the importance of tackling other issues. Rhoda Grant raised the need to change both attitudes and legislation around the purchase of sex; she introduced a member's bill on the issue and lodged stage 2 amendments to the Human Trafficking and Exploitation (Scotland) Act 2015. I am sure that she will return to those issues in the next session of Parliament. Cara Hilton, during the passage of the Air Weapons and Licensing (Scotland) Act 2015 highlighted the harm that is done by the exposure of young children to exploitative, sexualised and degrading images of women, which remains an outstanding matter of concern. In the next session, and maybe in sessions after that, Parliament will have further work to do.
There has been much dissent and disagreement during the fourth session of Parliament. However, we end on a note of agreement, on an issue of great importance: we are taking action on sexual and domestic abuse, changing court procedure to secure greater access to justice for rape victims, and protecting victims of what has sometimes been described as “revenge porn”. I look forward to this final debate, and in particular to the speeches of Malcolm Chisholm and Margaret McDougall, who will be speaking in the chamber for the last time.
The Abusive Behaviour and Sexual Harm (Scotland) Bill is, as others have mentioned, the last bill that the Parliament will consider as session 4 draws to a close. It is therefore fitting that the legislation has provisions that address and have the potential to make a positive difference in deterring—among other things—what has been dubbed “revenge porn”. It is a particularly vexing and disturbing crime that can have far-reaching consequences.
Section 2 creates a new offence of disclosing or threatening to disclose an intimate photograph or film. That criminalises behaviour that is deeply distressing to victims and keeps pace with similar legislative changes in England and Wales. It also ensures that Scots law now covers the abuses arising from such subversive and psychologically damaging misuse of modern technology.
In addition, the bill seeks to tackle other complex and emotive areas, such as domestic abuse, with provisions that include the introduction of a domestic abuse aggravator. The Crown Agent has confirmed that that will result in abusers getting tougher sentences.
Although the provision is most welcome, I still have a concern about the aggravator applying to a first offence—as opposed to second and subsequent offences—for behaviour that is categorised as reckless. Time will tell whether my concern is justified.
I turn to the release of medical, psychological or psychiatric records in sexual offence cases. Over the parliamentary session, I have made a number of attempts to address the unjustifiable requisitioning of such records by arguing that the complainer must be notified of their right to oppose the move and, crucially, must have access to legal aid to enable them to appoint an independent legal representative to act on their behalf. I am therefore delighted that, having previously argued that legal aid was unnecessary, the Scottish ministers have accepted Lord Glennie’s ruling relating to the judicial review petition WF v the Scottish ministers, which makes it clear that such legal aid must now be made available.
Although that is very good news, in order for such provision to be effective in future it is essential that complainers are aware of their right. I hope that the discussion on the amendment covering the issue that I lodged will help to achieve that aim. I want to put on record my thanks and gratitude to Alison McInnes for her consistent support regarding the entire issue.
There is much that the Parliament can be proud of in the bill, which has been debated in the chamber. Sadly, the Parliament can take no pride whatsoever in the blocking of the opportunity for the entire chamber to fully scrutinise and debate the most controversial provision in the bill, namely the putting of jury directions in certain sexual offences on a statutory footing. Since stage 1, the Scottish Conservatives have strongly opposed the provision as has—to her credit—Christine Grahame, the Justice Committee’s convener.
At stage 2, and again at stage 3, I lodged an amendment to remove statutory jury directions. The cabinet secretary’s justification for opposing the amendment was that he wants to focus on the misconceptions of juries in such cases. However, the use of expert witnesses could easily dispel misconceptions about why there might be a delay in reporting or a lack of physical resistance on the part of the victim in rape and sexual assault cases. In other words, exactly the same outcome could be achieved without the adverse constitutional implications of statutory jury directions. Quite simply, the reluctance to use expert witnesses is entirely due to cost.
Furthermore, grave concerns about the precedent these provisions set have been expressed by the Law Society of Scotland, the Faculty of Advocates, Lord Carloway and Sheriff Liddle. It is important to understand that those grave concerns have been expressed because the provisions for statutory jury directions compromise the independence of the judiciary that is a central tenet of Scots law, blur the constitutional divide between legislators and the judiciary, strike at the separation of powers, and raise constitutional issues that compromise democracy in Scotland.
To put that in context, we were told that, under the additional member proportional representation voting system, there could never be a majority Government, only a minority one or a coalition, and that both situations would introduce checks and balances on the party that has the largest number of members of the Scottish Parliament. We now have a majority Government. The consequence of that is that any amendment that the Government opposes has been ruthlessly whipped and consistently defeated in the chamber. Scotland therefore has a democratic deficit.
That situation is compounded by the Presiding Officer’s refusal to allow Parliament the opportunity to scrutinise and debate an amendment of such a magnitude, despite being aware that it raises crucial separation of powers issues. As the Presiding Officer has stated, that is entirely for her to decide. Although that is certainly true, it does not mean that the decision is right.
Today is a dark day for our democracy in Scotland and it is a great pity that the end of the Presiding Officer’s tenure should be marked by such a controversy. Those comments notwithstanding, as my colleague Annabel Goldie—whom I pay tribute to for her exceptional service, couthie contributions and general wit since her election to Parliament—will confirm in her final speech in the chamber, the Scottish Conservatives will support the bill at decision time.
It has been my privilege to convene the Justice Committee for five years. I thank all the committee members for their hard work and, not least, for their tolerance of my idiosyncrasies in the chair—they should put it down to age.
The bill has two main elements. The first is the new offence of the non-consensual sharing of intimate images colloquially labelled “revenge porn”. That is not the most pleasant of terms, but it is well understood by the public so I will use it.
With advances in technology and increasing use of social media, it has become all too easy to use the internet as a weapon to humiliate, bully and intimidate other people. When that involves the sharing of intimate photographs or videos of another person that were never meant to be shared with a wider audience and are perhaps sent out on the internet following an acrimonious break-up, it can be particularly poisonous and harmful.
The new law will provide an opportunity to make it clear that sharing intimate images of another person without their consent and with the intention of or—and this must be stressed—with recklessness about whether it causes hurt or humiliation, is a crime. Images on the internet can live for ever.
The new offence is to be welcomed, and I hope that it will lead not so much to prosecutions as to a change in society’s behaviour. Let us call it preventative legislation rather than punitive, although if someone does breach the legislation, they might, at the end of the day, end up with a criminal record.
There are some—particularly the young, perhaps—who may lack the insight or maturity to realise just how much harm such an act can cause, and it is usually young people who are the victims, as well as the perpetrators. There is an expectation that the vast majority of cases involving children and young people will not go before the courts or even before the children’s panel and that there will be some discretion as to what happens with young people.
The second main element of the bill is jury directions relating to sexual offences, which my colleague Margaret Mitchell referred to. The bill proposes that, for the first time, we set out in statute what directions judges must give to juries in certain cases. If evidence is led about an apparent delay in reporting or telling anyone about an alleged sexual assault, the judge must direct the jury that there may be good reasons for the delay. In addition, if evidence is led about an apparent absence of physical resistance to an alleged sexual assault, the judge must direct the jury that there may be good reasons why a person may not have physically resisted such an assault.
I hear what the cabinet secretary says about case law but case law is made by the courts, not by Parliament. In my view, this is a case of Parliament interfering too deeply in the courts’ discretion. I understand that the intention behind this element of the bill was to tackle alleged prejudices or misconceptions in the minds of some jurors but juries are, at their very heart, comprised of ordinary people, some of whom may very well bring their misconceptions into the jury room—in fact, I would be astonished if they did not.
