Meeting of the Parliament 23 April 2024
I thank members for their valuable contributions thus far. It is fair to say that the bill has been on a bit of a journey, perhaps much like my own from the front to the back benches over the past year and a bit. It is one of the largest pieces of legislation that I have come across in this Parliament, in terms not just of its length but its content and perhaps even its controversy. Many of its proposals have split opinion. Thank goodness that this is a stage 1 debate. Of course, members will do what they have to as we go through the process.
The fundamental point is correct: the bill is simply too big. It is trying to do too much in one place. It has also fallen into the trap that we often see in this place of a bill that has good intentions and contains many worthwhile proposals but also has major and controversial changes buried within it. That forces members to make a black-and-white decision at the end of the process on whether we support all of it or none of it. That is regrettable, and I think that many members will find ourselves in that situation in the months to come.
Not since 1707 has such a vast statement of intent about the future of Scots law been so publicly made. I commend some of the proposals in the bill. Many of them echo my proposals in the victims bill that I consulted on almost two years before the Government produced its proposals.
However, there are things in the bill that make me and others quite nervous, and I will focus on those. Some of the bill’s proposals raised judicial eyebrows. I do not think that they can be ignored, and much of that is well reflected in the excellent committee report. We have talked a little about the issue of juryless trials. It is fair to say that, if we were having this debate back in 1680, in the first iteration of this Parliament, people such as Sir George Mackenzie, the then Lord Advocate, would be relishing the conversation. Scots law is evolving—it has not stayed still over the centuries. It is right that we debate reform, but it is also right that that debate is an academic and informed one. I am afraid that the very short debates that we are prone to having in this Parliament is where we let legislation down. The bill needs hours and hours of scrutiny in this chamber.
Last year, when I had the justice spokesperson role, I raised concerns from the industry. I raised them not to be difficult, but because that is what people said to me when I consulted stakeholders. I said back then that pretty much every defence lawyer in Scotland would boycott a pilot for juryless trials, and that transpired to be the case. I also said back then—this is an important point—that, if the accused has no solicitor, it begs the question how on earth the trial could even be a trial, never mind a fair one. It is that issue of fairness that sits at the heart of my comments today.
It is not just me and not just defence solicitors, who of course are standing up for their clients, who have concerns, but Lady Hale, Lord Uist, Lord Sumption, the Law Society of Scotland, the Scottish Solicitors Bar Association and even the Lord Advocate and the Crown Office. They gave what I thought were very stark warnings to the committee and have been vocal about their concerns. I urge the Scottish Government to proceed with caution and to listen to those learned voices as it follows through on any changes such as the introduction of juryless trials.
There has been talk about comparisons with European systems, but let us not forget that Scotland has a fundamentally different legal system. We have an adversarial system not an inquisitorial one, and because of that important distinction, we cannot make comparisons of that nature.
Part 4 of the bill is the big part that is controversial. The argument against removing the archaic not proven verdict is an important one. Many of us have campaigned for the abolishment of that verdict for many years, and it has featured in our respective manifestos. It has been a key component of my proposals, and I am pleased to see it reflected in the Government’s proposals.