Meeting of the Parliament (Virtual) 26 January 2021
At decision time, the Scottish Green Party will support the general principles of the bill, which is what we will be voting on. The bill might not be the finished article, but we have heard from Mr Paterson that he is more than happy to engage with others to provide clarification.
The bill is about the defence having access to a post mortem rather than having to rely exclusively on the one that is provided by the Crown Office and Procurator Fiscal Service. Crucially, it is about timing. We are told by the Crown Office that it takes, on average, 14 days before it can send the result of a PM to the defence. Could that be improved? There are issues relating to the number of forensic pathologists and to conflict.
Mr Paterson is to be commended, because his work has driven the creation of the protocol, but it is not the finished article. The cabinet secretary talked about—I hope that I am quoting him correctly—the success of the protocol. First and foremost, it is a protocol, not a legislative requirement.
I take issue with the cabinet secretary saying that Mr Paterson’s proposal will give defence agents little choice but to go ahead with a post mortem. Our legal system is full of time restraints and requirements, and I think more of defence agents than that.
It was suggested that an accused might be a family member of the deceased, but we must deal with such situations at the moment. The idea that the bill will have no merit because of issues relating to the disclosure of such information seems to be entirely fanciful.
I take a rights-based approach. When Mr Paterson approached me—I should declare that I am a signatory to the bill—my initial concern was that I did not want the bill to do anything that would deny the defence the opportunity to have full access to all evidence that could be exculpatory, and I am entirely satisfied that it does not. In his letter to the committee, Mr Paterson told us that no other jurisdiction has such an open-ended approach.
The shortage of pathologists should be dealt with. We know that there are shortages of professionals in various fields, and that that can give rise to a conflict of interests.
Some members have alluded to the Law Society’s evidence. I thought that its comments about video evidence and “best evidence”, which is a legal term, were very good.
In the brief time that I have left, I want to talk about parliamentary scrutiny, which has been entirely back to front in this instance. The proposer of the bill is the last person whom the committee should see, not the first person. We should hear from the member after we have heard and addressed concerns.
I know full well the work that has gone into the bill. I do not doubt that there are some genuine concerns, but the bill is a worthwhile proposal. It would cause detriment to no one; it is about enhanced practice. The bill should not fall because of the administrative process of scrutiny or, in this instance, a lack of scrutiny.
Other members have alluded to the situation with Claire Baker’s Culpable Homicide (Scotland) Bill, which was debated last week. That was another bill that sought to directly address widespread public concerns.
I agree with Mr Paterson that agreeing to the general principles of the bill does not imply that it should be passed at stage 3; rather, it confirms that the proposal is a good idea that is worthy of further examination. That there might not be time or capacity to carry out that examination does not suddenly negate the bill’s merits. It is the merits of the proposal, not our procedures, that we are adjudicating on at decision time. The bill is a sound proposal, and I urge members to support it at decision time.