Also, as the Government has instructed research to be carried out into juries’ behaviour, I do not understand why we are leaping to setting out that requirement for jury directions before we have the results and the evidence from that jury research. That is where I fall out with the Government—not for the first time and, if I am re-elected, probably not for the last time.
Like my colleague Margaret Mitchell, I am very disappointed that her amendment to delete that requirement, which I supported, was not selected for debate. It led to substantial debate at stage 2 and the cabinet secretary devoted quite a chunk of his speech to addressing the issue. However, what do we have in the chamber now? If it had been in the amendment process, we would have had a full chamber listening to the arguments. Now the chamber is sparsely populated with a few hardy people, most of whom are contributing to the debate.
To me, that is not democratic, and I regret that I have to support my colleague Margaret Mitchell again in being extremely disappointed by the Presiding Officer’s decision because, to quote the Lord President’s written evidence,
“what is proposed is that the judge should essentially take on the mantle of the prosecution in making statements of fact dressed up as law.”
The Lord President went on to say in oral evidence:
“I return to what I have said already: we the judges direct the jury on the law that is to be applied to the case. That is our primary purpose. We tell juries at the beginning that the facts are for them and that it is for them to assess the witnesses and make up their minds, applying their collective common sense. That is the jury’s function. If a judge is seen to dictate, or attempt to dictate, to a jury on what facts should or should not be found, that would be in the realms of counterproductive.”
Finally, he said:
“Yes, it sets a precedent. If Parliament dictates what should be said to juries by a judge in this area, other people will no doubt seek to extend that to other areas and will wish other directions to be given, and that is where we get into the constitutional divide.”—[Official Report, Justice Committee, 8 December 2015; c 42, 50.]
Those are not light words and they are not from a lightweight; they are from the Lord President of the Court of Session, a man who—just as much as we do—wants to see justice done in his courts. If he has those substantial concerns about crossing the constitutional divide, I think that it is an issue that Parliament should have debated more fully.
Of course it is right to say that if we vote for the bill tonight, the judges will obey. Of course they will obey; they obey the statutes that we put down for them. However, the question is: should we be doing it?
Exactly—why do it this way if there is a better way of doing it? I think that the member has shot himself in the foot, no matter that he is a member of the Faculty of Advocates.
We are crossing that constitutional line. The Parliament has not been given the opportunity to fully debate the issue. That said—and I very much regret criticising the Presiding Officer on her penultimate day in Parliament but I have done it, so there we go—I will be supporting the bill because I am not throwing out the baby with the bath water. I will support the bill at decision time, but I hope that we return to this issue and I hope that this is not the thin end of the wedge.
Before I call Malcolm Chisholm, I advise members that this is his valedictory speech. Like me, he has been a member since 1999 and, prior to that, he was a well-known Scottish member of the UK Parliament. He served as a Government minister and has been a very effective back bencher when his party was in government and in opposition.
Above all, Malcolm Chisholm is not just a politician but a parliamentarian—he has been a parliamentarian for all his long and distinguished political career. On behalf of the Presiding Officer team and the Parliament, I wish him all the best for the future. [Applause.]
Thank you for those very kind words, Presiding Officer.
Today’s bill is another step in the significant progress on action against violence against women that we have seen in the Parliament since 1999. I welcome the domestic abuse aggravator, the extension of non-harassment orders, the action against image-based sexual abuse and the measures on jury direction. I respect Margaret Mitchell and Christine Grahame, but I have to say that, when I read the research of Professor Louise Ellison and Professor Vanessa Munro, I found it overwhelmingly persuasive. Of course, it led to the similar changes that took place in England a little while ago.
The consultation document on the bill included a proposal for a new specific domestic abuse offence to cover coercive control and the long-term repetitive nature of much domestic abuse. I look forward to that becoming law, which I think will happen in the new session of Parliament. I hope that other measures will be taken in the new session—for example, there will perhaps be a response to the recent Scottish Women’s Aid report on homelessness and domestic abuse.
I also hope that there will be a renewed focus on prevention. I first spoke on that subject in the House of Commons in July 1993, when I highlighted the great Zero Tolerance prevention campaign that was taking place in Edinburgh at the time. That was bringing the issue of violence against women out into the open and was challenging men with striking messages and shocking facts. It also transformed my understanding of the issue and led me to see such violence as a consequence and a cause of gender inequality. At the centre of that campaign was Evelyn Gillan, whom many members will remember and who tragically died a few months ago. I know that her partner recently wrote to the First Minister to suggest that the Scottish Government could consider a prevention campaign that at least drew on the lessons from the Zero Tolerance campaign. I hope that the Government will reflect on that.
We have certainly come a long way since 1993. In the debate then, I mentioned a Scottish Office campaign that focused on women taking precautions rather than on challenging men. I do not say that to criticise the Conservative Party, because I doubt that any other party would have done anything different at that time. Without being in any way complacent, especially in view of the horrifying continuing prevalence of violence against women, we can regard progress on the issue as one of the great achievements of the Scottish Parliament.
I believe that Scotland is regarded as the leader in the UK on such issues. That is certainly what I found when I spoke at a meeting 10 years ago in the House of Commons that involved English groups that were working against violence against women. I am sure that we are still the leaders now, because the current Scottish Government has carried on the work of the previous Government.
There are two fundamental reasons for progress in the area in Scotland. The first is that, from the very beginning, the key stakeholders were involved in developing the strategy, and that is still the case. I pay tribute to Zero Tolerance, which I mentioned, and to Scottish Women’s Aid and Rape Crisis Scotland. There are too many groups for me to remember, but I want to thank especially certain inspirational women who are connected with those groups and other campaigns. I am thinking of women such as Jenny Kemp, Evelyn Gillan, whom I mentioned, Lily Greenan, Marsha Scott and Sandy Brindley of Rape Crisis Scotland. They have inspired me and many other people in the Parliament and across Scotland, and they have driven the strategy. With due respect to both Governments, they perhaps deserve the most praise.
The other key factor is the large number of women who have been members of the Parliament from the start. The proportion of women is much larger here than at Westminster, although I should add that it will not be large enough until 50:50 is achieved across the Parliament.
Our approach has been characterised by collaboration and even consensus, although that cannot and should not be the case with all issues. I do not believe in a consensus that buries genuine differences and turns a blind eye to injustices that need to be addressed, but we should collaborate and work together whenever we can and, if we agree, we should say so. Violence against women is one issue on which we have been able to work together and, for the most part, agree, even if there are disagreements on one or two specific policies.
I have one minute to go until my end as a speaker in the Parliament, unless I have the luck to get to ask question 9 at general question time tomorrow—I had better keep in with the Presiding Officer. As I said on television last night, I like the Westminster Parliament very much, but I have loved the Scottish Parliament. There are so many amazing MSPs from all parties and I thank all members for being such great colleagues, whether we have agreed or disagreed. I also thank my brilliant staff: Lesley Montgomery, April Cumming and Jason Thomson. Finally, I thank all the wonderful people who work in the Parliament, whom I will miss so much—although, being Edinburgh based, I may pop in from time to time. [Applause.]
On 11 September 2013, I led a members’ business debate on the sensitive subject of revenge porn. It was then the subject of a new campaign by Scottish Women’s Aid and not many people had heard about it. I thank colleagues across the chamber for supporting that debate because, until it came to the chamber, we had not spoken about revenge porn and, if we had not done so, we would not be where we are today.
