S5M-23343 Tied Pubs (Scotland) Bill: Stage 1

The Deputy Presiding Officer (Christine Grahame): The next item of business is a debate on motion S5M-23343, in the name of Neil Bibby, on the Tied Pubs (Scotland) Bill.

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18:02

Stewart Stevenson (Banffshire and Buchan Coast) (SNP):

I express my empathy for the bill’s principles. My grandfather will be spinning in his grave at a high rate of knots because he was a member of the Independent Order of Rechabites, which a long time ago was a home for people who were teetotallers and campaigned against the evils of drink.

However, I have significant issues with the way in which the bill is drafted. I have come to it relatively late. My starting point is always to look at the bill itself. The first point that I address is a straightforward and simple one that could easily be remedied. On page 1 of the bill, the regulatory principles are stated to include

“the principle of fair and lawful dealing by pub-owning businesses”.

It is extraordinary that a piece of legislation should legislate to say that people must obey the law, so I would simply take those words out.

That is a comparatively trivial matter, but bigger issues emerge when we consider the definitions of “tied pub” in section 20 and “tied-pub tenant” and “pub-owing business” in section 21. I am taken back to what happened after the Agricultural Holdings (Scotland) Act 1991 was passed, when we saw the introduction of the limited partnership as a way of bypassing the provisions of that act, meaning that the owner of the land could terminate the relationship at any time. The way in which the bill that is before us is drawn would present similar difficulties if we were to have pub-owing businesses that wanted to act in a certain way.

For example, it might be possible to say that, if someone wants to operate a pub that is owned by someone else, they will have to become a shareholder in a shared company. That would not create the relationship of landlord and tenant on which the bill relies, but it would still create the opportunity, within the company organisation that had been established, to create a dependency such that people had to buy their beer from a particular source.

The second thing that one might do if one wanted to thwart the way in which the definitions currently operate might be to operate through a sub-tenancy, in that the tenant could be allowed to create sub-tenancies. It appears that, as the bill is currently structured, that might break the link on which it depends between the landlord being a pub-owning business and the tenant, because the tenant would not necessarily be a pub-owning business. Indeed, it would merely be a tenant of another company.

There are some practical difficulties, but that does not mean that we should vote against the principles of the bill if our judgment is that it is possible to amend the bill at stages 2 and 3 to remedy those difficulties and some other rather substantial difficulties that I think there are with the bill, because when I look at something and I find such straightforward ways of thwarting the means of the bill, I carry with me quite considerable doubt. However, my ingenuity as a non-legally qualified person is substantially less than that of others, so I hope that Parliament will look at the bill carefully as it proceeds through stages and 2 and 3, as I expect it will. I support the principles of the bill and I will vote for it, with some reluctance, at decision time.

18:06

S5M-23445 Legal Advice (Publication)

The Presiding Officer (Ken Macintosh): The next item of business is a debate on motion S5M-23445, in the name of Murdo Fraser, on legal advice.

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17:08

Stewart Stevenson (Banffshire and Buchan Coast) (SNP):

I start by agreeing with Murdo Fraser when he sympathised with the complainers, which was entirely proper.

Let us look at precedents in relation to the disclosure of legal advice. It is worth saying that these precedents all stem from a period when Jackie Baillie sat in the Government and Alex Cole-Hamilton’s colleagues sat beside her.

Answer number 1 was to Alex Neil:

“The Scottish Executive does not generally disclose the legal advice it may have taken on any particular matter. Any such advice would, in any case, be confidential.”—[Written Answers, 14 March 2006; S2W-23743.]

Answer 2 was to me:

“Our policy is not to publish the legal advice we receive, this being covered by solicitor-client confidentiality.”—[Written Answers, 18 January 2007; S2W-30908.]

Answer 3 was to Christine Grahame:

“certain categories of information are exempt from the commitment to provide information ... This includes legal advice.”—[Written Answers, 11 February 2003; S1W-33541.]

Finally, answer 4 was to Fergus Ewing:

“I am not prepared to divulge the terms of the legal advice to Scottish ministers and I am unable to provide the legal advice obtained”.—[Written Answers, 15 June 2004; S2W-08398.]

