Question of timing
“What crisis?” the Justice Secretary asks, on his decision to delay deliberations on abolishing a requirement for corroboration in criminal cases for a year. Kenny MacAskill was nothing if not defiant when he welcomed Holyrood into his office last Wednesday afternoon shortly after that announcement.
In effect, the Criminal Justice (Scotland) Bill is on hold until after a review of safeguards to replace corroboration reports. Holyrood understands the architect of this procedural change was Scottish Liberal Democrats’ justice spokesperson, Alison McInnes – a vocal critic of the corroboration plans – who sits on the parliamentary bureau.
Critics of the Bill’s most contentious provision hailed the decision as a victory for common sense. MSPs in the opposition labelled it a “welcome U-turn”. In truth, while MacAskill had to sit awkwardly in First Minister’s Questions 24 hours later as his boss defended him on all sides, the move could yet prove politically shrewd.
As MacAskill told this magazine, by the time Stage 2 comes around, the conversation could well have shifted from whether corroboration ought to be scrapped to the safeguards that should replace it. That, however, is some way off. In the meantime, one of the SNP’s longest-serving ministers and his approach towards this flagship piece of legislation is facing further questions.
Alan Robertson: When was this decision made and why have you made it?
Kenny MacAskill: The suggestion of this very innovative procedure was made by the opposition, I understand, to the Bureau on Monday. It was considered by myself and Cabinet colleagues. I have to say I’ve been in parliament since 1999 and I’ve never seen this done before but it is within the rules of parliament and I think it was a very welcome suggestion from the opposition. We’ve always been happy to engage, to take on board comments from around the chamber, and I think this provides the best of both worlds. It continues our commitment that corroboration, the case has been made, it is denying access to justice, it won’t provide any delay at all because this will be a cleaner method of delivering it. So we get, as I say, the best of both worlds. We get parliament’s clear scrutiny, contained within one Bill as some and I think Patrick Harvie, in particular, wanted, and equally, we deliver what we wanted as a government with no delay on corroboration and a very limited minimal delay on the other aspects because there was always going to be delay in terms of police training and training for law enforcement given the busy year that we have, not simply in terms of justice matters but in terms of wider constitutional [matters].
AR: It looks like a massive climbdown, though. You must acknowledge that?
AR: You had a majority at Stage 1.
KM: Yes, we had the majority at Stage 1 and we won at Stage 1 and we’ll win at Stage 2 and we’ll win at Stage 3. What remains sacrosanct and what we remain committed to is that corroboration must go. Corroboration is going. I made it clear to Margaret Mitchell [Tory Justice spokesperson] that the remit of the review group under Lord Bonomy will not change, so the only change is the procedure by which it will be delivered and that it will be delivered within the Criminal Justice Bill.
AR: You don’t consider this change looks like a defeat?
KM: No, I am delighted, I have to say. I think it’s a welcome suggestion. It’s a very unusual suggestion. We had previously opposed suggestions that we should kick it into the long grass, which was to send it to the Law Commission or a commission of inquiry or whatever. This, as I say, is simply a change to parliamentary procedure. But what I remain committed to, what I have confirmed and spoken to the victims and witnesses groups, who are actually very supportive of this procedure, is that [with regard to] corroboration, the case is made, it’s found wanting, and it’s going. It will go in exactly the same timescale but thanks to the suggestion of the opposition that we are happy to take on board, we’ll do it in probably a cleaner, better parliamentary process.
AR: You don’t feel the process has been handled badly, then? We had the announcement of the Bonomy review so late in the day in Stage 1 and now we’re seeing this change. It suggests that the process has been handled quite badly.
KM: No, I don’t believe so. I think what we’ve done is deliver Lord Carloway’s Bill. I am just off the phone to him. We’re building upon what he proposed. I didn’t appoint Lord Carloway, the Lord President did. The Lord President suggested Lord Carloway as the Lord Justice Clerk as the person to carry out this Bill. We took his work, not just in good faith but we believe that it provides a firm basis for a better and safer Scotland. We did carry out several consultations on safeguards that were, for example, contributed to by the judiciary who indicated the safeguards that they wanted. We have though recognised ongoing challenges regarding there being appropriate safeguards and on that basis, in a spirit of trying to make sure we get the best possible safeguards, we have appointed Lord Bonomy. But we’ve not wavered in our commitment to Lord Carloway’s Bill or to our commitment to the removal of corroboration. We have shown willing by having Lord Bonomy establish this group. I welcome his widening of its membership to include Rape Crisis Scotland and Scottish Women’s Aid and I welcome the opposition’s proposals here. We’ll get to where I want us to be at the same period of time.