I opened that debate by talking about the history of domestic abuse. It was not recognised or spoken about in decades gone by. In fact, while the women’s suffrage movement was active, it was promoted as a way to keep in line those upstart women who sought the vote. We have now moved on, but domestic violence is still very much a blight on our lives and the bill seeks to address that fact.
I commend the work of the Parliament over many years to tackle domestic violence. I offer Malcolm Chisholm my good wishes and thanks. He has worked for many years on the issue, as we have heard, and has co-chaired with me the cross-party group on domestic violence. I give him every best wish that I can and thank him for all that he has done and for everything that I have learned from him. I thank him especially for the support that he has given me during the campaign to ensure that the sharing of intimate images becomes a criminal offence. I say to him that we are realising that aim today. [Applause.]
I also thank Alison McInnes for her support because, without the cross-party support that we have had in the Parliament over many years, we would not be discussing this good bill.
As we all know, an image can go viral on social media within minutes. As I said in the debate that I held a few years ago, revenge porn is every bit as abusive as any other type of domestic violence. Freedom of speech and the freedom to protest cannot be translated into cyberabuse. Such actions are exploitative and very cruel. They ruin lives, cost people their jobs, take away self-respect and take away somebody’s dignity. In some cases, people have taken their own lives.
Many key aspects of the bill bring me great comfort. I hope that that applies to all the organisations with which we have worked over the years, such as Rape Crisis Scotland, Scottish Women’s Aid and Zero Tolerance—I make no apology for mentioning them all again. They expect us to do something about the issue, given the work that they have done to ensure that we are educated, understand the issues and can do something about it. That is why we are here.
It is very welcome to hear that there will be an aggravation of the offence if there is abuse of a partner or ex-partner. Non-harassment orders in criminal cases are also welcome. How many times have we sat in the cross-party group hearing of cases in which women were continuously harassed, whether that was from a prison cell, by text message, by phone message or through other people?
The provision for jury directions has caused a bit of controversy today. Given some of the evidence that we have seen and the views of the young people—and some older people—to whom we have spoken, it is clear that preconceived ideas can mar judgment in such cases, so I welcome directions to jurors who may have such preconceived ideas. In addition, the bill includes provisions to criminalise incitement to commit certain acts in other parts of the UK, not just in Scotland. That aspect has become important, especially given some of the issues surrounding revenge porn.
I turn to sexual harm prevention orders and sexual risk orders. Coming from a social work background, I know that we cannot overestimate the comfort and support that putting in place such orders to protect people can give to victims of domestic violence.
All the parts of the bill will send a clear and unambiguous message. For those who perpetrate domestic violence or sexual harm, for those who attempt to coerce and control and for those who use revenge porn and share intimate images to shame or blackmail, there will be zero tolerance.
The bill will support and protect the most vulnerable men, women, children and families, and it will make communities stronger. I commend for their work all my colleagues in the chamber, the Justice Committee, all the organisations that I just mentioned and especially the Scottish Government for having the courage to bring the bill to the chamber in the final week of the session. It is fitting that the final legislation is about people and protecting people who are victims of violence. I hope that everyone will support the bill at decision time.
The bill addresses the need to tackle the damage that is done by abusive behaviour and sexual harm. The Government has acknowledged that the bill deals with only part of a wider problem, and I hope that Parliament will return as soon as possible to the issue of creating a specific offence of domestic abuse. We need legislation that can properly capture the complex web of coercive behaviour that is used to abuse victims.
Controlling and humiliating women is not new, but the ways of doing it change and our understanding deepens, and the law needs to keep up. The reckless or malicious sharing of intimate images can destroy lives, and it causes victims huge harm. One victim of so-called revenge porn explained:
“I felt sick, violated and completely crushed by this. I have been a nervous wreck since I became aware of it”.
The impacts of sharing intimate images can be far reaching and long lasting, with most people suffering some form of long-term anxiety and some facing self-harm and suicidal thoughts. Perpetrators must be held to account for their actions, and the creation of a new criminal offence in the bill will be an important step in the right direction. Such violations of privacy are unacceptable and will now be illegal.
During the committee stages, we explored concerns about the impact of the new offence on children and young people. There was a significant body of evidence to suggest that we should not exempt children from the provisions as the Law Society of Scotland had suggested. However, I seek assurances from the cabinet secretary that the appropriate route would be referral to the children’s hearings system rather than the criminal courts.
At stage 2, I lodged amendments relating to the need for a public information campaign and for schools to do much more in relation to consent and respect in personal relationships. I was grateful for the cabinet secretary’s assurance that he intends to tackle that prior to the implementation of the legislation.
Part 2 introduces jury directions relating to sexual offences and has—as we have heard this afternoon—become the most controversial part of the bill. However, it is clear that women face too many misconceptions and prejudices in rape and sexual offence trials. I believe that, with jury directions, the bill does nothing more than introduce a sensible safeguard, and I support their inclusion in the bill.
If I am allowed a moment’s reflection, Presiding Officer, I briefly highlight that this is the 17th bill that the Justice Committee has dealt with in this session of Parliament. Many of those bills have been of significant import, and it has been my privilege to serve on the Justice Committee for the whole of the current session.
I came into politics to make a difference and to speak up for those with no voice. If ever there was an example of a group of women with no voice, it was the women in Cornton Vale. I am particularly pleased, then, that I have been able to play my part, alongside progressive voices such as the Howard League Scotland and many others in civic Scotland, in securing the reform of the women’s prison estate.
In 2011, disturbed by a succession of damning reports from HM inspectorate of prisons for Scotland into Cornton Vale, the Justice Committee called the Scottish Prison Service and the Government to appear before the committee to account for their lack of action on the recommendations of Brigadier Hugh Monro, who was then HM chief inspector of prisons for Scotland. The Justice Committee’s on-going scrutiny led to the Government announcing the establishment of the commission on women offenders and set in train reform that resulted eventually in Michael Matheson’s bold decision to support the calls to scrap plans for HMP Inverclyde.
I pay tribute to the convener of the committee, Christine Grahame, who has been a benign, independent and very relaxed chair. She has always allowed committee members the space and time to pursue issues of importance to them. I thank also my fellow members of the Justice Committee for their diligent scrutiny of justice matters.
The decision on Inverclyde has presented us with an opportunity to do things differently and to redefine the experiences of women who come into contact with our justice system in future.
Let us not stop there. Prison has proven to be hugely ineffective—even destructive—for people who are given short-term sentences. It causes untold collateral damage to prisoners’ families. More children in Scotland each year experience a parent’s imprisonment than experience divorce, yet Scotland continues to have one of the highest prison populations per capita in western Europe and reoffending rates remain stubbornly high.
Too many people still find themselves in the criminal justice system because of poverty, addiction and mental health issues. I have long argued for radical and ambitious reform throughout the prison estate. The largely supportive welcome that Michael Matheson’s decision received last year shows that Scotland is ready and willing to consider taking a different approach. I fervently hope that, whatever the make-up of Parliament in the next session, prison reform is, at last, at the forefront of its work.
I refer to my entry in the register of members’ interests as a member of the Faculty of Advocates.
I turn to what is perhaps the most controversial part of the bill. The provisions in the bill on jury directions are designed to tackle two very important issues: first, any delay in the reporting of a sexual offence; and, secondly, any absence of evidence of physical force. We know that those two issues regularly feature in crimes of sexual violence. We know, from the Police Scotland management information for 2013-14, that a quarter of all sexual crimes and 36 per cent of rapes were reported one or more years after the incident.
