Age of Criminal Responsibility (Scotland) Bill

The Deputy Convener (Alex Cole-Hamilton)

Good morning, and welcome to the 21st meeting in 2018 of the Equalities and Human Rights Committee. Please ensure that all electronic devices are switched to silent. We have received apologies from Gail Ross—we wish her a speedy recovery. We are joined instead by Linda Fabiani, who is Gail’s substitute on the committee.

I take this opportunity to thank our outgoing convener, Christina McKelvie. Christina has served the Equalities and Human Rights Committee with commitment and dignity, and we wish her very well in her new post as minister.

Our first item of business is our first oral evidence session on the Age of Criminal Responsibility (Scotland) Bill. Two panels of witnesses will give evidence to us this morning. I welcome the members of the first panel: Professor Susan McVie, chair of quantitative criminology in the school of law at the University of Edinburgh; Dr Claire McDiarmid, deputy head of the school of law at the University of Strathclyde; and Malcolm Schaffer, head of practice and policy at the Scottish Children’s Reporter Administration. All the panel members have various interests in the bill and the journey that we have been on to get to this point.

What is your view of the bill? Do you think that it fulfils the requirements that were set out in the Government’s statement of intent?

Malcolm Schaffer (Scottish Children’s Reporter Administration)

The SCRA welcomes the bill. We do not necessarily see it as an end to the debate, but we believe that it sends out a strong message about the ability to tackle difficult behaviour by children without criminalising them. We see that as an important and logical next step from the Parliament’s decision to raise the age of criminal prosecution. However, we also think that further work could be done to consider an even higher age and we hope that the Government might commit to further work on whether to raise the bar further to the age of 16. There are separate complications in that, but I believe that it should be properly looked at.

Dr Claire McDiarmid (University of Strathclyde)

I greatly welcome the bill. Raising the age of criminal responsibility is long overdue. There are advantages to raising it to 12. It accords with the way in which the civil law gives capacity to children in some areas—for example you can make a will when you are 12. It accords with the physical transition that children make from primary to secondary and meets—just—the international requirement set by the United Nations Committee on the Rights of the Child that 12 is the bare minimum.

Like Malcolm Schaffer, I think that there are questions about raising the age of criminal responsibility higher still. In recent years, much of that has come from emerging neuroscience, which provides evidence that young people’s brains develop such that their impulse control is not fully developed until they are in their early 20s. For a long time, developmental psychology has suggested that development is at different rates in different children, but the necessary intellectual development might not come through till the mid-teens. Other international obligations, under the Beijing rules, suggest that we should try to ensure that the ages that confer some forms of adulthood are clustered together. Age 12 is still quite a lot younger than, for example, the age at which you can marry and, perhaps more importantly, the age at which you can sit on a jury, which is 18.

A further possible option might be to raise the age of criminal responsibility to 12 and then consider having a criminal defence for children over that age who still lack the capacity to be found criminally responsible.

Professor Susan McVie (University of Edinburgh)

I agree with my two colleagues that the bill is long overdue and that raising the age of criminal responsibility to 12 is a good first step. I would question whether it represents a progressive commitment to international human rights standards. There are a number of reasons why we should be looking with urgency at raising the age even higher. We know that the UN Convention on the Rights of the Child states that the age of 12 is the bare minimum. If we make 12 the age of criminal responsibility, it will still leave Scotland trailing behind the vast majority of European countries and many other countries, both developed and developing.

In terms of whether raising the age to 12 will have any impact on children in Scotland, the evidence is fairly slim. The Criminal Justice and Licensing (Scotland) Act 2010 already puts in place a presumption of no prosecution for under 12s so, de facto, we are already using a minimum age of criminal responsibility of 12.

If we look at the evidence from Malcolm Schaffer’s office, we know that very few children under the age of 12 are referred on offence grounds and certainly even fewer children are referred on very serious offending grounds. We know that retaining an age of criminal responsibility at 12 means that children who are still at a vulnerable age, certainly in their mid-teenage years, will go through a system that does not always have a positive outcome.

For example, we know that those who end up in our criminal justice system disproportionately come from poorer backgrounds and a huge proportion of them come from either looked-after backgrounds or youth justice backgrounds, so we have a way to go in terms of having a progressive commitment to those international human rights standards and of putting our children at the heart of a welfarist system that will not damage them.

The Deputy Convener

Thank you very much, all of you. We will now move to questions.

Oliver Mundell (Dumfriesshire) (Con)

I will start by going back a step. Can the witnesses explain why the current age was set at eight and why it has taken so long to look at changing it?

Dr McDiarmid

I think that in the mists of Scots criminal law history, the age was set at seven. The institutional writers have a very developed system for deciding whether children can have criminal responsibility but nobody in Scottish legal history has ever wanted anybody aged six or under to be criminally responsible. The age was raised to eight in 1932, seemingly because there was a view that it should be raised, so it went up by one year.

My opinion on why it has taken so long to go any further is that there may have been a tendency to say that because Scotland has the children’s hearings system, which means that we are dealing with children on a welfare basis, we do not need to worry about it. However, for some time up until the 2010 act, children aged eight could be prosecuted in cases of very serious offences, so I would agree that it has taken a long time to look at it.

Malcolm Schaffer

I would go along with Claire McDiarmid. The children’s hearings system has almost been getting in the way of looking at proper reform by lulling us into complacency. We have not recognised the sort of criminalisation effects that an appearance at a hearing for committing an offence can have, particularly in terms of disclosure. Again, for that purpose, this reform is desperately needed.

Susan McVie is right that we are talking about a very small number of children—I think that about 200 eight to 11-year-olds were referred to the reporter for committing an offence last year, so it is a comparatively small number. Of those, very few appeared at a children’s hearing but the consequence is significant for those who do.

The Deputy Convener

Professor McVie, do you have a view on this particular question?

Professor McVie

I have no knowledge of how it started but I know that over the years, the age of criminal responsibility has been discussed and debated. I think that one of the reasons that nothing has happened until now is that there has been no appetite within the Crown Office and Procurator Fiscal Service to raise the age, partly for the reasons that my colleagues have already set out.

The Deputy Convener

The committee heard from briefings over the summer and in other unrelated evidence sessions that one of the catalysts for equalising the age of criminal prosecution and the age of criminal responsibility is that, without equalisation, someone could still get a criminal record that could impact on their disclosure, as Malcolm Schaffer said. Are there any metrics on how many adults are currently affected by criminal records that were obtained before they were 12?

Malcolm Schaffer

The honest answer is no, but there might be significant numbers as we go back through history. The system has evolved positively. The number of children who are referred to the reporter for offending has dropped, particularly with the advent of the whole-systems approach. I started as a reporter in 1974, when vastly more children appeared at hearings having committed offences, and that was when the Rehabilitation of Offenders Act 1974 came in. Children appeared for offences that would not even be referred to a reporter today and were subsequently placed under supervision. Due to the rules on disclosure, that record lasts for a significant time—40 years, in many cases.

Oliver Mundell

The age of criminal prosecution went up to 12 in the recent past. Why was the age of criminal responsibility not changed at that point?

Dr McDiarmid

I have never had an explanation for that. It seemed sensible that the age of criminal responsibility should go up. However, the fact that it did not has allowed for a period in which we have been able to see what the effect would be of a wholesale rise. As we know from the research that was done by the Scottish Children’s Reporter Administration, we are not referring many children aged eight, nine, 10 or 11 on offence grounds.

Malcolm Schaffer

Another positive factor might be the Children’s Hearings (Scotland) Act 2011, which introduced new grounds of referral and allows us to cover more cases in which children show difficult behaviour and need compulsory intervention but in which we do not want to use offence grounds. There are now more alternatives, particularly the one regarding the impact of behaviour on self or others.

Professor McVie

The introduction of the getting it right for every child policies and the whole-systems approach has reshaped the way that practitioners work with young people and how they think about the potential effects of putting them into a system that can be damaging. I suspect that some of the change in referrals to the children’s reporter is due to children now being seen as in need of help and support rather than as offenders, so there might have been some practitioner change in that area.

We also know that there has been a widespread change in the way that children are behaving, not just in Scotland but across the United Kingdom and internationally. The number of young people who come to the attention of criminal justice agencies has diminished across many countries as part of a wider phenomenon called the crime drop. The crime drop across Europe, the United States and many other countries is predominantly a crime drop among young people. The reasons for that are complex but they might be related, in part, to the change in the way that children spend their leisure time—they spend far more time online and far less on the street. That means that a much smaller number of children come to the attention of the police and, as a result, the children’s hearings system.

We also know that the whole-systems approach diverts children in a range of ways that is very effective. Therefore, fewer children are required to come in for more intensive intervention.

Oliver Mundell

You have all stated that you do not think that the bill goes far enough and referenced the previous rise of a year. Is there a danger that, if the bill is passed as introduced, it will be seen as the end of the debate on the age of criminal responsibility for another generation?

09:30  

Malcolm Schaffer

I hope not, and I hope that there is further thinking on the matter. As we did with eight to 11-year-olds, we in the SCRA can do work on comparing children’s referrals on offence grounds in the 12 to 16-year-old age group and look at the issues to see whether, as I suspect, there are similar background issues. That would also give us time to tease out the implications for the older age group of dealing with, say, a 15-year-old who was charged with a particularly significant and serious offence. How would that be dealt with in the legal system if there was no age of criminal responsibility? I believe that there are ways of doing that, and my fundamental belief is that, as I hope, there should be further reform. However, those issues are separate and more complex than those involving eight to 11-year-olds and need to be teased out.

Dr McDiarmid

I hope that the matter will be kept under review. If we look at the issue at all, the first question that arises is that one that you have just asked: how did the age of criminal responsibility remain at eight for so long? There are, as you have heard, answers to that question, but they are perhaps not particularly effective. Having come this far and with the ability to raise the age to 12, I can see that the matter is clearly on the agenda, and I hope that it will stay there.

Professor McVie

I agree. I come back to the bill itself, which talks about reflecting a

“progressive commitment to international human rights standards”.

If Scotland looks to comparators to see what is happening elsewhere and to reap the best of what is happening in other countries—not just in Europe, but internationally—it will see that the direction of travel for the age of criminal responsibility is upwards. Where it is being changed, it is certainly not coming down.

A really great example of what you might call a natural experiment can be found in Denmark. Following a particularly punitive period with a tough-on-crime policy agenda, the Danish Government decided to reduce its age of criminal responsibility from 15 to 14, which enabled researchers to test the effect on the 14-year-olds who were experiencing that legislative change and who were, as a result, subject to criminal justice policy compared with those 14-year-olds who had escaped that attention. It was found that, following the change, the rate of offending amongst 14-year-olds went up significantly, and they were still more likely to be offending 12 to 18 months later. They were also more likely to drop out of school at an early stage, and those who stayed in school achieved far less in terms of educational attainment. The policy was changed, and the age put back up to 15 within two years.

If we look at evidence from other countries, we see that in the vast majority of European countries the minimum age of criminal responsibility is 14 or 15. Scotland is currently at the bottom of the pile; moving the age up to 12 might put us slightly higher up, but we would still be at the bottom next to other countries that are also considering moving the age up. In the Netherlands, for example, the age of criminal responsibility is 12, but they are looking at moving it to 14 at the moment. I hope that this issue will very much stay on the agenda, because it is certainly on the agenda of many other countries.

The Deputy Convener

That was fascinating. Fulton MacGregor would like to come in.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I just have a supplementary, convener. Professor McVie, would you be able to make the study that you have mentioned available to the committee?

Professor McVie

Of course.

The Deputy Convener

It would be great if you could liaise with the clerks on that.

Professor McVie

I have actually prepared a paper that I can submit afterwards.

The Deputy Convener

So you have one that you prepared earlier. That is fantastic.

Mary Fee (West Scotland) (Lab)

Following on from Oliver Mundell’s line of questioning, I am really interested in finding out why the decision has been taken to raise the age to 12. I know that the issue was touched in your earlier answers, but I am keen to hear you expand on where we sit in relation to the rest of Europe. I know that there are only three other countries where 12 is the age of criminal responsibility, so we will still be very much on the floor in that regard; after all, the UNCRC has said that 12 is the minimum that the age should be raised to.

Secondly, how does raising the age to 12 sit with the Government’s GIRFEC agenda and the really good work that has been done in that respect? Do all of those things fit together? In short, can you expand on your views with regard to 12 as the age of criminal responsibility?

Malcolm Schaffer

As was said earlier, 12 was the easy age to go to, because it fits with the age of prosecution. The evidence of offending referrals in that age group is much smaller. Bluntly, it is an easy one to crack in terms of the legislative impact. As you go higher, where do you set the bar? Do you set it at 14, or do you go on to 16 or even, as some would say, 18? Each of those ages raise more questions that can be answered but need careful thought to ensure that we have a system that can still respond to the difficult behaviour of a child, no matter what their age, and offer proportionate measures that do not criminalise somebody for their whole life. That is one of the big issues around the use of offending, even within the hearings system. The system needs to allow rehabilitation and meet the aim of getting it right for every child. That is where it fits with the GIRFEC agenda of working with a child in their best interests, taking account of their wellbeing, while ensuring that the work that is done with that child does not have an adverse impact on them for the rest of their life.

Mary Fee

Perhaps we can come on to talk about behaviour and understanding in a minute. Does anyone else have a view on raising the age to 12?

Dr McDiarmid

It is hard to think of reasons why we would not raise it to 12. I agree with Malcolm Schaffer that if you are going to raise the age, it makes sense to go there. We have the evidence from the Scottish Children’s Reporter Administration that it might not make that much difference to raise it to 12. Children can still be referred on the ground of causing harm to themselves or others. That came in in 2011.

There is an issue of what goes with criminal responsibility as opposed to just responsibility. Children’s hearings can discuss with a child of whatever age who has been referred to them responsibility for any behaviour, whether it be truanting from school or any of the conduct grounds on which they have been referred, and they can help them to take responsibility for that behaviour and move on from it. Criminal responsibility has the issue of disclosure attached to it, particularly at the moment, but there will always be a stigma attached to having committed a criminal offence, whichever forum deals with it. If there is a way to raise the age and diminish that stigma, that would be helpful.

Professor McVie

I come back to the progressive commitment to international human rights standards. The UN convention states that a child is anyone under the age of 18. It also stipulates that we should act in the best interests of the child.

In other areas of Scottish policy, we have been showing a strong commitment to human rights. The changes in policing and the recent changes to stop and search show a strong commitment to human rights. There is a well-crafted section in the stop and search code of practice about how children, young people and vulnerable people should be dealt with.

GIRFEC and the whole-systems approach are founded on human rights principles and, through those policies, we have been trying to divert more young people away from formal intervention into more effective but less intrusive interventions on their behaviour. We are trying to retain more 16 and 17-year-olds within our youth justice system. All that fits with an international standard of human rights. The decision to set the age of criminal responsibility at 12 jars with all those other things.

On how we sit within Europe, we are 10 years behind Belgium, which has 18 as its age of criminal responsibility. We are certainly below our Nordic neighbours, whom we consider to be similarly progressive. They all have 15 as their age of criminal responsibility. We are much lower than many Latin American, Asian and African countries.

It is interesting that the bill documents say that the bill is not so much about taking account of capacity, yet the age of criminal responsibility is entirely about capacity, and we should take that into account. As Claire McDiarmid said, there is a growing body of neurological evidence that shows that brain formation does not end in the teenage years. The frontal cortex, which is the area of the brain that controls behaviour, does not become fully formed until the mid-20s. There is growing sociological literature that says that adolescence as a period of development is ageing. People are leaving home later, getting married later, having children later and entering the labour market later than ever before. We see that sociological shift, we have increasing information about neurological development and there is broad criminological literature that says that children are not starting to offend until they are older. The evidence for shifting the age upwards is compelling.

Mary Fee

If moving the age to 12 is the start of a journey and it will be moved further, would it be helpful to have a review clause in the legislation to say that we will revisit the issue after two years and, if appropriate, raise the age by two years or a year, for example?

Malcolm Schaffer

I personally would very much support that.

Dr McDiarmid

Yes. A formal requirement to keep the age under review would be helpful.

Professor McVie

Yes—absolutely. The Government’s advisory group has been active in providing evidence for the bill, and such a provision would give that group a mandate to continue to look at the wider evidence in order to have a more informed decision about what the correct age would be.

Mary Fee

In countries where the age is higher, what approaches are taken to young people? Do those countries have similar welfare-based approaches and interventions to ours?

Professor McVie

It varies hugely. There is no one-size-fits-all youth justice system. No other country has adopted a children’s hearings system—ours is still considered to be unique and is the envy of many countries. Other countries have a similar sort of welfarist structure, but most other countries have some form of youth courts, which of course we have avoided for the most part. We have talked about the age of criminal responsibility in other countries, but it is worth saying that the issue is a little more complicated than that because, although some countries have a minimum age of criminal responsibility, they may have other wider policies that shape the way in which young people are dealt with. For example, in Russia, the age of criminal responsibility is 16, but there is a get-out clause that says that children as young as 14 who commit severe or grave offences can be prosecuted. There are a lot of nuances in the way in which other justice systems operate and sometimes get around the problem.

The Deputy Convener

Oliver Mundell would like a brief supplementary question on that point.

Oliver Mundell

It is exactly on that point. Is it common for countries to have an age of prosecution that is different from the age of criminal responsibility? Is that the case elsewhere or are the ages aligned in other countries?

Professor McVie

Most countries have an age of criminal responsibility and they often have a graded set of ages for other things. Sometimes, those graded ages go upwards. For example, a country might have an age of criminal responsibility at 15 but not prosecute below 16 or 17. Some other countries go the other way, so they have a minimum age of criminal responsibility but an effective age of criminal responsibility that is younger than that. As I say, there are many nuances in the ways in which justice systems operate, which means that a period of further review would be useful.

Mary Fee

Are you aware of any studies that have been done in any European countries on the relation between the age of criminal responsibility and the level of adult offending? Is it the case that, where there is a higher minimum age of criminal responsibility, there is a lower rate of adult offending?

09:45  

Professor McVie

The short answer is that I have not seen any such studies, but I would say that those countries that have a higher age of criminal responsibility—for example, our Nordic comparators—have lower rates of criminal conviction than we do.

The evidence on the impact of criminal justice contact in the early teenage years in terms of a longer-term criminal conviction career is compelling. There is strong international evidence to show that the earlier and the more intense such contact is, the more likely someone is to have a longer-term criminal career. When we did a comparison between Germany, which has more of a punitive system, and Scotland, which has much more of a welfarist system, we found very similar things. Those children who had earlier and more intensive contact were far more likely to end up in the criminal justice system and to have a longer-term criminal career than those who were not drawn into that system—even when those other young people were offending to a similar extent.

However, we need to be careful. Practitioners do not go into youth justice services every day thinking that they are causing damage to young people, and many young people come out of youth justice services having turned their lives around significantly. Therefore, we look at the average effect over time, and that still suggests that, on balance, the negative consequences of early and intensive contact—which recycles young people round the justice system for a long time and then throws them out into the adult criminal justice system—are hugely damaging.

The labels that are attached to young people never come off. At a Scottish Prison Service event yesterday, I met someone who said that he had had to move 300 miles away from his home and his family in order to lose that label and restart his life. We should not have to make young people leave their homes and communities to shift a label that is applied by the system.

Mary Fee

I want to move on to a question about behaviour and understanding. It concerns young people who are aware of the difference between right and wrong but who are unable to understand the full consequences of their actions. If we use that as an argument for raising the age of criminal responsibility, at what point do we stop? At what point do we say that every young person fully understands the consequences of their actions? Is there enough flexibility within the system—I am sorry; this is a long question—to take account of the fact that a young person of 12 or 13 who commits a crime might understand the difference between right and wrong but might have only a slight rather than a full understanding of the consequences? That could equally well be true of someone of 15, because young people develop in completely different ways. In a room of 20 young people, all of them will have developed differently. How do we find a medium that fits everyone?

Dr McDiarmid

You have hit the nail on the head when it comes to the use of chronological age for any purpose. It draws a beautiful clear line that the law likes very much, but it does not tell us much about the person it relates to.

There are possible ways of dealing with that. It would be possible to have an age of criminal responsibility and to look at individual young people. In England and Wales, for 1,000 years until 1994, there was the Doli incapax presumption, whereby it was presumed that children aged between 10 and 14 did not have the understanding that you referred to, which meant, in effect, that the prosecution had to prove that they did. Some academic commentators have suggested that, instead, there could be a criminal responsibility test that could be used pre-trial to test the child’s capacities in the required areas, which go broader than knowing the difference between right and wrong. Toddlers understand that difference simply because they are told not to do something, but they have not internalised the rules.

Another possibility, which I suggested in my opening remarks, might be to have a defence of developmental immaturity, which those young people whom it would be unfair to hold criminally responsible could plead. The age of criminal responsibility will draw an arbitrary line and it is difficult to know where that should be. Those are some of the other possibilities around the edges of that.

Professor McVie

The neurological literature says that full brain maturity does not occur until around the age of 25, but I cannot see there being any appetite to set the age of criminal responsibility at 25.

As Claire McDiarmid said, if we decide to use a legal threshold and an arbitrary age, we must have other policies and allowances in place to take account of the fact that we are all different. There are many adults whose capacity to fully understand could be questioned, and very few people have the capacity to fully understand what the impact of contact with the criminal justice system will be on their later lives.

The Deputy Convener

The Parliament has certainly grappled with the issue of the age of majority in a range of legislation. In some legislation, there are two ages of majority, for reasons to do with vulnerable adults and the protection of vulnerable groups.

Fulton MacGregor

Would Malcolm Schaffer be kind enough to explain what happens in the process when a child or young person of any age—not necessarily someone under 12—is referred on offence grounds? It would be quite helpful for the committee if he could take us through that process on the record.

Malcolm Schaffer

Sure. If a child is referred to the reporter by the police for committing an offence, we have to look at two issues. First, we look at whether we have enough evidence to prove that the child has committed the offence. Also, whether we have enough evidence or not, we look at whether there is an alternative ground that might be more appropriate. Secondly, we look at whether the child is in need of compulsory measures of supervision, because only children who are in need of compulsion should be referred to a children’s hearing.

To help with that decision, the reporter tries to gather together such information as is proportionate and necessary for a conclusion. They make contact with the agencies that might know the child—their school, obviously; perhaps the social work department; and medical authorities, depending on the individual situation—to draw together a whole picture of the child, to look at the child’s behaviour and to look at the reasons behind that behaviour. It might be that, when they look at the child and what is going on with them, they see that there are other, more significant, issues that are the cause of the behaviour, which might relate to parental care at home, parental control or even particular associations that the child has. There was certainly evidence of that with a number of children in the study that we undertook of eight to 11-year-olds.

The whole purpose of our decision making should be about identifying the ground that signifies the problem in the child’s life so, even if the child has been referred for an offence, the reporter might decide not to proceed with the offence and, if the child is not getting appropriate supervision, proceed with grounds of the lack of parental care.

If the second test is made for the need for compulsion, we would again contact the social work department, the school and other agencies about whether the issue that the child has presented is an on-going problem or a one-off, to what extent it can be dealt with in the family and to what extent other agencies can support the family on a voluntary basis without having to involve compulsion.

Only those children for whom there is enough evidence to demonstrate the need for a ground of referral and who are in need of compulsion should end up at a children’s hearing. On last year’s figures, we refer to a hearing about 25 per cent of the overall number of children who are referred to us. Interestingly, when it comes to children who commit an offence, that figure drops to about 8 to 10 per cent, which might partially be because we use other grounds, and might partially be because we think that other measures can be used without the need for compulsion and involvement in the system.

That is the decision-making process for the reporter. If the reporter were to refer the child to a hearing, the child and parents would be asked whether they accepted the grounds for referral, and any denial or lack of understanding would be referred to a sheriff court to determine whether the grounds had been made out. If that were the case, the matter would come back to another children’s hearing for disposal, and the hearing would have to decide on the need for compulsion.

Fulton MacGregor

The last bit of that very good explanation was actually where I wanted to get to. I should also have declared an interest earlier as a registered social worker who worked in child protection for eight years.

I want to explore what happens when a child within age goes to a hearing and those grounds are put to them. Can you tell the committee how that works and what rights the child and their family have in the process?

Malcolm Schaffer

We would flag up to the child their ability to get legal representation in certain circumstances, particularly if there was any issue of secure authorisation or if the child was coming from custody. We would send out with the grounds a leaflet highlighting that acceptance of grounds might have an impact on future employment prospects and that the child might wish to speak to a solicitor prior to that. It is by no means the case that all families get legal representation.

At the hearing, the chair is under a duty to satisfy himself or herself that there is a proper understanding of the grounds and that, because it is such an important part of the process—after all, it is the threshold to the hearings system and compulsory measures—he or she should not proceed any further unless they are satisfied with regard to acceptance and understanding by the child and the parents.

Fulton MacGregor

I do not know whether it is the same across the country, but when I was working in this area, I was always struck by the fact that when a child and family were put in that quite stressful situation, the desire to get things over with seemed to be greater than any desire to reach an understanding of the possible impact on future employment or life chances 10 or 15 years later—or, indeed, even sooner than that. What is your own experience in that respect?

Malcolm Schaffer

For a number of reasons, I really worry about the current disclosure provisions and, because they are so complicated, the extent to which they are not understood not only by children and parents but, indeed, by all professionals.

Fulton MacGregor

I am happy to leave that line of questioning there. I was going to ask about what reports would bring out about children’s other circumstances, but I think that you covered that in your initial response. Thank you very much.

The Deputy Convener

Before I bring in Linda Fabiani, Mary Fee has a short supplementary on Fulton MacGregor’s line of questioning.

Mary Fee

What measures are you able to take when a child comes before a hearing? Is the system quite rigid, or is there enough flexibility in it to ensure that when a child or young person comes before you and you need to take action to help them—which, ultimately, is what you are doing—you can tweak things and use a bit of this and a bit of that? How often are the measures that you are allowed to use reviewed and added to or changed?

Malcolm Schaffer

We can apply any proportionate and legal measure for a child. We can—and should—look first at what is available to support the child in the home, but residential measures can be put in place, if necessary.

As for the availability of services, that is a good question. Availability could come down to, say, geographical accidents, or services could be at risk because of public spending impacts on what was the wealth of youth offending supports and skills. At one point, those supports and skills were quite significant, but there seems to have been a diminution of them.

10:00  

Review is probably one of the stronger aspects of the hearings system; no child can be on supervision for longer than a year without having to come back for a further hearing. Children or parents can ask for a review at any point after three months, and a social worker can bring a case back at any stage, either because provision has worked and is no longer needed, or because it is no longer working and something else needs to be tried. In the extreme cases in which the child’s behaviour is so significant that they are placed in secure accommodation, that must be reviewed after a maximum of three months by a further children’s hearing.

Mary Fee

That is very helpful. Thank you.

Linda Fabiani (East Kilbride) (SNP

As a substitute member of the committee, I am not as immersed in the subject as my colleagues are, but I have jotted down a few things that I have heard on which I would like a bit of information.

First, I note that the committee papers talk about the current system in which, for someone who is aged between 12 and 16, the Lord Advocate can decide to move to criminal proceedings. How might that alter if we were to make the age of criminal responsibility 16? I understand from what you said earlier that that has been an informal non-official thing for people aged from 12 to 16—it is something that has become practice, rather than being the law.

Malcolm Schaffer

If the age of criminal responsibility was 16, the Lord Advocate would have no role, because the child could not be charged with a criminal offence.

Professor McVie

If the age is 12, nothing will change.

Linda Fabiani

Yes. What puzzles me is this: what if there was a really serious issue involving a 15-year-old? I hesitate to talk about a crime, because there would be no criminal responsibility, but if something very serious happened that was deemed to be the fault, responsibility or whatever of the 15-year-old, how would that be dealt with if the age of criminal responsibility was 16?

Professor McVie

The decision about the age that is set has to be based not just on broad human rights standards but on capacity. I appreciate that the bill does not take so much account of that, but if we as a society agree that children under the age of 16 do not have the capacity to understand when they commit something that is very serious, we have to stand by those young people and put in place every measure that will support them and prevent them from committing a crime again, and we have to put in place all possible measures to support the victim.

If we take the ideological stance that the age of criminal responsibility is 16, we cannot bend the rules when a child who is younger than that age commits a crime. Some countries put in place caveats on the age of criminal responsibility, but I think that that is dangerous: if you are going to put in place caveats, why bother having a set age? If the principle is that we want to protect and support our young people, we have to accept that they will sometimes do bad things, even though that is relatively rare.

Linda Fabiani

On the point about that being relatively rare, Malcolm Schaffer talked about the number of eight to 11-year-olds, but I think he said that not enough work has been done so far in relation to 12 to 15-year-olds.

Malcolm Schaffer

If a review date is set at two years, we would offer to the Scottish Government—indeed, we have already done so—that we would do for 12 to 15-year-olds a similar study to the one that we did for eight to 11-year-olds, in order to tease out the nature of the offending that is being reported in that age group, how it would be covered if the bar was set at 16, what alternative measures would be available and the implications of that reform.

Linda Fabiani

That ties in with something that, I think, you have all said, and which I recognise: the change could not be made unilaterally, but would have to sit among wider policies on support and disclosure, for example. I get the impression from all of you that disclosure is important, so it may well be that wider policies could look at disclosure being tied in with an increase in the age.

I am always up for the inclusion of review clauses—often, we do not study the effect of legislation enough—but this strikes me as a major issue with a lot of policy implications. I am picking up that you all agree that the legislation should go forward, but do you think that review after two years would be enough to do it justice?

Malcolm Schaffer

Significant work has already been started that takes account of disclosure, with the protection of vulnerable groups review and the Management of Offenders (Scotland) Bill. The work that we can do within the SCRA would be easily achievable within that time.

We will then need to work through the implications for any potential gaps in powers. For instance, the maximum bar for the hearings system, which would be the alternative route for compulsory support, is age 18, and the period between 16 and 18 is covered only if the child is on supervision. Is there, therefore, a case for looking at extending the powers of referral to the hearings system to cover children and young people who are not on supervision but who are in need of compulsion, at least until 18, and to tease out some of the implications of that?

Also, we need to think about and tease out the implications for the case of somebody who commits a very serious and significant offence at the age of 15 years and 11 months. If the powers in the hearings system last only until the age of 18 but there is still a need for support after that, how will that support be provided? I am sure that there are answers to those questions, but they are examples of things that need to be considered in greater detail.

Professor McVie

Some research has been done. The Edinburgh study of youth transitions and crime is a longitudinal study that looked at a group of young people who were growing up in the late 1990s and early 2000s. It followed those children over a six-year period and collected significant information on their social work contact, children’s hearings contact and criminal records, and it showed a number of things.

First, the study showed that the vast majority of children were getting involved in some bad behaviour. It is a normal aspect of adolescent development and the vast majority of those children do not have any need for any formal services. There are all sorts of informal social controls that operate within our communities that take care of many such things.

The children who come into the children’s hearings system or to the attention of the police tend to be a smaller segment—the thin end of that wedge. They are also the poorer end of the wedge, it has to be said. Children from poorer communities and disadvantaged backgrounds are significantly more likely to come into contact with our justice services. We need to bear that in mind in relation to resources. We are not talking just about resources to deal with offending; we are often talking about resources that are needed to deal with a multitude of complex needs.

Our research found that, of the children who travelled through the children’s hearings system during their mid-teenage years, some went on to a chronic pathway of interconvictions and ended up in the criminal justice system, while others did not. When we looked at the key factors that decided whether someone followed that chronic pathway, we found that it was not their serious offending that was behind it, but a series of other things, including continuous and increasing police contact and increasing contact with the youth justice system.

The principles of the youth justice system are set very much on the Kilbrandon principles, and are absolutely spot-on in terms of welfarism and human rights, but the problem is often in implementation of decisions that are made by the hearings system, because the resources do not exist to put in place the services that young people need.

School exclusion was also a key factor in determining those young people’s lives. The more we can keep children in school, the better.

The issue cuts across a range of policy areas, and that integrated multi-agency response is something in which Scotland has become very expert. The whole-systems approach is predicated on a multi-agency response.

Do we want a period of longer than two years? I think that we should stick with two years and see where we can get to in that period. If we were to make the period longer, there would be a danger that things could get kicked into the long grass. That period will give us the opportunity to interrogate the impact of the policy not just on youth justice but on education, health and all the other areas in which systems will need to be put in place, and to do so in a rounded way that helps the children who come to our attention.

Linda Fabiani

I understand everything that is being said and the human rights implications, but I have concerns about saying unilaterally that we will have a review in two years’ time. Two years in politics—let alone in life—is a very short time, and there is so much to do. We should welcome the idea of making the initial change, but we should not be prescriptive about how long it should take before we review whether to go further.

The Deputy Convener

I am conscious that we are coming perilously close to the end of our time with the panel. I want to take us back to children’s rights. I should have said at the start of the meeting that I refer my fellow members to my entry in the register of members’ interests, as I was the convener of the Scottish Alliance for Children’s Rights, which is known as Together.

