Part of the debate – in the Senedd at 3:26 pm on 17 July 2018.
I never thought I'd hear the code of Napoleon mentioned in the Chamber, but she'll be aware, of course, that the civil law systems that the continental countries have are reflected in Scotland as well. So, it's not the case that all of the UK is somehow different from the legal systems that exist elsewhere. The balance that's struck between primary and secondary legislation is primarily one of flexibility, because where there is a need, perhaps on an annual basis, or less frequently, to update legislation, then clearly secondary legislation is the vehicle for doing that. That's why, of course, quite often there are issues that won't appear on the face of a Bill, because that Bill may need to be amended in a year or so or beyond that, and so the flexibility of secondary legislation is needed.
One of the issues that has taxed us is—ironically—as we look at finance Bills in the future and Bills that will contain rates of taxation—. It's the custom, I understand, in Westminster for rates of taxation to be presented on the face of primary legislation, but they have a particular system of Standing Orders to deal with that, which we will need to develop, potentially, in the future if that is to be the case—if we have finance Bills presented to the Assembly in the future.
In terms of reasonable chastisement, of course, by removing the defence, it means not that a new offence is created but that a defence is removed to an existing offence. She wasn't arguing, I trust, for the offence of common assault to be removed from the Criminal Justice Act 1988, but, nevertheless, what it will mean is that where, in court, people plead the defence of reasonable chastisement, that defence will no longer be available to them. Could that lead to more prosecutions? It could. But that's why it's hugely important that we focus on diversion, that we focus on ensuring that there are no prosecutions for first offences, for example, and that prosecution is something that is held to be something in extremis. Now, the police and the Crown Prosecution Service are engaged on this, they're working with us to see how that would work, and the CPS, of course, will want to lay down charging guidelines in order for there to be a full understanding, publicly, of how the law will operate. Simply creating or removing a defence will not, in itself, lead to more prosecutions, as long as the situation is handled sensibly.
In terms of the quality of legislation, I actually think it's been quite remarkable. This institution has only had primary powers since 2011. We had no history at all of drafting legislation, unlike the Scottish Office, which did. We had, of course, the days of legislative competence Orders and the days of Measures, which I suppose gave us a bit of practice, but it's quite remarkable that we have been able to produce so much legislation collectively in this Chamber despite having no pedigree at all and no expertise at all until quite recently. The fact that that legislation has been judged to be sound—we've not seen major challenges to that legislation—I think is a tribute to all those who've been involved in drafting that legislation and the quality of people that we have—there are not many of them compared to other Governments, but the quality of people that we have. So, we're content with the legislation as it is presented. We believe that the Bills that I've gone through today will give us full candour, for example, in the health service, will give us the progress we need to see in local government, and, of course, will enable us to move forward with a long-held commitment towards removing the distance of reasonable chastisement.