We have to accept that Lord Carloway’s view was that there were other ways of dealing with those issues, one way being to seek to declare the matters to be within judicial knowledge. However, even he acknowledged that that approach was not without difficulty. While he took the view that it would be easy to encompass within the two directions the concept that the matters are within the ambit of judicial knowledge, he did not think that every member of the judiciary would necessarily share that view. Yes, issuing such directions breaks new ground, but the approach is not unfamiliar to other jurisdictions. Yes, jury research might have assisted but, alas, the provisions of the Contempt of Court Act 1981 have prevented that up until now.
We know from expert evidence elsewhere that juries often have misguided as well as preconceived views on these issues. Above all, we need to remember that such directions apply only where the issues are raised in the trial itself—they will not be given as a matter of course. Let us remember that judges are used to giving directions to juries. I believe that they can give directions in such cases without undermining the role of juries as masters of the facts. As the cabinet secretary has said, nothing in the bill restricts the leading of expert evidence in any particular case.
We should also bear in mind one other matter that I do not think has been referred to this afternoon, which is the issue of a joint minute of agreement between the prosecution and the defence on matters that could be considered uncontroversial. Mr Meehan of the Faculty of the Advocates said that more use could be made of the statement of uncontroversial evidence to reduce the likelihood of evidence being led on the matters addressed in the two directions. Lord Carloway agreed with that view. Therefore, there ways of looking at the matter other than by using the two directions.
Does the member agree that juries may have preconceptions and prejudices in other types of case? For instance, if a young man with cropped hair and covered in tattoos and earrings comes before the jury, do we need to give judicial directions about appearance?
I am not, for one minute, suggesting that this does not set a precedent, but we need to look at every case on its facts. We will see how the directions work in practice. I think that they need to be kept under review.
I will move on to the domestic abuse aggravator. The Law Society, in particular, has been lukewarm about the aggravator. I am not unsympathetic to the argument that domestic abuse cases are assiduously prosecuted at present. Clearly, there is danger in overpromoting the aggravator as a panacea when it simply represents “an additional tool”, as Catherine Dyer of the Crown Office and Procurator Fiscal Service described it. We also need to look at it in the context of the recently completed consultation on a new offence of domestic abuse.
I think that the right way to look at the aggravator is as a further incremental step in dealing with the scourge of domestic abuse, and certainly not as an alternative to the creation of a specific offence.
The part of the bill that relates to non-consensual sharing of images generated much discussion at stages 1 and 2, as well as in today’s debate. While there was general agreement on the benefits of an offence that deals with what has been described as a relatively new type of socially unacceptable behaviour, there was a difference of views on whether we should seek to criminalise the disclosure of text messages or written material.
It is very important that we look at the impact on the victim. That should be first and foremost when we look at the offence. My view is that, for the moment, we should take a conservative and cautious line regarding the disclosure of texts or written materials. I understand the arguments put forward by Margaret McDougall and I am concerned about the wider implications for young people.
It is right to point out that the Children and Young People’s Commissioner, Tam Baillie, said in evidence that he was not looking for an exemption for children and young people. I honestly believe that the sharing of texts between teenagers is an industry in itself. Although I understand the views of those who sought to extend the offence, I think that, on balance, we have taken the right position.
I agree with all those who think that we need a proper campaign of information and education to accompany the commencement of the legislation and, as the cabinet secretary said, we should keep the provisions of that part of the bill under review.
I cannot let this opportunity pass without at least mentioning the contributions of Professor Chalmers and Professor Maher in relation to issues arising from what were described in the committee’s report as
“sexual acts elsewhere in the UK”.
I am glad that the Government addressed the academics’ points at stage 2.
I also welcome the fact that amendments at stage 2 put beyond doubt the right of any person against whom a sexual harm prevention order is sought the opportunity to make oral representations.
In conclusion, this is an important bill. I wish it well. It is important that it is the last piece of legislation to be passed in this session of the Scottish Parliament.
Before I call Margaret McDougall, the chamber will wish to note that this is her valedictory speech. Margaret McDougall became a member in this session of Parliament in 2011. She has contributed fully to the work of Parliament and its parliamentary committees—most recently, of course, to the Justice Committee. Margaret has worked steadfastly for her constituents across the west of Scotland.
On behalf of the Presiding Officers, and of the Parliament, I wish you all the best for the future. [Applause.]
Thank you, Presiding Officer, for your kind words.
I am disappointed that the Scottish Government rejected my amendments to the bill, and I will continue to push my case. As it stands, the section of the bill that deals with the illegal sharing of intimate images includes only
“disclosing, or threatening to disclose ... a photograph or film which shows, or appears to show, another person ... in an intimate situation” without prior consent.
I support the creation of the new offence, as the law desperately needs to be updated to provide for the new, digital age, but I believe that it is far too narrow. Everyone who owns a smart phone, a tablet or even a computer knows that you can take a screenshot that then becomes an image, and that represents a glaring loophole in the legislation—the sharing of text. The Government has missed an opportunity here by not future-proofing the bill. As I said during the debate on amendments, Scottish Women’s Aid is clear—as is Police Scotland—that written and audio communications should be included in the bill.
Although I acknowledge that it was raised during the evidence sessions that the sending of abusive or threatening messages is already against the law, the sharing of intimate text or messages is not. For example, the sharing of an intimate image on Facebook without consent would, under the bill, be a prosecutable offence. However, what if someone was to share a non-intimate picture of a person and then include intimate text relating to that person? That seemingly would not fall under the remit of the bill. It is not good enough to say that that does not happen online or that there is no dedicated website for it. It may be rarer than the sharing of intimate images, but it does occur. The sharing of that type of content has the same effect as sharing intimate images without consent: it is designed to damage, embarrass or shame the victim. The fact that it occurs less frequently than the distribution of intimate images does not mean that we should ignore it.
As I said at stage 1—I feel that it needs repeating, given the cabinet secretary’s comments during the stage 2 committee proceedings—I am not advocating that we make the process of sexting between consenting adults illegal; nor am I suggesting that we criminalise those who are 16 or under who have engaged in the process consensually. What I am proposing is that the sharing of sexts or any intimate photographic, film, written or audio communication non-consensually should have been included as an offence within the bill. When the action is designed to be malicious or cause harm, that would include such messages from those aged under 16. Indeed, the children’s commissioner, Tam Baillie, did not want children to be exempted from the offence, although he and others recommended the provision of a robust education programme for school children on the dangers of sexting. I heard a report on the television this morning that said that sexting has increased twelvefold in England. We need assurances that the education will be adequately funded to discourage the practice here in Scotland.
Although I will support the bill, as it is a step forward in tackling revenge porn, I fear that the Government is being short-sighted by refusing to acknowledge that this loophole exists. The legislation is not future-proofed, and the fact that the cabinet secretary does not seem to be aware of the extent of the problem does not mean that it does not exist.
As the Presiding Officer mentioned, this is my last speech in the chamber. I have been here a relatively short time compared with some of my peers, and, over the past five years, it has been a great honour and a privilege to represent the people of the West Scotland region—particularly the North Ayrshire area, where I have largely focused my efforts.
Parliament is very different now from how it was five years ago. We now have three female party leaders—Kezia Dugdale, Ruth Davidson and Nicola Sturgeon—and, of course, Scotland’s first female First Minister. That sets a great example for women and girls across Scotland, yet more work still needs to be done to get a better gender balance in this place.
Apart from all the bills that have been passed, constitutionally, we had the independence referendum—Scotland’s first ever democratic say on whether we should stay in the union—which has created a more engaged and politically aware electorate than ever before. We have also seen one of the biggest transfers of powers since devolution, which will make this Parliament one of the strongest devolved Parliaments in the world. I am proud to have been part of this historic term, and I hope that parliamentarians make the most of those powers in the future.