The First Minister announced in the programme for government the Scottish Government’s intention to incorporate into Scots law the principles of the United Nations Convention on the Rights of the Child. Invariably, there are in the UNCRC tensions in which rights sometimes compete with one another. There are tensions in various sections of the bill—some are easy to rectify and some less so. There are tensions specifically in section 23, which is about the power of police officers to remove a child from a situation and to take the child to a place of safety. Section 23(2) states:

“The constable may take the child to a place of safety and keep the child there if the constable is satisfied that it is necessary to do so”

for a range of severe reasons. There is an immediate tension between a child’s protection rights and their participation rights. If the child says, “I don’t want to be here”, and the constable says, “Tough”, the child’s article 12 rights would be being impeded. Can the panel explore those tensions?

Dr McDiarmid

Tensions certainly exist, but the bill has been extremely well thought through, and much consideration has been given to minimising the criminal justice aspect of it. If we take away the link between the age of criminal responsibility and capacity, we are saying that children under 12 are not criminals because we say that they are not, rather than because they do not understand what they are doing. There is an issue in all the provisions about how that will feel to a child. Under the “place of safety” provisions, the search provisions or, indeed, any other provisions, we could take a seven-year-old child, and it is important to have an eye to that. I read the bill thinking that I would not like any of the additional provisions at the end, but they are very well safeguarded in terms of protecting the rights of the child. However, it is important not to lose sight of the tension.

The Deputy Convener

The only “place of safety” that is referred to in the bill is “a police station”—albeit that it says that a police station should be used as a last resort. However, that jars with article 37 rights on children not being held along with adult suspects. Do we need to do more to unpack that? Perhaps we should have a schedule of other places of safety that constables should try first and, if a child has to be in a police station, include in the bill other safeguards, such as that they should never be held in cells. Dr McDiarmid clearly has a view.

Dr McDiarmid

Such provision would be helpful, because if the legislation gives only one option as the last resort, there is a danger that that option will become the first resort.

Malcolm Schaffer

The deputy convener is right to say that there is a tension. However, the first significant thing to say is that we hope that those powers will be seldom, if ever, used. I know that a lot of thought has been given to the matter. It is about balance and keeping the rights of the child within the process, but it retains a lot of elements that have a criminal justice feel.

10:15  

On alternatives to taking a child to a police station, one responder asked whether, because we are developing the Barnahus model for child protection, that sort of resource could also be used to interview young children. That would get such situations completely away from the police station, the “get my brief” system and the feel of criminalisation, as the reform is trying to do. I hope that that can be given further thought and that imagination can be used to find alternative resources to make the reform properly meaningful.

Professor McVie

If you have ever had to remove a child to a place of safety, you will know that it is a hugely distressing event. No one should be under any illusion: a child who is removed under such circumstances is in severe distress. To take the child to a police station seems like one of the least humane things that could be done, notwithstanding the fact that we have fewer police stations. Serious consideration should be given to that. Again, it comes down to resource issues: social work centres and family resource centres are also in short supply. If we want to take the issue seriously under the human rights standard, we need to have humane places to which we can take children who are in distressing circumstances.

The Deputy Convener

I agree. Many of us would not consider that a police station on a Friday night would necessarily be a “place of safety” in any situation.

I have a final question before we have to move on to the next panel, which is also on rights. Stop and search, which Parliament has agonised over, has been mentioned. We have moved a considerable distance from where we were, for which I am grateful. Are you content that the provisions under section 25 of the bill about the power to search on suspicion that a crime

“is being or is about to be committed”

are sufficiently safeguarded by the work that underpins that, and that, should we happen on less enlightened times, the legislation that we will introduce through the bill will not allow a slide back into wholesale searching of innocent children on our streets?

Professor McVie

On the contrary—as it is framed, the bill is pretty tight around the circumstances in which stop and search can take place. Police officers have adapted very well to the introduction of the code of practice, which, in addition to the legislation, has given a fairly detailed set of circumstances around which it is expected that stop and search can take place.

The 12-month review of the stop and search processes is being done at the moment, and the report will make recommendations for the Cabinet Secretary for Justice. Some of the recommendations might be around slightly extending the legislation. There is some confusion: there is a grey area that is the extent to which police officers can search in the circumstances of prevention of loss of life, which jars slightly, because the bill does not quite allow police officers the security of mind to know that they can search in those circumstances.

Otherwise, the bill is pretty tight. We have seen from the reduction in the number of stop and searches and, in association with that, the significant increase in detection rates, that the legislation appears to be working well.

The Deputy Convener

I thank you all for your time this morning. If there is anything that you would like to have said that you did not get the opportunity to say, please write to the committee. We will certainly be meeting you privately in our further consideration of the bill.

10:19 Meeting suspended.  

10:21 On resuming—  

The Deputy Convener

Welcome back, everybody. I welcome our second panel of witnesses: Marion Gillooly, who is head of strategy and innovation at Includem; Claire Lightowler, who is director of the centre for youth and criminal justice at the University of Strathclyde; Duncan Dunlop, who is chief executive of Who Cares? Scotland; and Lynzy Hanvidge, who is a care-experienced policy ambassador with Who Cares? Scotland. You are all very welcome.

I will start in the same way that I did with the first panel and ask you to give your initial view of the bill and whether it meets our stated intention to move to the UN prescription of the minimum age of criminal responsibility.

Lynzy Hanvidge (Who Cares? Scotland)

I am in agreement and I would like Parliament to pass the bill. However, I would also like the consideration of the age of criminal responsibility to continue. Right now, we have the age of criminal responsibility and the age at which someone can be convicted but what are we doing in moving it to the age of 12? How are we advancing on this? That is my stance.

The Deputy Convener

That is really helpful—thank you.

Duncan Dunlop (Who Cares? Scotland)

Thank you for the opportunity to speak today. I struggle to say this, but it looks as though we are just doing a wee bit of housekeeping. This is not making Scotland the best place in the world for children to grow up in; it is just about getting us on a par with the worst places in Europe.

The previous panel was saying that in Russia the age of criminal responsibility is 14, but we might just get to 12. I think that that is shocking, to be honest. It is as though it has been a slight embarrassment that we have had the age of criminal responsibility at eight for so long and the feeling is that we just need to get it over the line to 12. However, in my view, it is time for our Parliament to show some leadership on the issue. We do not need to wait two years to review whether it is the right thing; we have to be far bolder.

Who Cares? Scotland very much speaks for the care-experienced population. We know the consequences of being care experienced; we will no doubt talk a bit more about that as the morning goes on. However, the age should be at least 16, if not 18, because the consequence of involvement in the justice system is more involvement in the justice system, which means that potentially more offences are being committed later in life. You end up with people who are more likely to be involved in the justice system later on.

Certainly, if people are involved as young adults in the justice system, it does not create safer communities and it does not do any good for those who will potentially be the victims of crime or those young people who are going through this entire system.

We have to look at the issue based on the reality of what we know and not accept a populist mantra. The involvement of police and in fact—bizarrely—the justice system means that people are more likely to continue offending. We have to look at a different approach and we should seize this opportunity. The age of 12 is really nothing.

Marion Gillooly (Includem)

We welcome the fact that we are debating a bill. I agree that moving the age to 12 is not going far enough; it is the absolute bare minimum, as suggested by the United Nations Committee on the Rights of the Child, so we would like the bill to go further. It is fair to say that the bill covers some complex issues, and it is important to note that a great deal of consideration has clearly been given to these complex issues—I think that that comes across in the bill. However, criminalising children is in nobody’s interest, and the stigma that is attached to that identity is incredibly damaging for those children and for all of us in society. We need to look at the needs of children who display harmful behaviour. The term “harmful behaviour” is much more helpful than the terms “offending” and “offending behaviour”. We need to look much more at how we use that kind of terminology.

Claire Lightowler (University of Strathclyde)

You are going to hear a similar response from me. It is hard not to welcome the bill because, as the committee discussed with the previous panel, it has been 20 years since the change was recommended, which is a criminal waste. For the life of the Parliament, the issue has been ticking away in the background. Most commentators, 96 per cent of consultation respondents and all those who have given evidence to the committee, both written and in oral form today, have indicated support for the age being 12.

We are at an important moment and the bill is an important statement of where Scotland stands in responding to children who experience distress and who behave in ways that harm others. It is important to acknowledge and welcome that step but, as others have said, we need to consider whether the bill goes far enough, what the age should be and how we can better respond to that distress. There are a lot of arguments about why it matters that we think about what is going on for children. The truth is that a criminalising response does not address the issues that children are experiencing. We know that nearly all children who are involved in a pattern of offending behaviour have backgrounds that involve domestic violence and have been harmed by those around them—they are vulnerable and victimised. The criminalising response does not address those issues. That is why the issue matters. The framing of a criminal lens can be very harmful, because the child starts to think that they are bad, others around the child start to think that and we do not get to the real underpinning issues.

The Deputy Convener

Thank you—that is very useful. We are starting to get unanimity across the panel, which is quite a rare thing, but a good one.

Oliver Mundell

I want to pick up on Duncan Dunlop’s points. The evidence from the first panel suggested that it would be much more complicated to go beyond the age of 12. Would you have us delay the bill to work through those issues, or is it better to push ahead and start the process?

Duncan Dunlop

Our aspiration is for the minimum age to be at least 16. How quickly we can get there is the Parliament’s business. Really, the age should be 18, given what we expect for young people and children, but we know from the care-experienced perspective what will happen. I am not sure of the consequences of delaying the bill to look at all the implications of having a different age. Potentially, that could be done in parallel, but I do not think that you need two years to review whether it is the right thing to do. It might take two or three years to implement, because the consequences go beyond policing and relate to creating different responses. That will come back to a cultural issue to do with how we view young people and, as was mentioned, having provisions available for vulnerable children that are appropriate to meet their needs.

We really need to be bolder. We can talk later about the good and the bad bits in some of the provisions and how they may need development. However, we need to have the ambition to raise the age of criminal responsibility to 16 or 18. If we do not do it now, it will not happen. We have been waiting for 20 years. It is not as though the Parliament has been against raising the age for 20 years. The issue will not get on the legislative agenda again—it might do, but it is taking quite a risk to assume that it will. I do not know about the technicalities of how to formulate legislation, but we must have the ambition to go much further. That is our recommendation.

10:30  

Oliver Mundell

The other issue that came up with the first panel that I want to ask all of you about is the idea of introducing a criminal defence for children who are over 12 but under 16 or 18. Would that satisfy some of your concerns in the meantime?

Marion Gillooly

Before I address that, I would like to answer your first question. If passing the bill gets us to a place where we start to look beyond the age of 12 sooner, that is the right thing to do, and it might be that that is the case.

As far as a defence is concerned, that involves consideration of capacity, which is an extremely complex issue. I agree with the members of the previous panel on the problems that are introduced by having a flat-line cut-off point, but it is difficult to see how, in law, we can have anything other than that.

In my view, every case involving a child who has displayed harmful behaviour needs to be considered individually, and the needs of that child need to be considered in making decisions about what should happen beyond that point and what support should be put in place for not only the child but the victims who experienced the impact of the harmful behaviour. For me, it is very much a case of interpreting the law in a way that suits the needs of each individual.

The Deputy Convener

Claire, you touched on this issue in your submission. Would you like to comment?

Claire Lightowler

I certainly would. If we accept the UNCRC, children are those young people under the age of 18. That means that if the minimum age that is chosen is not 18, thought needs to be given to how we respond to children between that minimum age and the age of 18.

There are now particular protections for care-experienced young people up to the age of 25, so the need for protections for that older age group is acknowledged. There is no cut-off at a particular age. I welcome the fact that we are teasing out and testing how far beyond a minimum age of 12 we can go, but we need to think about what response will be provided to children under the age of 18. We suggested that a closer look should be taken at other jurisdictions, such as the German model, where there are tests to do with children’s ability to understand and to act on that understanding. That is extremely important.

The committee has heard about brain development. Another important factor is the group of people around the child. A child could grow up in a criminal family in a criminal community and they might be exploited. Serious organised crime groups target vulnerable children—there is often a link between child sexual exploitation and serious organised crime groups. A child can be sexually exploited and then be used to commit a range of drug offences. What are we doing when we hold children who are in those circumstances criminally responsible?

It is the ability to exercise free will and act independently that matters. If a child’s family and those around them are acting in a criminal way and are encouraging them to engage in criminal activity, how can they say no? Do they have the independence to say no? The issue is not just about the child’s understanding; it is also about their ability to exercise free will. That is why I think that a provision to put in place tests to establish whether a child can understand and whether they can act on the basis of that understanding would be a useful addition to the bill, regardless of what minimum age is chosen, if it is to be less than 18.

Duncan Dunlop

If we know that people are care experienced, we need to consider why they are care experienced. It might be worth bringing in Lynzy Hanvidge at this point, because I think that it is worth understanding that children are not born bad—they are really not. Given what we do and how they grow up and are nurtured, or how we parent them or bring them up as a society, we sometimes push them further away from being the best version of themselves. At some stages, potentially, they cannot get back to that, but we have already heard that, up to the age of 25, there is a good chance that people can make quite significant changes in their lives.

We are looking at the age of 12. Lynzy can give an example from when she was 13, when she first interacted with the justice system.

Lynzy Hanvidge

The first night I went into care was in May 2007. It was Friday night, and I remember I was away to baby-sit just along the street from where my mum lived. When I came home that night, there were loads of police outside the flat that we lived in, and social work was there. When I went up the stairs, they told me that I, my brother and my sister were getting taken away from my mum.

I remember feeling angry and sad. I did not know what to do. I did not want to leave my mum. They tried to force me. The social workers tried to force me out of the house, and that did not go down too well. As you can imagine, being 13, I had all these emotions building up. I kicked off a little bit and I told them I did not want to leave my mum. My mum was going to be left by herself. They took my behaviour as harmful behaviour, as if I was just kicking off. That is how it felt to me—as if I was just kicking off for the sake of it.

They put me in handcuffs in my mum’s house in front of her and my brother and my sister. I was 13, my sister was six and my brother was 15. They took me out of the house. I was not even dressed properly. I remember—my mum will kill me for saying this—having jammies on that had a hole in the back of them. I did not realise that they were the ones I had put on, but they still had me cuffed at the front and they forcibly removed me from my mum’s house.

I got my first charge that night. When I got to the bottom of the close, they were pulling me about the place—I was quite a wee girl when I was 13—and I hit him. It was just that I wanted him away. I wanted to get back up the stairs and make sure my mum was okay. I got taken to the police station that night. This happened at about 10 or 11 o’clock at night. I was not picked up until about half 7 the next morning. I was taken to a children’s home where my brother and my sister were. They had spent their first night in a children’s home. I spent my first night in care in a prison cell, locked up. I had not done anything wrong, but I felt like I had done something wrong.

That was my first experience of being charged or being involved with the police, and that was them taking me to a place of safety. It did not work out that way for me.

The Deputy Convener

Lynzy, can I thank you on behalf of the committee for the candour of your statement? I do not think that anyone can fail to have been moved by that, so thank you for your bravery in sharing it, and we will carry it with us throughout the deliberations here.

Given that story, what we have heard and the unanimity on the panel, I am struck that the age of 12 is the floor—it is the de minimis position set by the UNCRC. When I hear your story and I see the Scottish Government’s view that it has picked the age of 12 because it is a nice fit, as that is when people go to high school, I would like it to meet you. I would like it to hear your story and the reasons why you were accused of offending behaviour when you were doing what anybody in this room would probably have done in your circumstances. Thank you so much.

Oliver, do you have any further questions?

Oliver Mundell

No, but I will just quickly say that it is not just about age. When we hear a story such as that one, we can see that it is also about the way in which the criminal justice system decides to treat people. Sometimes, for a variety of reasons, compassion does not come through in the way the system works. That is very frustrating and it is sad to hear.

Lynzy Hanvidge

It is dehumanising. You do not feel like you are valued or like you are a human. You are just another wee person who is causing trouble, and that is what they do. They put you away and you are left there, and then you come out. I remember that, the next morning, at half seven, I got a bowl of lentil soup and bread for my breakfast, and nobody spoke about me being in the cells that night. I was just expected to deal with it, and that was that. They went on with what they were doing.

Thank you for listening to my story.

The Deputy Convener

Thank you for sharing your story. I am really struck by the fact that we are, as a Parliament, coming to terms with an understanding of trauma and looking to all our working practices across public life from a trauma-informed perspective and what happened to you is the antithesis of that—it is the complete reverse of that. A trauma-informed approach to what you were going through, being separated from your mum, would never have involved adding additional, horrendous trauma to that by putting you in a prison cell overnight.

It comes back to what both Claire Lightowler and Marion Gillooly were saying about looking to why young people are exhibiting harmful behaviour, understanding what unresolved trauma, attachment disorder and loss can do to behaviour and meeting that with a more appropriate response.

What would a more appropriate response in terms of a trauma-informed approach to dealing with harmful behaviour look like?

Claire Lightowler

When we get it right across Scotland, this is what happens—this is not linked to the age of criminal responsibility. When we see the child, we understand the context for their behaviour. We challenge, where appropriate, why they are behaving in particular ways and we bring in the professionals we need. We work out what the child needs from across psychology and social work, but mainly from those who have a direct relationship with the child, supported by that team of professionals.

When we get it right, that can and does happen. The issue about the criminal responsibility angle is that it encourages sole responsibility for behaviour to be placed on the child; what they are externalising becomes the focus. That means that we can miss what is going on. Everybody can miss what is going on with the child at certain points because we are so focused on how they are harming others.

It is important to keep that in mind and to really understand that rather than just attaching a criminal responsibility label to a child. If we understand the context, it allows us to get under the surface and better support that child as well as reduce the risk for others.

Marion Gillooly

As Claire Lightowler says, when things work well, it is when professionals work well together, always thinking about that child and what they need. It is about service providers such as Includem providing relationship-based support that allows workers to get to know that child. They need to find out what the child’s experience has been by listening to them. They can then start to help the child work through how that experience has influenced their behaviour, to think about the consequences of that behaviour and how to develop different ways of coping. All the while, they need to acknowledge what has happened and understand what has happened for that child, which is really important. It is about helping the child to understand what has happened and, crucially, it is about removing the inference that there is blame for their experience. That is something that we are passionate about.

Claire Lightowler

The other element of this is to keep the child included in various settings. Susan McVie alluded to that in terms of school inclusion but it is also about inclusion in social activities and in groups such as youth groups. We need to try as much as possible, wherever possible, to ensure that support is put in place for the child to continue doing things that will help them to step away from problematic and challenging behaviours.

Obviously, sometimes keeping a child included is very difficult to do and care protections are needed in relation to how that child can engage in certain circumstances, when we are talking about the more serious end of offending. However, wherever we can, we need to keep children included. It is a key factor in diminishing the likelihood that they will continue that pattern of behaviour.

Duncan Dunlop

Lynzy Hanvidge’s story is not unusual. I was with two young women last week—both of them are just 20—and for both, their first memory of their experiences of care was of the police removing them from their family. It is a really blunt instrument. The police are there because it is the blunt tool that we are currently using but we know what goes on in relation to the statistics on care-experienced people’s involvement in the justice system. The minimum figure is on record as 30 per cent-plus; that means that a third of the young people who are in Polmont would be care-experienced. That is a very crude statistic. I remember going to Polmont when Derek McGill was governor and he reckoned that it was closer to 80 per cent.

You are looking at a huge proportion of a small population. Only 1.5 per cent of our young population is care-experienced. Why are they ending up in those spaces? In the adult prison population, the proportion could be as high as 50 per cent. We really need to look at that. It is not a matter of saying, “Oh, that’s just care-experienced people”. If we extrapolate that out into the severity of what we see as offending behaviour when we are incarcerating people, that is the population that we have to consider and in relation to whom special measures might be required.

10:45  

The Deputy Convener

Thank you. Wow. We will move on to Mary Fee. I do not particularly want to leave that line of question, but I think you are going to pick up on it, Mary.

Mary Fee

Yes, I am. From the comments that the panel have made, it is clear what your views are on raising the age to 12, so I will not ask you to comment any further on that. I am interested in where moving the age of criminal responsibility to 12 sits in relation to the GIRFEC approach. Is that at odds with GIRFEC or does it work in co-operation with GIRFEC?

Marion Gillooly

I guess that I am going to repeat myself. It is a starting point. GIRFEC is about the things that we have been talking about. It is about not making judgments about children. It is about keeping them at the centre, asking them for their views and respecting their rights.

As I have said, this is a start, but it is not enough. If we are going to take a getting it right for every child approach, we need to think about how we move forward. If we make 12 the age of criminal responsibility, how do we then move to raise the age further?

Mary Fee

Before I bring Claire Lightowler in, it might be helpful to get on the record the maximum age to which the getting it right for every child approach applies.

Marion Gillooly

GIRFEC considers a child to be a child until they are 18, which is in line with the UNCRC definition of a child.

Mary Fee

Okay. Thank you.

Claire Lightowler

That is exactly what I was going to say. The UNCRC and GIRFEC treat children as children up to the age of 18. Something happens when children display harmful behaviours to others that means that we struggle to keep hold of the fact that they are a child, and if they are under 18, they are still a child and still require a range of protections of different types. Because they are still children, there are also exciting opportunities to deal with them and help them to address and change their behaviour and the issues that underpin it.

If we are honest, we as a society have struggled to remember that children are children up to the age of 18, particularly when we talk about children who are involved in more serious offending. Keeping that in mind at all points of the system becomes more and more difficult for people and for different parts of the system. If we are to truly get it right for every child, I suggest that we need to keep in mind that they are a child. They might be causing significant harm to others and various interventions and support might need to be put in place to minimise the risk that that child poses, but they are still a child and we must always hold on to that.

Duncan Dunlop

Lynzy Hanvidge has a really good example of what we are talking about. We see GIRFEC as getting it right for children up to the age of 18 but Lynzy’s example, involving someone she knew from her care experience, shows what happens to them when we do not, and what the consequences are later on.

Lynzy Hanvidge

When I was young, I had a friend—I would still consider him to be a friend. He grew up in care all his life. At the age of 13, he started displaying some harmful behaviour and running away. He was sent to a residential school. He ran from there too because he did not feel safe. He ended up in secure care for running away, but nobody ever asked him why he was running away or why he behaved the way he did.

He went from secure care back into residential care, back into secure care, back into residential care, all the way up until he was 16. He was let out of secure care a month after his 16th birthday and not even three months later, he was in young offenders. He has been in and out of young offenders for the past five years, and he is now in an adult prison. He was out on licence and he told me, “I’m going to do something silly, Lynzy. I need to go back to jail.” I asked him why and he said, “I can’t do it out here. I don’t know how to live in the outside world.” He was institutionalised because nobody cared enough to understand why he behaved in the way that he did. They cared more about the behaviour that he displayed.

Raising the age of criminal responsibility to 12 would not meet GIRFEC. We have to have a child-centred approach. If somebody had taken the time to listen to my friend all those years ago, his life could be different today. He faces another 10 or 20 years of going in and out of prison. Is that fair?

The Deputy Convener

Thank you, again. The texture that you provide with your stories is invaluable. They are symptomatic of a lack of a trauma-informed response to such situations.

Mary Fee

Thank you, Lynzy, for your honesty and bravery in sharing those stories. My next question was to have been about the long-term impact on young people who are involved in the criminal justice system at an early age and about the level of offending and disorder that quite often affects their whole lives. Obviously, Lynzy’s stories have demonstrated that clearly.

Duncan, do you have anything to add in relation to care-experienced young people?

Duncan Dunlop

It has a lifetime effect. The story that Lynzy told was really sad, and it is not uncommon. They get used to the system, which is how they know how to perform in it.

When we worked with the Education and Culture Committee in the previous parliamentary session on raising the care-leaving age, a young man called Tony McDonald talked very candidly about how he would get fevered up when he left Polmont. He went the whole way through the care system and spent six and a half years in prison after it. He managed to turn himself around—he is now 23 and a half and I am proud to say that he is doing very well. He talked about getting fevered up the night before leaving prison because, on leaving, he did not know what to do. He would have his 20 or 30 quid to get back home, he would buy his bottle of vodka to take on the train and, when he got home, he would end up back in the cells. In fact, that was where he wanted to be as he knew how to work in an institution.

As others have said, any hope for the young people we are talking about lies in relationships. However, what breaks that is our use of the very blunt instrument of the justice system, which deals with the behaviour that is being displayed. However, why is that behaviour being displayed? It is because, in care, the young person does not normally have a relationship that has given them the lifetime love that they require to understand the world. They lash out because they do not have our language, education or communication ability. I asked Tony what the problem was. He said that he did not know how to speak about or communicate all these feelings that he had. It is the solidity of the relationships around young people that can give them the stable loving structure that enables them to not get engaged with the behaviour. Whatever we do—whatever service, intervention or justice punishment that we bring in—we have to bring it back to the relationship.

The opportunity is in looking at a culture shift, and that can certainly happen with regard to policing. The fire service did it—this is a slightly crude example—as it went from simply putting out fires to trying to prevent them. There could be a similar culture shift in policing. The police have a key role and they are certainly not alone in this, because it seems that we use them as a system when we do not know what else to do. That is symptomatic of a system that is not working, which is why there is a care review going on. We know that a disproportionate number of care-experienced people get stuck in the system. People do not bring them up; institutions do.

If you want to look at the financial cost, it costs on average £100,000 a year to bring up a child in care, and it costs £37,000 to £40,000 a year when they are in the adult justice system.

We go beyond the moral issue—that is what life is. I have met several young people who have said that they thought that either their life would be spent doing a life sentence or they would not have a life at all. That is not an exaggeration: we lose a care-experienced person under the age of 25 once a month on average in this country—they die. For most of them, that is probably a consequence of being involved with the justice system for lower-level offences. That is what is going on.

The consequence of us getting this wrong is horrendous, and we need to get a lot better at tracking the issues, statistics and everything else. As a society, we are getting far more turned on to the issues and where they really need to be addressed. As Alex Cole-Hamilton said, we are doing this with a trauma-informed approach and by understanding adverse childhood experiences and the like, but we have to bring in the services. We know the issue, so what will we do to fix it? We know that policing in its current guise does not work.

Mary Fee

Culture change can take many years. It does not happen overnight. Is there enough flexibility in our welfare-based approach to make tweaks and changes to make things better while we go through the longer process of culture change?

Duncan Dunlop

Culture change needs leadership. If we look at this country, there are probably still people out there who would back capital punishment if there was a referendum on that, but this Parliament does not back it. The Parliament needs to start showing leadership.

Mary Fee

Do we need to be more bold?

Duncan Dunlop

We need to be much bolder about showing that we are going to move on this issue. That is why looking seriously at the issue around the ages of 16 to 18 creates space that other solutions and cultures can come into and populate to make it work differently. Unless that happens, we may get a little bit of incremental shift but we will not get to the stage of doing things differently. We need to create that space as people out there may have the solutions, and things may then start to come to pass.

If we look at policing and sensitive issues such as how the police interview witnesses or victims of crime—we talked about places of safety earlier—we see there are a lot of ways in which we could address the matter differently, even just in terms of police involvement. However, I do not think that the police are the solution. They are brought in as a blunt instrument at the end when we do not get it right.

Marion Gillooly

Our experience of supporting young people who have been involved in offending behaviour is that one of the difficulties is that their sense of belonging and inclusion is with their peer group, who are often also involved in similar harmful behaviour. One of the challenges of supporting a young person to make changes in their life is the requirement to support them to remove themselves from where they feel safe. That is a really big issue, and if we come to it too late the chances of success are much lower.

I agree with Duncan Dunlop that we need to be bold. We need to have leadership demonstrated to us and we need the Government to be brave about committing resources to the services and supports that we have in Scotland, which are often not resourced well enough to provide the levels of support that we know that they could.

Earlier intervention is needed, whatever that means, and I do not just mean early years. We need early intervention when we know that there is an issue that can be resolved. There are organisations and local authorities with staff who are trained, skilled and experienced and would be able to provide support if only they had the capacity to do that.

Claire Lightowler

I completely agree. This is a culture change and culture changes never end—it is an on-going process of improvement at a practice level as well as a policy level. It will always require attention, but there are moments such as this when we can send a clear message, as well as removing the additional obstacles to enabling children to address their behaviour that a criminal lens creates. It is an important marker, but it needs to be part of a much broader range of actions and activities at all levels and in all areas of practice. Policing is one such area; residential childcare is another.

I am struck by what Duncan Dunlop and Lynzy Hanvidge have said about the relationship between the care-experienced journey and contact with the justice system. It is important to acknowledge that most care-experienced young people do not go on to offend—we need to make that very clear; of course they do not—but children who are involved in offending very often have some level of contact with the care system or some trauma and adversity in their background. Both of those things are true at the same time so, because we do not want to stigmatise people, we cannot just identify all children experiencing adversity and do work with them. It is not as simple as that.

However, when we see it on the other side, in terms of children involved in offending, there is much more that we can do to understand why and what that comes from. It is also important to acknowledge the issues that the system adds to that mix; it is not about a child acting in isolation. Despite what is going on in their families and communities and how that is playing a part, the system can also make their offending worse.

That is particularly the case, for instance, in residential childcare, where we still hear horror stories of children being criminalised for throwing something at a member of staff, trashing the room or taking some food. The police are called and the situation is exacerbated by the system imposing that criminal lens.

We did some interesting research on that with staff in residential childcare. Nobody sitting here in a committee room thinks that that is the right response, and nobody thinks that they will phone the police in that circumstance. However, if there is a lone worker and a situation is escalating that they do not know what to do about and they are frightened about it, without the right support and training around them they may well phone the police, and that can have the knock-on effects.

It is really important that the approach is nuanced. It is not about blame and we need to take people with us in that broader culture change.

11:00  

The Deputy Convener

We should reflect on the idea that we need a culture change. I worked with Duncan Dunlop very closely during the passage of what became the Children and Young People (Scotland) Act 2014, which brought in provisions relating to the age of young people leaving care. One of the issues that we tried to address was the devastating reality that when a young care-experienced person dies, as they do every month, there is no formal mechanism for understanding the circumstances around that death or what might have prevented it. That is symptomatic of the fact that we are not trying to understand the basis of trauma that leads to harmful behaviour. We need that culture shift so that we stop asking, “What’s wrong with you?”, and start asking, “What happened to you?”

Fulton MacGregor

It would be remiss of anybody who contributes to the debate not to thank Lynzy Hanvidge for telling her powerful story. As I said to the previous panel, I am an ex-social worker and an MSP, and I feel a compulsion to apologise for the treatment that she received that day.

The discussion has moved on since she spoke, and we have talked about the societal change that needs to take place. Professionals who work with young people need to realise the consequences of young people receiving criminal convictions, as has been outlined very well. This debate is about raising the age of criminal responsibility to 12, but we might want to go further, as has been mentioned by all panellists.

I want to explore the children’s hearings system, which we explored with the previous panel but not to any great extent with this panel. The children’s hearings system that we have in place is good and unique, but how could it better deal with young people who come forward on offence grounds?

Lynzy Hanvidge

The system should not scrutinise a young person for their behaviour but try to tease out where the behaviour is coming from. A young person will not act out and display harmful behaviour for nothing; there will be background reasons. If we do not understand that, we cannot address the harmful behaviour.

Duncan Dunlop

This came up in the previous panel. We know that children accept offence grounds without having a clue what it means. They just go through processes, and that is another process. Children in the system see a lot of professionals and a lot of people with titles, and they very rarely get legal representation. I think that about 90 per cent of the legal representation within the hearings system is for parents. That is not necessarily the case for offence grounds.

Just as children do not understand the offence grounds, we doubt sometimes that panel members understand that children can get a criminal record that will be with them for life as a result of being referred to the hearings system on offence grounds. There is a real problem with voice and with understanding what is going on. We have campaigned for a long time for greater representation of advocacy. Less than 3 per cent of young people have advocacy in the children’s hearings system, which is unacceptable in this day and age. That is about to be improved to a limited degree.

If we are to understand the child’s perspective when they turn up to a room like this one—I know that a hearing is not quite like this any more—we need to think about the best way that they can represent themselves and their voice. They can do it via a relationship that they trust, and that enables them to say, “This is what’s going on for me. This is what matters. This is why I was doing what I was doing. This is the person or the things that will help me to feel safe.” That relationship might be with their school or, more likely, somebody in the school. It might be a relationship with a granny or a brother or sister. It is really important that we start to understand matters from the perspective of a care-experienced young person or child. We will not get that on the day of the hearing, with a stranger—whatever title or intention they might have—who is asking what the issues are. We have to look at it very differently.

It is worrying how many people find out that what was agreed to as offence grounds through the structure of the children’s hearings system is still with them in their 20s, 30s and 40s. It is not just that it will come up in checks under the protection of vulnerable groups scheme or when applying for a job. It might need to be disclosed later on for other reasons, for example if the person becomes involved with the justice system.

Fulton MacGregor

The whole context of the children’s hearings system comes into play, because many young people will be told that, if they deny the offence grounds, the matter will go to court, which can sound even more frightening and intimidating.

Marion Gillooly

I agree with Duncan Dunlop that hearings, or panel members, need to find a way of hearing the voice of the child, although I know that it is easy to say that but much more complicated to achieve it. The move away from using offence grounds is appropriate, as is having other grounds to call a hearing.

I agree that we need more advocacy and support for children and young people who are in the hearings system and who go to hearings. I have a concern about the provisions on advocacy in relation to interviewing a child. If we find it almost impossible to provide advocacy in the hearings system, what will be different in providing the advocacy that the bill requires? We need to look at that.