The Tory motion asks for the Government to provide the legal advice “without any further delay”. A look at the Tory record on disclosing information might tell us whether today’s motion represents gross hypocrisy, opportunism or legal blindness.

One way of learning about what is going on in Government is via freedom of information. The freedom of information legislation is particularly dear to me because the training material that was prepared for officials contained a quote from one of my parliamentary speeches on the subject.

I will give some numbers that illustrate how the Tories, to use a word in their motion, “respect” honouring such requests only in the breach. The percentage of requests granted in full by the Tories in government has declined every year since 2010, from a high of 62 per cent in 2010 to 44 per cent in 2019. The percentage of requests withheld in full has steadily increased from 21 per cent in 2010 to 35 per cent in 2019. Last year, United Kingdom Government departments upheld their original decision in 83 per cent of internal reviews—that is the highest proportion in the past decade. The trend towards greater secrecy in the UK Government is unmistakable, and it has been led by the largest and most powerful Whitehall departments. In the past five years, the Cabinet Office, the Treasury, the Foreign Office and the Home Office have all withheld more requests. I got those figures from a report that was published yesterday by openDemocracy, which reveals that Tory minister Michael Gove’s department has a skunk team that was specifically established to prevent us from knowing what goes on in the Tory Government.

I have not been able to find a single example of legal advice being published, north or south of the border, where the matter relates to litigation. Yes, Governments do occasionally publish legal advice—to be fair to the Tory Government, it did so in 2018 in relation to advice on Brexit—but never advice relating to litigation.

The protection of legal professional privilege is vital to all parties to legal actions. The demand that is being made in relation to this piece of legal advice is simply a cover for the fact that the Tories are unable to properly question witnesses.

At the committee’s most recent meeting on 17 November, the Lord Advocate said:

“That will not prevent me from giving evidence to the committee today about the Government’s legal position from time to time in relation to the judicial review.”—[Official Report, Committee on the Scottish Government Handling of Harassment Complaints, 17 November 2020; c 2.]

Murdo Fraser said that the Lord Advocate refused to answer 27 times, but that is not correct. Only three questions were asked of him, and he repeatedly gave the same answer. The Tories’ failure today lies in them not finding the right questions. After all, the Lord Advocate said that he would answer questions about the Government’s legal position. Because they do not have the questions, we can be certain that seeing legal advice could not answer their questions.

Gross hypocrisy, opportunism or legal blindness? All three, Presiding Officer, all three.

17:13

S5M-23416 Coronavirus (Scotland’s Strategic Approach)

The Presiding Officer (Ken Macintosh): The next item of business is a debate on motion S5M-23416, in the name of John Swinney, on coronavirus: Scotland’s strategic approach.

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18:03

Stewart Stevenson (Banffshire and Buchan Coast) (SNP):

The pandemic continues to blight our planet and test our endurance as weeks have turned into months. As someone with a higher potential vulnerability by reason of age, I express my gratitude to the public, both personally and as a representative of a community of people who are vulnerable for a variety of reasons.

The pandemic has always been a public health emergency. The huge majority of our population recognises it in such terms, and we, in Parliament, need to recognise it as such. We honour and respect the work that people across our communities have done in protecting us from the worst excesses of the pandemic.

It is necessary to create legal frameworks for that minority of people who wish to test the boundaries of what is permissible. However, the legal frameworks need to follow the public health action. The great majority of people are doing the sensible thing, and we should thank them all. We should do nothing that suggests to them that their commitment and action—or their inaction—are not valued; they absolutely are.

The strategic framework helps us to understand what we must and must not do. Inevitably, if a concise view is to be produced of what is happening that might be presented in a single A4 page, of necessity it will not provide all the detail that might be found in a legal document. Frankly, no person in our communities will go and read the legal documents.

There is good news: vaccines are coming along. We hear that they have encouraging outcomes, although, of course, we do not know how long the post-jab immunity will last. That is just one of many things that we do not know about this pandemic or about creating immunity in individuals. However, each development moves us a little closer to a point at which we may be able to get a pharmacological grip on the pandemic. We already know that previous inoculations for viral infections are much more limited in their effect than those for bacterial infections. For example, an injection against cholera is required every year.