My time here has been varied but never dull. I have been a member of five different committees—latterly the Justice Committee—although I was not on all of them at once. I thank the clerks of all those committees for the help and support that they have provided over the five years that I have been here.
I have also been the convener of the cross-party group on volunteering and the voluntary sector and the cross-party group on housing. I have greatly enjoyed both and I would like to extend my thanks to the secretariat and members of both groups. I hope that they will continue in the next parliamentary session, because they are important.
I would also like to extend my thanks to Sir Paul Grice and all the Parliament’s staff for their support, which has been exemplary, as well as to all the auxiliary staff who make this place function behind the scenes.
I thank my Labour colleagues, because we have gone through quite a journey together these past few years, and I especially wish them—and all the MSPs across the chamber—all the best for the future, whether they plan to stand again or are moving on to pastures new.
Finally, I thank my constituency staff, past and present, who have supported me over the past five years. This has been a fantastic experience and privilege. One thing that I have learned is that this Parliament is at its best when we pull together across the chamber, because we all want what is best for Scotland.
A lot of work takes place before we get to this point in any piece of legislation, and I thank all the contributors that got us here.
I will allude to information that the Cabinet Secretary for Justice provided to the Justice Committee on 1 December 2015, when he outlined in a letter the latest figures on domestic abuse. The letter said:
“just under 60,000 incidents of domestic abuse were reported” to the police, which was “an increase of 2.5%”. We might view that people were more willing to come forward as a positive. The letter continued:
“In 79% of the incidents, where the gender was known, the perpetrator was male and the victim was female.”
That is important to say. It is also important to say that the Justice Committee took a lot of evidence both in written form and privately and confidentially with male and female victims. We learned a lot from that. The letter carried on:
“we also know that the police only become aware of around one in five (12%) of the incidents of partner abuse each year.”
It is for those reasons that I am certainly very happy to support the abuse aggravator. It will bring about a situation in which victims will have more confidence that regard will be had to an offence in the context of an abusive relationship when sentencing takes place. The abuse aggravator is not a new concept; existing legislation covers offences aggravated by prejudice. The consultation showed that that was well understood and, most important, the Crown Office and Procurator Fiscal Service said that that
“would be a useful tool for prosecutors”.
I know that Scottish Women’s Aid supports that specific offence and that it was aware of the consultation that has taken place. It is timely to remind the chamber that it described domestic abuse as
“a cause and consequence of women’s inequality and occurs within the context of ongoing control and repeated abuse.”
It is right that we address that.
The cabinet secretary’s letter outlined the latest stats on sexual offences. I will not go through them all, other than to say there was
“a 13% increase in convictions for rape and attempted rape”.
However, depressingly, the
“overall conviction rates remain lower than for other ... crime.”
In addition, as other members have alluded to, the latest figures
“indicate that 36% of rapes reported to Police Scotland were historic i.e. took place at least 12 months prior to being reported.”
In more than a third of cases, reporting was delayed. We must have a situation where that is explained to jurors.
I am disappointed that there was not an amendment included that meant that we could discuss directions to juries. I must tell the chamber that I have changed my position on the issue. Initially, I was minded that the situation of expert evidence being led—and it still can be led by both sides—was sufficient. We have heard from Roderick Campbell that joint minutes can be used. During the stage 1 debate, however, I alluded to two cases that significantly changed my view. I will very briefly go through them. One case resulted in an individual being placed on the sex offenders register. He appealed, and the appeal was upheld on the basis that the sheriff who passed the original sentence had not
“given sufficient attention to the fact that the appellant had consumed a considerable amount of drink beforehand, with the result that the assault can be regarded as drink-fuelled rather than overtly sexual.”
That was a deeply damaging statement to make after years of trying to correct misunderstandings about pernicious sexual offences.
That was swiftly followed by a case that Alison McInnes—I pay tribute to all her work—and I questioned. It involved the repeated rape of an adult and the sexual abuse of children. The trial judge referred to the crimes as “minor”, criticised the adult victim for a delay in reporting the assaults, claimed that the adult victim was “condoning” or “acquiescing” in being raped, pointed out that the person continued to live with the accused, and talked about the parties’ “benefit-grubbing existence”.
That was deeply offensive language. I should say that the appeal court said that the trial judge
“had no basis for his theories”,
but the case shows that education is required that goes way beyond the public and prosecutors. Judicial training will be required. For those reasons, it is appropriate that we should have jury directions.
“The Commission’s position is that the jury directions of the type set out in section 6 of the Bill amount to uncontroversial statements which may indeed serve to address misconceptions held by some members of the public around the behaviour of victims of sexual assault. The Commission does not consider that these statements, if delivered appropriately, would prejudice an accused’s Article 6 rights.”
That is important information, which I welcome.
I am disappointed that the amendments in Margaret McDougall’s name, which were well presented, were not accepted, but I respect the vote and the decision that was taken, and I respect the fact that the whole area will be subject to on-going review, as many members have said. I hope that a future justice committee will have sufficient time to do post-legislative scrutiny.
There are many important issues in the bill, such as the provisions on non-harassment orders and the reinforcement of the appeal process. Margaret Mitchell’s work is worthy of commendation in that regard; I am pleased that she got the result that she did.
This is about education, judicial training and post-legislative scrutiny. Most of all, it is about supporting this good bill.
I pay tribute to Malcolm Chisholm. It is fitting that he has made his final speech in this debate, because his contribution to tackling violence against women is second to none. He spoke out about violence against women long before tackling abuse was universally supported, at a time when it was still common for people to talk about “a domestic”. He leaves a Parliament that is committed to ending violence against women. In many ways, that is due to his tireless work in the area.
I also pay tribute to Margaret McDougall, who has, as she said herself, been in Parliament only for a comparatively short time. However, she has made her mark—not least, during consideration of this bill. I will come back to that. I wish Margaret, Malcolm and other members who are leaving Parliament for the last time well for the future. I know that whatever they choose to do in the future they will continue to influence Parliament and use their knowledge and experience for the good of the people of Scotland.
One of the main purposes of the bill was to tackle revenge porn. It is right that we are legislating on that. In an age of increased use of technology and social media, intimate information can be disseminated quickly, and with devastating consequences. Making such dissemination a crime might force people to think twice before they share information.
Margaret McDougall sought to strengthen that aspect of the bill by extending its scope to sound and written information. She was right to do so, so I am disappointed that her proposed approach was not agreed to. Some of the reasons that the cabinet secretary gave for not agreeing to her approach could have been applied to any other aspect of revenge porn. I am concerned about that.
The bill needs to cover every type of information that may be disseminated to embarrass, humiliate or, indeed, blackmail a person. The wider the definition, the better able we will be to deal with developing means of communication, and to ensure that there are no loopholes.
We need to inform young people about what they should and should not share. Intimate pictures should never be shared over the internet, by text or by social media. Once they are out there, they can never be recalled and a person has very little control over them.
Sexting is no different. Actions and messages that are sent consensually but privately can be used against the other person as revenge at the end of a relationship in order to humiliate, embarrass and blackmail, so they, too, should have been included in the bill. Young people come under huge peer pressure to do it, so we need to consider how we can make them aware of the dangers of those actions. The ramifications of such information being distributed widely can impact on one’s mental health and have devastating consequences. Advice and information about internet and social media safety need to be delivered at home, at school and through youth groups. Social media platforms also have a duty to educate and to highlight the new law as a prevention measure.