We also need to look at what happens after a hearing and what supports are available for the child. We need longer-term thinking on how to sustain supports and services and how we invest in services in our communities. We need to think about how we address children’s needs across Scotland, because something that works for a child in the central belt may not be available for a child who lives in the Highlands or in a remote area. That is quite a complex issue.

Claire Lightowler

Children experience contact with the children’s hearings system as punishment. Raising the age of criminal responsibility and taking away those grounds will help with that, but a range of other things have to be done to change that experience. To an extent, the system will always be experienced as punishment, because children may not want to voluntarily do the things that a hearing recommends. That is an important balance and it is the place in which hearings sometimes sit.

I will throw in a couple of things to add to what Marion Gillooly, Duncan Dunlop and Lynzy Hanvidge said on the importance of listening to voice and relationship. The population that we are talking about have enormous speech, language and communication needs. We do not have research on that in Scotland, but UK-wide research has indicated that 70 per cent of children who come into contact with the youth justice system have a speech, language or communication need. We do not understand those needs properly, and we certainly do not assess for them. In practice, many of our services do not account for the fact that children may not understand. Because of those issues, children might answer in monosyllabic words and avoid eye contact, and, in the justice context, all those things can make a child look guilty. As well as the age and stage issue, we must take account of the speech, language and communication needs in the hearings context.

With the earlier panel, you had some discussion about 16 and 17-year-olds and heard that, unless they are on supervision, they are not necessarily under the remit of the children’s hearings system. A clear message from GIRFEC and the UNCRC is that children should be supported through the hearings system. We can look at what needs to be in place and what improvements can be made in that system. There are important things to be done to improve what happens in the hearings system, but the level of understanding of children going through the court system is absolutely appalling. Even if the age of criminal responsibility is changed to 12, that will mean that 12 to 18-year-olds will potentially go through the court system if the level of the offence permits that. We have to think about that aspect as well as about what we can do in the hearings system to account for those issues.

Fulton MacGregor

We have heard compelling evidence from both panels about raising the age even further. It will be interesting to see whether that continues as the committee gathers more evidence in the next few weeks and months.

Is there an opportunity with the current children’s hearings system to do things differently? For example, the reporter who gave evidence in the previous session told us that offence grounds were not always brought for children under 12—or even for those over 12. Is there any merit in reporters being given guidance on redirecting all offence grounds, if possible, unless there is public interest in a specific offence? I know that we are probably running out of time, convener, but I wonder whether the panel can briefly address that issue.

Marion Gillooly

Such an approach might take us some way towards raising the age of criminal responsibility beyond 12. If we are going to have 12 as the age of criminal responsibility, we are going to need to be creative and look at how we support and promote the wellbeing of the children who come into the hearings system.

Claire Lightowler

It is an approach that, in effect, raises the age of criminal responsibility. In part, what the committee has heard from us is that, by making some of those other cultural changes and improvements in practice clear to people, you are also making a statement about where they fit in the criminal responsibility lens. It is, in effect, the same thing.

Duncan Dunlop

It was a bold statement of the sort of thing that we are saying will be required to move things along, and I very much welcome it.

The Deputy Convener

We are almost out of time, but I want to come back and ask Lynzy Hanvidge, in particular, about the question of place of safety. I realise that this is quite granular detail to be looking at when we should really be looking at the wider issues raised in the bill, but I think that your experience suggests that police stations can be places of trauma rather than places of safety. I am not sure how much of the bill’s detail you have read, but police stations are the only places named in the bill. Obviously, others are available, but do you think that police stations should still be the last resort for someone?

Lynzy Hanvidge

No. A child should never have to enter a police station, because having to do so—and being put in a cell—will traumatise them. In our submission, we talk about a project being planned in West Dunbartonshire to have a safe room where the police can conduct interviews with young people. It will be in a council-run building, and there will be access to that building at any point in time. It will be in among other services in what is quite a child-friendly building—I work there—and the plan is to make the room itself child friendly, too. It will not be one of these big interview rooms; it will be colourful; and it will be soundproofed so that nobody can hear what is going on. It needs to be a place where a child can feel comfortable and does not feel that they have done something wrong; even if they have displayed harmful behaviour, you will never get to the root of that behaviour in a police station, at school or in several other places that have been suggested to me but in which our young people would not feel comfortable. It needs to be outside the police system.

The Deputy Convener

I think that you are absolutely right, and I share your view about interviews. However, the place of safety provisions in the bill refer not to investigative interviews but to those times when a young person needs to be removed from a situation because a police officer deems them to be at risk of doing harm to themselves or others. What do we do in such situations? Where do you think young people should be taken if you feel that a police station is not a place of safety?

Lynzy Hanvidge

A new space should be created. We keep saying that we are going to provide the best place for children to grow up in, but what about having a child-centred approach to this issue? Where would you want to be taken if you were a child? You would not want to go to a police station, because that would scare you even more. Some of our young folk have mentioned schools and so on. However, I am not sure, so I will pass the question to Duncan Dunlop.

Duncan Dunlop

There are a couple of things you can do. For a start, you can design such a space with children. Someone who went through secure care and the prison system told me that secure care was worse than prison. Because it was such an enclosed space, she felt that she had less freedom. We need to consider how we create spaces to keep children safe. There are very few children who present a risk of doing significant harm to themselves, and we need to understand why they are in that position.

11:15  

I return to an issue that Claire Lightowler raised. We ought to raise serious questions about the police being called to a residential care house, because that results in stigma being attached by people in the community, who think, “That’s where the police are.” Normally, that is to do with someone running away. Why are the police involved? We ought to ask residential care providers why they use the police in those circumstances. They should not be allowed to use the police in that environment. Some of the offences are, frankly, ridiculous. Lynzy Hanvidge’s story showed how a trauma can end up turning into the offence of assaulting a police officer. We could easily design a place of safety. We have done that in the context of interviewing victims of crime, and I think that we could do that with young people.

I say to all members of the committee that there are many other young people who could give evidence in different formats and forums; they could go more deeply into some of these issues, if you require.

The Deputy Convener

We welcome that offer.

I have a question for Lynzy. You do not have to answer it. Do you have a criminal record as a result of that night?

Lynzy Hanvidge

I do not have anything that has shown up on a PVG or a disclosure check as of yet. My most recent charge was four days after my 16th birthday, so it is possible, depending on which jobs I apply for, that a potential employer might find certain things that took place a long time ago.

Many people I work with who are now in their 40s or even their 50s did things like smash plates when they were teenagers, and those offences show up. I am talking about behaviour that is normal for children. If I lived with my mum and I smashed a plate, she would not phone the police, but our kids are criminalised for things like that.

The Deputy Convener

Thank you for your honesty.

We have a few minutes left—we need to end the session at about 20 past 11. As my colleagues have no further questions, I invite the panellists to say anything that they have not had the opportunity to say.

Claire Lightowler

For me, the issue is also about justice, and the injustice of holding solely responsible children who are in extreme distress. We shy away from discussions about justice, because we think that justice involves being punitive, but that is not the case. The children we are talking about do not get justice. It is not appropriate to hold them solely responsible, and they experience a lot of distress. That is the wrong lens to view justice through—that is not what justice looks like.

Marion Gillooly

I agree completely with that. As a society, we need to take a good look at how we treat children and how we think of them. Frankly, it is unfair to hold children responsible at an early age for actions that are influenced by their experience of trauma, abuse, neglect and loss, and if we are a just society, we need to do something about that.

Duncan Dunlop

I reiterate that I believe that the Parliament has a good way of operating in reaching out to society. That is why people like us are giving evidence today. We will give you any evidence that you require to be bold and to show leadership. It is not bold to have a minimum age of criminal responsibility of 12. Frankly, that is embarrassing. We have an expectation that you will go further, and we will give you any evidence that you require to enable you to go much further and to support you with that narrative. I ask you to please keep that in mind.

The Deputy Convener

Thank you, Duncan. Lynzy Hanvidge will have the last word.

Lynzy Hanvidge

I would like to share a quote from our submission:

“Remember that they are weans! Some people might be slower at learning than others.”

Members of the committee have the power to make a radical change and to have an impact on so many young people’s lives. As Duncan said, if you come to meet us, we will help you along the way.

The Deputy Convener

You have certainly helped us in our deliberations this morning, and I thank you for that.

We have come up against our time limit, but if other thoughts materialise or there are things that you forgot to say, please get in touch with the committee. This is an on-going process. We have all been very impressed by the depth of your knowledge, so we will be tapping it again.

11:19 Meeting continued in private until 11:34.  

The Presiding Officer (Ken Macintosh)

The next item of business is a stage 1 debate on motion S5M-14704, in the name of Maree Todd, on the Age of Criminal Responsibility (Scotland) Bill.

I advise members that we have plenty of time in hand today, so interventions will be welcome. We will not be cutting members off.

14:15  

The Minister for Children and Young People (Maree Todd)

When I was elected as a member of the Scottish Parliament, in 2016, the elation that I felt was matched by my excitement about the opportunity that I had to take forward key causes that are close to my heart and dear to my and my party’s values. At that point, I did not dare to dream that I might actually be in the position of being able to bring any of those to fruition as a minister, so I am absolutely delighted that the first stage 1 debate that I am leading as the Minister for Children and Young People is on the bill that seeks to raise the age of criminal responsibility.

I acknowledge that it has taken a long journey to get here, and I pay tribute to the cabinet secretaries and ministers who have helped to guide that journey. It is important to reflect on how far we have come, not least in understanding how best to prevent and address harm in children’s lives. We should be honest with ourselves as parliamentarians. Only a few years ago, we would not have been here, with a consensus right across the chamber that the age of criminal responsibility should be raised. Now, our discussions are about what age to raise that age to and what safeguards and other issues need to be addressed. That is a significant and welcome shift.

Collectively, we can agree that reforming the age of criminal responsibility will contribute to a youth justice system that recognises that heavy-handed criminal justice and early adversarial contact with enforcement agencies are counterproductive for children. We can reiterate our support for the integrated care and justice ethos that has been in place in Scotland for many years to respond to young children when things go wrong. That ethos resonates through the children’s hearings system, getting it right for every child and the focus on early and effective intervention as part of the whole-systems approach to youth justice.

We can acknowledge that we and agencies, services and professionals all now have a better recognition and understanding of the long-term effects of adverse childhood experiences and the need for trauma-informed practice. When we consider all that knowledge and understanding together, it becomes almost self-evident that how we address children’s harmful behaviour also needs to change. The Age of Criminal Responsibility (Scotland) Bill forms a key part of such a response.

The bill reflects not only the Government’s aspirations but the recommendations of the advisory group that was set up in 2015, which comprised organisations that work with and for children, victims, families and justice. I thank everyone who contributed to the group’s deliberations and recommendations. Their work is reflected in the principles that underpin the bill and its measures.

I also thank the members of the Equalities and Human Rights Committee for their considered approach to stage 1. In particular, I welcome the committee’s support in its report for the general principles of the bill. I will take the time that is needed to consider the report’s conclusions and recommendations and to respond to the challenges in just as constructive a manner as that in which they have been framed, and I will ensure that the committee has my response in sufficient time to consider it ahead of the commencement of stage 2. However, I will respond to some of the key findings today.

I welcome the committee’s support for raising the age of criminal responsibility to 12. There is a strong rationale for that position. Of the 700,000 children in Scotland who are aged under 12, fewer than 300 are referred to the children’s reporter for consideration of formal measures due to harmful behaviour. That number is declining, and most cases that involve harmful behaviour that is currently labelled as criminal involve harm that is minor to moderate in nature.

Our proposal to raise the age to 12 was also supported by the public consultation and by the majority of respondents to the committee’s call for written evidence.

Alex Cole-Hamilton (Edinburgh Western) (LD)

It is absolutely true that the majority of respondents supported the uplift to 12, but does the minister recognise that the majority of written submissions and the overwhelming majority of those who gave oral evidence wanted the age to be raised still further?

Maree Todd

I know that some people want to see the age raised higher, but I also note that there is not a clear consensus among those people on what the age should be.

I reassure members that I have listened carefully to the arguments that have been put by those who propose a higher age, including their points about the position in other countries. I accept that the European average age of criminal responsibility is 14. However, our comparative evidence clearly shows that the “age of criminal responsibility” does not mean the same thing in different jurisdictions.

References to higher ages in other jurisdictions, without accounting for their context, such as exceptions for serious harm, or civil detention on mental health or care grounds, are not nuanced enough. To arrive at useful comparisons, we need to capture the full complexity of how a system responds to children who are involved in harmful behaviour, their families and those affected.

We should also recognise that the law has already been changed in Scotland so that no child under 12 can be prosecuted for a criminal offence in an adult court. That is different from the situation in many other countries, as is our approach to youth justice. I am confident that the position that is adopted in the bill, which is to raise the age of criminal responsibility to 12, is the right one.

We must provide for a proportionate and effective response by relevant agencies to the very small number of children aged nine to 12 who may engage in seriously harmful behaviour, and that is what the measures in parts 2 to 4 aim to do.

The bill seeks to provide legal certainty and clarity in the small number of the most troubling cases to ensure that children are treated equally, fairly and consistently in such circumstances. It provides bespoke police powers to ensure appropriate investigation and the proportionate involvement of the children in the most harmful cases. Those powers are an additional tool to meet the specific needs of investigations into the most harmful acts and the needs and rights of the children involved. They will be engaged only when a sheriff is persuaded that they are necessary and they will be necessary only when agencies cannot apply good practice through early and effective intervention or through getting it right for every child conversations with children and their families and carers.

The bill’s reform of particular elements of disclosure is part of a wider effort that is being made through the protecting vulnerable groups review and the Management of Offenders (Scotland) Bill. Taken together, they will deliver a clearer, more responsive and progressive system of disclosure. I am pleased that the committee took time to explore that in its evidence gathering and recognised that wider work.

Rightly, we need to ensure that those who are affected by harmful behaviour have confidence in the proven effectiveness of our interventions, and I welcome the approach that the committee took to the issue in its evidence gathering. We need to make sure that victims see, hear and are reassured that serious harm will be responded to effectively. Part 3 seeks to achieve that, although I note the committee’s view that the bill represents an opportunity to consider the matter more carefully. I undertake to do that.

I want to make it absolutely clear that many children who engage in harmful behaviour at a young age are often victims themselves. The data from the Scottish Children’s Reporter Administration bears that out. Often, children who harm are themselves harmed and have experienced significant adversity in their childhoods. To insist that some children might be victims and that others are simply perpetrators is too simplistic, as all our work in prevention and early intervention bears out. We need to take a whole-child approach.

Many organisations and agencies have contributed to the development of the measures in the bill and to stage 1 of the bill’s parliamentary progress. Crucially, children and young people have contributed their views. I thank the Scottish Youth Parliament, Who Cares? Scotland, the Children’s Parliament, Action for Children, Up-2-Us and many others for discussing the bill with so many children and young people and for including me in the discussion with primary school children.

I welcome the committee’s recognition of the particular needs of care-experienced children and young people in its evidence gathering and its recognition that love and safety must be at the heart of our wider approach to supporting vulnerable children and young people. As James Docherty of Scotland’s violence reduction unit put it:

“you will never punish a young person into a better way of being; you can only love and nurture them into a better way of being. We need to look at what is missing in their life in the first place and replicate that missing element as responsible, connected adults because it is not good enough any more to say to young people, ‘You are making bad choices.’”—[Official Report, Equalities and Human Rights Committee, 27 September 2018; c 33.]

Raising the age of criminal responsibility forms part of the work to address that broader fundamental question, which the independent care review has been set up to consider and address, of how to create a care system that truly cares.

The most powerful testimony that we heard at stage 1 came from a young woman called Lynzy Hanvidge. I acknowledge that what she experienced in the criminal justice system would not be helped by the bill. The bill’s emergency power does not relate to the processes that she was subjected to. However, it is clear from her evidence that she was not treated as a child in distress and difficulty, that the adult professionals around her did not respond to her distress in a trauma-informed way and that the situation escalated rather than de-escalated.

What happened to Lynzy Hanvidge was unacceptable then and it would be unacceptable now. I believe that the best way to respond is to have in place robust policy, procedures and training to prevent that entire unacceptable situation from arising. Focusing on the age of criminal responsibility as a response is, frankly, shutting the stable door after the horse has bolted.

As Lynzy Hanvidge’s case and much more recent ones suggest, we are not getting it right for every young person who comes into contact with the criminal justice system. These matters have come into sharp and discomfiting relief in recent days, and I am working with the Cabinet Secretary for Justice to address them.

We can be clearer about what we mean by a place of safety in this bill, which provides for a specific emergency power to take a child under 12 to a place of safety when there is a risk of harm and the need arises to investigate an incident of serious harmful behaviour in which a child under 12 may be involved. I note the committee’s concern over the provisions. I confirm that I have asked for an amendment to be prepared that will include the full definition from the Children and Young People (Scotland) Act 2014 to make it clear that the same range of safe places can be used. I also undertake to reflect on and respond to the committee’s concern about whether police cells can ever be considered an appropriate place of safety for children under 12.

If there is one message that I ask members to take into this afternoon’s debate, it is that I am listening and will consider carefully what more might need to be done to ensure that the bill gets it right. After all, our law benefits when it is the result of careful, considered and collaborative work. Our society benefits when we work together to consider how best to provide for our communities, for our children, for victims and for our responsible professionals. Crucially, our children and young people will benefit.

I am confident that the central approach in the bill, which is to raise the age of criminal responsibility to 12, is the right one. I am confident that we can build a shared understanding of that and that, with this reform, we can build consensus and build for the future. I look forward to the debate this afternoon and to hearing more of the views of members across the chamber, and I have great pleasure in moving the motion.

I move,

That the Parliament agrees to the general principles of the Age of Criminal Responsibility (Scotland) Bill.

The Presiding Officer

I call Ruth Maguire to speak on behalf of the Equalities and Human Rights Committee.

14:30  

Ruth Maguire (Cunninghame South) (SNP)

I am pleased to speak on behalf of the Equalities and Human Rights Committee, in my new capacity as convener. I give sincere thanks to our supportive, diligent and efficient clerking team for all their hard work. I also thank my fellow members for their care and compassion in exploring challenging issues and, of course, I thank those who gave evidence and shared their stories with us.

Scotland currently has the youngest age of criminal responsibility in Europe, at eight years of age. The minimum age of criminal prosecution in Scotland was raised to 12 in 2010, which means that children under the age of 12 can no longer be prosecuted through the adult courts.

However, children who are aged between eight and 11 years old could still obtain a conviction via a children’s hearing, either by admitting an offence, or by having an offence ground established via a proof hearing at the sheriff court. The bill seeks to address that disparity by raising the age of criminal responsibility to 12, in line with the age of criminal prosecution.

The bill also includes provisions on police powers to investigate an incident of harmful behaviour by a child under 12. It will end automatic disclosure of convictions of under-12s, and make changes to disclosure processes and to the release of non-conviction information and information to victims of harmful behaviour. As a result, no behaviour by a child under the age of 12 can be regarded as criminal.

According to the Scottish Children’s Reporter Administration, about 200 children will be decriminalised each year as a result of the bill—1,000 children over a five-year period. The committee heard about the harm that has been caused by treating children as offenders from such a young age. Involvement in formal processes did not stop harmful behaviour: once they had been exposed to the criminal justice system, children continued in the system and moved on to become part of the adult offending system.

Professor Susan McVie from the University of Edinburgh told us:

“those who end up in our criminal justice system disproportionately come from poorer backgrounds and a huge proportion of them come from either looked-after backgrounds or youth justice backgrounds”.—[Official Report, Equalities and Human Rights Committee, 6 September 2018; c 3.]

The committee heard about what can only be described as harrowing encounters with the justice system. Lynzy Hanvidge, who is a care-experienced policy ambassador with Who Cares? Scotland, told us that her first experience of being treated as a criminal was on the day when she was taken into care at the age of 13. I am sure that other members will expand on her story. I would like to thank her especially, and all those who shared their personal stories with us in order to help us to understand the system better, and to drive us to do better.

Alex Cole-Hamilton

Does the convener of the committee share my concern that nothing about the bill would have made Lynzy Hanvidge at 13’s story any different?

Ruth Maguire

I absolutely share Alex Cole-Hamilton’s concern. I also heard what the minister said. I am very conscious that today I am speaking on behalf of the committee rather than personally.

Professionals also told us that it is the most traumatised children who are most likely to become involved in serious harmful behaviour. They were clear that a trauma-informed approach results in better outcomes for children and young people, and significantly reduces repeat harmful behaviour. That is why the committee recommended:

“the way in which any decisions are made about very serious harmful behaviours by all children, whether criminally responsible for their actions or not, must start from a trauma-informed perspective.”

I hope that the minister will today give a commitment that all operational staff will have access to guidance and training materials that make that clear.

We issued our call for evidence on 27 April and received 41 submissions from a wide range of organisations and individuals, including children’s services and social work services, looked-after children, child-centred groups, advocacy services and victims. To supplement our evidence, we visited three secure accommodation units: Edinburgh secure services Howdenhall; the Kibble secure unit in Paisley; and St Mary’s Kenmure secure unit in Bishopbriggs. Committee members express our sincere thanks to the young people who shared their experiences and their thoughts on how the system could be improved.

In addition, we observed children’s hearings that support child protection and youth justice. We are grateful to the young people who consented to our doing so. I also thank everyone who facilitated our visits and who gave evidence.

It was important to us to involve children more broadly in the decision-making process for the bill. We therefore took the innovative step of developing a downloadable toolkit, by means of which, from June to October, schools and youth groups could discuss the principle of raising the age of criminal responsibility. More than a thousand secondary school students and more than 200 primary school pupils engaged with the committee through such sessions. I acknowledge their efforts in joining the debate, and hope that it will have sparked their interest in continuing to participate in matters that clearly affect their lives.

Many issues that were raised by the bill were discussed in detail by the committee—for example, police powers, the interviewing of children, and the use of a police station as a place of safety. With the rest of the time that I have available, I will focus on two key areas: the age of criminal responsibility and disclosure of conviction and non-conviction information.

From the outset, the committee recognised that the most difficult issue would be our weighing up of the various arguments to determine the most appropriate age of criminal responsibility. Many stakeholders queried whether a move to the age of 12 is progressive or likely to meet Scotland’s international human rights commitments. It was pointed out to us that increasing the age to 12 would achieve only the minimum internationally acceptable age, as defined by the United Nations’ Committee on the Rights of the Child. The move would also only just lift Scotland off the bottom of the European Union league table, and would not achieve the progressive increase that was envisaged by the UN committee.

Others considered that an incremental approach would give time to measure and review the outcomes of the legislation before raising the age. We struggled to reach a shared view on whether 12 is a sufficiently high age to achieve the outcomes that are sought. There was, however, a recognition that because the age of criminal responsibility in Scotland was last increased 86 years ago, the committee did not want to jeopardise a long-awaited opportunity to address the most pressing issues in criminalisation of children and young people. We therefore accepted that the approach that was being taken by the Scottish Government in the bill was grounded in the desire to make improvements and, in the interests of a shared commitment to improving outcomes for children and young people now, we reached consensus on raising the age of criminal responsibility to 12. I am sure that members have their own views on whether 12 is the right age: no doubt, the matter will be explored further as we consider the bill at stage 2.

I turn to the disclosure provisions. Under the current system, any convictions that are gained between the ages of eight and 11 years have the potential to affect the child later in life, because convictions would appear on a higher-level disclosure check or protection of vulnerable groups scheme record. That could restrict a person’s choice of career or training in adult life, thereby compounding the disadvantage that they had already experienced. The bill would end automatic disclosure of information relating to behaviour of a child under the age of 12. Also, information about the behaviour of such a child would be disclosed as “other relevant information” only as part of a disclosure application following independent review of that decision.

In October, we worked with the Scottish Youth Parliament at its Kilmarnock sitting to co-produce a successful workshop on disclosure and non-conviction information. That helped us to explore the impact that disclosure could have, and underlined the need to involve young people in how the independent reviewer role is carried out.

It would be helpful if the minister could today provide assurances that, in preparing guidance, the Government will consult young people who have experience of youth justice or of being looked after; those who have speech, language and communication difficulties; and those who have disabilities and hidden disabilities.

In conclusion, the Equalities and Human Rights Committee supports the general principles of the Age of Criminal Responsibility (Scotland) Bill.

14:39  

Oliver Mundell (Dumfriesshire) (Con)

I am pleased to open, in today’s debate, for the Scottish Conservative Party. I begin by putting on the record my thanks to the committee clerks and witnesses, and to my fellow members of the committee, who put in a tremendous effort to ensure that the bill was well scrutinised ahead of today’s stage 1 debate.

We are content to support the Scottish Government’s approach in the bill. I thank the minister for the candour of her opening speech. It takes real courage to come to the chamber and to be honest with members in recognising failings in our criminal justice system, and that not every child who comes into contact with our law enforcement and criminal justice agencies gets the support that he or she deserves. That is not always through want of those agencies trying; there is always a difficult balance to be struck between meeting the needs of the child and agencies doing their job. I thank the minister genuinely and warmly for that recognition.

We acknowledge that the age of criminal prosecution in Scotland was raised to 12 in 2010, which means that younger children are already sent to children’s hearings instead of to court, and that children who are aged between eight and 11 cannot be prosecuted in the criminal courts. In many senses, that means that the bill is simply an attempt to tidy up our legal system, and reflects the fact that a significant policy change was made some time ago.

The proposed change also has the added benefit of simplifying Scots law. As the Law Society of Scotland has pointed out, raising the age of criminal responsibility to 12 will bring it into line with the existing age of criminal prosecution, which will provide clarity in the law and ensure that children are not treated and labelled as offenders because of things that they did before they were 12 years old. For the reasons that have already been outlined, the bill goes slightly beyond that, but we believe that it strikes the right balance in general, and that decisions such as this are so central to the character of our legal system and the values of our society that they should be taken by consensus whenever possible.

The age of 12 is not random or arbitrary; it already has legal significance in Scots law and has emerged from the Government’s consultation, from wider discussions and conversations and from much of the evidence that shows that there is significant support and consensus for raising the minimum age of criminal responsibility to 12. Even so, there will still be a degree of discretion for prosecutors when they are thinking about the public interest.

We recognise that a number of witnesses who came before the committee and some members of the committee have questioned whether a move to 12 is a progressive move that is likely to meet Scotland’s international human rights commitments. I strongly believe that the public must be on board and brought along with such changes. For many people, including me, raising the age to 12 is a big and significant step, so I believe that the Government is right to be cautious and to want to see how the changes bed in and work in practice before considering further changes. That view was echoed by Police Scotland, which suggested that 12 is the most appropriate starting age and that, although it understands the debate around raising the age of criminal responsibility, it is mindful that the nature of children’s actions and that the prevalence of behaviours change, as the age profile of offending increases to 12 and above. We have to respect the expert views of people who work on the front line, and we have to strike a balance between listening to the voices of children’s organisations and those of the law and justice agencies, including the police.

The minister was correct when she appeared before the committee and when she spoke today to stress that direct international comparisons cannot be made, given the differences between legal systems. A clear example of that was the policy decision of the Crown Office not to proceed on a policy basis with the prosecution of people under the age of 12. That is not always reflected in the international debate and dialogue on the issue. It somewhat changes the practical position, if not the technical legal position.

It is, of course, always tempting to look at other European nations and to consider ourselves to be behind when it comes to such legislation, but that is a false conclusion. It is in looking at children’s rights and how our legal system operates in the round that we will best identify the positive steps that can be taken.

I was pleased that the minister paid close attention to the evidence from Lynzy Hanvidge, who was one of the young witnesses at committee. I reflected carefully on her views, and it became clear to me that many of the issues that she had faced were not around the age of criminal responsibility, but were—as the minister has already stated—broader questions about how our criminal justice system shows compassion, interacts with the most vulnerable individuals and understands the true nature and causes of their seemingly offending behaviour. I know that the minister considers the issue of looked-after young people to be very close to her heart, so I urge her to use this opportunity to look again at some of the wider issues that were raised in that session.

It is also important to consider the fact that the actual text of the UN convention does not specify a minimum age of criminal responsibility, and that age 12 is a suggestion that has come forward from a committee based on broader international interpretation. As with many of the most difficult issues relating to human rights development, again I stress to my committee colleagues that we are on a journey, on which we must make progress and move at a pace that allows everyone to sign up to and support initiatives.

I always go back to the example of the ship at sea, which came from one of my law lecturers. Sometimes, there is a danger that, in an attempt to modernise and rebuild, we move and remove too many of the planks at once and end up without a ship. When it comes to the Scottish legal system, which has seen, and continues to see, significant change, it is important to move at a pace that allows for continuity. Again, I stress that the bill has that balance right.

Finally—and in many respects, most importantly—I want to highlight the importance of victims and to reflect on the fact that all crime has a serious impact, not only on those who are directly affected, but on the wider community, regardless of age. All such behaviour, particularly when it is violent, must be treated seriously and acted on. It is in everyone’s interests to ensure that young people grow up in a society in which they feel fully supported, and in which opportunities exist for them.

Prevention is always better than trying to deal with the consequences, but we must be mindful that, when dealing with the consequences, it is possible to cause more harm than good. That is why we believe that the victim-support elements of the bill are essential. At the very least, a victim-centred justice system must give victims and families information on how, regardless of their age, the wrongdoer has been dealt with. We believe that those proposals should not be watered down, therefore we also believe that police powers should not be unduly restricted. Although it is right that the powers of the police should be altered to reflect the fact that we will no longer treat under-12s as criminally responsible, we believe that the police should still have the powers that they need to keep children and the public safe when wrongdoing takes place. I ask the Government to provide reassurance that the bill will not make it harder for police officers to do their job.

I urge the minister not to allow the bill to become a vehicle for discussion about an even higher age of criminal responsibility. From the consultation that has taken place and the discussions at committee, we have reached consensus. We now need to focus—as many of my colleagues will do—on how to strengthen other aspects of the bill. As I pointed out already, Police Scotland’s evidence said that significant behavioural changes take place at the age of 12 and, as the minister pointed out, international comparisons can be misleading.

We need to recognise and thank those who work in our children’s hearings system for their incredible work to ensure that, already, many children do not have to go to court. However, we have to be able to justify that decision directly to victims and the communities that are most affected by crime.

I offer the Conservatives’ general support for the principles behind the bill. We stand ready to work with the Government and other parties to strengthen the bill, where consensus emerges.

14:49  

Daniel Johnson (Edinburgh Southern) (Lab)

As someone who does not sit on the Equalities and Human Rights Committee, I thank the clerks and members of the committee for the excellent work that they have done on their stage 1 report. I acknowledge the work of the independent advisory group on the minimum age of criminal responsibility, the children’s reporter and the many organisations and individuals who submitted a response; frankly, they have made this debate possible.

Most important, like others, I thank the children, young people and those who, as children, have experienced the criminal justice system, because that experience is absolutely invaluable in informing our progress.

Scottish Labour welcomes the bill and believes that it is an important step forward. We agree with the broad principles that have been outlined during stage 1. In particular, we agree with raising the age of criminal responsibility to 12. The minister was right when she said in her opening remarks that we should engage in the debate in a reflective way, particularly with regard to the historical context. Back in 2007, the UN Committee on the Rights of the Child stated that 12 should be the minimum internationally acceptable age of criminal responsibility, and we should all reflect on the time that it has taken us to reach the point at which we are making the change in our law.

At a time when people in this and other countries are seeking to undermine our international institutions, this debate is important, both in and of itself and as an affirmation of our commitment to the international rule of law and rules-based order. Now, more than ever, we need to stand up for those international institutions because they are the beacons by which we guide progressive policy and see a way forward for our country and others.

The bill deals with tragic and exceptional circumstances, and it is important to recognise that it deals with a very small number of cases. We are responsible for presenting in the debate a picture that is accurate. Not all teenagers end up in the criminal justice system by any stretch, and those who do are led there by the most tragic of circumstances. According to research published by the Scottish Children’s Reporter Administration involving a sample of 100 children who were aged between eight and 11 years old, there were recorded concerns about the educational achievement of 53 per cent of those children; 25 per cent had been victims of physical or sexual abuse; and 75 per cent had previous referrals to the reporter. It is absolutely right that we respond appropriately when a child or young person is responsible for an act that we may regard as criminal or harmful behaviour, but we cannot do that by ignoring the wider context of the circumstances in which they find themselves. Such behaviour by children is surely a sign of wider social failure, and we must all take on that wider responsibility.

Before I deal with specific points in the bill, I remind members that we must be mindful of the broader principles and context that are beyond the scope of the bill. We should be proud of the children’s hearings system in Scotland. It has not been the case for many years that a child who has tipped over into the age of criminal responsibility has automatically found themselves in the High Court, facing horsehair wigs and the full force of the adversarial system. The children’s hearings system was set up in 1971 to provide an integrated welfare-based approach to children who have committed offences. It is worth considering, through the passage of the bill, how we can strengthen that system. As the Education and Skills Committee heard last year, the system is becoming increasingly adversarial. We cannot allow the children’s hearings system to become simply another court of law.

With regard to its specifics, the bill makes important changes to the disclosure process, which, as the minister said, has also been looked at in the Management of Offenders (Scotland) Bill—the issue is of concern for the broader criminal justice system. Other members put it very well when they ask what the purpose of the disclosure system is. That is the challenge. It is right to curtail the disclosures that are required for those who have committed crimes when under the age of 12.

