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.