There has been controversy over judicial direction, but misunderstanding of the nature of rape and sexual assault is widespread. Judges need to ensure that the jury understands the impact of those crimes and victims’ natural responses to such attacks. We need to ensure that the jury does not assume the media portrayal of rape, stranger danger and extreme physical violence. Juries need to understand the requirement to obtain consent and ensure that the person is able to give informed consent to sex. I have concerns about the ability of some judges to give that direction. It is clear from some judgments that have been handed down—John Finnie gave examples—that some judges have very little understanding of those concepts. There should be a requirement to train judges and the legal profession about what constitutes rape and what constitutes sexual assault, and what is acceptable in cross-examination of a rape victim.
Juries may need to be trained before they take part in such trials. That is because of the widespread use of and access to pornography, which peddles the myth of men’s entitlement to sex. Young people get their sex education from pornography, which leads young men to believe that they are entitled and young women to believe that they have to deliver. How can people who have those preconceptions provide safe judgments in rape trials?
I want to touch on non-harassment orders and a person’s being unfit to stand trial, which has not been much discussed during the debate. There has been a step forward, but again I am not sure that it will provide the required protection. Breaching a non-harassment order is a criminal offence, but if the person is not fit to stand trial for the behaviour that led to the granting of the order, it is difficult to see how they can stand trial for breaching it. Surely someone who causes harm to another person, albeit that they are unfit to plead, should be restricted or detained in a way that protects their victim until such time as they can be treated, they no longer pose a threat, or they are able to stand trial. I understand that the law must protect the vulnerable, but it should not leave victims in fear.
In conclusion, I believe that the bill will make a difference, and we will support it, but I regret that there was very little time, commitment and effort on it. Had there been more of that, we could have gone much further. The bill is the only piece of legislation that supports the equally safe strategy. If that is the level of the Scottish Government’s commitment to the issue, it does not augur well.
If we are to tackle violence against women, we need to take steps to criminalise every aspect of that violence and we need to take steps to stop the perception that men are entitled. Violence against women is not a women’s problem; it is a problem with a minority of men, and the views and actions of that minority cannot be condoned or tolerated. We need a brave Government to tackle that, but I am afraid that the current Government has fallen short of that.
I am delighted to participate in this afternoon’s proceedings on the Abusive Behaviour and Sexual Harm (Scotland) Bill, which is the final piece of legislation that we will deal with in this session.
From the contributions that have been made, there is a clear consensus that the bill contains many positive provisions that will help to tackle the very worst manifestations of abusive behaviour. The cabinet secretary spoke eloquently about that.
In the time that is available to me, I will focus my remarks on three specific areas of the bill: the domestic abuse aggravator, the new offence covering unauthorised disclosure of an intimate photograph or film, and statutory jury directions.
I turn first to the domestic abuse aggravator. Incidents of domestic abuse are increasing and breach of the peace convictions for offences that are related to domestic abuse have also risen significantly. That probably reflects the targeted efforts of Police Scotland and the Crown Office and Procurator Fiscal Service to secure justice for victims who have been tormented at the hands of their abusers. Such behaviour is repugnant, and is especially unforgivable because it violates and exploits the very bonds of trust that are implicit in a relationship. I therefore welcome the introduction of a statutory aggravation of the abuse of a partner or ex-partner, which bolsters support for prosecutors in dealing with such crimes and creates the possibility of more severe sentences for perpetrators of domestic abuse, which I consider to be a positive step.
Let me now turn to the provisions that create an offence of disclosing, or threatening to disclose, an intimate photograph or film of another person without their consent. Such behaviour is inexcusable and is profoundly distressing and damaging for victims, who are often young adolescents. It is increasingly facilitated by advances in technology that provide perpetrators with the media to make such images, as well as the platform on which to share them with a widespread audience. The new offence recognises advances in electronic communication and provides clarity. I know that some concerns were expressed in the stage 1 report, so I urge the Scottish Government and the prosecution service to monitor closely the implementation of sections 2, 3 and 4 in the next parliamentary session.
I will now briefly address the introduction of statutory jury directions for sexual offence cases, which Margaret Mitchell described in her opening remarks as a worrying example of “constitutional creep”. I regret that the issue could not be the subject of specific debate this afternoon. The matter is important and it merits such discussion. I share my colleague’s reservations. Although I understand the intent behind the policy proposal, the Government is not getting this bit right. As many people in the legal profession are, I am concerned that such measures will blur the constitutional divide between legislators and the judiciary. In any criminal proceedings, the judge must remain master of the law and be free to exercise judicial discretion based on the circumstances of the particular case and the evidence that is being led. Christine Grahame made a particularly cogent contribution on that. In the absence of the opportunity to amend the bill on this aspect at stage 3, I hope that new and returning members of Parliament will in the next parliamentary session assess the impact of the provisions on the courts.
Notwithstanding that one reservation, my party will support the bill at decision time. It takes us into new territory and offers new help and hope.
As you indicated, Presiding Officer, this is my final speech in this Parliament so, with your indulgence, I would like to share a few concluding observations. My first speech in Parliament was in the first-ever debate here. We were all a fine set of rookies and pretty clueless as to what was going on; indeed, some may say that I leave this place as I entered it. [Laughter.] Back in May 1999, I was supporting my colleague Alex Fergusson in his attempt to secure prayers in Parliament. Amid the general confusion, I felt that the combination of Alex Fergusson and the Almighty offered a good start. That led to time for reflection and the weekly and welcome presence of those quiet people in red—parliamentary prayers Scotland. I would like to thank them for their unwavering interest in and support for us all. [Applause.]
This has been an extraordinary job. It has been a privilege and a great honour to be allowed to serve this Parliament and Scotland. It has afforded me pleasure, satisfaction and fulfilment, and to have come in at the beginning has provided added lustre. None of that would have been possible without the extraordinary range of people and talents that make this place function. Together they constitute a tangible familial ethos. I thank them all, and my political friends in this part of the chamber and my adversaries in other parts, for that vital contribution.
I take away a rich repository of memories: the wit of Donald Dewar; the effect on David McLetchie’s central nervous system of the mere mention of the word “consensus”; the discovery that minority Government made Alex Salmond biddable, with the rare pleasure of witnessing him having to dance to a few bars of my tune, for a short time at least; and the achievement of what I consider to be one of my major triumphs in this Parliament—getting those ghastly turnip-like red plums banished from the fruit salad in the cafeteria.
I have seen the character of this place evolve, and none of us or our successors should forget that our primary obligation as MSPs is to the institution of Parliament. If we fail to discharge that responsibility both Parliament, and we along with it, are diminished.
The matter of legislative scrutiny is unfinished business. With the powers that are coming, that is not good enough, so I urge that serious consideration be given to how we can secure a more robust mechanism for that scrutiny. Perhaps specific committees should be convened by Opposition members. I think that a new code of practice should remind committee members that they are parliamentarians first and party emissaries second.
Robust debate and passionate exchanges are the currency of any Parliament, and we should celebrate that vibrancy, but too easily rancour and casual use of language can create the impression that Scotland is fractious, divided and riven, which is much less attractive. Whatever we do and whatever party we represent, we should remember that this Parliament and our country are bigger than any of us.
Oscar Wilde’s last words have been paraphrased as, “Either that wallpaper goes or I do.” I face no such dilemma. I think that the wallpaper in here is just fine. I go and, in so doing, I wish my fellow retirees every happiness, and I wish this place—the institution and the family of the Scottish Parliament—every success for the future. [Applause.]