However, we must also challenge ourselves. Although the bill represents positive reform, it is important that, during stages 2 and 3, we thoroughly investigate how the bill will meaningfully effect change. Are we really protecting children from the harmful effects of early criminalisation or are we simply changing terminology? We should seek to do the former rather than the latter.

The police have said in relation to places of safety:

“a police station is not the best place for a child”.—[Official Report, Equalities and Human Rights Committee, 20 September 2018; c 14.]

I put the simple question: if a young person is taken by the police when they do not want to go with them and put in a cold room in a police station, in what way does that feel different from being arrested and put in prison? It is vital that we look at police powers.

On the wider point, the reality of what young people experience was set out well by Lynzy Hanvidge in her evidence and by other members. Will the bill truly make a difference to young people who come into contact with the criminal justice system?

For the reasons that I have set out, Labour supports the Government raising the age of criminal responsibility to 12. It is important that Scotland is compliant with the United Nations Committee on the Rights of the Child and that we seek to prevent our most vulnerable children and young people from being exposed to the harmful effects of the criminal justice system. Although that is the right thing to do, we recognise that we must seek broad support. As the minister said, consensus is important, outwith Parliament as well as within it.

This area of law needs to remain under constant review to ensure that the children’s justice system is doing what it was set up to do. I look forward to the progress of the bill through stages 2 and 3.

14:56  

Alex Cole-Hamilton (Edinburgh Western) (LD)

I remind the chamber of my entry in the register of members’ interests, in that I was formerly the convener of Together, the Scottish Alliance for Children’s Rights.

I will use my time to offer the guarded support of my party for the general principles of the bill. I say “guarded” because rarely in the consideration of primary legislation does a bill attract such comprehensive pressure from stakeholders who want us to go further. There has been a lot of talk in the debate about pace—the rate at which the people of Scotland will accept further change in this area. We have been moving at snail’s pace just to get to this point; it has been a long and frustrating road.

Our commitment to raising the age of criminal responsibility was first laid out in a report to the UN Committee on the Rights of the Child in 2012. At that time, Aileen Campbell assured the UN that Scotland would bring the ACR to 12 during the previous parliamentary session. With legislative opportunities in that session running out, my friend and colleague Alison Mclnnes valiantly used a stage 3 amendment to the Criminal Justice (Scotland) Bill in 2015 to deliver on the commitment to the UN, only to have it rejected by the Cabinet Secretary for Justice and voted down by those on the Government benches. That vote ensured that Scotland retained one of the lowest ACRs in the world. I do not think that it is unreasonable to suggest that, arguably, the Government lied to the United Nations.

Put simply, the UN set a floor of 12 as the minimum age of criminal responsibility that was to be adopted no later than 2007, and it said that countries should work upwards from that point. All having been told, the Parliament has sat and risen from the chamber over three sessions since that international starting gun was fired. Only now has the Government finally brought our country to the races.

The minister suggests that the Government has elected to stick at 12 because the majority of the respondents to its consultation agreed that that is where the age should be set—but 12 is all that they were asked about. Therefore, it is particularly striking that a powerful majority of those who responded in writing to the Government’s consultation and to the Equality and Human Rights Committee’s stage 1 call for evidence still volunteered that we should go further. The overwhelming majority of witnesses to the committee during our stage 1 consideration of the bill felt the same. The feeling was summed up most powerfully by our Children and Young People’s Commissioner, Bruce Adamson, who said:

“we need to be looking at 14 or 16 as the norm, internationally. If Scotland wants to be a human rights leader, I am very confused as to why we are talking about 12 rather than 16 or higher.”—[Official Report, Equalities and Human Rights Committee, 27 September 2018; c 23.]

The stage 1 evidence was hugely important to our understanding of the issue, and I thank everyone—witnesses, respondents and our clerks—who contributed.

The experience of countries that have gone before us was vital. We learned that Denmark, which lowered its age of criminal responsibility from 15 to 14 on the election of a more right-wing Government, then reversed that decision shortly afterwards, due to an increase in offending behaviour and a decline in positive outcomes.

It is the lived experience of young people that we found most compelling. We have already heard Lynzy Hanvidge’s story during the debate. It is possibly the most compelling witness statement that I have heard in my parliamentary career. As a young girl, Lynzy was arrested on the night that she was to be taken in to care. She was being removed from her mother and, in her own words, she “kicked off”. That led to her being charged and spending a night in the cells. We could have heard a pin drop when she said:

“I spent my first night in care in a prison cell, locked up. I had not done anything wrong, but I felt like I had”.—[Official Report, Equalities and Human Rights Committee, 6 September 2018; c 26.]

She went on to describe the enduring harm that that caused her. Lynzy was just 13 years old, yet nothing about the bill—not one clause or section—would have changed her story or the outcomes that she may well now face for the rest of her life. I will work to amend the bill at subsequent stages so that we answer the challenge, not just of the United Nations, but of our sister nations across this continent, which put our efforts on this issue to shame.

Lynzy’s story does not just shine a light on the lack of Government ambition in the age that it has chosen; her testimony reminds us that we regularly lock up our children in police station cells in contravention of their rights as defined in article 37 of the United Nations Convention on the Rights of the Child.

I was concerned from the outset that the only place mentioned in the place of safety provisions in the bill, albeit in the context of last resort, is the police station. When only one place of safety is defined it runs the risk of becoming the default, and I do not think that any of us would recognise a police station on a Friday night as a place of safety for vulnerable young children. I will seek to amend the bill so that it promotes the use of best practice alternatives and expressly prohibits the use of cells for the containment of children.

I have fought for children’s rights all my adult life and I do not intend to stop now. We will support the bill, but we will do so with a sense of disappointment, which is shared by so many witnesses and stakeholders who want us to go further. This is not a radical bill—it is not even a progressive bill. However, it is a bill that finally achieves the de minimis standard of international expectation. On this issue we will find ourselves on a par with the four most socially conservative countries in Europe. As such, we are left wildly adrift of our shared ambition to make Scotland the best place in the world to grow up in.

15:02  

Fulton MacGregor (Coatbridge and Chryston) (SNP)

As a member of the Equalities and Human Rights Committee, I too associate myself with the convener’s opening remarks and pay tribute to the clerks for all their work in pulling together the very comprehensive stage 1 report.

The current age of criminal responsibility in Scotland is just 8 years—the lowest in Europe—so the bill is absolutely necessary and is the right thing to do. Almost all the evidence that was received by the committee agreed with the approach in the bill as an absolute minimum. As other members have already alluded to, the most contentious issue is not whether the age should be raised, but what age it should be raised to.

As Oliver Mundell mentioned, some witnesses, such as those from Police Scotland, seemed content with the proposal of 12 years of age. Others, such as the Children and Young People’s Commissioner, Who Cares? Scotland and Juliet Harris from Together, wanted to go much further and suggested 14, 16, 18 or even higher. Good evidence was put forward for those arguments—there were comparisons with youth justice statistics from other countries that showed a reduction in offending, and there was evidence on neuroscience in respect of brain development.

I admit that my own personal inclination is that the age of criminal responsibility should be higher. However, I note the strong evidence given by the minister on some of the downfalls of direct comparisons and the discrepancies in some other systems. For example, in Luxembourg, despite 18 years being the headline age, there is scope to keep a child in solitary for up to 10 days, which I do not think that any of us here would advocate.

It is also fair to say that we are quite a difficult country to draw comparisons with, as we have the unique children’s hearings system, which places the needs and views of the young person right at the centre. I accept that there are issues with our system, as Daniel Johnson mentioned, and that some reform is required to make it work even better, but, broadly, it is a good system that allows us to treat children who display harmful behaviour in a mainly welfare-orientated and supportive way.

At committee, the minister demonstrated that, despite the bill’s name, the age of criminal responsibility in and of itself is not the only factor. This is about taking further steps not only to make sure that Scotland is the best place for our children to grow up in but—crucially—to reduce the negative effects of criminal convictions later on, in adult life.

Raising the age from eight to 12 is absolutely the right thing to do. When I was a social worker and attended children’s panels, I witnessed children accepting grounds just to get the hearing over with or because someone else—a parent, care giver or professional—wanted them to accept those grounds. The committee also heard evidence of that. Admittedly, the numbers are very small, but the bill will ensure that no child under 12 will be dealt with at a children’s hearing on offence grounds.

It is perhaps just as important that, although systems are already in place to reduce the number of offence grounds for older children, the bill will introduce an independent reviewer for disclosures. The committee welcomes that approach, which could be applied to under-18s. As outlined by the minister, that step has the potential to move us to a situation where only in rare and exceptional circumstances would any child’s involvement in offending be disclosed and so potentially impact on their life as an adult. That is where we need to be.

As Oliver Mundell mentioned, it is important that the public are fully behind us. The parties in the Parliament all agree that the age should be at least 12, which is something to work from, and the responses to the committee were generally the same, although I take on board the point that Alex Cole-Hamilton made about that in his speech. The Scottish Youth Parliament, which I visited in Kilmarnock, had broadly the same view. At the end of the discussion, there was broad agreement that 12 was about right. Some people believed that 12 was just right and others thought that it should be a bit higher, but the views were broadly similar to those given to the committee in evidence.

The United Nations suggests progressively increasing the age, which is why I am open minded about Mary Fee’s suggestions in the committee regarding some sort of review. I will be interested to see whether there is an amendment at stage 2 and what form it takes. That might serve as some sort of compromise on the issue.

Part 4 of the bill is on police powers. There was a lot of discussion about police cells being used as a place of safety and about that being mentioned in the bill. Alex Cole-Hamilton has outlined his concerns about that, but I welcome the minister’s remarks in her opening speech, in which she said that she has asked for an amendment to be prepared for stage 2 to address some of the concerns. I ask the minister and the Government to consider using the child protection guidelines for places of safety, which would be consistent with the overall approach in the bill. The committee makes that recommendation in the stage 1 report.

The bill offers us an opportunity to consider how the police engage with young people who are involved in suspected harmful behaviours in a general sense. I heard evidence at the Scottish Youth Parliament and on a visit to Kibble about the concerns that young people have about those interactions. In my area, the police do a lot of successful community work with youngsters. It is about changing cultures in the police and other services and sharing best practice. It is about society starting to recognise that behaviours that we might think of as criminal are actually the result of traumatic experiences—in many cases, highly traumatic experiences.

Bullying is an example of that. As members will know, this is anti-bullying week—I will ask a question about that at First Minister’s question time on Thursday. As MSPs, how often do we come across a bullying situation in a school only to find out, when we engage with the professionals, that the alleged bullies are also victims of horrendous circumstances? It is a difficult circle to square in some respects, but how we deal with it and support the victim and the perpetrators, as well as our schools and others who work with children, is an indication of where we are as a country and what the priorities are for individual local authorities and communities. The number 1 message that we hear from victims is that they do not want what happened to them to happen to someone else. We all have a duty to work together to make that a reality through a therapeutic and joined-up approach.

It has been a great pleasure to scrutinise the bill at stage 1. I believe that it sends out a strong message about the caring and progressive country that Scotland is, and I look forward to considering any amendments that come forward at stage 2. I commend the general principles of the bill to members and hope that it will be supported at decision time.

The Deputy Presiding Officer (Linda Fabiani)

We have quite a lot of time in hand, so I can allow extra time for interventions and a bit of debate, and even a bit of droning on if anyone is so inclined. I call Gordon Lindhurst—[Laughter.] Sorry. It was nothing personal, Mr Lindhurst.

15:09  

Gordon Lindhurst (Lothian) (Con)

That is a slightly unfair introduction to my speech, Presiding Officer—I will perhaps accept the invitation to debate, but hopefully not the invitation to drone on. I start by briefly mentioning my entry in the register of members’ interests and my status as a non-practising advocate.

The bill before us today will, as the Law Society of Scotland has pointed out, raise the age of criminal responsibility by bringing it into line with the existing age for prosecution. I note the Equalities and Human Rights Committee’s stage 1 report, which highlights Police Scotland’s support for raising the age of criminal responsibility on the basis that “the prevalence of that behaviour” tends to change beyond that point. Police Scotland is, of course, under a duty to remain neutral on political issues, and I trust that it will continue to focus on the detection and prevention of criminal activity by whomsoever it may be committed.

The age of 12 is, after all, already recognised in our law as a time of important change in a young person’s life, moving from primary to secondary school, being able to make a will and being able to consent to or veto their own adoption. Those are just a few examples, and the report provides others. A number of witnesses, including representatives of Orkney Islands Council and Police Scotland, recognise that raising the age also needs the buy-in of society, because although a welfare basis behind doing so, in terms of the offender, is relied upon by the committee, we must also recognise that there are victims of crimes for whom the age of the offender may be of little or no consequence. The age of the offender who stabs someone does not alter the trauma experienced by the victim.

That is why it is disappointing to hear, in this context, that information for victims on how their experience was dealt with—for example, from the Scottish Children’s Reporter Administration’s victim information service—is limited, or that it took time to get to the victim. The Scottish Alliance for Children’s Rights summarised the point in explaining the important role that information can play for victims

“in having their experiences validated and knowing that harmful behaviour ... has been taken seriously.”

We must be careful not to water down information provided to victims, to the point that it becomes meaningless. That remains true even if, as Bruce Adamson, the Children and Young People’s Commissioner, said:

“it is not necessarily about punishing the person, but about ensuring that what happened does not happen again”.—[Official Report, Equalities and Human Rights Committee, 27 September 2018; c 37.]

I am sure that quite a number of us would view the matter in the same way as stated in that quote. Victims want to know that the wrong done to them is being righted as far as possible and that the person who carried out the offending behaviour has been dealt with and helped as appropriate.

Likewise, as touched on by Daniel Johnson, with whom I agree on this point, removing the name of criminality from the behaviour must not be allowed to send a message to young people that they have no responsibilities for their actions towards others. In other words, we cannot just look at the terminology; that would be wrong. It is important, when wrongdoing has been committed, that the facts can still be established by the police. As Children 1st pointed out in evidence,

“these powers are crucial to establishing the truth of the matter, informing decisions about a child’s welfare and the risk they pose to themselves and others and to ensuring the rights of victims”.

Putting in place trauma-sensitive police procedures makes some sense within the wider objectives of the bill, but we need reassurance from the Government that the bill will not make it harder for the police to do their job.

Alex Cole-Hamilton

In regard to the conduct of the police in carrying out their duties, does the member share my concern that the provisions in the bill for the right of children not to answer questions are not as strong as the right of adults to silence? Should the bill be amended to reflect that?

Gordon Lindhurst

The member raises an important point and I share some concern about that. If one changes the behaviour from being technically criminal, that has certain consequences, as he points out, under the European convention on human rights and in terms of law. That is a matter that may need to be looked at, and I agree that it should be considered further as the bill progresses.

Maree Todd

I want to make it clear that the right not to answer questions is intended to ensure that children do not have to say anything. Any interview under the bill will be conducted in a context where the child is not a criminal suspect, as the member has noted, and where their experience needs to be completely removed from criminalisation. The bill deliberately does not echo the language of the police caution. If that is not clear, I am more than happy to consider whether an amendment is needed as we move forward.

Gordon Lindhurst

I thank the minister for that intervention. I will proceed with my speech, unless anyone else wishes to intervene and continue the debate. [Interruption.] If I might say so, Mr Stevenson, that was not a general invitation to all members.

It is important that facts are established for the good of all parties to an incident. One must consider the rights of a child who it is thought may have committed offending behaviour, whether or not such behaviour is technically considered a crime after this bill has passed. It is important that the police are in a position to establish the facts. Indeed, for those who must consider the welfare of the child, whether the child was involved as a victim or as an offender, it should be clear what has taken place in order to enable services to meaningfully engage with the situation.

Other members have also touched on how important it is to work with young people outside the criminal justice system to ensure that wrongdoing is not repeated. That work can potentially be undone later in life if a child is unnecessarily burdened with a criminal record. There are provisions for certain crimes to come off adults’ records; indeed, that concept is already well recognised in our law.

It needs to be emphasised that, whatever procedures are put in place to deal with the matters that we are considering, the victims of what would be crime by any other name, and the protection of the public, must remain central to all considerations. We must, as a Parliament, understand that changing the headline age of criminality should not allow us to lose sight of the requirement to address offending behaviour and the needs of the victim, as well as the adjustments to our law and procedures that will be needed to accommodate that. I welcome the minister’s assurance that the Government will look at those issues.

Finally, I will turn to practicalities. I have been locked in a cell with someone who I was entrusted with defending—they had been accused of an assault crime with an offensive weapon—simply because there was nowhere else for me, as that relatively young individual’s counsel, to advise them going in to the courtroom situation. We need to address such practicalities, because if we simply make empty statements about ensuring that matters are dealt with properly, we will not be able to see this through, and I am sure that none of us would want that to happen.

15:18  

Gail Ross (Caithness, Sutherland and Ross) (SNP)

I, too, thank the clerks of the Equalities and Human Rights Committee, the Scottish Parliament information centre, the official report, my fellow committee members and everyone who took the time to respond in written and oral evidence. Colleagues have already covered many points, and indeed the committee dealt with so much that it would be impossible for me to fit it all in to this speech. Instead, I will concentrate on the age of criminal responsibility and try to give some context for why it needs to be raised. I am glad to say that, so far, it is something that we all seem to agree on.

Today, in Scotland, a child can get a criminal record from the age of 8. The age of criminal responsibility is the minimum age at which a child who commits an offence is considered to have the maturity to understand their actions and can be charged and held responsible in a criminal procedure. We know that children develop at different stages and that holding children criminally responsible for their actions can be extremely damaging.

It is becoming more and more accepted among people and organisations that work with children and young people that a person who commits an offence when they are very young needs help and support, not criminalisation. It is true that such a young person needs to understand that what they did was wrong, but as a society, we need to understand what drove the behaviour in the first place.

The evidence is already there—developmental psychology and neuroscience focus on the developmental differences between children and adults, children’s diminished capacity and, consequently, culpability. The current low age of criminal responsibility means that we are responding to welfare issues with criminal justice responses and potentially damaging the prospects of young people. Raising the age of criminal responsibility would minimise social harm across society and not just for the young people involved.

I was recently speaking to someone who was under the impression that we had already raised the age to 12. However, to clarify, the Criminal Justice and Licensing (Scotland) Act 2010 raised the age of criminal prosecution to 12, meaning that children under the age of 12 could no longer be pursued through the adult courts. We now find ourselves in the position where children aged eight to 11 could still receive a conviction from the children’s hearings system, either by admitting an offence or having an offence established via a proof hearing at a sheriff court.

The bill in front of us asks that we raise the age of criminal responsibility to 12, in line with the minimum age that is internationally acceptable according to the United Nations Committee on the Rights of the Child. As the minister outlined, the Scottish Government’s advisory group recommended an increase to the age of criminal responsibility, and 95 per cent of respondents to the Scottish Government’s consultation agreed that it should be raised to 12 or older.

The oral evidence taken by the Equalities and Human Rights Committee gave differing views as to what the age should be. The children’s commissioner stated that the age of 12

“was never intended as a target but the absolute minimum.”—[Official Report, Equalities and Human Rights Committee, 27 September 2018; c 22.]

Professor Susan McVie questioned whether the age of 12 represented

“a progressive commitment to international human rights standards.”—[Official Report, Equalities and Human Rights Committee, 6 September 2018; c 2.]

Duncan Dunlop, the chief executive of Who Cares? Scotland, also suggested that a move to 12 was not enough.

On the other hand, evidence from Police Scotland and Victim Support Scotland suggested that 12 is an appropriate age and that there should be more emphasis on the victims of crime.

Our committee has therefore requested information on the current support for victims and how it is being applied in practice throughout the country. We have also asked for appropriate materials to be developed to help victims—including child victims—to understand how the harmful behaviour of children under 12 is dealt with.

From the evidence received by the committee, it is obvious that we are all agreed that the age of criminal responsibility should be raised. Raising it to 12 would place Scotland above the rest of the United Kingdom, where the age is 10, and in line with Belgium, Ireland and the Netherlands. Of the other 24 European Union countries, France alone has an age of 13 while all of the rest have an age of 14, 15 or 16. Although it has already been said in this debate—and the minister also pointed it out in her evidence to the committee—I reiterate that we need to take those ages in accordance with the policy that lies alongside them and understand that the issue is not as black and white as age only. One suggestion put forward was that 12 could be a starting point, and that a review mechanism could be built into the bill to allow for the age to rise in increments, once it had been proven that the outcomes for children and young people had improved.

In her evidence to the committee, Maggie Mellon of the Howard League Scotland stated:

“Scotland set the age of criminal responsibility at 8 in 1937. In 1964, Lord Kilbrandon said that there was no clinical evidence to suggest that that had made any sense at all: we were calling for the age to be higher in 1964.

In considering review, the committee should bear it in mind that it might take 100 years for evidence to come back, despite there being lots of international evidence showing different thinking about the age of childhood and youth.”—[Official Report, Equalities and Human Rights Committee, 27 September 2018; c 10.]

We have waited a long time for such a bill to come before us, and I thank the Scottish Government for introducing the Age of Criminal Responsibility (Scotland) Bill. I also thank the minister for the clarifications that she gave in her opening speech. Let us not wait 100 years for further progress to be made.

I will end by quoting paragraph 119 of the committee’s report:

“Whilst public opinion may be a factor in considering the age at which the age of criminal responsibility should be set, it should not, we believe, be the only driver for change. Welfare and the protection of the child should be paramount.”

15:24  

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I start my contribution to this important debate in the way that I would normally end such a speech, by saying that I support the general principles of the bill at stage 1. I support the bill because it is long overdue and is a step in the right direction. However, I am disappointed that the minimum age will not be set higher; my view is that it should be 14.

We have heard that, with eight as the age of criminal responsibility, Scotland lags behind the rest of Europe. In England, the age is 10, and in most other countries it is 14 or above. The UN believes that the absolute minimum age should be 12, and that is accepted internationally. Should we be moving to the absolute minimum?

Although the Criminal Justice and Licensing (Scotland) Act 2010 raised the minimum age of criminal responsibility to 12, children who are aged between eight and 11 can still be convicted through a children’s hearing by admitting to an offence or on established grounds via a sheriff court. Such a conviction will blight those children for the rest of their lives.

When the children’s hearings system was introduced, in 1971, after the Kilbrandon review, it put Scotland among the most progressive countries in the world when it came to children in the justice system, and that system is still held up as a model of good practice throughout the world. That is why the current age of criminalisation, at eight, is an anomaly—it is out of sync with the way in which we treat children in Scotland and it makes no sense. Few people could dispute or are disputing that an increase is long overdue.

I am not a member of the lead committee on the bill, but I understand that it struggled to reach a view on what the age should be. I commend the Equalities and Human Rights Committee and its clerks for the amount of work and detailed analysis in the stage 1 report, which covers a variety of complex areas including disclosure, place of safety and other vital aspects of child safety that I do not have time to address. I will stick to issues that relate to the age of criminal responsibility.

The advisory group’s report, which was published in 2016, recommended the age of 12, and 88 per cent of those who responded to the consultation favoured raising the age to 12 or above. In thinking about the subject to prepare for the debate, I kept coming back to one question: what rationale is there to call children of any age criminals? The bill makes it clear that no child who is under 12 can be called a criminal, but does a child stop being a child when they reach their 13th or 14th birthday?

The United Nations Convention on the Rights of the Child defines a child as anyone who is below the age of 18. A child or young person who ends up in the criminal justice system is a child who has been failed by adults and by our system, which should have intervened early to prevent the child from getting into trouble in the first place. We know that children are not born inherently bad. We know, too, of the empirical evidence of the damage that adverse childhood experiences cause to children and young people. That has been mentioned several times in the debate and in many debates in the chamber. The importance of ACEs cannot be overstated.

During my time on the children’s panel, the children who appeared at hearings for whatever reason all had one thing in common—they were unhappy, insecure and confused. They had lost their way. They were there because they had done something wrong, but, instead of asking them what they had done, maybe we should have asked what had happened to them and why they were lashing out, being antisocial or not attending school. Most of those children were victims of a chaotic lifestyle, some had no positive role models and far too many were children of addicted parents. Children who experience ACEs are 20 times more likely to end up offending or incarcerated during their lifetime.

Of course, children should be taught wrong from right, and they should not be allowed to run wild and cause hurt or injury to persons or property. We would fail in our duty of care as adults if we allowed that to happen. Equally, victims have a right to know that they will be respected and that those who offended against them will be dealt with. Some offences that are carried out by children can be extremely serious, but the majority are not. It is how we deal with the children who commit offences that is the key. I believe that providing positive guidance and intensive therapy is one way to proceed, but people who are far more qualified than I am and who work tirelessly in children’s welfare could advise on the best way forward. As the minister said, we need to take a whole-child approach.

I reiterate that I support the general principles of the bill at stage 1, and I look forward to the stage 2 amendments. This is our chance to redress the balance for children in the justice system. Scotland has a reputation for being progressive and fair in all aspects of our society, and we should not shy away from making a radical shift in the age of criminal responsibility.

The Deputy Presiding Officer

I call Margaret Mitchell, to be followed by Richard Lyle. There is still some time in hand.

15:30  

Margaret Mitchell (Central Scotland) (Con)

Presiding Officer,

“The minimum age of criminal responsibility is a substantial and complex issue.”—[Official Report, Justice Committee, 8 September 2015; c 26.]

Those were the words of the then Cabinet Secretary for Justice in 2015, when, at stage 2 of the Criminal Justice (Scotland) Bill, he responded to and rejected an amendment that Alison McInnes had lodged—Alex Cole-Hamilton mentioned it earlier—that sought to increase the age of criminal responsibility. The committee was evenly split, with four votes for and four against, and the amendment failed on the casting vote of the convener. I abstained in the vote because the committee had not taken any evidence on the issue. Instead, I welcomed the cabinet secretary’s announcement during the stage 2 debate that an independent advisory group was to be established to look at the potential implications of an increase in the age of criminal responsibility.

Scotland has a distinct legal system that is recognised and admired across the world. It also has a strong record on protecting children’s rights. In 2010, the law was changed so that no one under the age of 12 could be prosecuted in the criminal courts, and children aged between eight and 11 who face allegations of having committed an offence are dealt with through the children’s hearings system.

Alex Cole-Hamilton

Will the member take an intervention?

Margaret Mitchell

I might be coming to the point that the member wants to make, but I will take the intervention.

Alex Cole-Hamilton

Does the member recognise that, even though that is true and children who exhibit offending behaviour are dealt with through the children’s hearings system, they can, through that process, still obtain a criminal record that can follow them right through their lives, to their detriment? There are sometimes barriers to opportunities such as potential jobs in delicate positions.

Margaret Mitchell

As I suspected, that is the very point that I was coming to.

Having said that, Scotland has the youngest age of criminal responsibility in Europe, and a lower age than nations such as China, Venezuela and Russia. Furthermore, as Mr Cole-Hamilton says, no one wants young children to have criminal records, which can impact through the implications of disclosure on their chances of employment, as a result of childhood behaviour.

The Age of Criminal Responsibility (Scotland) Bill ensures that this complex issue receives the scrutiny that it merits in an effort to give certainty on the disclosure of criminal records, the use of forensic samples, police investigatory powers and the rights of victims and to ensure that it has the confidence of communities and the public. Its provisions have been influenced by both the 2015 advisory group’s findings, which were published in 2016, and the Scottish Government’s public consultation, which followed. More specifically, the bill seeks to raise the age of criminal responsibility to 12 and makes provision on the release of non-conviction information for under-12s, information for victims of harmful behaviour, police powers to investigate an incident of harmful behaviour by a child under 12 and changes to disclosure processes.

In the time that remains to me, I will concentrate on two areas. The first is the provision that sets the age of criminal responsibility at 12, which, in effect, means that a child under that age cannot commit an offence. That age, as the Law Society of Scotland states, is already significant in Scots law. As Gail Ross pointed out, children of 12 are presumed to have sufficient understanding to make a will, consent to or veto their adoption and express a view on arrangements for their future care in private law proceedings and at children’s hearings, and they are deemed to have sufficient understanding to instruct a solicitor.

Raising the age of criminal responsibility to 12 would also bring it in line with the age of criminal prosecution. Crucially, it would remove the stigma associated with labelling as criminal the bad adverse behaviour of young people in the eight to 11 age group that is in the minor to moderate category of offence, with all the potential unintended consequences that that can have for those young people in their later life. Establishing the age of criminal responsibility as 12 gives legal clarity and strikes the correct balance.

I also want to talk about the—thankfully—relatively few cases of serious incidents of harmful behaviour carried out by under-12-year-olds. Scotland’s youngest child killer was 11 years old when he was convicted of the culpable homicide of a three-year-old toddler. Although that is an extreme example, it helps to concentrate minds on how critical it is that the measures in the bill are sufficiently robust to reassure the families of victims and to protect the public. That is where the issue of a place of safety needs to be addressed.

The policy memorandum states that the bill provides several measures—referred to as safeguards by the advisory group—to ensure that action can still be taken by the police or other authorities when a child under 12 is involved in serious incidents of harmful behaviour. Those measures include specific police investigatory powers to establish the facts and, although automatic disclosure for a child under the age of criminal responsibility has been removed, putting in place independent consideration of information to be included in response to a disclosure check when the check may disclose a non-conviction and potentially adverse information dating back to when the applicant was under the age of criminal responsibility.

I support the age of criminal responsibility becoming 12 but consider it essential that the safeguards be monitored closely to ensure that they are fit for purpose and to give victims, their families and the public confidence in the bill’s provisions.

15:37  

Richard Lyle (Uddingston and Bellshill) (SNP)

I welcome the opportunity to contribute to such an important debate. I begin by stating clearly that I view the bill and the topic through the prism of international human rights and the progressive ideology that we in Scotland wish to show as an example to the rest of the world.

The bill builds on the announcements made by the First Minister in her programme for government on embedding the United Nations Convention on the Rights of the Child in Scots law. That step, alongside the action that we are debating today, makes it clear that our approach to policy formulation is fundamentally rights based.

Scotland’s current age of criminal responsibility—eight—is the lowest in Europe, and that has tarnished Scotland’s international reputation as a leader on rights. We can see that the criticisms often levelled at Scotland from rights organisations, such as the UN Committee on the Rights of the Child, are because of our incredibly low age of criminal responsibility. I am proud that the Scottish Government has taken those criticisms on board and is responding to them. As I have said, that demonstrates our shared commitment to human rights.

The Criminal Justice and Licensing (Scotland) Act 2010 raised the minimum age of criminal prosecution in Scotland to 12, meaning that children under the age of 12 could no longer be prosecuted through the adult courts. That created a disparity between the age of criminal responsibility and the age of criminal prosecution, which meant that children aged eight to 11 years could still obtain a conviction through a children’s hearing, by either admitting to an offence or having an offence ground established in a proof hearing at the sheriff court.

Any convictions gained at that age have the potential to appear on a higher-level disclosure check or PVG scheme record later in the child’s life, potentially preventing them from moving on from an incident in childhood or restricting their ability to undertake the training course or career of their choice. How bad is that?

That is part of what I call the “why” of the bill, but the “what” is important, too. What does the bill do? What are its core aims and values? As well as increasing the age of criminal responsibility to 12, the bill makes a number of provisions relating to police powers to investigate an incident of harmful behaviour by a child under 12, changes to the disclosure process and the release of non-conviction information—known as “other relevant information”—for under 12s and information for victims of harmful behaviour.

The bill was introduced in March 2018. The policy memorandum perfectly shows the Government’s ambition for the bill in a nutshell:

“the Bill is focussed on protecting children, reducing stigma and ensuring better future life chances, rather than reflecting a particular understanding of when an individual child in fact has the capacity to understand their actions, or the consequences that could result from those actions–either for them or for the people they may have harmed.”

As I have outlined, the Scottish Government is committed to bringing a rights-focused approach to all areas of Government policy relating to children, especially when it comes to the children who are most affected by early trauma and adversity. It is clear that this reform will contribute to a youth justice system that recognises that heavy-handed criminal justice is counterproductive for children and young people. That is an important statement for us all.

Children aged under 12 are already protected from prosecution, due to legislation introduced by this Government in 2011, and it is a fact that the vast majority of children aged 12 to 15 who offend are dealt with by the children’s reporter rather than prosecuted. We have a robust framework in place to minimise early contact with formal justice systems, through the principles of early and effective intervention—EEI—and diversion from prosecution. That requires appropriate support and monitoring to ensure effective delivery.

The final core element that I will reflect on is that raising the ACR will benefit Scotland as a whole. I know that the evidence of harm caused by treating children as offenders from such a young age is clear, with studies showing that young people and children who have been involved with police and the justice system at a young age are more likely to offend as adults. I came across that when I was a justice of the peace many years ago.

I wish to share something that Duncan Dunlop, who is the chief executive of Who Cares? Scotland, said. I commend in passing Who Cares? Scotland for its truly incredible work and fantastic support of care-experienced people, particularly young people, across Scotland. Duncan said:

“The involvement of police and in fact—bizarrely—the justice system means that people are more likely to continue offending. We have to look at a different approach and we should seize this opportunity.”—[Official Report, Equalities and Human Rights Committee, 6 September 2018; c 22.]

I am proud that this Government is living up to those words and seizing the opportunity to take action on the issue. The bill does, indeed, focus

“on protecting children, reducing stigma and ensuring better future life chances.”

Alex Cole-Hamilton

Is the member aware that Duncan Dunlop said those words during stage 1 evidence and that they were part and parcel of an impassioned soliloquy calling on the Scottish Government to go much further than it has done in the bill and increase the age of criminal responsibility beyond 12?