The bottom line is that protecting lives is the absolute priority for all legislators and for all people in our communities. Money cannot protect our citizens. The actions of citizens who limit their contact with other people is going to make the very real difference. It is nothing more than that, in any sense.

Of course, there is no point in protecting the community if we do not make sure that there is an economy after the pandemic, so we have to provide appropriate support to businesses. I am very fortunate in that about 15 per cent of my constituency is in level 1 and the rest is in level 2. Others, in the central belt, have more substantial problems. However, even in my area, as Gillian Martin mentioned, hotspots in some food-processing factories are giving us concern. I think that the incident management teams are doing an absolutely first-class job in working their way around that.

I thank the Government and the population for everything that they are doing. I will support the motion and the Green amendment tonight.

18:07

S5M-23289 Pre-release Access to Official Statistics (Scotland) Bill: Stage 1

The Deputy Presiding Officer (Linda Fabiani): The next item of business is a debate on motion S5M-23289, in the name of Gordon Lindhurst, on the Pre-release Access to Official Statistics (Scotland) Bill.

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16:36

Stewart Stevenson (Banffshire and Buchan Coast) (SNP):

I will immediately respond to one part of Jackie Baillie’s contribution. There is no “secrecy” about any of the statistics that are part of this debate. The issue is merely who gets access and when. All the statistics are published.

Is it a question of best practice to remove pre-release access to statistics? If so, why does it not apply to all four types of economic stats that are mentioned in the report? Indeed, why does it not apply right across Government? I understand what the committee convener said about the bill being a compromise position, and Jackie Baillie might be relatively correct in describing the bill as “timid”.

The bill will bring some aspects of statistics in Scotland into line with the UK. Is that by coincidence or design? I do not think that it matters much. I recognise that a variety of statistics authorities—we have heard an exhaustive list of them—believe that pre-release access should end, and they highlight trust. That is a perfectly valid point, but what impact would removing the Government’s pre-release access have on trust and leadership? That is a question that I will not try to answer, but there should be some reflection on the matter, because good government is important, as is good governance.

Ministers generally do not comment on one single aspect of a report—not least because Opposition parties and the media will be able to see the whole report too, and can comment on anything that they like to comment on. When Governments comment, it is often in relation to making a commitment. Opposition parties, on the other hand, make no such commitments. There are such distinctions between the Government and the Opposition.

The next point that I want to address is the process by which pre-release access was removed from the UK Government. That was done by the Office for National Statistics. The ONS is an arm’s-length agency that has discretion to do what it did independently. It was not prompted to do so by any action of Government or by legislation.

The situation in Scotland is a bit different, but the chief statistician is equally independent. Part of that independence is discretion relating to issues such as pre-release. What impact does legislating on actions that are within the remit of the chief statistician say about the chief statistician? Instead of bestowing powers on that position, it will put handcuffs on the chief statistician by making them do something that Parliament has dictated. That is hardly maintaining the independence of the chief statistician. It would be perfectly reasonable to draw their attention to the matter and to ask that they review their current practice. However, I think that we all agree that this is not about the integrity of the Scottish Government statistician.

As the convener did, I will use a bit of Latin. Facta, non verba—or deeds, not words. If we legislate, it is almost implicit that we are criticising the practice of the chief statistician in relation to powers that he already has. We should urge him to use them, but let us leave him wholly independent of Government and—equally—of Parliament. It is difficult to support the bill as it stands, but it might be possible to amend it in order to maintain the chief statistician’s proper independence.

Let me stand the argument on its head. If the argument is that the Government should not be handed an advantage, then rules whereby the Opposition gets access at the same time, but under embargo, and whereby it is not able to issue any press releases until the release of statistics, would be another way of doing it. I do not think that the Government will necessarily thank me for saying that, but there are other ways of dealing with what is a perceived problem, which statisticians share.

Finally, I note that Maurice Golden trotted out the old GERS shibboleth. If GERS figures tell us that Scotland is not doing well, that is not a great argument for the union. Maurice Golden should think again about that particular argument.