On behalf of the Parliament, I would like to thank you for your substantial contribution to the Parliament as an MSP, as a committee convener and as the leader of the Conservative Party. As has been evident again today, your speeches have always been filled with wit, grace, style and great knowledge. You will be greatly missed in this Parliament, but we know that you will continue to make a substantial contribution to public life. Thank you. [Applause.]
I call Elaine Murray. We have a bit of time in hand, Ms Murray, so if you want to stretch it out a bit, feel free.
Thank you very much, Presiding Officer.
I often wonder how much more can be said about a bill when we get to the final debate at stage 3. The cabinet secretary and I discussed the possibility that we might have only half an hour for the stage 3 debate, but we have ended up with an hour and three quarters. It has actually been a comprehensive conclusion to this session’s debates.
Margaret Mitchell and Christine Grahame expressed concern about not being given the opportunity to discuss their judicial direction amendments today. The amendments would not have been agreed to, but I can understand their frustration at not being able to air their arguments again.
Christina McKelvie and Alison McInnes spoke effectively about the work that is done by the various organisations that are active in this area and about the psychological effects on victims of things such as revenge porn. In what I hope will not prove to be her last speech in Parliament, Alison McInnes also spoke about her work and the Justice Committee’s work on Cornton Vale, which led to the great change in direction on the women’s prison estate that has come during this session.
Margaret McDougall reminded us that screenshots are images. She knows a great deal about screenshots—she was able to show us all how to do them—which are not something that I knew much about. She and Malcolm Chisholm made very important points about the Parliament. Malcolm Chisholm said that we make progress through collaboration and working together when we agree, and we should never allow the political discourse and the ignominy of the political football that we sometimes all get involved in to detract from our understanding that it is when we work together that we make the most progress. Margaret McDougall said that the Parliament works best when we all pull together in the interests of Scotland, and we would all do well to remember that.
John Finnie and Rhoda Grant spoke about the shocking attitudes that there still are towards victims of domestic abuse and sexual violence and the need to continue the education work on the understanding of consent. As I said earlier, that is unfinished business in the Parliament that we must return to, because although, as Malcolm Chisholm illustrated, a lot has happened since he first brought up the issue in the House of Commons back in 1993, we still have a fair way to go to make real progress.
I will use most of my speech to pay tribute to four colleagues—I thought that it was only three—who retire this week. Three of them gave their final speeches in this debate and one gave his a couple of weeks ago without telling anyone. He has been in London as he is involved in the appointment of the new electoral commissioner, but he said that he would be here this afternoon. He is not here, but he need not think that that will prevent me from marking his retirement from membership of this Parliament. I know that he will not be retiring in any real sense, but that will certainly not put me off embarrassing him by putting my thoughts on the record.
First, however, I pay tribute to Annabel Goldie, who has had a distinguished parliamentary career, including as leader of her party for many years. The only thing that I can say to her is that I may often have disagreed with what she has said but, by heck, I have always been very entertained by the way in which she has said it.
This debate saw the last of many insightful contributions from Malcolm Chisholm. He served as an MP for seven years before coming here, and he has been an MSP for 17 years. He was a minister in both Parliaments and he made his mark on both the communities and health portfolios. Malcolm has also been a outstandingly prolific speaker for Scottish Labour in this Parliament. I believe that he holds the record on our benches for the number of speeches that he has delivered. His hard work and thoughtful kindness have gained him popularity across the parties but, more than that, and perhaps rarely among politicians, he is universally recognised as being a person of principle.
I thank my colleague Margaret McDougall, who also made her last speech today. As she said, she has served on several committees—five, I think—since 2011, which in itself is no mean feat, as there is an awful lot of homework to do to get up to speed when an MSP joins a new committee. Margaret has taken up that challenge on several occasions.
On the Justice Committee, Margaret McDougall has been a tenacious advocate of the rights of victims. I am sure that she made an impression on the new chief constable. Having raised police officers’ concerns about the need to assimilate the volume of information that is sent to them by means such as email, she received a detailed, lengthy and erudite response from Mr Gormley. After what felt like about 10 minutes, he finished his peroration and she looked at him and said, “Yes, but what about the emails. Are there fewer of them?” It reduced the rest of the committee to laughter. I cannot remember whether it was Christine Grahame or Margaret Mitchell who said, “Welcome to Scotland.” Mr Gormley may be pleased that Margaret is not coming back.
As I said, Graeme Pearson may have thought that he could get away without being mentioned, but he cannot, even if he is not here. Graeme served in the police in Scotland for 38 years, starting as a young constable on the streets of Glasgow and finishing his service as director-general of the Scottish Crime and Drug Enforcement Agency. His trajectory in the force is, in itself, testament to his abilities. We on the Labour benches have benefited hugely from his extensive knowledge, and I believe that the whole Parliament has benefited and profited from his unique experience.
On a personal note, I have very much enjoyed working with Graeme Pearson. One can have a robust exchange of views with him without in any way falling out with each other. I also noticed that his police experience was shown in other ways. One time, we had been in a meeting and the division bell rang. Graeme set off as if he was in hot pursuit of a felon. It reminded me of police series on TV, where there is always a young, fit police officer, either male or female, who can jump over fences, run fast and get to the criminals, and there is usually an unfit and overweight counterpart who puffs along behind them. On that occasion, I was peching along behind Graeme as he dashed into the chamber. I am grateful to Graeme for everything that I have learned from him during our time working together.
I know that there are a lot of people in this Parliament who hope that this is my last speech in the chamber. That is not paranoia—I am standing only in my constituency, and I know that both the Conservatives and the SNP are working hard to take it off me. I think that most people would agree that I do not have much in common with Arnold Schwarzenegger—although some years ago I had an intern who went on to work for Arnold Schwarzenegger, which was a bit odd, because Evan was a Democrat and I am not sure how he ended up working for Mr Schwarzenegger—but like the Terminator, I would like to think I’ll be back.
If I am not back—and politics is an uncertain business—I do not in any way regret having spent the last 17 years of my life in Parliament. It has been an absolute blast. At times I have been frustrated, irritated and delighted, but it has been great. Thanks very much to the wonderful staff and to my colleagues, past and present, from all parties. I will be back. [Applause.]
Thank you, Presiding Officer, that is clearly a lot of time.
It has been a very good stage 3 debate. A number of powerful speeches have been made, particularly by members who are retiring, some of whom are from the class of 1999. It feels as though those of us from the 1999 intake are becoming a dwindling band—I know that some members are looking at me and thinking, “There’s no way that young man came in here in 1999”. It may be that the electorate will decide that some members of the dwindling band will be retiring, even though it is not their choice.
I was struck by the remarks that Elaine Murray made at the beginning of the debate and some of the criticisms that have been levelled at the Parliament’s committees. I have no doubt that there are ways in which our committee system could be improved—show me a legislature anywhere in the world that has a perfect system. Some of the points that were made by Annabel Goldie about the ways in which our committees operate have some weight and merit and they would add further value to the Parliament.
I was also struck by Elaine Murray’s point about the volume of work that the Justice Committee has had to deal with. As a member since 1999, Elaine Murray will know that that is not an uncommon or infrequent complaint from Justice Committee members. Having spent seven years on the Justice Committee, over two parliamentary sessions, I know that it was a complaint. We moved to having two Justice Committees for a while, in order to deal with the volume of work.
As Alison McInnes mentioned, some 17 bills have passed through the Justice Committee during session 4. Over the last year and a half, since coming into post, my colleague Paul Wheelhouse and I have taken six of those bills through, alongside three members’ bills. That demonstrates the level of legislation that the committee has dealt with.