Richard Lyle

I welcome Alex Cole-Hamilton’s intervention. I got his name right for a change—that is a wee joke that he and I have.

I know how passionate he is about pushing for a greater increase, but we need to be realistic. I live in the real world, where we are raising the age of criminal responsibility from eight to 12. It may be 14 or older in other countries, but it is a step in the right direction. With the greatest respect to Mr Alex Cole-Hamilton, it is a step that we have to take. He may wish to grandstand and say that he is going to raise the age by this or that number of years, and that is his prerogative. For my part, I intend to support my Government, which I believe to be taking the right steps. I consider myself to be a friend of the member, as we have been on a few different committees together, and, in the spirit of consensus and togetherness, I would ask him to listen, to learn and to follow. Creating better chances for young people is a noble ambition, and one that I am sure that everyone across this chamber would wish to deliver.

The Deputy Presiding Officer

I am terribly glad that you two are still pals.

15:46  

Mary Fee (West Scotland) (Lab)

While welcoming the principles of the Age of Criminal Responsibility (Scotland) Bill, I will say, at the outset, that I believe that it is ludicrous that, in Scotland, children as young as eight have been criminalised for over 80 years. No other country in Europe has such a low age of criminal responsibility. It is long overdue that we rectify what I consider to be wrong and make this change.

I thank my fellow committee members for all their hard work during the committee inquiry and in the preparation of the report. I also thank the clerks of the Equalities and Human Rights Committee for their diligent work in supporting every member of the committee, reaching out to all stakeholders and gathering the compelling evidence in the stage 1 report.

Equally, my thanks go to every individual and organisation who provided evidence and, most important, to the young people whom we met in committee and on visits, for being open and honest about the impact that the criminal justice system has had on their lives.

The vast majority of respondents to the call for evidence backed raising the age of criminal responsibility, with some advocating a higher age than is proposed in the bill. It is now our duty, as politicians, to listen to those with greater experience and understanding of this issue, and to right the wrong that has criminalised children in Scotland.

The United Nations Committee on the Rights of the Child suggests that 12 should be the minimum age of criminal responsibility across the world. I am sad to say that it is a reflection of our society that Scotland is at the bottom of the table of EU member states.

The majority of EU states have 14 as the age of criminal responsibility, and even when this bill is passed we will remain behind the rest of Europe. Even with the raising of the age to 12, the inconsistencies around children and Scots law—pointed out by many stakeholders—remain a problem that must be addressed.

The lifelong damage that can be done to a child who becomes involved with the criminal justice system is evident. Involvement in the system can affect education, health and wellbeing; it can also become normalised for the child and lead to offending at a later age.

A range of professionals told the committee that children’s brains do not fully mature until much later in life and that full emotional maturity is not achieved until the late teens or as late as 25. Children 1st said:

“Not all children mature at the same rate and some understand and interpret consequences and processes differently to others.”

The centre for youth and criminal justice told us:

“For children growing up in families and communities where others around them are engaged in criminal and harmful behaviours, it can be extremely difficult, if not impossible, for them to understand what criminal behaviour is and also to be able to exercise choice over what they do.”

That leads me to the impact of trauma and adverse childhood experiences. The committee heard that children and young people who had been involved in the criminal justice system had experienced trauma in their lives—some more severely than others. Research published in 2016 by the Scottish Children’s Reporter Administration found that, of 100 children aged eight to 11 who had been referred to the reporter, many had a range of pre-existing problems: 39 per cent were children with disabilities and physical and/or mental health problems, and 25 per cent had been victims of sexual and/or other physical abuse. The research also showed serious concerns about the education of children, with attendance and behaviour problems affecting more than half of them. That is why it is crucial that the approach to dealing with harmful behaviour focuses on trauma-informed perspectives.

I back the committee’s recommendation that the Scottish Government and other public authorities amend supporting guidance and training materials so as to frame them around trauma. We must also recognise the serious consequences that austerity can have on the lives of young children, as many suffer the brunt of cuts to welfare and public services—particularly education. When a child is removed from a harmful situation, they must be taken to an appropriate place of safety. A police station must always be the last resort.

I am grateful that the minister has taken cognisance of the committee’s request to take into account the full definition of “place of safety”, as set out in section 202(1) of the Children’s Hearings (Scotland) Act 2011. Reinforcing that opinion is the testimony of Lynzy Hanvidge, a care-experienced policy ambassador for Who Cares? Scotland. Ms Hanvidge’s courage in talking about her experiences is greatly appreciated by everyone on the committee. When we hear phrases such as

“They tried to force me ... They put me in handcuffs in my mum’s house in front of her and my brother and my sister”,

and, most chillingly of all,

“I spent my first night in care in a prison cell”—[Official Report, Equalities and Human Rights Committee, 6 September 2018; c 26.]

from a young woman re-telling trauma that she experienced at the age of only 13, it shows that change is required to keep children and young people away from such stressful and frightening situations, regardless of the reasons that led them there.

James Docherty, from the violence reduction unit, related his own experiences as a young child who spent time in a police station. He told the committee:

“I spent time in prison cells as a wee boy and I was terrified—that is the overarching feeling that I can remember of being in a police station as a wee boy. It was too clinical and full of noise ... but what was never taken into account was the psychological and emotional impact that it had on me.”—[Official Report, Equalities and Human Rights Committee, 27 September 2018; c 25.]

I welcome the principles of the bill, which will raise the age of criminal responsibility and better protect children from the harmful effects of early criminalisation.

15:53  

Sandra White (Glasgow Kelvin) (SNP)

We have heard some excellent speeches this afternoon. Everyone wants the bill to be a success. I believe that the only sticking point is likely to be our differences about the age of criminal responsibility, which I am sure will come through as the bill goes to stages 2 and 3.

I am not a member of the Justice Committee or what used to be called the Equal Opportunities Committee, but I am thankful for the chance to speak in the debate. As others have done, I thank the many groups and individuals who took part in the consultation and the evidence sessions. As a former member of the Justice Committee, I recollect—as will others who have been members—the number of times that the age of criminal responsibility came up in various guises, as we examined bills. It was raised many times, so I am pleased that we are discussing it at stage 1 of the bill, which will, if passed, ensure that no child under the age of 12 will be treated as a criminal or accrue a criminal record. Other members have mentioned that; it is an important point for me, too.

I particularly welcome that change, because it is not just about people at the age of 12 or who are under 12. I have spoken to people at remand centres and young men in Barlinnie who might have done something criminal, but it was something stupid and it will be on their record forever. At that age, they did not realise that that was the case. As they get older, having that conviction creates barriers to their getting into training, for example, or to branching out in their careers. It is important to get such convictions out of high-level disclosure checks or PVG records altogether because they can affect a person greatly later in their life.

Oliver Mundell and other members mentioned parity in the justice system. Both committees’ reports show that there is no parity at the moment, but if the bill is passed, there will be parity in the justice system. He was correct to say that raising the age of criminal responsibility from eight to 12 will align it with the current minimum age for criminal prosecution.

It is important to look at that; it throws up some serious questions. Perhaps the minister can enlighten me, or I will be enlightened as the bill goes through its stages, because I am not a lawyer, but what should the age be? If the age of criminal responsibility was raised to 14 years of age or older, the age of criminal prosecution would also have to be considered. Would the excellent children’s hearings system need to be changed if the age of criminal responsibility were to be raised to above 12? I would like clarification from lawyers on that; I am sure that I will get it.

As Margaret Mitchell said, at the age of 12, people can make a will, consent to or veto their own adoption and express views on private law proceedings. However, as Gail Ross said so poignantly, it is not black and white on age. We need to remember that.

I turn to the Equalities and Human Rights Committee report and thank everyone who was involved in it. As Mary Fee said, excellent evidence was contributed, and it is an excellent report. Mary Fee talked about one of the most poignant parts of that report, on page 28, on children’s hearings. It is just unbelievable. Elected members come across constituents and others every day, whether it be in the constituency, when we visit a police station, when we go out with street pastors at night or when we visit schools. It is not just about the age. I do not know whether the age of criminal responsibility should be 12, 14, 16 or 18; I have an open mind on that. However, let us look at what comes out of the children’s hearings: 75 per cent of children had previous referrals to the children’s reporter; 70 children had been referred on non-offence grounds, and five on offence grounds; 26 children were on compulsory supervision orders at the time of the offence referral incidents. The report

“established a clear link between younger children’s welfare needs and harmful behaviour.”

I know that the bill is about the age of criminal responsibility, but we cannot get around that just by raising the age without looking at the children’s backgrounds. When we go out with the street pastors or visit children’s homes—I hate the word “home”—or residential units, we see and hear about the traumatic experiences that most of those kids have had throughout their lives. They need care and love. Many of those children had no good start in life—they do not know anything else. We want to increase the age of criminal responsibility under the law, but we really need to look at what has happened in the lives of those children.

Let us, perhaps, intervene a bit sooner. As the committee heard, some kids have been reported five times. We talk about revolving doors for criminals. Sometimes, there is a revolving door for those kids. From foster care, they go back to their parents, who have a chaotic lifestyle, then they are back in foster care again. How must that affect their minds? It would certainly affect my mind. I am sure that it would affect everybody’s mind.

Although in the bill we are looking at the age of criminal responsibility, let us also concentrate on the years before. Let us get it right for every child—GIRFEC. Let us get it right for those kids, because those kids are the future. Mary Fee does a lot of work in prisons and with children, and as she said, we are looking not just at kids, but at three or four generations. If we want to stop that, we have to do something about it.

16:00  

Alison Harris (Central Scotland) (Con)

As members have said, the bill aims to raise from eight to 12 the minimum age at which a criminal offence can be committed. It seems that members from across the chamber agree that that should happen, but perhaps they have different reasons for why.

I am a practical person, so it seems to me to be logical that we should raise the age of criminal responsibility to 12, because that is already the minimum age at which a person can be prosecuted. Members have mentioned that raising the age to 12 would bring Scotland into line with the United Nations’ minimum level. However, I do not want to spend too much time comparing minimum ages in different countries’ legal systems, because I am not convinced that it is a wholly useful comparison, given the international variation in cultures. Some members have said that the age of 12 would still be on the low end in comparison with other countries, but that does not take into account other rules that apply in those countries, such as on exceptions based on the severity of the crime.

In Scotland, we have a strong support-first approach for children that we have had since the 1960s. That is more important than focusing on age alone. However, the bill has been introduced because problems have been identified with the age of criminal responsibility currently being eight.

An advisory group was set up in 2015 to take a close look at the proposal. The group made key recommendations that formed the basic structure of the bill. From those recommendations, it can be seen that the topic of disclosure is important and troublesome. Although children under the age of 12 cannot be convicted of a crime, they can be summoned to hearings and have their involvement in harmful behaviour disclosed by the police, which results in knock-on effects that run deep into their lives. A black mark against their name can limit choice later on in life at school, in further or higher education, and even into employment. The stigma that attaches to the term “offender” can lead to isolation and potentially to further offences, which is an outcome that we all want to avoid.

That is why disclosure and its consequences are such high priorities in the bill, with the policy memorandum stating that the bill is designed to reduce stigma, protect children and ensure better life chances for them. Upping the age of criminal responsibility to 12 would aid in correcting that problem, at least for children who were between the ages of 8 and 11 at the time of their actions.

Beyond the age of 12, children should be treated as having more responsibility. From my experience, by the time people have reached the age of 12, they are—for the most part—perfectly aware of what they are doing and should realise that there are consequences to their actions.

Ruth Maguire

Does Alison Harris acknowledge that when children experience trauma in their younger years, that can have an impact on their development, so not all 12-year-olds are the same?

Alison Harris

No two individuals are the same, but we have to come to an agreement on an age at which responsibility comes in. For me, 12 is that age.

In an ideal world, no child would commit a crime but, unfortunately, various factors cause that world to be impossible. There has to be a cut-off at which responsibility is introduced: 12 is the fairest age for that cut-off because, by that point, the majority of teenagers should know what is right and what is wrong.

Some people advocate raising the age of criminal responsibility further to 14 or 16, but that could have unintended consequences. We have heard disturbing stories from throughout the UK about the number of stabbings in London, the rise in gang culture, youths throwing fireworks at people in the streets, and the rate in Scotland of teenagers taking knives to school. It is apparent that more work is needed before we explore further the idea of raising the age of responsibility.

The nature of crime is changing, too. Organised crime groups target children and teenagers and entice them into crime; we do not want to give those groups more opportunity to do that through children in that age group having immunity from prosecution. People are more sympathetic when the perpetrator is a young child, but if we start to include teenagers, that sympathy will wane very quickly. On an emotional level, I ask members to imagine telling the family of a victim of a serious crime that the perpetrator cannot be identified and has not received legal punishment for their actions because they are 14 going on 15 years of age. Balance is needed, which is why I wanted to take a little time at stage 1 to outline how I feel about the subject. At stage 1, many ideas are proposed before stage 2. We should all consider fully the possible side effects of our actions when we are legislating on such an important matter.

Other matters that I have not had time to explore include the associated powers of the police if the age of responsibility is raised, and the considerations that will need to be made for victims to ensure that fairness is observed all round. I am confident that both those topics will be explored fully throughout each stage of the bill, and I look forward to following its progress.

I will support the Age of Criminal Responsibility (Scotland) Bill because, as I said earlier, raising of the age of responsibility to 12 appears to be sensible, practical and fair. I hope that those factors continue to prevail in the bill's progress in the coming months.

The Deputy Presiding Officer (Christine Grahame)

This is probably a hostage to fortune: I advise members that there is time in hand to be more expansive in your contributions. Oh dear, I may regret that. I call Stewart Stevenson, to be followed by Angus MacDonald.

16:07  

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

My arithmetic says that I have about 17 minutes, Presiding Officer, but I am sure that you will haul me up at the appropriate point.

It is as well to think about how children develop. I am not a dad, so I have not personally been through this, but psychologists give us a guideline. Before coming to that, I will mention a GIRFEC conference at which I spoke on behalf of the then Minister for Children and Early Years, Adam Ingram, as he was not at the right location. Immediately before I spoke, a wonderful film of a one-hour-old child was shown. Music was being played to the child, who waved its arms in time to the beat. When the music stopped, the child stopped waving its arms; when the music started again, it waved its arms. In other words, children start to interact with their environment from the very point of birth—perhaps even before. Psychologists say that in the first year we recognise human faces; in year three, we start to acknowledge the past to interpret present events; at year seven, we start to tell jokes—some people have not moved on from that stage—and at 11, we start to be more conscious of our moral code. However, our personal development is varied and it is unique to us.

Children who have been raised in less than ideal conditions—as a result of poverty, missing parents or other circumstances—may well have developed at a much slower rate. I agree with members in many parts of the chamber who have said that, whatever their maturity, prison is no place for a child. That is why our children’s hearings system is a beacon to the world as to how we should treat those who are in difficulties. As an MSP, I have had the great privilege of being able to sit in on a children’s hearing; I cannot of course tell members anything about the detail of what went on, but the key point is that it was child centred. That is absolutely correct and members would need to work very hard to persuade me otherwise.

We have talked a lot about numbers during the debate. People might think that one plus one equals two, but as a mathematician I can say that there are five alternative answers in the one-plus-one philosophy. If time permits, I will explain what they are at the end of my speech. Just as in mathematics, so in this debate.

Margaret Mitchell very usefully gave us quite a long and interesting list of rights that people acquire at the age of 12—I certainly heard things of which I had not been aware. There is a series of ages at which people are allowed to do certain things. It is worth saying that someone can get a firearms certificate at the age of 14. Someone can get a shotgun certificate at any age—there is no age qualification, but someone under the age of 15 is required to be supervised with a shotgun when they are exercising their rights. Someone can fly an aircraft at the age of 14, and someone can drive on a public highway in a car at the age of 17.

Alex Cole-Hamilton

The member is describing the range of ages for different activities, the majority of which relate to physical limitations or physical capacities. Does he recognise that the chamber only very recently extended the franchise to 16-year-olds? We have credited 16-year-olds with sufficient judgment to decide on the right Government for them. Should we not be raising the age of criminal responsibility further? If we recognise that people have the capacity to have political judgment only at 16, what does that say about their actions and their ability to tell right from wrong at the ages preceding 16?

Stewart Stevenson

The member makes a good point, which I will simply pass on. I will say that the bill makes interesting comments at sections 39 and 43, when it refers to taking account

“of the child’s age and maturity”.

That makes an important point. I stopped growing when I was 12 years old because I was given a hormone treatment for a particular condition that I have, although the treatment did not help the condition. Children mature physically and mentally at varying rates. Whatever we do, we need to take account of that, and I am pleased that the bill provides for that at different points.

I am also pleased about something rather obvious: the Justice Committee is not the lead committee for the bill. It could have been, if we think about it, and there are references to the Justice Committee’s activities, but the lead committee is the Equalities and Human Rights Committee. That is entirely appropriate.

With regard to age, we are adults at 18 for most purposes but not all, because sometimes the age is 21. There is no age restriction on opening a bank account; someone can open one as soon as they can sign anything. However, they cannot have bank credit until they are 18.

There is a wee issue with the bill in that there is an assumption that there is certainty about when people are 12. Bashir Ahmad, our late member and friend in this chamber, did not know when his birthday was. Many people who come to Scotland from other jurisdictions are in the same position. He was given a birthday by the legal system—if someone looks up the records, they will see something there—but there was no certainty about it. Apparently, when asked when he was born, his mother said, “Spring.” That was all that there was to know. In a number of parts of the bill—possibly at section 23, for example—we might say that a constable “reasonably believes” somebody to be under 12, because there cannot always be certainty.

I turn to the detail in the bill—I am alert to the Presiding Officer’s guidance that I should head towards a conclusion. There are a couple of wee things. I make my usual comment: section 28(7) says that the definition of “‘vehicle’ includes a vessel”—in that case, it should include aircraft, too, although it might be ultra vires to do so; I am not entirely certain about that.

We have heard about a child’s right to refuse to answer questions. I see that that is covered at section 46(2) and section 42, so I am not quite clear on what more we might have to do.

I conclude with the committee’s report, on which I congratulate it, and come back to the question of what a place of safety is. In coming to a conclusion on that, it might be helpful to document, or to see a document about, where there are places of safety across Scotland so that we can assess whether there are enough of them.

Presiding Officer, I am obliged to you for your indulgence.

The Deputy Presiding Officer

Not at all, we are very grateful to you, Mr Stevenson. Mr MacDonald is the last speaker in the open debate.

16:15  

Angus MacDonald (Falkirk East) (SNP)

I am pleased to take part in the debate, not only because we as a Parliament continually strive to introduce legislation that will benefit our citizens, but because we look to create a society that is progressive in nature, with welfare and equality at its heart.

Having looked over the salient points of the evidence taken by the Equalities and Human Rights Committee, it is clear that there is widespread support for the aims of the bill, and that is to be welcomed. It is also clear that there is a feeling that the bill is long overdue and that it is required to bring Scotland, as a forward-looking nation, into line with our international partners.

The bill speaks to what we have long striven for: to be progressive in our policies to uphold and protect our commitment to international human rights standards. In Scotland, a child aged eight is criminally responsible for their actions and that has been the case for the past 86 years, given that in 1932 it was raised from the age of seven. I think that Gail Ross mentioned that it was 1937, but the information that I have is that it was in 1932. I could be wrong—it would not be the first time.

As we have heard on a number of occasions during the debate, it is also the case that we have the youngest age of criminal responsibility in Europe, which has been a source of criticism for some time. If we put that into context, our nearest neighbours in the UK have an age of criminal responsibility of 10 years, while the average across the 28 member states of the EU is almost 14 years. We can compare that with other nations across the globe: Russia’s age of criminal responsibility is 14, which is the same as in North Korea and South Korea, and China has an age of criminal responsibility of 16, although in serious cases, such as intentional homicide and intentional hurt to cause serious injury or death, people are considered to be criminally responsible from the age of 14.

In the debate, we have heard comparisons between the differences in the ages of criminal responsibility in different countries. However, as the minister stated in her opening speech, the comparisons do not take into account the differences in the way in which Scotland deals with the issues. While some countries employ tailored penal sentences according to the age and maturity of a child between the ages of 14 and 17, or have no examples of a juvenile justice system, Scotland has its children’s hearings system, which is dedicated to providing welfarist solutions for children when these issues arise.

There is a clear requirement to raise the age of criminal responsibility from the current age of eight. Not only is it recognised that the heavy-handed nature of the criminal justice system is counterproductive for children and young people, but there is significant evidence that it leads to further issues in a child’s future. The evidence of the harm caused by treating children as offenders from such a young age is clear, with studies showing that young people and children who have been involved with the police and the justice system at a young age are more likely to offend as adults.

By raising the age of criminal responsibility, we are further contributing to a youth justice system that is appropriate and that considers the benefit to both the children and young people who are subject to the system, and aims to provide a benefit to the country as a whole.

We must take cognisance of the evidence that was presented from organisations and individuals who have experience of the youth and criminal justice systems. The general principles of the bill will contribute to our commitments to international human rights standards. There are those, however, who would like the Scottish Government to take steps to increase the age of criminal responsibility further, to the age of 14 or possibly beyond, and in line with the UN Convention on the Rights of the Child.

The majority of members across the chamber will have encountered school groups in the time since they have been elected. Some may well have visited several schools within their regions or constituencies. We are all therefore aware of the work being undertaken by classes the length and breadth of the country so that children understand the UNCRC from a young age.

As long as we as a Parliament, along with the Government, are committed to furthering the aims of the UNCRC and can continue to take progressive steps in this area—particularly in relation to giving our children and young people the opportunities that they need to realise their aspirations—we will, as a nation, be all the better for it.

We have heard that the use of a police station as a place of safety is undesirable. However, it is clear that such a place would be used only in very specific circumstances. I was glad to hear in the minister’s opening speech that the Scottish Government will further clarify the situation through an amendment that is being prepared. However, it remains the case that several key factors have to be taken into account in what can be incredibly constrained and pressurised situations. In the majority of cases, a place of safety will be familiar to the child or young person, and their safety and any risk of further harm will be taken into account. We must recognise that such situations can be incredibly traumatic and that further trauma can detrimentally affect a person’s future, which we already know can lead to further issues.

Increasing the age of criminal responsibility fits in the wider context of Scotland being a trauma-informed nation and recognises that dealing with the root causes of harmful behaviour supports the child to move on from harmful behaviour and lessens the odds of that behaviour being repeated, which is beneficial for the country as a whole.

It is fair to say that the bill is a long-awaited positive step in the right direction for children and young people and for Scotland as a nation. However, it is incumbent on us all to continue to strive to do more to ensure that we keep in line with our ambition to be a globally progressive nation that is the best country in the world for a child to grow up in. We must take into account the wider evidence on increasing the age of criminal responsibility further when it is right, necessary and appropriate to do so. I encourage the Scottish Government to see what other steps are available to it now and will be available in future to strengthen the legislation further to realise those aims.

The Deputy Presiding Officer

We come to the closing speeches. I call Daniel Johnson to close for Labour.

16:21  

Daniel Johnson

I thank all the members who have contributed to this thought-provoking and constructive debate—which is not to say that there has not been disagreement. The issue was set in context very well by the minister’s and Oliver Mundell’s opening speeches. It was important that, in her opening remarks, the minister acknowledged that the move is perhaps overdue, but is being made in a reflective manner. It is absolutely right that she is committed to listening. This is not an easy matter to get right, so it is important that we all listen.

I thank Oliver Mundell for his contribution. Although his party undoubtedly comes to the issue with a degree of caution, he was absolutely right to acknowledge children’s vulnerabilities and the fact that children who find themselves in the criminal justice system do not always receive the support that they need.

There has been discussion about whether the issue is a criminal justice issue or a children’s issue. Let us be clear: it is both, because it is an area where those two areas come into contact. Whenever we consider issues to do with the criminal justice system, such as incarceration, punishment and how the courts arrive at decisions, we need to seek balance. On restitution, it is important that the individual makes up for what they have done, but there must also be reform and rehabilitation. We cannot take those elements apart. All those elements become absolutely sensitive in respect of children who have come into contact with the law. Ideas of improving behaviour and rehabilitating become much more delicate when it comes to children: those are the issues that we have been dealing with in the debate.

I thank Alex Cole-Hamilton for providing the challenge that the debate absolutely required. The change to the age of criminal responsibility is a serious decision that is definitely overdue, but it is one that requires challenge, especially for those of us who take a more cautious line than he and others might like.

I will address some of the issues. Comment has been made about it being about 80 years since the age of criminal responsibility was set at eight. I gently point out that we now have the Scottish Parliament, and those of us who are frustrated by the length of time that it has taken to make the change must take seriously our duty to keep the law under review, to reflect how law has operated after it is passed, to reflect on what its impact has been and to review it. We cannot allow another 20 years after Parliament’s coming into being before we look again at the ideas and challenge them.

In some ways, the issue is that we are setting an age at all. The most important point is that we do not treat whatever age we decide on as a cliff edge. In that regard, Stewart Stevenson’s contribution was perhaps the most instructive. It is absolutely right to point out that some people do not know their birthday, which evidences just how arbitrary the age is.

A number of members pointed out that the ability of an individual to understand in a mature fashion their actions and the consequences of those actions, and how they can reform, is absolutely vital. That does not happen at a single age. The idea that there is a magic age at which one somehow accrues all rights, responsibilities and understandings is mistaken. We need a system that is reflective and which treats every individual appropriately, especially when they are under the age of 18. That is what we must strive for and that is what we must ensure happens in the system, both in the explicit context of the bill and beyond that.

A number of members pointed, as I have done, to the importance of the children’s panel system. Gail Ross set out the context of its coming into being. We must protect that system. The evidence that was taken by the Education and Skills Committee painted a picture of the increasingly adversarial nature of the children’s panel and the increasing use of legal representation in that context, and of children often feeling alienated by the system. We must keep a close watch on that, so in some ways I am concerned that the bill does not say more about improvements that could be made to the children’s hearings system.

Members also referred to the importance of understanding the vulnerabilities of children. Rona Mackay did an excellent job of outlining that, as did my colleague Mary Fee. Such understanding is absolutely vital; there are a number of statistics that one could cite in that context. I will wheel out one that I like to reflect on—one that is personal to me.

I have spoken on a number of occasions in the chamber about attention deficit hyperactivity disorder. The incidence of ADHD in the general population is 5 per cent. A recent study has found that 40 per cent of young people in Polmont have ADHD. It is not the only such indicator. Acquired head trauma, foetal alcohol syndrome and a number of other things are disproportionately overrepresented among the young offenders population, so we need to understand both why people come into contact with the criminal justice system and the underlying issues, and to deal with them appropriately. Rona Mackay was absolutely right on that, and Mary Fee was right to point out that we need to understand the neuroscience. We are at the beginning of a huge increase in our understanding of how the brain works and why people behave as they do. We must take cognisance of that in the education system and in the criminal justice system.

I return to the point about police powers, because a number of members highlighted the need to look at what the experience under the new regime will actually be like. When we look in the round at the police powers in the bill, we see that we need to scrutinise them carefully at stage 2, whether we are looking at the provisions on the place of safety or on the powers of the police with regard to search and interview. Clan Childlaw was absolutely right to say in evidence that children whose behaviour is not deemed to be criminal must not face criminal consequences, so we must challenge those provisions in order to ensure that the bill will not do that. In short, the terminology that is being used is that children below the age of criminal responsibility would be deemed to be showing “harmful behaviour”. It is vital that we do not simply change the terminology from “criminal behaviour” to “harmful behaviour”. There must be a complete change in the approach and in how services, especially the police, respond. As Gordon Lindhurst said—

The Deputy Presiding Officer

I am sorry, Mr Johnson, but I must ask you to close. It might be because decision time has been advanced, but I am taking speeches to the limit, so please conclude your remarks.

Daniel Johnson

I will close now, Presiding Officer. The police must investigate, but that cannot happen at the expense of the child.

Ultimately, Labour will be pleased to support the bill at stage 1. We agree with the steps that it takes, because they are overdue, and we look forward to scrutinising the issues that I have raised at stages 2 and 3.

The Deputy Presiding Officer

I call Liam Kerr to close for the Conservatives. I can give you up to eight minutes, Mr Kerr.

16:30  

Liam Kerr (North East Scotland) (Con)

I am pleased to close for the Scottish Conservatives and to speak in favour of the principles of the Age of Criminal Responsibility (Scotland) Bill.

Daniel Johnson made a really good point at the end of his speech: although the fundamental principle of the bill is about the age of criminal responsibility, that opens up much wider questions about the nature and definition of crime, about who is a criminal and who should be deemed a criminal, and about relations of power and vulnerability, all of which will, no doubt, stimulate interesting debate as the bill progresses.

The key issue that the bill seeks to address is that the minimum age at which a child can be held criminally responsible is currently eight. It was pointed out by several contributors to the committee’s stage 1 report, and by Fulton MacGregor, that that age—which, as Ruth Maguire said, was set in 1932—is the lowest in Europe. That is certainly challenging—it is not a good look. As Rona Mackay said,

“it is out of sync with the way in which we treat children in Scotland”.

Gail Ross said powerfully and persuasively that at such a low age, we would be responding to welfare issues, and she described the consequences of the current position for those aged eight to 11, saying:

“we are all agreed that the minimum age of criminal responsibility should be raised.”

She is right. If it is not eight, what should the age of criminal responsibility be?

The bill’s second principle is that the age of criminal responsibility should be 12. The debate has made it clear that that makes sense. One of the reasons why the current age of criminal responsibility is eight is that those below that age are deemed to lack the mental capacity to commit a crime. That point about mental capacity is the appropriate and correct standard against which to consider the issue.

We should ask ourselves at what age do children have the maturity to be responsible in law for their actions? Do we think that even when they know the difference between right and wrong, children can understand the difference between various levels of wrongdoing and should be held criminally responsible for such actions? Persuasive guidance that that age is 12 is provided by the policy memorandum to the bill and by the Law Society of Scotland, which was cited by Gordon Lindhurst and Margaret Mitchell. The policy memorandum says that children aged 12 and over can make a will, consent to or veto adoption, have sufficient capacity to express views on future arrangements for their care in private law proceedings, form a view to express at a children’s hearing and instruct a solicitor. It is also the basic age at which children start secondary school.

Alex Cole-Hamilton

If Liam Kerr is persuaded that 12 is the age at which children reach mental capacity, do he and his party therefore support the extension of the voting age to 12-year-olds?

Liam Kerr

Does the member mean reduction of the voting age to 12 for a general election, for example?

Alex Cole-Hamilton

Yes.

Liam Kerr

I would take an awful lot of persuading on that.

Alex Cole-Hamilton

When do children have that capacity?

Liam Kerr

I will come back to that point, because I want to address Alex Cole-Hamilton directly on raising the age beyond 12.

No one has mentioned today that Lord Dholakia tried to introduce a similar move in England. He argued that

“children of 10 and 11 have less ability to think through the consequences of their actions, less ability to empathise with other people’s feelings and less ability to control impulsive behaviour”

and that therefore

“It cannot be right to deal with such young children in a criminal process based on ideas of culpability which assume a capacity for mature, adult-like decision-making.”—[Official Report, House of Lords, 8 November 2018; c 477.]

I also find it persuasive that, as Margaret Mitchell flagged up, the number of incidents currently reported as involving under 12s offending is small and reducing. The minister reported that most of that behaviour is minor to moderate.

I was pleased to hear Gordon Lindhurst cite Police Scotland’s evidence that

“the nature of children’s actions and the prevalence of that behaviour changes as the age group increases to 12 and above.”

It is important that the committee concluded that, as Oliver Mundell said, 12 appears to be a publicly acceptable age that has both “professional and public confidence”.

Some members—in particular, Alex Cole-Hamilton and Rona Mackay—feel that the age should be higher. We would find any such move difficult to support, but not because, as Richard Lyle believes, Alex Cole-Hamilton is grandstanding. He is not. Although I do not agree with Alex Cole-Hamilton on this point, I believe that he is totally sincere and is an important voice in the debate. However, Richard Lyle’s point about living in the real world holds water.

I found Alison Harris’s thoughts persuasive when she said that it is not helpful to say that because the age of criminal responsibility in whatever country is 14 or 16, we should therefore ask why we should not have the same age here.

Alex Cole-Hamilton

Will the member take an intervention?

Liam Kerr

Will I get time back at the end, Presiding Officer?

The Deputy Presiding Officer

Yes.

Alex Cole-Hamilton

I have now twice heard members challenging my position on increasing the age beyond 12 as not living in the real world. I point to the rest of the real world, which largely has ages of criminal responsibility that are higher than 12.

Liam Kerr

On the point about the “real world”, I was simply picking up the words that were used by Richard Lyle. The minister, Maree Todd, however, made the same point in response to Alex Cole-Hamilton’s intervention earlier in the debate as she made when giving evidence to the Equalities and Human Rights Committee, when she said that

“it is clear that you cannot make direct comparisons between countries because the headline age does not capture the nuance.”—[Official Report, Equalities and Human Rights Committee, 4 October 2018; c 5.]

The minister cited Luxembourg as an example of a country that nominally has an age of criminal responsibility of 18, but permits its youth court to impose penal measures.