16:41

S5M-23291 Remembrance Commemorations

The Deputy Presiding Officer (Lewis Macdonald): The next item of business is a debate on motion S5M-23291, in the name of Graeme Dey, on remembrance commemorations.

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16:35

Stewart Stevenson (Banffshire and Buchan Coast) (SNP):

It is a privilege to be here and to speak in a debate of this kind. That privilege is, of course, entirely due to the sacrifices of hundreds of thousands of people who have gone before us to protect our freedom.

One of my hobbies is researching my family tree. I have been doing so for more than 50 years, so I am able to say that I have 38 relatives in my family tree who died in various conflicts. Every other member who has spoken will have similar numbers; they just have not done the research to find them all. Mine range from first cousins of my father, to great uncles and to someone as distant as a seventh cousin.

On the library shelf that is beside me I have a naval telescope from the first world war, which was one of my father’s cousin’s telescopes. He was with my father and the rest of the family on the Black Isle when the siren went to recall him back to Invergordon and his duty on the minesweeper that was based there. The minesweeper left port but never returned, because it collided with a mine and was blown up. That telescope is the tangible memory of that member of our family.

The Covid crisis has caused me, and many others, to do much more walking. Within the compass of the walks that I have been able to undertake from my home here in Banffshire I pass four war memorials. The closest is half a mile away, the next is about two miles away, and so on.

I also pass graveyards in which there are graves that are tended by the Commonwealth War Graves Commission. During the debate, we have so far not heard any reference to its work. Around the world there are memorials to those who fell in the wars. Those memorials are maintained to the highest and most impeccable standards, and with the most fulsome and appropriate records kept in books that people can inspect at most of them.

It was quite a long time ago, in 1978, that I went to the most poignant one that I have ever visited. It was about 20 miles north of what was then called Rangoon, in Burma. There was a Commonwealth grave there. It was a huge cemetery, and every blade of grass was cut to exactly the same height. It was impeccably kept, and the contrast with the state of the Burmese country at that point—where I could get only a 48-hour visa and only one hotel in the country was working—could not have been more stark. The efforts made in that very difficult environment to respect our war dead were extremely impressive indeed.

My ancestors and relatives fell at the Somme, Passchendaele, Ypres, Flanders, Normandy and around the world.

We have talked about all the men who fell, but there are also women on war memorials, although rather fewer. I would like to remember in particular the women who served as agents in enemy-occupied Europe. Because they were solitary, they made an even greater sacrifice than many who fell on our battlefields. It is a time to remember and a time for gratitude.

16:40

S5M-23243 Defamation and Malicious Publication (Scotland) Bill: Stage 1

The Deputy Presiding Officer (Linda Fabiani): The next item of business is a stage 1 debate on motion S5M-23243, in the name of Ash Denham, on the Defamation and Malicious Publication (Scotland) Bill.

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16:42

Stewart Stevenson (Banffshire and Buchan Coast) (SNP):

We live in a society that is built on free speech and the exchange of ideas and information. By the same token, however, we live in a society in which there are increasing levels of harmful, false information.

In addition, people around the world can express their thoughts on a scale that is unparalleled in human history. There are more and more platforms that people can use to publish their thoughts, and views that are expressed are almost instantly subject to the court of public opinion. A random thought can be seen by millions of people in almost no more than an instant, and the mechanisms for expressing our observations and critiques continue to grow.

In stating that, I hope that I have conveyed specifically that the world of communication continues to become more complex and diverse. That carries with it significant challenges. I believe that there are two important principles to which we should adhere: the first is simplicity and the second is balance. The general public will not generally read legislation, but, when they do, they should be able to understand it.

The bill encourages both simplicity and balance. One way in which it encourages simplicity is through the increased clarity of the situation in law. The ambiguity in our current legislation and case law can further complicate an already complex landscape. By stating clearly that any statement must be communicated to a third party and must cause serious harm to someone’s reputation, the bill will reduce the burden of interpretation on all parties. I do not seek to bring Mr Wightman’s personal experience to the chamber in saying that, but, although I will read his words carefully, I probably disagree with them.

