– in the Scottish Parliament on 23rd January 2019.
8. To ask the Scottish Government what steps are in place to prevent disclosure of an accused’s identity from compromising the safety of innocent parties. (S5O-02806)
In addition to the provisions of the Contempt of Court Act 1981, the courts have a common-law power to restrict the reporting of proceedings where it is in the interests of justice to do so. It is for the court to decide whether to make such an order in any individual case and in appropriate cases, an interdict may also be available.
The cabinet secretary will be aware that I wrote to him, the Lord Advocate and the Solicitor General about a case in my constituency in which a young victim could have been identified inadvertently as a result of the accused’s identity being disclosed. I am grateful for the support that was provided to prevent that from happening, but there other cases in which it occurs. For example, the disclosure of the accused’s identity and address opens up the potential for innocent family members to face retribution and repercussion as a result of the actions of the accused, despite the fact that those family members are innocent. Will the cabinet secretary look at the issues around identification, in particular the disclosure of address details, which can often lead to retribution and repercussion being brought to the door of family members who have played no role in any criminal proceedings?
Mark McDonald has raised an important issue. I will look at that, but I say again that it is for the courts to make decisions on whether to impose orders banning publication of matters mentioned in court.
On the wider issue, Mark McDonald is not the only member of the Scottish Parliament to have written to me about such cases. Protections are already in place, but if we can strengthen them, I will look to the Lord Advocate and other colleagues to see what else we can do. Of course, we will keep an open mind on that. We will explore whatever might be within the power of the Government, but I reiterate that much of this area is within the powers of the courts—and rightly so.
That concludes portfolio questions. I apologise to Liam Kerr and Joan McAlpine that we have failed to reach their questions.
On a point of order, Presiding Officer. My point of order focuses on the role under the Scotland Act 1998 of the law officers—the Lord Advocate, who is present with us today, and the Solicitor General—who are privileged to be the only two unelected people who are allowed to sit in the chamber. That was written into the act so that they are here specifically to give their opinions and views directly to MSPs. In my question at portfolio question time, I asked what the Lord Advocate’s position was on the Scottish Government’s competence to authorise another referendum on Scottish independence without another section 30 order. I did not ask what his advice to the Scottish Government was; I specifically asked for his advice to MSPs here in the chamber. As I have said, under the Scotland Act 1998 they are here for that purpose. I find it particularly annoying that the Lord Advocate is present but has taken the decision not to answer my question.
I would like to know from you, Presiding Officer, whether it is appropriate for the Lord Advocate to sit in the Parliament, in the privileged position that he has under the Scotland Act 1998, and not to address members directly, as was the purpose of the provision in the Scotland Act 1998 in the first place?
I thank Mr Rumbles for making that point of order. However, as is set out in rule 13.7 of the standing orders, with a few exceptions that do not apply in this instance,
“oral questions may be answered by any member of the Scottish Government or a junior Scottish Minister”.
As the member is aware, oral questions are addressed to the Scottish Government, as his question was, and it is for it to decide who attends to answer each question.
With respect, Presiding Officer, I understand all that and I accept entirely the position that you have just outlined. However, my question goes further than the one that I asked earlier today. I understand that, under the standing orders, the Scottish Government can choose to do that. My question is on a more fundamental point, which is very important for the Parliament: why has the Lord Advocate, who is here by virtue of his privileged position under the Scotland Act 1998, chosen not to answer directly the questions that he is here to answer?
I am afraid that I answered your point of order clearly. The position is that that is in the standing orders. You may be dissatisfied with that, but those are the rules of the Parliament.
I must move on to the next item of business, which is a statement. I will give members on the Government front bench a moment to take up their places.