Before we made a change as monumental as raising the age higher than 12, we would have to be very careful to consider unintended consequences. As Alison Harris warned, those could include organised crime outfits targeting teenagers for recruitment based on their new-found lack of capacity to commit a crime.

Another area that could perhaps pose a problem—I am very much thinking aloud—is when teenagers commit sexual violence crimes against other teenagers or children. The system is challenging enough for victims already without their being told that the person lacked the capacity to commit a crime.

I found the discussion on police powers, especially in respect of the place of safety, to be interesting. Alex Cole-Hamilton, again, spoke powerfully on the place of safety and the definitions behind that. Police Scotland recognises the concerns around places of safety, but has pointed to a lack of locations and said that there have to be resources and suitable premises to which a child could be taken and in which they would feel safe.

Like Fulton MacGregor and Angus MacDonald, I was pleased to hear the minister undertake to consider carefully the committee’s request that the Scottish Government provide further information on the suitability of police stations, and for data to be gathered.

Parliament is being asked today to indicate its support or otherwise for the principles of the Age of Criminal Responsibility (Scotland) Bill. The Equalities and Human Rights Committee’s report and today’s debate provide compelling evidence that the current age of eight for criminal responsibility is no longer sustainable. We have also heard good evidence that 12 is an appropriate age at which to set criminal responsibility, including on the basis of agency, legal precedent and public acceptance. Accordingly, the Scottish Conservatives will support the principles of the Age of Criminal Responsibility (Scotland) Bill at decision time tonight.

16:37  

Maree Todd

I thank members from around the chamber for their contributions today. The debate has been constructive and open and I want to make absolutely clear my commitment to keep working together on this complex and crucial matter. I am really encouraged to hear the messages of support for raising the age of criminal responsibility. For too long, raising the age of criminal responsibility in Scotland was labelled as being too difficult. The scale of the challenge has been responsibly faced up to through this bill.

We know that harmful behaviour involving primary school-aged children is rare and that seriously harmful behaviour is even rarer. The overall number of children being referred to the children’s reporter for offending has defined significantly. That is a result of the impact of the whole-system approach, which incorporates early and effective intervention policies and processes. It is part of getting it right for every child and hears the voice of the child in moving forward from crisis. That work will continue.

Our response to harm must have the confidence of those who are harmed and those who respond to harm. We need to build understanding of how that will work both with children and with those who work with and for children. That work goes beyond legislation; it is about guidance, training, experience and culture.

I assure all members that I have listened carefully to the debate and that I will respond fully to the issues that have been raised today and in the committee’s stage 1 report in the response that I send to the committee.

I want to focus on some of the broad themes that have been raised in the debate. On the theme of the age of 12, we are proposing to move children of primary school age completely out of the criminal justice system. That is a significant reform for Scotland.

We know that a disproportionate number of children who are involved in offending faced severe disadvantage and adversity in their early childhood. The bill recognises that. By removing the criminal label from those children, we are choosing to no longer differentiate between those who exhibit harmful behaviour and those who are the subject of harm. I acknowledge that it has taken us a very long time to get to this point, but I suggest that that fact alone reflects the challenge and complexity involved.

Readiness to move beyond the age of 12 is not simply about public opinion. It is about ensuring that our professionals understand how to respond to harmful behaviour without a criminalising label; ensuring that systems are ready to respond when things go wrong without relying on the lens of criminality; protecting the integrity of investigations, and ensuring that victims understand that such a response provides the best chance to reduce the likelihood of further harm; having sufficient interventions available for as long as they need to be; and ensuring that children and families know that there is legal certainty and protection of their rights throughout.

Raising the age of criminal responsibility must be looked at in the wider context of reform—for example, we absolutely recognise the complexity of the fact that 16 to 18-year-olds are still children in UNCRC terms and need to be responded to accordingly. Specific work to support them better is being advanced under the child protection improvement programme. When such young people are in trouble, they are supported by good practice in multi-agency early and effective intervention and diversion from prosecution, which keeps them out of formal systems as far as is possible, in line with our successful whole-system approach to youth justice.

I am confident that the bill offers Scotland the right reform at this time, but I am keen to listen and to work with colleagues across the chamber to consider future reform. It is absolutely clear that, if it was decided that increasing the age beyond 12 should be the direction of travel, we would need to answer challenging questions.

As for the allegation that we are not being bold, I argue that we are being bold. The age of criminal responsibility is just one part of the picture; many members mentioned the unique children’s hearings system, which gives us a flexible and graded child-centred approach that looks at the child’s needs and not their deeds. We have the policy of getting it right for every child, the whole-system approach and early and effective intervention. Across the Government, our national health service and our education system, we have better recognition and understanding of ACEs. We are developing training on trauma-informed responses across the workforce, so that services and professionals can apply that knowledge when they work with children and families every day.

We have made a commitment to incorporating the UNCRC and reviewing the PVG scheme, and we have the Management of Offenders (Scotland) Bill.

Alex Cole-Hamilton

I have made a lot of trouble of myself in the debate by intervening to give my view that we should go further than 12, but one thing that the minister and I are completely united on is the need to incorporate the UNCRC into Scots law. Will she guarantee that that will happen in this parliamentary session?

Maree Todd

As the member knows from the written response that the Equalities and Human Rights Committee received today, I guarantee that we are committed to incorporation. Legislative reform is a necessary part of our approach to children in Scotland, but it is not sufficient alone. Real change will come from taking a multifaceted approach that leads to culture change.

I will respond to particular issues that have been raised. I make it absolutely clear that the place of safety provision is an emergency power that is restricted to a clearly articulated lawful purpose, which is to protect people

“from an immediate risk of significant harm or further such harm.”

I repeat that it is not a power of detention.

The place of safety could be the child’s home, a friend’s home, a granny’s home, a local authority residential facility, a hospital or a surgery—any place whose occupier was willing to receive the child temporarily. I emphasise again that a police station would be used only as a last resort and for the shortest time necessary, before somewhere else could be found. Section 23 makes that very clear. I mentioned that I am willing to lodge an amendment to establish a presumption against the use of a police cell as a place of safety, and I am also willing to look at monitoring the use of places of safety.

Oliver Mundell

I ask the minister to be cautious as that amendment is drawn up. When I think of my rural constituency, I imagine that, at 3 o’clock in the morning, for example, it might not be possible to find somewhere nearby. Taking the young person to somewhere that they know in their community could be preferable to driving them for a matter of hours to another facility. I ask the minister to listen to what children and young people have to say on that.

Maree Todd

Absolutely. As a member who represents a rural area, I completely agree. However, I think that a distinction can be drawn between using a police station and using police cells.

In response to Gordon Lindhurst’s point about victim information, I note that it is right to share limited information, but we need to be mindful of the importance of information about a child’s personal and family circumstances being held confidentially. It matters that the perpetrator is a child, especially if they are a young child. If we want to work with child perpetrators to succeed in building their empathy, their responsibility and their resilience, it has to take place in confidence.

In response to Daniel Johnson’s point about the children’s hearings system becoming more adversarial and the point that we do not want it to become a court of law, I absolutely acknowledge last year’s Education and Skills Committee inquiry into the children’s hearings reforms. Action is being taken by the multi-agency children’s hearings improvement partnership to implement the 32 better hearings standards, and we will write to the committee with an update. I absolutely agree with the member about the fundamental importance of hearings remaining conversations and not becoming confrontations.

On Stewart Stevenson’s point about determining whether a child is actually under 12, there is an established process for assessing a child’s age if it is not certain. That is set out in detail in the 2012 age assessment practice guidance, and section 124 of the Children’s Hearings (Scotland) Act 2011 recognises the requirement to establish a child’s age before a hearing.

The bill aims to address the complexity of the subject, to take a serious-minded look at our context and to address the needs of all Scotland’s children. It removes primary school-age children from criminalisation and addresses the needs of those affected by harmful behaviour whether as victims, perpetrators or both. Detailed work with care and justice organisations, stakeholders and children and young people has been on-going throughout the development of the bill, and we will continue that.

I again offer to meet members from across the Parliament to discuss the detail of the bill and to take the time that is required to work through the complexities that it addresses. In this year of young people, I am grateful for the careful consideration of so many, and I look forward to our next steps together.

The Presiding Officer (Ken Macintosh)

The next item of business is consideration of motion S5M-14567, on a financial resolution for the Age of Criminal Responsibility (Scotland) Bill.

Motion moved,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Age of Criminal Responsibility (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.—[Derek Mackay]

The Convener

Section 1—Raising the age of criminal responsibility

Agenda item 2 is the first day of stage 2 consideration of the Age of Criminal Responsibility (Scotland) Bill. We will go no further than part 3 of the bill today. I welcome to the meeting Maree Todd, Minister for Children and Young People, and her officials.

Amendment 2, in the name of Alex Cole-Hamilton, is grouped with amendments 1, 65, 68, 66, 71, 70, 72, 4, 3, 69, 67, 5, 7, 6, 9, 8, 11, 10, 13, 12, 15, 14, 17, 16, 19, 18, 21, 20, 23, 22, 25, 24, 27, 26, 29, 28, 31, 30, 33, 32, 35, 34, 37, 36, 39, 38, 41, 40, 43, 42, 45, 44, 47, 46, 49, 48, 51, 50, 53, 52, 55, 54, 57, 56, 74, 73, 121, 76, 75, 78, 77, 79, 81, 80, 59 and 58.

I advise members that amendments 2 and 1 are direct alternatives. I also draw members’ attention to the information set out in the groupings on the other direct alternatives in the group. Direct alternatives are two or more amendments that seek to replace the same text in a bill with alternative approaches. In this case, amendment 2 proposes to replace “12” with “14”, and amendment 1 proposes to replace “12” with “16”. A vote will be taken on both amendments in the order in which they appear in the marshalled list. If both amendments were to be agreed to, the second amendment would succeed the first, and the first amendment would cease to have effect.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Good morning. I have rather a lot to say, but members will recognise that the amendments in the group represent the fault line in the bill, so I hope that they will forgive me for taking the time to unpack and deploy my arguments. Before I address the more technical amendments, I will speak to the overall proposition of lifting the age of criminal responsibility to 14 or to 16, as set out in amendments 2 and 1 and in the interconnected amendments in the group.

The evidence that we took throughout stage 1—and in the foothills of stage 2—has been characterised by some very public and unprecedented interventions by the international community, expressing the imperative for us to go further than the age of 12, at least to the age of 14 and, arguably, further still to 16. That view is shared by the clear majority of witnesses who gave evidence to the committee.

The day after our stage 1 debate, the Children and Young People’s Commissioner Scotland, Bruce Adamson, shared with our committee the intent of the United Nations Committee on the Rights of the Child to revise its “General Comment No 10: Children’s rights in juvenile justice”, which was issued in 2007, benchmarking the absolute minimum ACR at 12. It was confirmed to member states yesterday that the UN will uplift the baseline ACR to 14 in the coming days. That was reinforced by Professor Ann Skelton, who gave evidence to the committee from the United Nations a fortnight ago, when she said:

“the committee proposes in the new revision that 14 should be considered the minimum age”.

She went on to say:

“To complete its well-respected system, Scotland should ensure that it conforms with international standards.”—[Official Report, Equalities and Human Rights Committee, 17 January 2019; c 42, 44.]

That was not the only intervention in our deliberations. The Commissioner for Human Rights of the Council of Europe, Dunja Mijatovic, wrote to the minister, expressing in the strongest terms the view of the European Council that Scotland should seize the legislative opportunity to meet the minimum standards of international expectation and set, at the very least, a minimum age of 14. Minister, your response to the commissioner was nothing short of a national embarrassment. You sought to lean on a sense of perceived exceptionalism. Your response to the commissioner implied that the unique and welfarist approach to youth justice offered by our children’s hearings system should absolve us of the need to meet the de minimis standards of international expectation.

I do not denigrate the children’s hearings system; there is much in the system of which we can be justifiably proud, and it is held up as a world exemplar. However, when it comes to international minimum standards, we do not get a pass. I am also proud of the fact that, since the Kilbrandon report was first published in 1971, we have adopted a welfare-based approach to children’s harmful behaviour. However, I say again, when it comes to international minimums, we do not get a pass.

Although this Government is, at last, using the word “love” in the narrative arc of the policy that it has created for children and young people, when it comes to international minimums—again—we do not get a pass.

That was summed up starkly in the commissioner’s reply, in which she said:

“I appreciate the Minister’s comprehensive explanation of those differences, and the positive elements of the Scottish approach. Many of these are considered good examples in Europe. However, I also note that many different approaches are applied across the 47 member states of the Council of Europe, making each national system unique, with specific advantages and challenges. It is important to underscore that international human rights standards, such as those referred to in my letter to the Minister, are developed precisely to provide minimum safeguards regardless of the diversity of states’ laws, policies and practices.”

I ask the minister to dispense with any further attempt to justify sticking at the age of 12 in the bill, as such lines of argument serve only to compound the Government’s embarrassment further.

At First Minister’s question time last week, my party’s leader, Willie Rennie, asked for movement on the issue in order to meet the new international minimum. In response, the First Minister argued—as the minister might also—that there is a need to carry the population with us. She rightly pointed out that, in the consultation that took place prior to stage 1, 88 per cent of respondents supported an uplift in the age to 12. However, if you ask a binary question, you get a binary answer, and an uplift to 12 was all that the respondents—and, for that matter, the working group that preceded the consultation—were asked to offer a view on.

In the light of that and in the light of the international interventions, I am therefore grateful for the forbearance of the clerks and my fellow committee members in agreeing to reopen our consideration of evidence and consider an uplift to the age of 14 or 16, as in my respective amendments in this grouping.

As members know, the written responses to the call for evidence showed the desire of 86 per cent of respondents to go to the age of 14, at least, and most wanted to go to 16. Of particular interest was the response of Children’s Hearings Scotland, which said that it stood ready to “implement whatever age” the Parliament arrives at, but that we should endeavour to go further. Minister, if your Government wishes to carry those who are interested in the issue on a journey to a further increase, you should know that they are already there.

The point that the First Minister used to justify sticking at the age of 12 was about capacity. She said:

“there are not just issues of principle but practical issues in terms of the sheer volume of cases that would be affected by the decision.”—[Official Report, 24 January 2019; c 19.]

That was in direct response to Willie Rennie’s question on an uplift to the age of 14.

Last week, every member of the committee received the helpful correspondence from the Lord Advocate, which broke down the statistics that make up the “sheer volume of cases” to which the First Minister referred. Of offences reported for those aged 12 or 13 last year, 27 cases were referred to the procurator fiscal for criminal proceedings. Of those, only 11 cases went to court.

Understanding those numbers is important in gauging the magnitude of the task before us in seeking a further uplift in the age of criminality responsibility, and I put it to the committee that the term “sheer volume” cannot be used to describe 11 cases, when that is barely a handful.

Nevertheless, moving to the age of 14 would require careful consideration of how cases could be dealt with in the children’s hearings system. I accept that—work needs to be done. The Scottish Children’s Reporter Administration, which, incidentally, supports an uplift to 16, has explained in granular detail the consideration that would be required if the children’s hearings system were to take on such cases. We might need to consider extending the panel’s powers to deal with over-18s, or, for the most egregious cases, introducing a higher burden of proof that goes beyond the balance of probabilities.

That view was reflected by the Lord Advocate. He said that he would not set his face against a further uplift, but that further careful consideration would need to be given in respect of the handful of cases that would go to court.

The Scottish Government has suggested that the work described by the Lord Advocate is too vast to contemplate in the context of any further progress in the bill. I cannot accept that. This is the Parliament that passed the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill in three days, readying this Parliament for the impact of Brexit on every aspect of its powers. Does the Government expect the committee, relevant stakeholders and the general public to believe that we cannot work out what to do with 11 kids in two years?

After ascertaining from stakeholders just how long we might need, I lodged amendments 65 to 69 and 77 to 81, to offer Parliament a sunrise clause in order to attain a new age of criminal responsibility of 12 on royal assent, but with a further uplift 18 months later, either automatically or following a vote in Parliament, to the age of 14 or 16.

09:30  

Amendment 72, which is also in my name, would make provision for the re-establishment of a working group to undertake that task, with ministers being duty bound to bring any recommendation for a further uplift to a vote in Parliament

“no later than 31 January 2021.”

Where there is a will, there is a way.

Aside from the international embarrassment of trying to argue for an exemption from the new international minimum, there is scope for domestic embarrassment as well. Before I came to the Parliament, I was proud to serve under Professor Alan Miller on the leadership panel for Scotland’s national action plan for human rights, and I was heartened when he was appointed to head up the First Minister’s advisory group on human rights leadership. He and his colleagues put in great effort to equip Scotland to act as a human rights leader on the global stage. Now, by refusing to move with the international community to embrace the new international minimum in this vital area of human rights, at a stroke, we have holed below the waterline any credibility that we might have had as an international human rights champion. Put simply, we have wasted the time of a good man and those around him.

For example, we often sit in judgment on human rights issues in China and Russia, but both those countries already have, or look set to have, higher ages of criminal responsibility than we do. As Willie Rennie said last week, when it comes to human rights,

“we cannot lead the world from the back of the pack.”—[Official Report, 24 January 2019; c 20.]

If we do not achieve movement in the bill, I will no longer be able to stomach the Government’s self-congratulatory posturing on human rights. It will not wash any more.

I do not have a great deal more to say, but I will say a word about my amendments to lift the age of prosecution and my amendment to lift the age of criminal responsibility to 16. Action on the age of criminal prosecution was a bellwether for the moves to lift the age of criminal responsibility in the bill. When the United Nations called on us to lift the age of criminal responsibility to 12, we raised the age of criminal prosecution, which acted as a kind of leader clause and eventually brought us here. If none of my other amendments passes, at least let us look to increase the age of criminal prosecution, as a signal of intent to the international community and so that nobody under the age of 16 should be criminalised.

With regard to my amendment to lift the age of criminal responsibility to 16, I set great store by the argument as to why we need to get to the age of 14, but it is important to state why I have lodged an amendment to get to the age of 16. I want to move the Overton window of debate to that subject.

During our stage 1 debate, Liam Kerr stated that, at 12, children have full capacity to make value judgments and understand the consequences of their actions. In an intervention, I asked him whether he agreed that we should therefore reduce the voting age to 12—and he looked horrified. That is it: this country has accepted 16 as an age of majority, at which adult responsibilities are conferred. At that age, we credit young people with the maturity to decide whether to leave home, whether to marry, whether to have sex and who they want to run the country. There is widespread opposition to lowering the age of 16 for any of those things because many people feel that children who are under 16 lack maturity. However, people still believe that criminal capacity develops far earlier. That is incongruous. I cannot reconcile that disparity. In the eyes of the law, either people have maturity and judgment, or they do not.

All my amendments were drafted with Lynzy Hanvidge in mind. Every member in this room was moved by and has cited Lynzy’s testimony. At the age of 13, she was arrested for kicking off on the night that she was to be taken into care. She spent a night in the cells, with all the trauma that that brings. Put simply, in the middle of one adverse childhood experience, the state handed her another. As it stands, nothing about the Government’s bill would change anything about Lynzy’s story. If we do not change the bill, we will have failed her and those like her.

I move amendment 2.

Mary Fee (West Scotland) (Lab)

I support all Alex Cole-Hamilton’s amendments. He has already said much of what I want to say, but some of it is worth repeating.

Alex Cole-Hamilton is right to say that his amendments represent the fault line in the bill. All the evidence that the committee has received supports raising the age of criminal responsibility higher than 12. The revision to the United Nations Committee on the Rights of the Child’s general comment 10 to raise the minimum age to 14 is a recommendation that we should embrace. We should not choose to avoid doing so by saying that we deserve a pass because we have the children’s hearings system. We should be—and we are—proud of the children’s hearings system, but when it comes to incorporating guidance and legislation that comes from the UN, it does not give us a pass.

In the Parliament, we speak a lot about incorporating the United Nations Convention on the Rights of the Child. The bill gives us an opportunity to take a further step along the path of incorporation. The fact that we choose to pull back from that is, as Alex Cole-Hamilton said, a national embarrassment, and it should shame us all. I urge my fellow committee members to support the amendments in the name of Alex Cole-Hamilton.

Oliver Mundell (Dumfriesshire) (Con)

We hold the view that the age of 12 strikes the right balance, and although we are sympathetic to some of the evidence and the arguments that have been made, that remains our position. We are sympathetic to the argument around exceptionalism, but it is better to be straightforward, as we have tried to be, and recognise that neither the system nor people who live in our country are ready for the age of criminal responsibility to move beyond 12. I highlight that not all the evidence that we have heard supports going beyond 12. In particular, I point to the further submission from Victim Support Scotland, in which it said that it did not support such a change at this time.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

I put on record that I also do not think that 12 should be the age that we stick at. I agree that we need to go further—the committee received a lot of evidence that said that—and I do not believe that we should criminalise children. I seek an assurance from the minister that work to move beyond 12 is being, or will be, done. It is unfortunate that that work has not been done yet, and I would like to hear about what is being done to allow us to move beyond 12. However, if we vote for Alex Cole-Hamilton’s amendments, which would take the age of criminal responsibility straight to 14 or 16, I believe that, given the work that needs to be done to get us there, we would stick at eight for longer than we need to. I do not think that that is a responsible position to take.

Alex Cole-Hamilton

My sunrise clause amendments would cover that concern. The Scottish Children’s Reporter Administration made the point very strongly that we cannot delay any further. That is why my sunrise clause amendments would provide that, when the bill receives royal assent, there would be an automatic increase in the age of criminal responsibility to 12, as agreed by the committee, and a further increase to 14 or 16, depending on what the committee agreed, 18 months later. That would give the working group, or whomever would be charged with the task of making that happen, time to get everything in place before the automatic uplift in age.

Gail Ross

I thank Alex Cole-Hamilton for the clarification, but I think that it would be difficult to put an automatic uplift in age in legislation when we do not know what the working group would come back with. It is therefore with a heavy heart that I will not support his amendments today.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

My position is similar to that of Gail Ross. I have a lot of sympathy with Alex Cole-Hamilton’s amendments and I think that we need to move towards at least 14. I do not necessarily agree with the tone of all of Alex’s speech—some of the language about embarrassment is not right at all. Speaking as someone who worked in the children’s hearings system for a very long time, I think that the system is far from embarrassing.

Alex Cole-Hamilton

I am grateful to the member for offering me the opportunity to clarify. At no point did I suggest that our children’s hearings system is a source of embarrassment; the minister’s reply to the Commissioner for Human Rights of the Council of Europe was a national embarrassment.

Fulton MacGregor

I am sorry. To clarify, I know that Alex Cole-Hamilton did not say that about the children’s hearings system, but he used the word “embarrassment” several times. I was stressing that the children’s hearings system is a credit to Scotland.

As Gail Ross highlighted, Alex Cole-Hamilton’s amendments have the potential to be irresponsible. They might not wreck the bill, but they are certainly reckless, because they would keep the age at eight. Alex Cole-Hamilton talked about a sunrise clause, but we do not know what a future group would come up with, what Government would be in place, what referendums might be held or what will happen with Brexit over the next wee while.

Alex Cole-Hamilton

Will the member take another intervention?

Fulton MacGregor

I am just about to finish.

For me, it would be too big a risk to not raise the age to 12, which is where the work has been done.

I ask the committee to excuse my voice; I have a bit of a cold. I will leave it at that.

The Minister for Children and Young People (Maree Todd)

First, I thank the committee for taking additional evidence at stage 2 to inform consideration of this group of amendments. The evidence highlighted that the issue is very complex and needs to be considered fully in the context of our wider approach to supporting young people’s harmful behaviour.

We can rightly be proud that the Parliament universally supported the principle of raising the age of criminal responsibility, but we should not forget the work that has been undertaken to arrive at this point, or that the work involved a long and considered collaborative approach with agencies and professionals and—crucially—engagement with children and young people. That has enabled us to reach a consensus that the age of criminal responsibility in Scotland should be raised.

Taking forward any further proposals would require a similar approach by considering all the implications and potential impacts. Although raising the age is clearly important, as the First Minister pointed out last week, how we deal with young people in the system overall is what is really important.

One of the things that I took from the full range of remarks and recommendations in the draft UN “General Comment No. 24: Children’s Rights in Juvenile Justice” was that we are already doing, or going further than, what the UNCRC is calling on states to do. It is important that we do not lose sight of our track record in the whole area. Only yesterday, statistics were published that show that the number of young people who have been convicted of a crime or an offence has fallen by two thirds and is at its lowest level in 10 years. In Scotland, we already recognise and share a belief across all parties that heavy-handed or retributive criminal justice is counterproductive for children and young people. The vast majority of children aged 12 to 15 who offend are already dealt with by our welfare-based children’s hearings system rather than by being prosecuted in court.

The UN’s call for states to consider a higher minimum age of criminal responsibility is an important development. The Scottish Government will carefully consider the general comment in its entirety and will assess what future reforms might be needed as a result. However, I have two significant concerns about increasing the age of criminal responsibility through the bill.

The first of those concerns relates to our readiness to raise the age of criminal responsibility or prosecution beyond 12, given the key issues that were highlighted by the law officers in their evidence. As the Lord Advocate made clear, raising the age further would require us to be satisfied that the bill includes the right systems and safeguards to respond to the full range of possible cases, which statistics show are greater in volume, challenge and complexity. It is my firm belief that we should be sure on such issues, not least in terms of the duty of care that we owe to young people who engage in harmful behaviour and to victims of harmful behaviour. That is one of our key responsibilities as legislators.

The Lord Advocate highlighted the state’s positive obligations under international law to maintain an effective system for investigating crime and securing the rights of victims. We can be reassured that the bill allows for any incident that involves a child who is under 12 to be investigated properly, for any victim to be respected and responded to and for children to be properly supported without being criminalised. The Lord Advocate and the Solicitor General demonstrated how we would not have that reassurance should we raise the age further now. A significant number of serious offences, which are currently not responded to in the children’s hearings system, could not be responded to in the system without further primary legislation. There are additional concerns about complex issues, such as delayed reporting of grave historic offences against other younger children.

09:45  

In raising the age of criminal responsibility, we must have confidence that we have in place appropriate measures and mechanisms to address children’s behaviour and to support them with appropriate interventions. For children under 12, we do. However, since 2011-12, 1,285 12 and 13-year-olds were involved in incidents that were reported to the procurator fiscal, including charges of murder and rape. Some of those cases, retained in the criminal justice system, resulted in disposals that go beyond a child’s 18th birthday. That would not be possible currently in the children’s hearings system, and primary legislation would be required to extend the jurisdiction of the hearings system to include all young people aged 16 and 17, and to provide for interventions beyond a young person’s 18th birthday, if the age of prosecution or criminal responsibility was raised further.

Alex Cole-Hamilton

I recognise the statistics that the minister has just given the committee. Does she recognise that, on a yearly basis, fewer than a dozen cases referred to the procurator fiscal go to trial? That is not an insurmountable capacity issue. While primary legislation would be required, the committee could agree to amendments to the bill to empower the Government to extend to the panel by regulation the powers that the minister described.

Maree Todd

I believe that the changes are so substantial that they should be made in primary legislation and subject to the normal procedures and consultation required. The issue is so substantial that it should not be taken forward by regulation.

Legislative change would have to be supported by practice change by decision makers and by the professionals who would implement the new measures. As committee members have mentioned, that was made clear by Malcolm Schaffer from the Scottish Children’s Reporter Administration and by representatives of the national youth justice advisory group, who highlighted concern about service capacity to address the full range of harmful behaviour of 12 and 13-year-olds if the age were to be raised to 14 immediately.

There are likely to be operational and implementational issues to be addressed that are not yet clear to us. We must be able to answer the hardest questions and to provide for all eventualities. To do so takes time, just as we gave the original advisory group the time that it needed to arrive at the recommendations that informed the measures in the bill.

I am acutely aware that young people who offend have often been the victims of harmful behaviour, abuse, neglect and violence, often from a young age, and are therefore also in need of care and protection themselves. For that reason, I understand the calls to increase the age further. I have said throughout the bill process that I will listen and consider the evidence. That evidence suggests that we should not increase the age of criminal responsibility or prosecution beyond 12 without being confident that our laws, systems, services and professionals are prepared and supported. They need to be ready and feel ready before we consider further change.

I cannot therefore support amendments to raise the age of criminal responsibility for the reasons that I have set out. I ask the member not to press his amendments. If he does so, I ask for them to be resisted.

The Convener

I call Alex Cole-Hamilton to wind up and press or withdraw amendment 2.

Alex Cole-Hamilton

I sought membership of this committee because I have had a long career in human rights and I believed that the committee would be a force for good in the human rights landscape. Sometimes, I really do not know what we are doing here.

In her remarks, the minister sought once again to lean on a sense of exceptionalism in our children’s hearings system and the strata that we employ to deal with young people who commit harmful behaviour. That does not cut it with the international community. She referenced the general comments of the United Nations Committee on the Rights of the Child. A member of that committee gave evidence to us two weeks ago. Professor Ann Skelton said:

“Although Scotland is to be commended for holding on to its welfarist approach ... that does not mean that you are not obliged to take note of and comply with international or regional standards.”—[Official Report, Equalities and Human Rights Committee, 17 January 2019; c 43.]

If an uplift to age 14 is not a standard, I do not know what is.

Members of the committee and the minister have talked a lot about the work that needs to be done. That is why I lodged a sunrise clause amendment. We have interrogated with witnesses including the Lord Advocate and the children’s reporter the question of what amount of work would be required to enable us to get to the age of 12 immediately. Fulton MacGregor suggested that my amendment would delay us getting to 12, but, actually, it would ensure that the minimum age was uplifted to 12 immediately upon royal assent. Following that, within 18 months, we would do the work to get rules in place to ensure that our systems were ready, in the way that the minister describes. Through the affirmative procedure, if the primary legislation necessitated it, Parliament could ensure that there is the required scrutiny of issues such as an uplift to 18 or an increase of powers over 18—

Fulton MacGregor

On the issue of the sunrise clause, as I said, I am sympathetic towards moving towards 14; that is obviously where the member wants to go, too. Do you not think that it would be irresponsible of the committee to put into legislation a predetermined outcome?

Alex Cole-Hamilton

There are several iterations of the sunrise clause amendment. You are welcome to back whichever you please. In respect of that, there is an option in a number of my amendments to give Parliament a vote on whether we go ahead with the uplift. Importantly, amendment 72 demands that ministers bring back the recommendation of a reconvened working group to that end. There is a pot pourri of amendments that are designed to assuage any anxiety that you might have on that score. That is exactly why I lodged them.

Maree Todd

May I briefly address the sunrise mechanisms? The issue of requiring more time to consider all the implications and bring forward the appropriate criminal legislation is my second concern about amendments 80 and 81. Until we have considered the matters fully, the age of criminal responsibility stays as it is. The idea of taking a stepped approach is attractive, but 18 months is not sufficient time to consider the approach that we need, nor to bring forward any additional primary legislative changes such as the ones that were highlighted in particular by the Lord Advocate and Malcolm Schaffer. In setting arbitrary time limits, there is a risk that we will rush the process and fail to address all the matters that need to be considered. We need to take our time to get things right. We might not be in a position to commence these provisions, which, again, could keep the age of criminal responsibility at a lower age for a longer time. None of us wants that to happen.

Alex Cole-Hamilton

I come back to the fact that the Parliament dealt with the EU continuity bill, which covered every aspect of devolved competency, in three days. I cannot believe that it is beyond the capability of the working group, the children’s reporter and the Crown Office and Procurator Fiscal Service to get round a table and, over the course of two years—that is the timescale that we are talking about, given how far we are away from royal assent for the bill—ascertain exactly what we need to do with regard to the 11 children who go to trial each year.

As far as I am concerned, two changes are needed: a change in relation to post-18 powers for disposals by the children’s panel; and a change in the burden of proof from beyond the balance of probabilities to beyond reasonable doubt in the most egregious cases. We have already thrashed out the changes that might be required, and those are the only two. I cannot believe that the process to make those changes would take two years, if there is the political will behind doing so. Sadly, I do not believe that that political will exists.

Unamended, the bill is an embarrassment. The Government has no cause to speak of it with pride. I will vote for it only because the current age of responsibility in Scotland is, frankly, medieval—this Government has presided over that for the past decade. When I think of my amendments, I think of Lynzy Hanvidge alone and in the dark. If this legislation had been in place, unamended, before that happened to her, nothing about her story would have been any different, and we would have let her down. Unamended, the bill says to 12 to 15-year-olds, “This country will govern you with love, until you break the law, which is when the love ends.”

The international community has already judged the Scottish Government on this. If we do not amend the bill, so, too, will history. More important, so will children and young people in this country, and I do not blame them. I press amendment 2.

The Convener

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 2 disagreed to.

Amendment 1 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 1 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 1 disagreed to.

Amendment 65 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 65 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 65 disagreed to.

Section 1 agreed to.

After section 1

Amendment 68 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 68 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 68 disagreed to.

Amendment 66 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 66 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 66 disagreed to.

Amendment 71 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 71 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 71 disagreed to.

Amendment 70 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 70 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 70 disagreed to.

10:00  

Amendment 72 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 72 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 72 disagreed to.

Amendment 4 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 4 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 4 disagreed to.

Amendment 3 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 3 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 3 disagreed to.

Amendments 69 and 67 not moved.

Section 2—Raising the age of criminal responsibility: consequential repeal and saving

Amendment 5 not moved.

Section 2 agreed to.