In the year and a half that I have been engaged with the Justice Committee on a regular basis, I have greatly valued the contribution of committee members and their shared commitment—although they have held differing opinions at times—to improving our justice system in the way in which they believe it needs to be shaped and modernised for victims of crime, and in the way in which we deal with individuals in the criminal justice system.
Committee members have played a tremendously important part in helping to shape and improve many of the bills that the Government has brought before the Parliament. Those bills have been improved as a result of the committee’s diligence, commitment and scrutiny.
I do not want to fall out with the Presiding Officer on my second last day, but is not one of the great advantages of having the same committee carrying out inquiries and scrutinising legislation that the people looking at the bills have expert knowledge of that area of policy? That point is manifested in the committee’s excellent stage 1 report on the bill. It is a great strength of the Scottish Parliament that we have all that scrutiny at stage 1—we certainly did not have that in the United Kingdom Parliament, although it is now, to some extent, copying our procedures.
I agree with Malcolm Chisholm on that point. There are real strengths in our committee system, and the expertise that members can build up when undertaking legislative scrutiny and post-legislative reviews and when looking at policy is one of those strengths.
I am also mindful that the Justice Committee has, at times, shown that it has a mind of its own and operates in exactly the way that a committee should operate. I was interested in its convener’s comment about how her idiosyncrasies are a result of her age. I have known Christine Grahame for a long time, since before we were first elected back in 1999, and I can assure members that her idiosyncrasies have nothing to do with her age. Christine Grahame has always taken the route that she thought was most appropriate. Even as a delegate at the Caird hall in Dundee, I remember her making her views known from the floor during a debate even though she had not been called. I say to Christine Grahame that she should not put her idiosyncrasies down to her age.
I am also conscious that a number of members over an extended period of time have made important contributions to moving on the agenda of tackling domestic abuse and sexual violence in our society. Some of those members are with us here today, and I will come to them, but I recall members who are not here today who made a substantial and considered contribution to raising the debate in Parliament and improving the way in which our justice system deals with such issues.
One of those members was Maureen Macmillan. During the early days of Parliament, she raised the issue in a consistent and constructive way in the chamber and in the Justice and Home Affairs Committee, including pursuing one of the first member’s bills to go through Parliament—on protection orders—to help to support individuals who had been subject to domestic abuse.
There is no doubt that, in the past 16 years, across different Governments, we have made significant progress in changing the way in which we deal with domestic and sexual violence in our society, and we have shone a light on an area that had been for too long overlooked and at times written off as being private matters that we should not get involved in. We have opened that door, and we are now in a much better place in dealing with such issues, from the way in which our justice system and the courts through to the police and our prosecutors deal with them. The Parliament has shown leadership in its determination to continue to pursue the issue.
I also pay particular tribute to the contribution of Malcolm Chisholm to the agenda during several decades. Malcolm Chisholm is one of those politicians whom I can remember from before I became involved in politics myself, when he stood down on a matter of principle as a minister in the United Kingdom Government on the changes to benefits for single parents. He was the first minister to resign from the Blair Government on that issue.
Malcolm Chisholm’s commitment to tackling domestic violence and health inequalities and to improving cancer treatment, as well as a whole range of other issues, has demonstrated his determination to take forward key issues. He did not just pick them up for a short time; he was determined to pursue them over an extended period of time. He made some comments earlier about collaboration and consensus, and he has always been prepared to demonstrate that he will collaborate, co-operate and help to develop a consensus if it will achieve a better outcome, irrespective of which party badge a member wears or which seat they occupy. I sincerely believe that the chamber and Parliament will be a lesser place for Malcolm Chisholm not being here after the election. [Applause.]
I also wish Margaret McDougall well in her retirement. In the short time that I have known her, the contribution that she has made in the course of my time in front of the Justice Committee has always been noteworthy. She has pursued areas that, at times, I could easily have overlooked and she has been diligent in pursuing those matters in great detail. I have greatly appreciated that input, and it has helped to contribute towards improving the legislation that we have scrutinised. I note her disappointment about her amendments not being agreed to today, but I assure her that the Scottish Government is committed to continuing to keep this area under observation and to considering what further measures can be taken. I am sure that the incoming Scottish Government, of whichever party, will be committed to doing that too.
I also wish to refer to Annabel Goldie’s valedictory speech this afternoon. Like Malcolm Chisholm and I, she joined the Parliament in 1999, when we were all rookies and, quite literally, we were establishing a parliamentary process that was nothing more than something written in the Scotland Act 1998. We were bringing that into real life and translating it into the reality of day-to-day politics.
Throughout her time in the Parliament, Annabel Goldie has always demonstrated a real ability to cut through some of the nonsense that can go on in parliamentary debates, very often with a razor-sharp wit, which if someone found themselves at the wrong end of it could leave them looking rather foolish. She has made a distinguished contribution to this Parliament. My late mother always used to say, “I like Annabel—Annabel is good,” although, as Annabel will know, that was followed up with the curse that many Conservative Party leaders in Scotland may have felt, which was, “but I widnae vote for her.”
In the previous parliamentary session, Annabel Goldie made a particular contribution on reframing and resetting our drugs policy in Scotland to make it much more targeted on dealing with the underlying causes that drive drug dependency in our society in the first place. That has led us to take a much more mature and considered approach to our drugs policy in Scotland. That enlightened approach is reaping rewards. There is still much more to be done, but her contribution has helped to improve how Scotland deals with drugs policy.
I have no doubt that, although Annabel Goldie will no longer be in this chamber, she will continue to make a distinguished contribution to Scottish political life in years to come. I certainly wish her well in her retirement. [Applause.]
It is fitting that the Parliament should sign off on a point of consensus with this particular legislation. I mentioned earlier that, back in 1999, we started to look at the issues of domestic and sexual violence, which had never had a light shone on them in the way that there has been over the past 16 years.
We are in a much improved position, but John Finnie pointed out in his speech that, in 2014-15, Police Scotland dealt with just under 60,000 domestic violence cases. The Scottish crime and justice survey suspects that that is a significant underestimate of the total number of cases. Police Scotland would tell us that, every nine minutes, it deals with a call relating to domestic or sexual violence in Scotland.
Although we may have modernised our legislation and improved the way in which our justice system deals with domestic and sexual violence, there is still a deep-seated inequality in our society that results in the domestic and sexual violence that takes place far too often within our communities. The root cause of sexual and domestic violence in our society is our societal structure; it is one that is created by inequality in our society and the power imbalance within our society. We have clearly made progress but we have much more to do. I hope that, in the next parliamentary session, there will be an opportunity to address the issue further.
Alison McInnes referred to the decision not to continue with Her Majesty’s prison in Inverclyde. We have reformed many parts of our justice system over the past 16 years, from our courts to our police service and the way in which our prosecution services operate. However, I strongly believe that one area where we as a society and a Parliament still have a significant way to go is our penal policy.
Some aspects of our penal policy have not changed in almost 200 years, which is not a good reflection on our society or on any Government. I hope that, whoever has my role and whoever is in government in the next session of Parliament, they will see penal policy as one of the areas where we need to shine a light and they will reform the way in which we deal with those who commit offences in a way that makes us a much more modern and progressive society.
The Abusive Behaviour and Sexual Harm (Scotland) Bill is part of the 16-year journey that we have been on to ensure that, as a society, we do not tolerate domestic and sexual violence. With the final piece of legislation in this session of Parliament, we will sign off by collectively sending out a strong signal that we will continue to do everything that we can to tackle domestic and sexual violence in Scottish society.