AR: You still think you’ll get it through because the legal profession are not going to drop their opposition?
KM: I absolutely think we’re going to get it through. We got it through and won in parliament. Stage 1 was quite clear. The opposition rallied together and were defeated. And that will be the position [next year]. I believe, though, that by the time we get to next year the debate is probably likely to have moved on from whether corroboration should go or not to whether we fully support all of Lord Bonomy’s suggestions and he may, for example, come back with options, I don’t know, that will be a matter for him. So I think you’ll find by the time we get to next year the debate isn’t corroboration versus safeguards – it’s what safeguards are there to be.
AR: Has that been part of the calculation, that you will be more likely to get it through in a year’s time? It is no secret that support on your backbenches was slightly wavering amongst some.
KM: That’s news to me. But I think what you saw was that when this vote came to parliament the SNP was, with one abstention, rock solid, and this has been the commitment of the party throughout, not just, as I say, the commitment to the victims groups of Scottish Women’s Aid, Rape Crisis Scotland, Victim Support Scotland, it’s a commitment also to individuals who have been very brave and who have spoken out, individuals who have given up their anonymity, who have spoken to the papers, probably spoken to you, great pain, great trauma, who never got any closure. So we’re committed as a government, as a party, to delivering the removal of corroboration and allowing access to justice. But, as I say, I think you’ll find that by next year the debate will have moved on to a position of whether all of Lord Bonomy’s safeguards or whether there are proposals and we just have to wait, but I welcomed Lord Carloway’s report and I can’t see any basis upon which I won’t welcome Lord Bonomy’s review.
AR: You feel you would have been able to get it through in the previous timescale?
AR: If Stage 2 started next week as had been planned?
KM: Yes. I didn’t initiate this procedure.
AR: Some will then ask, if you were so confident that you would get it through now then why wait?
KM: Because I think this offers the opportunity for a cleaner perspective. This is, as I say, the first time I am aware of, I am open to correction, but it’s the first time I’m aware [of] this procedure ever being followed in parliament. It wasn’t available to us until the opposition offered it. I’m grateful to them because it does seem to me to be some lateral thinking and I appreciate it. But this offers, as I say, the best of both worlds. We deliver what we said we would in the timescale that we said we would, but we do so in the full scrutiny of parliament, taking on board the concerns that the convener had, the concerns that Alison McInnes, the concerns that Patrick Harvie had. So, as I say, I think we’ll get to exactly where we want to be in exactly the same period of time. Parliament will have better scrutiny. Scotland will have better laws because they’ll all be within the one Bill and, as I say, I am grateful to the opposition for suggesting it.
AR: Throughout this entire process you have faced a lot of criticism from parts of the legal profession. In light of this, do you still feel your job as Cabinet Secretary is tenable?
KM: I have also received great support from victims groups that are there to represent both those who speak out and those who have suffered in silence. And as Justice Secretary, I require to represent not just vested interests, I require to represent all of the interests of Scotland. And I do come back to the fact that the Bill, the proposal, didn’t come from me, it came from the Lord Justice Clerk. He is our second most senior judge and he was appointed not by me but by the Lord President or Lord Justice General.
AR: Do you still consider your job tenable as Cabinet Secretary?
AR: You don’t see that changing?
KM: Not at all.
AR: Are you still confident that the Bonomy group will have enough time in the space of under a year to come up with definitive safeguards that are going to gain the confidence of people to vote this through?
KM: Absolutely. Lord Bonomy said that. Lord Bonomy is also, no pun intended, Alan, corroborated by the Lord Justice General who in evidence to the Scottish Parliament thought that this could be dealt with within a year. Lord Bonomy has that year, he’s already up and running, research has been getting carried out by Professor James Chalmers. I understand that the review group has had it first meeting, so work is well under way. The timescale is perfectly deliverable and that’s why I have had no qualms in saying and speaking to organisations, be it Scottish Women’s Aid, Rape Crisis Scotland, or indeed others that we will deliver what we said and I am grateful to them for welcoming the actions that we have taken. Despite your belief that there is some apocalypse here, I am surprised that you would say that when I understand that this position has been welcomed by the Faculty and by the Law Society, it’s been welcomed by Rape Crisis and Scottish Women’s Aid and Victim Support Scotland. It has been welcomed by the opposition. So, what crisis?