Section 3—No referral of child under 12 to children’s hearing on offence ground

The Convener

I remind members that amendments 7 and 6 are direct alternatives.

Amendments 7 and 6 not moved.

Section 3 agreed to.

After section 3

The Convener

Amendment 101, in the name of Oliver Mundell, is in a group on its own.

Oliver Mundell

Amendment 101 is designed to give added protection to society as a whole. It recognises the important role that the Lord Advocate plays in providing a check and balance in the system. I believe that that is a role that he can continue to play and that he should continue to take an interest in harmful behaviour by children between the ages of eight and 12 when such behaviour gives rise to wider public safety concerns or undermines confidence in the justice system. We think that it would be wrong to lose his input and expertise, particularly in difficult areas around sexual offences and the loss of life.

I will be interested to hear what other members have to say.

I move amendment 101.

Alex Cole-Hamilton

I am grateful to Oliver Mundell for starting this debate, but I cannot support his amendment 101. There is enough in the bill that flies in the face of international expectation, and the amendment would just add to that. The intervention of the Lord Advocate or the equivalent is not required in other nation states of the United Nations that have already adopted a higher age of criminal responsibility, and I do not see why we should be exceptional in this case. For that reason, I will oppose the amendment.

Fulton MacGregor

I agree with Alex Cole-Hamilton. His amendments in the previous group, which we have just debated, were about a timing issue and how to get to a certain point. Agreeing to amendment 101 would be retrograde in that respect, and I will not support it, either.

Mary Fee

I cannot support amendment 101. I agree with the comments that both of my colleagues have made. Agreeing to the amendment would be a retrograde step.

Maree Todd

Although we must all have confidence in the changes that will be made through the bill, we need to be careful not to reverse reforms that have already been made, nor to introduce unintended consequences in trying to create safeguards to address the most serious harmful behaviour that some children might engage in.

Amendment 101 would give the Lord Advocate powers that do not currently exist on decision making in relation to children under 12. It has potential to bring a broad, as yet unspecified range of under-12s into the ambit of the criminal justice system. It would undermine the role that the children’s hearings system has had in relation to that age group since the age of prosecution was increased in 2011, and would return this age group of children to the criminal justice system for the first time in seven years.

We know that harmful behaviour involving children of primary school age is rare, and seriously harmful behaviour is even rarer. We also know that, at this age, a disproportionate number of children who are involved in offending have faced severe disadvantage and adversity in early childhood, and it is important that we make the welfare of these children the primary consideration and continue to deal with them exclusively under the children’s hearings system.

The bill seeks to fully decriminalise all children of primary school age. Amendment 101 would undermine that approach and principle by creating a two-tier system in relation to some children in some circumstances by giving the head of the system of criminal prosecution a new power to consider their actions or behaviour. That would seem to be a retrograde step, as Mary Fee said, not least because of the implications for children’s rights.

I acknowledge that, in the future, there may still be some instances of seriously harmful behaviour by a very small number of children of primary school age that will require an appropriate and serious response. The bill seeks to create measures that will allow such behaviour to be investigated and addressed. Amendment 101, if agreed to, would cut across those provisions and create an unhelpful innovation to our long-standing approach that is epitomised by the children’s hearings system.

I therefore hope that Mr Mundell will not press his amendment. If he does so, I strongly urge the committee to resist it.

Oliver Mundell

I believe that the amendment is drafted in such a way as to capture only a very small number of individuals in extremely exceptional circumstances. It respects the fact that such children will no longer be treated as having committed criminal acts under section 1. However, it provides some reassurance for those people who are victims. I think that it provides a fair balance.

I have a great deal of faith in the independent and important role that the Lord Advocate has played in the Scottish legal system and I believe that we could respect the individual office holder and trust them to take the right decisions in the public interest. I therefore press amendment 101.

The Convener

The question is, that amendment 101 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 101 disagreed to.

The Convener

I will suspend the meeting briefly to allow officials to change places.

10:09 Meeting suspended.  

10:10 On resuming—  

The Convener

I welcome everyone back to the meeting.

Section 4—Disclosure of convictions relating to time when person under 12

Amendments 9 and 8 not moved.

The Convener

I remind members that amendments 11 and 10 are direct alternatives.

Amendments 11 and 10 not moved.

The Convener

Amendment 82, in the name of the minister, is grouped with amendments 83 to 89 and 96 to 98.

Maree Todd

The policy intention in the disclosure sections of the bill is that no person should have to disclose any information about pre-12 behaviour unless the independent reviewer has determined that it should be disclosed by the state. The bill as it stands does not fully provide for that, and this group of amendments seeks to improve protections for those who are subject to disclosure.

Amendments 82 to 89 relate to state disclosure by Disclosure Scotland and its interaction with the duty to self-disclose or acknowledge pre-12 behaviour where a disclosure check is used in connection with, for example, recruitment for a job. Amendments 84 to 87, which are the substantive amendments, put in place the important protection against the need to self-disclose relevant behaviour and any ancillary circumstances and replace the protection that amendment 83 seeks to remove. That positive step brings the protection into the same piece of legislation—the bill—that contains the provisions that establish the position of the independent reviewer.

Amendments 88, 89 and 96 to 98 are technical amendments that are consequential to the substantive amendments. Taken together, they will deliver benefits to the individuals and allow them to move on from their childhood behaviour.

I urge committee members to support the amendments in the group. If they wish me to discuss them in detail, I am happy to do so.

I move amendment 82.

Alex Cole-Hamilton

I am not clear how these amendments increase protection for those who are subject to disclosure. In fact, from discussions that I have had with stakeholders in the voluntary sector and human rights landscape, I know that they are mildly concerned by them. They feel that they represent backsliding and that they will create situations in which more information will be revealed than might have been allowed under the original bill. For that reason, I cannot support the amendments.

Maree Todd

Because pre-12 harmful behaviours are no longer considered, they are in a sense no longer protected under the Rehabilitation of Offenders Act 1974. The amendments not only rebuild those protections but go further, and they align with the duty to self-disclose—or not—when, for example, applying for a job. They are important protections against the need to self-disclose relevant behaviour and any ancillary circumstances, and bringing them into the same piece of legislation that sets out the position of the independent reviewer is a positive step. Again, I urge committee members to support them.

The Convener

The question is, that amendment 82 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

The Convener

The result of the division is: For 5, Against 2, Abstentions 0.

Amendment 82 agreed to.

After section 4

Amendments 83 to 87 moved—[Maree Todd].

The Convener

The question is, that amendments 83 to 87 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

The Convener

The result of the division is: For 5, Against 2, Abstentions 0.

Amendments 83 to 87 agreed to.

Section 5—Disclosure of information relating to time when person under 12

10:15  

The Convener

I remind members that amendments 13 and 12 are direct alternatives.

Amendments 13 and 12 not moved.

Amendment 88 moved—[Maree Todd].

The Convener

The question is, that amendment 88 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

The Convener

The result of the division is: For 5, Against 2, Abstentions 0.

Amendment 88 agreed to.

Amendment 89 moved—[Maree Todd].

The Convener

The question is, that amendment 89 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

The Convener

The result of the division is: For 5, Against 2, Abstentions 0.

Amendment 89 agreed to.

Amendments 15 and 14 not moved.

Section 5, as amended, agreed to.

Section 6—Independent reviewer

Amendments 17 and 16 not moved.

Section 6 agreed to.

Section 7—Period and terms of appointment

The Convener

Amendment 90, in the name of the minister, is grouped with amendments 91 to 94.

Maree Todd

The amendments in the group were lodged in response to feedback from stakeholders and to ensure that the terms and conditions of the independent reviewer are sufficiently clear in the bill. I hope that the amendments also assure the committee and wider stakeholders that nothing in the bill gives the Scottish ministers, the chief constable or anyone else any power to direct the independent reviewer in the exercise of their functions.

Amendments 90 and 91 amend the period of appointment that is provided for in section 7(1), so that it is fixed at three years. That makes clear the definitive nature of the appointment and removes any uncertainty that the existing wording might have caused.

Amendment 92 adds the words “and conditions” to section 7(2) to reflect that a person is to be appointed as independent reviewer on such terms and conditions as the Scottish ministers determine, in line with similar provisions in other acts. I confirm that the usual public appointments rules, and therefore the terms and conditions that apply to other such appointments, will apply.

Amendment 93 outlines specific circumstances under which a person is disqualified from appointment or holding office as independent reviewer. It provides that elected politicians cannot be appointed as an independent reviewer. If the independent reviewer becomes an elected politician, they are automatically disqualified. Section 7(6) provides that

“Scottish Ministers may terminate the appointment of the independent reviewer”.

Amendment 94 removes section 7(6) and replaces it with details of the specific circumstances under which ministers may remove a person from office and how that can be done. The aim is to make clear the limits of ministerial powers in that regard.

I hope that the committee agrees that the amendments in the group provide welcome clarification, particularly in relation to the measures that set out how the independent reviewer is intended to operate.

I move amendment 90.

The Convener

As no member wishes to speak to the amendments, do you wish to wind up, minister?

Maree Todd

I encourage committee members to support amendments 90 to 94.

Amendment 90 agreed to.

Amendments 91 to 94 moved—[Maree Todd]—and agreed to.

Section 7, as amended, agreed to.

Section 8 agreed to.

The Convener

At this point, I will suspend the meeting until half past 10 for a brief comfort break.

10:21 Meeting suspended.  

10:30 On resuming—  

Section 9—Referral of information to independent reviewer

Amendments 19, 18, 21 and 20 not moved.

Section 9 agreed to.

Sections 10 to 14 agreed to.

Section 15—Appeal against determination under section 13

The Convener

Amendment 102, in the name of Mary Fee, is in a group on its own.

Mary Fee

My amendment concerns the independent reviewer and the disclosure of information. Amendment 102 would make it clear that, if an appeal to have information removed from a record is unsuccessful one time, that does not rule out a further appeal if the same information is to be released at a later date. This might seem like a small and insignificant amendment, but it is vital that there is no doubt that someone has the opportunity to appeal again where there is the potential for information to be released. We need to be absolutely and completely clear in the bill that, if circumstances change, such recourse is available to individuals. I urge the committee to support the amendment.

I move amendment 102.

Alex Cole-Hamilton

I support Mary Fee’s amendment, which offers people further protection with regard to the disclosure of information.

Maree Todd

I appreciate and understand the intention behind Mary Fee’s amendment. However, as the Government outlined in its response to the committee’s stage 1 report, the independent reviewer makes a one-off decision for the purposes of the particular application. The reviewer’s determination includes in consideration the reason why the disclosure is being applied for and all the other information that they are able to take into account at the time. If the independent reviewer decides that the information should be disclosed, that is not a continuing decision that it should be disclosed in relation to all subsequent applications. Any new application would be considered afresh. If the police considered that information about pre-12 behaviour was relevant to the new application and ought to be disclosed for the purpose of that new application, the independent reviewer would make a fresh decision. It therefore follows that the right to make an appeal to a sheriff would be available in relation to subsequent determinations even if they concerned the same information.

I share Mary Fee’s aim to protect the rights of individuals in this process, particularly in relation to appeals, as I have outlined, but their rights are already protected by the measures in the bill. Although amendment 102 is not needed to protect appeal rights, it has the potential to obscure the clarity of the provision in section 15(4) that the sheriff’s decision on an appeal against the independent reviewer’s determination is final.

If it would be helpful, I would be happy to provide further assistance. Guidance or guidelines that will be provided for the operation of the independent reviewer’s functions will address this matter and set out clearly how the law is intended to work in practice. I hope that, after hearing this explanation, Mary Fee will be satisfied and will not press amendment 102. If she does so, I ask members not to support it.

Mary Fee

I thank the minister for her comments. However, I believe that we must be absolutely clear and explicit about the right of appeal. I have a slight concern about some of the language that the minister used, particularly by referring to things that “ought to be” and “should be” considered, which is why I think that amendment 102 is so important. It will leave no doubt about the rights that individuals have and it will give complete and utter clarity. It will not, as the minister alluded to, obscure the clarity of rights for individuals. I will press amendment 102.

The Convener

The question is, that amendment 102 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 4, Against 3, Abstentions 0.

Amendment 102 agreed to.

Section 15, as amended, agreed to.

Section 16 agreed to.

Section 17—Guidance

The Convener

Amendment 95, in the name of the minister, is in a group on its own.

Maree Todd

In response to feedback from stakeholders, amendment 95 has been lodged to clarify the independence of the independent reviewer and to limit the extent of the Scottish ministers’ powers, which I am sure the committee will welcome. The amendment makes it clear that ministers may not use statutory guidance that is issued to the independent reviewer to direct him or her on how to handle any specific review or reviews. I urge committee members to support the amendment.

I move amendment 95.

The Convener

As no member wishes to comment, I ask the minister to wind up.

Maree Todd

I hope that everyone will see amendment 95 as a positive step that responds to stakeholders’ concerns by clarifying the Scottish ministers’ role in relation to guidance. Therefore, I hope that the committee will support the amendment.

Amendment 95 agreed to.

Section 17, as amended, agreed to.

Sections 18 to 20 agreed to.

Section 21—Interpretation of Part 2

Amendments 96 and 97 moved—[Maree Todd]—and agreed to.

Section 21, as amended, agreed to.

The Convener

I suspend the meeting briefly to allow the minister’s supporting officials to change places.

10:37 Meeting suspended.  

10:38 On resuming—  

Section 22—Provision of information to persons affected by child’s behaviour

The Convener

Welcome back. Amendment 103, in the name of Oliver Mundell, is grouped with amendments 104 to 109, 112 to 114 and 116.

Oliver Mundell

The amendments in the group would make relatively simple changes to give us more confidence in part 3. We are keen to talk about actions as well as behaviour, because behaviour is often seen as being deliberate, whereas a more factual approach tends to be taken to actions. From victims’ point of view, it is important to look at what happened without always attributing blame. Often, people look for information because they want to know what happened.

Amendments 106 and 108 would introduce the concept of “distress”, which would set an easier legal threshold to reach. Establishing harm can sometimes be difficult, whereas distress presents itself more obviously, particularly when vulnerable individuals are involved. I have nothing further to say at this stage.

I move amendment 103.

Maree Todd

I thank Oliver Mundell for that helpful explanation of the intent behind his amendments. In section 22, we seek to balance the best interests of victims, including child victims, and the best interests of the child responsible for the harm, who remains the focus of the referral to the children’s hearings system. I am reassured that, as stated in the stage 1 report, the committee’s view is

“that the correct balance has been struck”.

Section 22 already covers the provision of information in relation to offences committed by older children as well as in relation to harmful behaviour by under-12s, so I do not see the necessity for amendment 103. However, as it would not materially alter the section’s purpose, I am happy to accept amendment 103.

Amendments 104, 105, 107, 109, 112, 113, 114 and 116 are linked and consequential. Those amendments would change the description of the behaviour of children under 12 by adding a reference to how a child “acted” or to “action” in addition to how a child has “behaved”. Again, I am satisfied that “behaviour” and the law’s understanding and interpretation of “behaviour” already captures actions and how someone has acted, so I do not see the need for the amendments. However, again, as they would not materially alter the intent or the effectiveness of any sections, I am happy to accept the amendments should Mr Mundell insist on pressing them.

Unfortunately, that is where I hope that Mr Mundell’s winning streak comes to a halt, because I cannot accept amendments 106 and 108 and I hope that the committee will reject them once I have set out my reasoning. Those amendments would add “distress” as a wider description of the impact of a child’s behaviour. That means that a person who is distressed or harmed by a child’s behaviour may request information from the principal reporter. The policy intention currently is to ensure that information that is shared about a child under the age of criminal responsibility is proportionate and justified. Therefore, the bill makes those powers available to the principal reporter only in serious cases, as described by proposed section 179A of the Children’s Hearings (Scotland) Act 2011. There is also the intention that “harm” already includes psychological harm caused by the behaviour of a child under 12. Amendment 106 would expand the category of behaviour that is caught by proposed section 179A to include certain behaviours that cause distress or harm to another person. That would mean that, although no harm might be caused to a person by a child’s behaviour, any distress that is caused to any other unspecified person by the child’s behaviour would suffice to ensure that proposed section 179A applied.

Amendment 108 would amend proposed section 179(4)(b) of the 2011 act, which provides that a person who is “harmed” by the behaviour that is described in proposed section 179A(2) of the 2011 act by a child under 12 can request information from the reporter. Amendment 108 would extend that provision to allow any person who is “distressed” or “harmed” by the behaviour of a child under 12 to request information from the principal reporter. It is not hard to see where we might all have concerns about the disproportionate sharing of information with persons who are far removed from the harm of the behaviour and about the lessening of children’s rights in favour of those unspecified persons who might feel distressed by what a child may or may not have done. I believe that we currently have the balance right between the rights of victims and their families, and those of children who have engaged in seriously harmful behaviour and their families. Indeed, that was the committee’s view at stage 1.

Amendments 106 and 108 could result in unjustified interference with a child’s rights under article 8 of the European convention on human rights. The disclosure of potentially sensitive information about a child is likely to be considered an interference with the child’s article 8 rights. However, the bill’s provisions will ensure that such interference is proportionate by, among other things, restricting the list of individuals who can request the information. The significant expansion of that list that would be caused by amendments 106 and 108 could result in a disproportionate interference with a child’s article 8 rights. There would also be practical implications for the victim information service. It is not clear how amendments 106 and 108 would impact on available resources and it is easy to see how, because of a much wider obligation to provide information, the service’s resources could be diverted away from ensuring that those who most need information receive it timeously and effectively. In my view, that would not be helpful. I therefore ask Mr Mundell not to press amendment 106 and not to move amendment 108, which is consequential to amendment 106. If he insists on doing so, I hope that the committee will reject the amendments.

10:45  

Oliver Mundell

I am pleased that the minister at least feels able to support some of the amendments in my name in the group. However, I am disappointed that she does not think that those who are distressed by the harmful actions of others deserve any right to request information, because that is all that amendments 106 and 108 do—they allow someone to make a request. They do not speak to the nature of the information that should be provided or to whether that request should be accepted, and they do not set any new rules on what is proportionate. If the minister is worried about that, it suggests that the other protections that are written into the same section are insufficient, because the amendments simply allow people to make a request, which then has to be deliberated on and decided. People have a right to request information; they do not necessarily have the right to have that information provided, but they have the right to make a request.

I press amendment 103.

Amendment 103 agreed to.

Amendments 23 and 22 not moved.

Amendments 104 and 105 moved—[Oliver Mundell]—and agreed to.

Amendment 106 moved—[Oliver Mundell].

The Convener

The question is, that amendment 106 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 106 disagreed to.

Amendment 107 moved—[Oliver Mundell]—and agreed to.

Amendment 108 not moved.

Amendment 109 moved—[Oliver Mundell]—and agreed to.

The Convener

Amendment 110, in the name of Oliver Mundell, is grouped with amendments 111 and 115.

Oliver Mundell

Again, these are amendments that seek to improve victims’ rights to information and to tighten up the requirements on the reviewer.

It is important that there is a presumption that people who are harmed by the actions or behaviour of children should have the right to information. That is a principle of justice. The fact that the actions will no longer be criminal does not mean that victims should have any less right to information.

I move amendment 110.

Maree Todd

The reporter has a wide discretion to take independent decisions to disclose information where it is appropriate to do so. I am concerned that amendment 110 will result in a disproportionate interference with the rights of the child under article 8 of the convention and with the independence of the reporter, by creating a presumption that disclosure is always appropriate, before the specific circumstances of the case are considered.

Amendment 111 removes the principal reporter’s ability to withhold information if disclosing it is not in the best interests of the child responsible for the harm or any other child involved in the case. It is not clear from the amendment why it would be appropriate to disclose information that would be detrimental to a child. I am further concerned that the amendment displaces the balance of rights of the child responsible for the harm and the rights of the victim of the behaviour.

Amendment 115 removes the ability of the principal reporter to consider other factors that might be appropriate when considering a request for information. That would mean that the reporter could consider only the factors listed in proposed section 179C(2)(a) to (d) of the 2011 act, and could not consider any additional factors, even if they were directly relevant to the issue of disclosure. SCRA has advised that there may be an additional factor in any given case that might mean that it would not be appropriate to provide information to the victim. I am therefore concerned that amendment 115 would further limit the discretion of the reporter.

The committee agreed that the bill currently strikes the best balance between the child and the victim. We recognise the need to support victims, to recognise the harm done to them and to respond to their needs. We have heard that victims want to ensure that no one else goes through what they have gone through and we are very sympathetic to members’ concerns that victims should be at the heart of our consideration of the reform.

I suggest that there are other ways of providing that focus, rather than opening up a disclosure regime that would have a very negative impact on the child who has offended. I therefore ask the member not to press amendment 110 and not to move amendments 111 and 115.

Oliver Mundell

I do not find the minister’s arguments convincing. It is right to limit the discretion of the reporter, because we are talking about rights that victims have. We cannot be seen to put the best interests of the child before a victim’s right to information. Although the general tone of the bill seeks to strike that balance, amendments 110, 111 and 115, which relate only to information for victims, should put the interests of victims first. There has to be some balance and protection, but we think that the criteria set out in the bill provide sufficient opportunity and there should be no need to consider factors beyond that.

The Convener

The question is, that amendment 110 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 110 disagreed to.

Amendment 111 moved—[Oliver Mundell].

The Convener

The question is, that amendment 111 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 111 disagreed to.

Amendments 112 to 114 moved—[Oliver Mundell]—and agreed to.

Amendment 115 moved—[Oliver Mundell].

The Convener

The question is, that amendment 115 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 115 disagreed to.

Amendment 116 moved—[Oliver Mundell]—and agreed to.

The Convener

Amendment 117, in the name of Oliver Mundell, is in a group on its own.

Oliver Mundell

Amendment 117 relates to the duty on the principal reporter to make a report in cases of loss of life. Those are the most serious cases that are likely to be subject to victim information requests. More than that, in cases involving loss of life, there is a wider public interest and it is important that we investigate what has happened and the particular circumstances. A report should automatically be made available to inform Scottish Government ministers, the Lord Advocate, and the families about what has happened in those cases. The actual content of such a report would be subject to further regulation, but it is an important principle that we should have an explanation of what has happened when someone has died.

I move amendment 117.

Gail Ross

Perhaps I missed it, but I do not remember taking any evidence on the issue, and I do not believe that it was included in our stage 1 report. I seek clarification on where the issue has come from.

Oliver Mundell

That is a valid point, but a number of amendments have been lodged on which we have not taken specific evidence. Looking at part 3 of the bill as a whole, it is my view that this amendment is an important protection for victims and sometimes it is important to put such things in the bill. I would not want the serious cases and offences that we heard about, in part from the law officers, to result in a situation in which victims and those who have overall responsibility for the safety of people in this country do not know what has happened.

Alex Cole-Hamilton

I support the provisions in the bill that give victims or those who are affected by harmful behaviour information that gets to the bottom of what happened. There is provision enough in the bill for that. To make it the norm that a report is produced de facto after loss of life runs the risk—

Oliver Mundell

Will the member give way?

Alex Cole-Hamilton

I will.

Oliver Mundell

You say that it would be the norm for a report to be produced de facto after the loss of life in that age group. The relative number of such occurrences suggests that such a report would be produced in only a small number of cases, but I repeat that it would mean additional reassurance for victims, for members of the public and for those who are responsible for public safety.

11:00  

Alex Cole-Hamilton

I understand that, and I leaned on the very small number of cases in that bracket in my earlier remarks. Nevertheless, if there is a duty on a principal reporter to make a report in any situation in which there is a loss of life, it will be the norm and it will run the risk of exposing that child to further attention or stigma, which might follow them through the rest of their life. For that reason, I cannot support the amendment.

Gail Ross

I am interested in what the amendment would do. Will the minister consider the issue in advance of stage 3?

Maree Todd

I thank Oliver Mundell for explaining the purpose and intent of amendment 117. Throughout the bill process, we have all been aware of the need to provide for the potential of very serious harmful behaviour by a tiny number of children who are below the age of criminal responsibility. As has been said, we know that such offences are currently extremely rare—thankfully so.

We must have mechanisms in place to allow for such behaviour—in the event that it happens in the future—to be appropriately investigated and addressed. I therefore understand what Oliver Mundell is trying to achieve with his amendment. However, it does not achieve his aim.

It is not clear what purpose such a statutory requirement for such a report would serve. My officials have had preliminary discussions with SCRA on the issue and I understand that the principal reporter would brief ministers in cases in which there is a loss of life and in which the child was below the age of criminal responsibility. That seems appropriate to me.

In addition, the Lord Advocate has a responsibility in Scotland to investigate any death that requires further explanation, which includes all sudden, suspicious, accidental and unexplained deaths. Again, that seems appropriate to me. I struggle to see why we need another statutory reporting mechanism, or how it could be achieved without cutting across those existing responsibilities and practices.

Clearly, if a child has been involved in behaviour that has resulted in more serious harm to another person, a wide range of agencies, including the Scottish ministers, must consider what happened, how it happened, what is being done to address it and what the role of public and statutory agencies was in the lives of those who were involved in such an incident.

Crucially—this is vital for victims—we would want to work out how we could prevent a similar incident from happening again. As well as taking steps to prevent future harm, we would intervene to address the harm that had occurred.

As the Minister for Children and Young People, with wider responsibilities around protecting children from harm, I undertake to take the matter away and consider it more fully.

Fulton MacGregor

In the event of a tragic and unfortunate situation in which there was a loss of life as the result of the behaviour of somebody who was under the age of criminal responsibility, can the minister confirm whether—as it currently stands—the Lord Advocate could review that death?

Maree Todd

As I said, the Lord Advocate has a responsibility in Scotland to investigate any death that requires further explanation, which includes all sudden, suspicious, accidental and unexplained deaths. That seems appropriate to me.

I am far from convinced that a statutory reporting duty, as set out in amendment 117, is the right way to address the issue. I therefore ask Mr Mundell not to press his amendment and, if he does, I ask the committee to resist it.

Oliver Mundell

I thank the minister for the explanation of her position. However, sadly, I do not think that a briefing to ministers is adequate for those families who have lost a loved one.

Furthermore, on the minister’s point about the Lord Advocate’s duties, I do not think that a death that is the result of the action of another person and which has been subject to the children’s hearings procedure would count as being unexplained and requiring further explanation.

Fulton MacGregor

Are you suggesting that you are not satisfied with the current arrangements in relation to what the Lord Advocate can do, as explained by the minister, and that you do not think that those arrangements are adequate? As we heard, the Lord Advocate can investigate any death that is sudden or suspicious.

Oliver Mundell

I am very satisfied with the current arrangements in the context of the purposes for which they are intended, which is the investigation of deaths that require further explanation.

However, I do not think that the current arrangements would allow the Lord Advocate to examine what had happened in a case that had been dealt with in the children’s hearings system. Particularly in the light of the rejection of my amendment 101, the bill will remove the Lord Advocate from consideration of the actions of children who are younger than 12. If we are to maintain confidence in the prosecution system more broadly, the Lord Advocate should still know what is going on when one citizen of this country takes the life of another.

Subsection (1)(b)(iii) of the proposed new section that amendment 117 would insert provides that “a prescribed relative” would have access to the information. The minister’s points related purely to the Scottish Government and prosecution service’s interest. I think that a relative who had lost a loved one would expect a written report on what had happened. A statutory provision in that regard would strengthen the bill.

If amendment 117 is rejected, I will be happy to consider an amendment that the minister might want to lodge at stage 3. For now, I will press amendment 117.

The Convener

The question is, that amendment 117 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division

For

Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 117 disagreed to.

The Convener

Amendment 118, in the name of Oliver Mundell, is in a group on its own.

Oliver Mundell

Amendment 118 would insert a section that would place on the principal reporter a duty to produce an annual report setting out an overall picture of the offences covered in proposed new section 179A(1)(a)(ii) of the 2011 act. The report would provide useful information for parliamentarians and the Government as they monitor the area in future.

I move amendment 118.

Alex Cole-Hamilton

I was torn on amendment 118. Initially, I thought that it would help the cause of advancing the argument for further increasing the age of criminal responsibility, by showing—through the Parliament, so the proposed report would be in the public domain—that the scale of offending among the age groups that we are talking about is microscopic.

However, it then occurred to me that if we put something into the public domain we lose control of it. Elements of the press that take a dim view of a further increase in the age of criminal responsibility might focus on the very limited number of severe offences that a very small handful of children commit, and the public’s minds would then be concentrated on those crimes’ egregious nature rather than their small extent. In the light of that, I will not support amendment 118.

Mary Fee

I, too, have a great deal of sympathy with amendment 118, but I share the concerns that Alex Cole-Hamilton has expressed. I am not sure whether a report could be produced in a way that would minimise the impact that Alex talked about. If an amendment could be worded in such a way as to provide for our being given more information without damage being caused, I would be happy to support it, but I cannot support amendment 118 as drafted.

Maree Todd

I understand the rationale behind what Oliver Mundell is asking for in his amendment, just as I appreciate the thinking that lies behind other amendments that seek reporting mechanisms to enable the monitoring of the changes made and the measures introduced in the bill. However, I have two concerns: a general one on amendments around reporting and a specific one with regard to amendment 118.

On amendment 118, I share committee members’ concern about ensuring that we get the balance right for victims and their families. The bill clearly introduces important new responsibilities and opportunities for information to be shared by SCRA with victims in the most serious cases and it will, of course, be really important to monitor such a change. Such information would assist SCRA’s work with Victim Support Scotland and its other key partners on the guidance that is being developed on the types of information to be shared under section 22 of the bill, and on the broader work of supporting and responding to victims.

Amendment 118, in effect, asks SCRA to duplicate the statutory duty that already exists for an annual report of its performance to be published, when what we want to ensure is that the information that we need to monitor the changes is being collated. Members will be aware that a group made up of key organisations and partners has already been set up to consider matters in relation to victims, and I will ensure that the group considers this issue and how best to achieve the intention behind the amendment in advance of stage 3. I will also give further consideration to what more we might do to support victims, including through the appropriate provision of information to them, and I am happy to update the committee on that before stage 3.

With regard to my general concern about reporting requirements, I am concerned that there will be an inconsistent approach, with some of the key aspects being monitored and others not. We need to take a strategic approach to collating and monitoring and reporting on changes and measures in the bill. I am happy to look at what amendments are needed in that regard and what can be introduced at stage 3.

I hope that what I have said is acceptable to Mr Mundell and ask him not to press amendment 118. If he insists on doing so, I ask the committee to resist it on the basis that I intend to consider more generally what reporting measures it might be useful to include in the bill through amendments potentially at stage 3.

Oliver Mundell

I am happy to accept the minister’s reassurances that she will look again at this aspect of the bill at stage 3, but I must object to specific criticisms that have been made by other members and the minister. I am pretty astonished by the suggestion that we should not provide the public with clarity on what is going on here because it might be distorted by some aspects of the media. The public, parliamentarians and so on have a right to know what is happening in all aspects of our system, and my amendments have been lodged in the interests of transparency. I would hope that, when it came to the number of cases in which such behaviours had taken place, the information that had been provided would be picked up by any review mechanism.

For now, however, I am happy not to press amendment 118.

Amendment 118, by agreement, withdrawn.

Section 22, as amended, agreed to.

The Convener

That concludes today’s stage 2 consideration of the bill. The deadline for lodging amendments to all remaining sections of the bill is 12 noon tomorrow.

I thank the minister, Maree Todd, and her officials for their attendance. The committee will next meet on Thursday 7 February, when we will continue our stage 2 consideration of the Age of Criminal Responsibility (Scotland) Bill. We now move into private session.

11:14 Meeting continued in private until 11:26.  

The Convener (Ruth Maguire)

Good morning, and welcome to the fourth meeting in 2019 of the Equalities and Human Rights Committee. I ask that all mobile devices be switched to silent.

Agenda item 1 is stage 2 consideration of the Age of Criminal Responsibility (Scotland) Bill. Last week, we completed consideration of parts 1 to 3 of the bill, and today we will look at the remainder. I welcome Maree Todd, the Minister for Children and Young People, and her officials.

Section 23—Power to take child under 12 to place of safety

Amendments 25 and 24 not moved.

The Convener

Amendment 122, in the name of the minister, is grouped with amendments 123 and 60 to 63.

The Minister for Children and Young People (Maree Todd)

Members have rightly taken a keen interest in the police power, under section 23, to take a child under 12 to a place of safety. During stage 1, I made it absolutely clear that the place-of-safety provision is an emergency power that is restricted to a clearly articulated lawful purpose, which is to protect people from

“an immediate risk of significant harm or further such harm.”

I emphasised that a police station would be used only as a last resort and for the shortest time necessary before somewhere else could be found. I also confirmed that I would not object to an amendment that included the full definition of the term “place of safety” as set out in the Children’s Hearings (Scotland) Act 2011, to make it absolutely clear that the same range of safe places could be used for the bill’s purposes.

The committee’s stage 1 report accepted that, in rural areas such as the one that I represent, it might be difficult to avoid the use of police stations entirely, and it asked me to lodge amendments to prohibit the use of cells in the context of police safety provisions. I completely understand that request, and I have made clear my views on the matter, but it would be challenging to completely prohibit that option where there was no safe alternative locally. In such situations, it would not be acceptable for a child to be transported hundreds of miles away, as might be the case in my region, simply on the basis that there was no safe place to take them to because we had prevented the use of the one possible safe place that might have been available for such discrete and limited circumstances. I accept—and I expect—that such situations will be extremely rare and that the data that is recorded about the use of the power will bear that out.