In the ever-evolving global communications landscape, all of that is essential. Removing needless complexity will ensure that energy and resources are focused on the elements that cannot be pared down so easily.

Furthermore, I highlight the importance of improving the defence for secondary publishers. I published my first website 27 years ago, so I have a particular interest in that area. Platforms, and the way in which information travels, have changed drastically over the 20-plus years since I first engaged with them. Thirty years ago, far fewer of us on this planet had access to powerful tools, and someone had to own a newspaper to have the kind of power that is at almost everyone’s fingertips today, although our understanding of how to engage with the new platforms has moved on more slowly than the evolution of the platforms themselves. Nevertheless, we have an improvement in the defence for secondary publishers. It provides clarity and places responsibility with those who actually write the words and have creative control, which is where it should lie.

In relation to balance, the bill also makes an important movement towards free speech. Specifically, it does that through the single publication rule and the one-year limit. Together, those provisions ensure that people do not have to fear legal consequences for statements that did no significant harm at the time of publishing but may be less well received in a future context. We need to protect the soil for honest social discourse, and the bill tips the balance towards free speech in an important way. Therefore, I suggest that it is a positive evolution in how defamation and malicious publication are dealt with.

The bill does not place inhibition on anyone criticising politicians. It has been said that the reputation of a politician cannot be damaged because they have none to lose. Perhaps we can raise ourselves off the floor with the bill.

16:46

S5M-23194 Arts Funding

The Deputy Presiding Officer (Lewis Macdonald): The next item of business is a Culture, Tourism, Europe and External Affairs Committee debate on motion S5M-23194, in the name of John McAlpine, on arts funding.

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17:39

Stewart Stevenson (Banffshire and Buchan Coast) (SNP):

I congratulate our convener on turning Marcel Marceau’s art on its head; the convener engaged us without images, whereas Marcel Marceau did so without speech.

More critically, like others, I affirm the importance of the arts. They take many forms and achieve many things. They can help us to cope, educate us, illuminate truth, create joy and sorrow, and even reveal who we are and change who we are.

My spouse is particularly keen on that last one, as she has the view that I am one of the least artistic and least cultural people she knows. She welcomes my very recent elevation to the Culture, Tourism, Europe and External Affairs Committee.

My personal art is photography—I take wonderful photographs. Who knows? You might agree.

The havens of art—theatres, museums and music halls—are basically unable to operate in the current environment, as we have been hearing. Clearly, that is the right decision in the face of a health crisis, but we should recognise that art maintains a crucial role in creating community—in creating a shared experience.

How will we deal with the pandemic without art? The psychological challenge that we now face might be healed by an artistic re-emergence after this sad history is over. With many months of not being able to congregate with others, to laugh with others and to be emotionally stirred by those who bring art into our homes and who bring us into theatres, art will continue to have an important role in getting us through all this. It can play a key part in healing the common sorrow that we have felt through the loss of friends and loved ones, and by being out of contact with our many friends. It is more important than we sometimes realise until we experience that loss.

It would be a grave mistake to allow art and the people who create the arts for us to wither on the vine. We need to ensure, for one thing, that we have measurements that enable us to justify some of the things that we will have to do. Specifically, I agree with the committee’s recommendation that we should establish a cultural observatory, which could draw together data to measure the spread and impact of the public funding of the arts across Scotland. If we are to achieve progress and success, we need to be able to measure it—but not to exclude particular parts from the system, because we want risk to be taken, with some things not doing as well as we might hope. If we do not know the baselines, however, we do not know when we have departed from them.

I support the recommendation that culture spend be disaggregated and provided separately, away from tourism. That would help us all to understand what we are spending at all levels of public life; it would enable us to make a proper assessment of what is going on.

We can look abroad. I am wearing my Democrat outfit today—everything is blue apart from the poppy—and, according to the arts and cultural production satellite project, which is based over there, in 2017 the arts sector in New York was worth £120 billion and in California it was worth £320 billion. That covers a range of arts.

As a recently joined member of the committee, I congratulate my predecessors on their efforts, to which I made absolutely no contribution. They were worthy efforts and worthy of debate.

17:43