For those reasons, it would be wrong to prohibit the use of cells entirely, but I wish to place very clear limits on that. My amendment 122 will therefore insert two new subsections into section 23 to make it clear that, when a police station is used as a place of safety, a child must not be kept in a police cell unless, and only for as long as, it is not reasonably practicable for the child to be kept elsewhere within the police station. Amendment 123 is technical and is a consequence of amendment 122. I hope that the committee supports those two amendments.

Alex Cole-Hamilton’s amendment 60 is intended to ensure that, when a police station was used as a place of safety, the child could not be kept in a police cell. Amendment 61 would have the same effect in relation to a child under the age of 14 and was consequential on amendment 2 having been agreed to on day 1 of stage 2. Amendment 62 would have the same effect in relation to a child under the age of 16 and was consequential on amendment 1 having been agreed to on day 1 of stage 2.

I have made clear my view on an outright prohibition, but Mr Cole-Hamilton’s amendment 60 is also problematic because of the definition that it uses. In short, most police cells are not legalised police cells. Legalised police cells are cells in police stations that are far from the nearest prison and that can be used to hold individuals for longer than is normal for a police cell. The amendment would not prohibit the use of police cells except in the four locations—in Hawick, Lerwick, Kirkwall and Stornoway—where their use is legalised and cells are still in operation. Therefore, I hope that Alex Cole-Hamilton will accept that his amendment would not quite achieve the effect that he is seeking and that he will consider not moving it. If he decides to move amendments 60 to 62, I respectfully ask that the committee not support them.

Previously, I had committed to lodging an amendment that would provide a full list of places of safety, and I accept that Alex Cole-Hamilton’s amendment 63 does so. It also reorders the list so that a police station is named last and should be used only if no other place of safety is available. Section 23(5) already sets out, in different words, the limited circumstances in which police stations may be used as a place of safety, and I might wish to reflect on the precise implications of duplication before stage 3. However, subject to that, Alex Cole-Hamilton will be pleased to know that I will be very happy to support amendment 63 if he moves it.

I move amendment 122.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I am glad that we are debating this group of amendments today. I think that everyone will agree that the group stems principally from hearing Lynzy Hanvidge’s testimony about the impact of her experience of being arrested, charged and kept overnight in a cell when she was taken into care. As I said at last week’s meeting, in the middle of one adverse childhood experience, the state handed her another. We do not seem to have a great deal of information about how often cells are used, but we know that they are used. It is troubling that the level of use is not codified or understood anywhere.

I understand the semantic point about the term “legalised police cell”, and I lodged my amendments following the advice of clerks. I will still seek to move them and then lodge additional amendments at stage 3 to catch the rest of the cell estate. This is about throwing one’s cap over the wall. If we hint that cells might be used in certain circumstances, they will be. There will always be times, even in remote and rural areas, when the cell estate in a police station will be out of use or not appropriate, given that other offenders might be in the cell estate. At that point, police officers will need to come up with an alternative and better place of safety. If they will be forced to come up with a better place of safety in those circumstances, let us seek that from the start. We do not have anything to lose by ruling out the use of police cells and by allowing our friends in the police force to think more creatively in advance of such situations and to strategise about what they would do in certain scenarios. For that reason, I am keen to move my amendments.

I am grateful to the minister for lodging amendment 122. Initially, I thought that there was merit to it, because I quite liked the idea of the bill stating that a cell was not acceptable and should not be used. My anxiety came from the proposed new subsection (5B), which sets the parameters of when a cell needs to be used. I do not think that any legislation states that there is an appropriate time to put children in cells; it has just occurred by happenstance. My anxiety is that setting out when cells can be used in primary legislation will act as a gravitational pull and suggest to officers that, in a crisis situation, they might wish to consider using a cell. For that reason, I oppose amendment 122.

I am grateful that the minister has indicated her support for my amendment 63. She has articulated exactly why I lodged it. At stage 1, the majority of the committee shared my anxiety that, by virtue of the fact that police stations were the only place of safety to which the legislation referred—albeit that they should be used as a place of last resort—police stations might end up as the default place of safety. I am glad that amendment 63 has support, because it is important that the bill includes the range of places of safety that should be sought out before a police station is even considered.

For those reasons, I will move my amendments.

Oliver Mundell (Dumfriesshire) (Con)

I am struggling to support most of the amendments in the group for a variety of reasons. The first thing that I would say to Alex Cole-Hamilton is that the idea that there is a better place of safety than a police station in rural communities is not necessarily correct. If we look at their best interests and what their wishes might be in those circumstances, a lot of children would rather remain in their home community than go to a residential facility or hospital outwith it. Therefore, I do not think that the use of a police cell should be ruled out altogether, probably for the same reasons as the minister.

I was inclined to support amendment 122. However, when I look at the reference to the use of a police cell when

“it is not reasonably practicable for the child to be kept elsewhere”

I do not know that that is the right language to use. I would prefer a test that looked at the child’s best interests rather than just what was practical. I am happy to hear from the minister in her summing up about whether there is a reason for that wording.

On balance, we will probably support amendment 63, but I would be concerned by any suggestion that the list in it sets out an order of preference to be worked through. Again, in such difficult circumstances, we should look at what would be best for the child rather than what is immediately available. I am not sure that it is correct to say that “a residential ... establishment” would be preferable for a child to a

“dwelling-house of a suitable person”

who would be willing to help out. Nevertheless, I am happy to support the amendment today and to revisit that point at stage 3.

Mary Fee (West Scotland) (Lab)

I will speak briefly in support of Alex Cole-Hamilton’s amendments. He was right in saying that the evidence from Lynzy Hanvidge was, without doubt, some of the most compelling that we heard in relation to the bill. That evidence, if nothing else, should persuade us that a child should never be held in a police station.

When I looked at the minister’s amendment 122, I was initially supportive of it. However, I am slightly conflicted because, although the first section of the amendment says that

“a child must not be kept in a cell within a police station”,

the second section almost gives permission for a child to be kept in a police station. We need to be absolutely clear in the legislation that, if a police station is to be considered at all, that should happen only when every other option has been ruled out. For that reason, I cannot support amendment 122.

Oliver Mundell

I hear what Mary Fee is saying, but does she recognise that, in some circumstances—for example, when a child is in danger of self-harming or of harming others—it might be better for them to be in a police cell than for them to be physically restrained or, in a rural community, waiting in a police van while police officers phone round to find an alternative option?

Mary Fee

No. I am sorry, but I do not accept those points. We have to look at the psychological damage that can be done to what may be a very troubled young person by holding them in a police cell. I press very strongly the point that a police cell is no place to keep a troubled young person.

Alex Cole-Hamilton

Does Mary Fee agree that we need to have a much wider conversation about the provision of crisis facilities for young people? One in nine children in this country will run away at some point in their life, but we do not have a refuge for young runaways in Scotland any more. We need to start building capacity in facilities of that sort right across Scotland, which could answer some of those needs.

Mary Fee

Absolutely, and in agreeing with Alex Cole-Hamilton I conclude my remarks.

09:30  

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Most of us on the committee do not need to be persuaded that a police cell is no place for a child to be held, as Mary Fee and Alex Cole-Hamilton have said. The minister’s amendments and Alex Cole-Hamilton’s amendment 63 would achieve what we have talked about in committee in relation to the place of safety that is referred to in the bill. There is possibly an inference that a police cell would be the first place to be used, whereas the amendments send a clear message that a police cell should be used only if no other options are available. In addition, putting that option further down the list would take away that anxiety.

However, the bill should not be too prescriptive for local communities. Police officers, social workers and others who work in local communities have a better handle on resources and how to avoid unacceptable situations such as the one that Oliver Mundell mentioned. It would not be acceptable if, when a cell was the only available place, a young person could be stuck in a van instead.

Amendments 122, 123 and 63 alleviate my concerns about the issue and I am happy to support them. I cannot support amendments 60 to 62.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

When we started to take evidence on police cells, I was minded to take out the reference to their use altogether. I did a little bit of my own research and spoke to some people. I come from an extremely remote and rural area of the country where residents need to travel 104 miles to Inverness for nearly everything. I think that we are doing people a disservice in saying that, just because the use of police cells is allowed under the bill, people would use that option as the default. We have to trust our local authorities, social workers and police to understand that, as amendment 122 says, a police cell would be used only as a last resort.

Mary Fee talked about the psychological damage that is done by putting children in a cell, and I agree. It is also extremely psychologically damaging to put children into the back of a van and take them 104 miles away from their family and the people whom they trust.

On balance, the minister’s amendments address the concerns. I really do think—and this is what local authorities are saying—that all options need to be kept open and the authorities need to be trusted to make the decisions case by case. I therefore support the minister’s amendments.

The Convener

I ask the minister to wind up and to press or withdraw her amendment.

Maree Todd

I felt that my amendments addressed the committee’s stage 1 concerns in a pragmatic way and would put in place a strong presumption against the use of police cells. I felt that it would be helpful to make it clear that children should not be placed in a police cell unless that is the only way to keep them safe, which I would expect to be a very rare occurrence.

However, I have heard the committee’s views and I am listening to them, as I have throughout the bill process. If the committee is telling me that it has misgivings about the amendments, as I believe it is, I seek the opportunity to explore the issues further with members ahead of stage 3. If the committee agrees to that, we can discuss how we might resolve the concerns and arrive at an agreed approach to defining a place of safety for the purposes of the bill.

If I do not have the committee’s support, I will seek to withdraw my amendment 122. I ask Alex Cole-Hamilton not to move his amendments either.

Amendment 122, by agreement, withdrawn.

Amendment 123 not moved.

Amendment 60 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 60 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Wells, Annie (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 60 disagreed to.

Amendments 61 and 62 not moved.

Amendment 63 moved—[Alex Cole-Hamilton]—and agreed to.

Section 23, as amended, agreed to.

Section 24 agreed to.

After section 24

The Convener

I welcome Daniel Johnson to the meeting. Amendment 100 is in a group on its own.

Daniel Johnson (Edinburgh Southern) (Lab)

Thank you, convener. I thank all members of the Equalities and Human Rights Committee for welcoming me here this morning. It is always enjoyable being a visitor at a committee of which I am not a member.

My amendment 100 very much relates to the discussions that we have just heard. As a non-member of the committee, I have been struck by the seriousness and sensitivity with which the committee has approached issues around places of safety. It is important that we consider very carefully what places we use as places of safety and their impact on children: we must show sensitivity with regard to such matters.

I approach much of what we deal with in Parliament—as I did with what I dealt with in my previous working life—according to the very simple principle that if we cannot measure it, we cannot manage it. For the reasons that Alex Cole-Hamilton set out very eloquently, we need to take great care in managing how places of safety are used and, in particular, what types of places are used as places of safety for children.

It is therefore hugely important that we can measure how frequently the various places that are designated as places of safety are used and what type of places are used. My amendment 100 seeks to do that by introducing a requirement for an annual report, including a breakdown of use of places of safety by type, so that we can understand how they are being used. That would also ensure that we would be taking our collective duty of care seriously and could respond to requirements as they arise through having that information in front of us.

Further to that, I draw members’ attention to subparagraph (2)(c) in amendment 100 regarding use of police cells. We have just heard about the issues around such use. There is a balance to be struck, and no one would choose to put a child in a police cell if other places were available. Amendment 100 would do nothing to reduce the possibility of a police cell being used as a place of safety, but it would make it very clear when police cells had been used in that way so that we could understand how frequently they were used as an option, and thereby take steps to mitigate that, as appropriate.

I ask committee members to support amendment 100 because it is important that we have a full and clear picture of how places of safety are used. I believe that amendment 100 would make that possible.

I move amendment 100.

Alex Cole-Hamilton

I welcome Daniel Johnson to the meeting. I am grateful to him for lodging amendment 100. In the context of my amendments, which have just fallen, on prohibition of police cell use, amendment 100 would provide the bill with a vital string to its bow. I think that every member of the committee was struck during our stage 1 consideration by the paucity of information on provision of places of safety right now. There are anecdotal references to children being kept in police cells overnight—we heard that in the evidence from Lynzy Hanvidge—but there is no empirical data. If a police officer or anyone else who was involved in providing a place of safety for a young person at a time of crisis was mindful that they would have to record, report and account for that use, perhaps decision making would happen in a different way. Daniel Johnson’s amendment 100 is welcome.

Our agreeing to amendment 100 would not be incongruous with our having just disagreed to the amendments on prohibiting cell use, because amendment 100 would not prohibit cell use; it would just require the annual report to “confirm” that police cells had not been used, which suggests by extension that there would be a need to explain why the approach had been taken if they were so used.

For those reasons, I support amendment 100.

Oliver Mundell

In general, I support amendment 100. As with other aspects of the bill, it is important that we have information on which to base decisions. I note the issue to do with the term “legalised police cell”. The provision might therefore be a little odd, but there is no reason why it could not be tidied up at stage 3.

I am conscious that, in relation to other provisions on reporting, the minister has committed to coming back at stage 3. I do not know whether the proposed new section that amendment 100 would insert would be better considered alongside other reporting and reviewing mechanisms. I will be interested to hear the minister’s arguments in that regard.

Mary Fee

I support amendment 100, in the name of Daniel Johnson. If anything, it would strengthen the bill. Committee members—in all committees, I am sure—frequently hear about lack of data and information. Amendment 100 would strengthen the bill by ensuring that we would be given the information that we need to put in place the correct support mechanisms and the correct places to keep children safe.

Gail Ross

I agree: we need to gather that information. However, I agree with Oliver Mundell’s point about the term “legalised police cell”, which the minister talked about in the context of the previous group of amendments, and about the commitment to come back at stage 3 with amendments on reporting. Will the minister talk about the implications of amendment 100 in that regard?

Maree Todd

The committee has noted its concern that there is no requirement to monitor use of the place of safety power in section 23. In paragraph 298 of its stage 1 report, the committee said:

“we ask the Scottish Government to amend the Bill to provide for data about the use of the power to be recorded in such a way as to allow”

appropriate

“analysis”.

In my response to the report, I acknowledged that use of the power needs to be monitored and evaluated.

However, amendment 100 relates to the rejected amendments, in Alex Cole-Hamilton’s name, on the place of safety power, so it would be unhelpful if it were agreed to. I hope that Daniel Johnson will not press it.

Nevertheless, Daniel Johnson is right to ask that we have the debate. It is important that we have appropriate data about use of the power. I have acknowledged the need to have in the bill provisions that allow for much wider monitoring and reviewing of and reporting on the operation of the measures, as Oliver Mundell said. I have undertaken to lodge a suitable amendment on that at stage 3.

Amendment 100 would also require, in each case, the reasons for the use of the place of safety power to be included in the proposed report. The report would be laid before Parliament and would be a public document. I have talked about the importance of not revealing information about individual cases: I have serious concerns that it might be possible for members of the public to link such details to an individual child. I think that we all agree that that would be unhelpful.

Therefore, although I understand the intention behind amendment 100, for the reasons that I have set out I cannot support it. I ask Daniel Johnson to seek to withdraw it. If he agrees to do so, I give a firm commitment that I will address the matter through an amendment at stage 3, and will work with him and the committee on that. If he insists on pressing amendment 100, I hope that the committee will not support it and that members will allow me to lodge an appropriate amendment at stage 3.

Daniel Johnson

I hear the concerns that have been expressed. First, on the technical point about use of the term “legalised police cell”, I think that the provision could be tidied up at stage 3. As it stands, it would still have some use. However, it is a technical definition from the clerks; such cells exist. The point of amendment 100 is really to ensure that the definition captures the full range of police cells, as is—I think—intended, and as has been discussed.

09:45  

With regard to the other issues, a broad range of data is collected that could—were it interpreted and implemented in such a way—potentially reveal individual details. We have ways of wrapping those details up in categories such that individual details are not revealed. I do not believe that it is beyond the wit of the Scottish Government to come up with such a data collection and reporting mechanism. Indeed, data protection laws are in place and amendment 100 would do nothing to overturn those.

For those reasons, I believe that amendment 100 is important in the absence of alternative proposals. If the Government comes forward with alternative proposals, it will be perfectly possible for my amendment to be overturned, and I would accept that, at that point. However, in the absence of alternative proposals, I will press my amendment.

The Convener

The question is, that amendment 100 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

Abstentions

Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 3, Abstentions 2.

Amendment 100 disagreed to.

Section 25—Search of child under 12 without warrant under existing enactment

Amendments 27, 26, 29, 28, 31 and 30 not moved.

Section 25 agreed to.

Section 26—Application for order authorising search in relation to child under 12

Amendments 33 and 32 not moved.

Section 26 agreed to.

Sections 27 to 30 agreed to.

Section 31—Limitation on police questioning of certain children

The Convener

Amendment 124, in the name of Gail Ross, is grouped with amendments 125 and 127 to 129. I point out that if amendment 127 is agreed to, I cannot call amendments 35 and 34, which are in the group entitled “Further increase in the age of criminal responsibility (and of prosecution): age, and timescale for increase”.

I call Gail Ross to move amendment 124 and speak to all the amendments in the group.

Gail Ross

In speaking to the amendments, I am conscious that police officers play an important role in keeping our children and young people safe across Scotland every day, including children who—often because of their own adverse childhood experiences—unfortunately become involved in harmful, and occasionally serious harmful, behaviour.

Police officers can be the first point of contact out of hours, when other professionals are not available. Their engagement with vulnerable children and young people is about initiating conversations and encouraging them to desist immediately from potentially harmful situations. In the longer term, it is about encouraging them to make different choices, helping to bring children into contact with other agencies and professionals, and helping to divert them to more positive choices.

I hope that we can all agree that it is important that that work and those conversations can continue with children below the age of criminal responsibility, in particular where there are concerns about potential involvement in a serious incident.

The changes my amendment 124 would make to section 31 are designed to ensure that police officers who work in our communities to keep children and everyone else safe can be confident that they can still have such conversations. However, it remains the case that where a child is believed to have been involved in serious harmful behaviour, as set out in amendment 124, an investigative interview can be conducted only with a child interview order where, for example, there has been a loss of life and—if the minister’s amendments in the group are accepted—where a child and a parent have agreed to an investigative interview. That is what amendment 125 seeks to make clearer.

My amendments are therefore designed to make it absolutely clear that the police may ask a child under 12 questions in relation to a serious incident at any time prior to the constable reasonably suspecting that it was the child who carried out the harmful behaviour. That provides an appropriate and proportionate approach that will ensure that children are not unnecessarily caught up in a formal process—which, as we have heard, can be quite traumatising. It will allow the police to carry out their functions and will not place an undue burden on resources. I hope that the committee will support amendments 124, 125 and 127.

On the minister’s amendments 128 and 129, my understanding is that both amendments seek to provide clarity and to ensure further safeguards for children. I hope that that is the case and welcome it, but I look forward to the minister explaining that further.

I move amendment 124.

Maree Todd

Amendment 128 is a technical amendment that is designed to remove an apparent contradiction between the definition of an investigative interview in section 31 and the terms of section 36(2). It clarifies that the police planning of an investigative interview should always involve “the relevant local authority” rather than be planned fully by the constable. I know that the committee will welcome that clarity on the policy intention.

Similarly, amendment 129 seeks to provide greater clarity on the provisions about conducting an investigative interview. The purpose of the amendment is to close a potential loophole that would allow the police to plan an interview and then ask a social worker to question a child who is below the age of criminal responsibility, thus avoiding restrictions on the police questioning of a child who is below the age of criminal responsibility, as per section 1. Given that the policy intention behind amendments 128 and 129 is to provide greater clarity, I hope that the committee will support them.

Gail Ross’s amendments 124, 125 and 127 are also in the vein of seeking to provide more clarity. It is important that the bill is unambiguous and that its measures are implemented in a way that limits when children may be brought into contact with authorities, but which also provides clarity for police officers that they can continue to engage with children in order to help to keep them safe, and to initiate initial conversations to establish whether an incident of serious harm involving a child who is under the age of criminal responsibility has taken place.

In every aspect of the bill, we should be seeking to give agencies and professionals confidence about how to act when the age is raised and what we continue to expect of them in their engagement with children and young people, and, crucially, to do all that we can to limit the circumstances in which children will be expected to engage with the formal process of investigation. I hope that the committee will support Gail Ross’s amendments.

Fulton MacGregor

Gail Ross’s and the minister’s amendments are good. A lot of good work is being done in our communities by police officers. I saw a good example the other day, when I drove by a large group of young people talking to a couple of community police officers. They all seemed to be having a really good chat and it was very jovial. We want our officers to be able to continue such work: the amendments in the group will allow those conversations to continue.

The Convener

I call Gail Ross to wind up and to press or seek to withdraw amendment 124.

Gail Ross

I think that everything has been covered. I will press amendment 124.

Amendment 124 agreed to.

Amendment 125 moved—[Gail Ross]—and agreed to.

The Convener

Amendment 126, in the name of the minister, is grouped with amendments 130 to 141, 143 to 146, 148 to 152, 154 to 160 and 164. I invite the minister to move amendment 126 and to speak to all the amendments in the group.

Maree Todd

I am sorry. I have become confused about the process. I had not appreciated that the last amendment was agreed to without a vote.

The Convener

I will suspend the meeting briefly so that we can organise ourselves.

Maree Todd

Thank you.

09:55 Meeting suspended.  

09:56 On resuming—  

The Convener

Amendment 126, in the name of the minister, is grouped with amendments 130 to 141, 143 to 146, 148 to 152, 154 to 160 and 164. I invite the minister to move amendment 126 and to speak to all the amendments in the group.

Maree Todd

The amendments in this group create additional measures that would allow investigative interview by agreement. I assure the committee that I have given careful consideration to the issue. My overarching aim is to ensure that we do all that we can to raise the age of criminal responsibility in principle and in practice and that, when we still need to investigate serious harmful behaviour, we do so in a way that puts the child’s needs and interests at the centre of that process.

The bill currently provides for a detailed formal process to be adhered to so that the option of carrying out an investigation and interviewing a child who is suspected of being involved in serious harmful behaviour would still be available. The amendments set out how such an interview might take place if the child and at least one of the child’s parents agree to it. That would be consistent with the advisory group’s recommendation that:

“In the most serious circumstances, it is important to provide the child with the opportunity to provide their account of events and identify all relevant risks and needs. A power should be created to allow for the interview of children, with appropriate safeguards, including where the support of a parent or carer is not forthcoming. Those safeguards should be based on the principles of Children Protection Procedures and Joint Investigative Interviews.”

There are very sound reasons for allowing interviews to proceed if the child and their parent agree to them. A child who is involved in harmful behaviour is likely to be traumatised by that, and a formal process involving court proceedings might increase that trauma. Research also tells us that when a child suffers any kind of distress, early intervention is helpful in promoting understanding and allowing the focus to turn to restorative action. Given that the events in such serious cases might well have already caused the child significant trauma, having such a route available could be highly beneficial to them.

In situations in which agreement is clearly established, the amendments in this group facilitate a less cumbersome approach that would enable the child to move readily to tell their story in an appropriately supportive setting without the need for a court process first. That would be helpful in understanding what had happened and in informing the next steps in addressing any harmful behaviour as soon as possible. It would also prevent the child and their family from experiencing the additional stress that is associated with a formal court order process. The safeguards that are provided in sections 36 to 42 in relation to the planning and conduct of interviews would still apply, regardless of which route is taken.

Amendment 130 clarifies the limited circumstances in which an investigative interview by agreement should be undertaken. Crucially, the child and a parent must agree to it. The amendment provides details on the withdrawal of agreement by the child or the parent.

Amendment 131 places an obligation on the police to provide a range of information to the child and parent following their agreement to an investigative interview, and to provide a copy of the written information to the advocacy worker as soon as is reasonably practical. This provision ensures that, where agreement is given, the child and the parent understand what the agreement does and have information about what they have agreed to.

10:00  

Amendment 138 seeks to clarify that a child has the right not to answer questions, irrespective of whether the interview is conducted by agreement or under a child interview order. Amendments 143 and 144 provide further clarification that in the case of an interview by agreement the supporter in the interview must be the parent who gave their agreement. If the person conducting the interview does not consider them to be an appropriate person, the agreement will be withdrawn.

Amendment 158 tidies up the layout of provisions, while amendment 159 provides for the guidance to cover the obtaining and withdrawal of agreement in relation to investigative interviews. The other amendments in the group are consequential in various ways on the introduction of interviews by agreement.

Taken together, the amendments enable an additional approach to carrying out interviews to investigate serious harmful behaviour, with the key aim of benefiting children by providing for a process by agreement with important safeguards to protect and promote their interests and rights in such a process. I therefore urge the committee to support the amendments.

I move amendment 126.

Amendment 126 agreed to.

The Convener

Amendment 127, in the name of Gail Ross, was debated with amendment 124. I remind the committee that if amendment 127 is agreed to, I cannot call amendments 35 and 34.

Amendment 127 moved—[Gail Ross]—and agreed to.

Amendments 128 and 129 moved—[Maree Todd]—and agreed to.

Section 31, as amended, agreed to.

After section 31

Amendments 130 and 131 moved—[Maree Todd]—and agreed to

Sections 32 and 33 agreed to.

Section 34—Child interview order

Amendments 37 and 36 not moved.

Section 34 agreed to.

Section 35 agreed to.

Section 36—Notification of child interview order

Amendments 132 to 136 moved—[Maree Todd]—and agreed to.

Section 36, as amended, agreed to.

Section 37—Conduct of investigative interview

Amendment 137 moved—[Maree Todd]—and agreed to.

Section 37, as amended, agreed to.

Section 38—Right not to answer questions

Amendment 138 moved—[Maree Todd]—and agreed to.

The Convener

Amendment 64, in the name of Alex Cole-Hamilton, is in a group on its own.

Alex Cole-Hamilton

Extending the section on the right not to answer questions to provide a right to silence might seem like a semantic point, but I propose doing so through amendment 64 for several reasons. It is fair to say that the committee had a lot of discussion about the subject at stage 1. A number of stakeholders suggested that they would like the rights of children who are interviewed in a formal context to be equalised with those of adults. The amendment would do exactly that.

I will describe simply the difference between the right to silence and the right not to answer questions. Saying, “Tell me what happened,” is giving an instruction rather than asking a question. Interpretation is important to all legislation, and that might not be interpreted as asking a question.

In speaking to the previous group of amendments, the minister said that such interviews happen at times of great trauma, when a child might well be in the midst of an adverse childhood experience. Much empirical evidence shows that retelling events in granular detail can retraumatise children and young people.

Amendment 64 would simplify things and put children’s rights on an equal footing with adults’ rights in similar situations by extending the right not to answer questions to cover the right to silence. I believe that the stakeholders who we interviewed at stage 1 support such a change, which would go towards making the bill all the more progressive.

I move amendment 64.

Maree Todd

I listened carefully to the concerns about the issue, which I was clear about at stage 1. Amendment 64, which would change the language, is unhelpful and unnecessary. The right not to answer questions under section 38 has the same meaning and effect as the right to silence. I make it absolutely clear that we are not watering down children’s rights.

The intention behind section 38 is to remove the language of the criminal law. We are removing children from the criminal justice system, and the language that the police who come into contact with them should reflect that. We do not want to increase the anxiety and distress of the children, who have already experienced much trauma before finding themselves in such a situation. We want them to be engaged with as children, which is what sections 35, 36 and 42 and amendment 131 from the previous group will deliver by requiring information to be provided at different points in the interview process in a way that is appropriate to the child’s age and maturity.

Amendment 64 has technical issues. It refers to section 34 of the Criminal Justice (Scotland) Act 2016, which applies only when a person has been arrested and is in police custody. Neither condition will be met for a child who is under the age of criminal responsibility.

I hope that that explains why section 38 is drafted in the way that it is and why the amendment is neither helpful nor necessary. Accordingly, I hope that Mr Cole-Hamilton will seek to withdraw his amendment.

Throughout the bill’s development, we have sought not just to decriminalise children technically but to change entirely their experience of contact with the criminal justice system and to decriminalise them in practice, too. Introducing the language of the amendment, rather than using the plain-English, child-appropriate version that is in the bill, would be a retrograde step that would provoke behavioural responses in those involved that would in effect recriminalise children.

I appreciate that some committee members feel strongly about the issue. If Alex Cole-Hamilton insists on pressing the amendment and if the committee agrees to it, I will reluctantly accept that decision and I will consider whether a stage 3 amendment is required to make the provision technically sound. However, I am not comfortable with the amendment, which would insert language from the criminal law in a bill that is intended to decriminalise children who are under the age of criminal responsibility.

Oliver Mundell

Will the minister reflect on the fact that there is a big difference between removing criminal provisions that are punitive to children and removing matters of criminal procedure that have been long established in the Scottish legal system and might make children feel more able to exercise their rights? The wording might be clumsy but is there a distinction between those two things?

Maree Todd

I think that I have made my views clear, but I am comfortable with the committee making a decision on this. I, for one, think that we always need to look at these children through a lens of wellbeing and not through a criminal lens.

Daniel Johnson

The minister makes the point about language well, and she is right. However, there is a mischaracterisation about where this language is important. The right to silence is not purely a matter of criminal law; it is a fundamental point of human rights. What is important here is that we embed human rights right the way through law, as indeed the Scottish Government accepts. The right to silence is a right that is well understood throughout society and is not just a matter of criminal law. Therefore, using different language runs the risk of creating confusion about the distinction between the right to silence in this situation and in others. Will the minister reflect on that point?

Maree Todd

As I have said, I disagree with the amendment but I am content for the committee to make its own decision.

Alex Cole-Hamilton

I hear what the minister says about wanting to remove from the bill any semblance of criminality for children. However, if that was truly the Government’s intent, we would have outlawed the use of cells because that is far more criminalising than the form of words that we use to communicate a person’s rights in an interview.

Similarly, if we wanted to remove the criminalisation of children, we would listen to the United Nations or the European Council and lift the age beyond 12.

I accept that language is important, and it is especially important in such procedures. However, when we talk about extending the language that is found in adult criminal law to children, we are not talking about reading children their Miranda rights, or whatever that is called in Scotland. We are talking about addressing a power imbalance that means that children in that moment of heat and trauma feel that they really have to do what they are told.

The amendment would assure children that they have rights and, as Daniel Johnson said, the right to silence is integral to human rights in our justice system. That should apply to children as it should apply to adults. I press amendment 64.

The Convener

The question is, that amendment 64 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 4, Against 3, Abstentions 0.

Amendment 64 agreed to.

Amendment 139 moved—[Maree Todd]—and agreed to.

Section 38, as amended, agreed to.

Section 39—Right to have supporter present

The Convener

Amendments 140 to 144, in the name of the minister, have already been debated. I invite the minister to move amendments—[Interruption.]

I suspend the meeting briefly.

10:13 Meeting suspended.  

10:22 On resuming—  

The Convener

I welcome everyone back to the meeting. I think that we should now be back on track.

Amendments 140 and 141 moved—[Maree Todd]—and agreed to.

The Convener

Amendment 142, in the name of the minister, is grouped with amendments 147 and 153.

Maree Todd

Amendment 153, which is the substantive amendment in the group, seeks to address concerns that section 41, as currently drafted, could be interpreted as meaning that both the supporter and the advocacy worker must be present in the room when a child is being interviewed. Although sections 39(4) and 40(5) ensure that the supporter and advocacy worker will certainly not be denied access to the child at any time during the interview, it is sometimes not in the child’s interests for both to be present in the room. For example, a child might wish to be open about the circumstances surrounding an incident involving sexual behaviour but might not be comfortable doing so if their parent is in the room.

It is also important that the legislation allows for such flexibility and for children to be supported in taking part in an interview in a way that meets their needs and interests. As a result, amendment 153 makes the bill absolutely clear that a child can be interviewed only as long as both their supporter and their advocacy worker are in attendance at the location of the interview but that the presence of one or other in the room where the interview is being conducted is sufficient. Amendments 142 and 147 simply make the technical changes that flow from amendment 153 to ensure consistency throughout the bill.

I urge the committee to support the amendments. I move amendment 142.

Oliver Mundell

What is the mechanism for deciding which of those two people will not be present in the room where a child under 12 is being interviewed? What would be the rights of the parent if they were concerned about their child being in the room with just the advocacy worker, and how would any dispute or concern in that respect be sorted out? I understand the principle behind the amendments; I just want to find out what would happen in practice in those circumstances.

Maree Todd

The parent would never be denied access to the child. We are certainly open to discussing how the guidance around the issue is developed, but as I said in my opening remarks, it is sometimes not in the child’s interests for both the supporter and the advocacy worker to be present in the room. What is important is that the child is able to give their version of events in a way that puts them at ease. I hope that the member accepts the intention in that respect.

Oliver Mundell

I am just trying to work out who will decide what is in the child’s best interests. The general idea in Scots law—and not just criminal law—is that a child under the age of 12 might not always and in all circumstances be able to weigh things up and make such decisions. Who would make the decision in those circumstances?

Maree Todd

As I have said, we will make it clear in the guidance who makes that decision and what factors are to be considered. However, the voice of the child will be very important.

The Convener

As no other member wishes to comment, I ask the minister to wind up and say whether she wishes to press or withdraw amendment 142.

Maree Todd

I hope that the committee supports me and will agree to amendments 142, 147 and 153.

Amendment 142 agreed to.

Amendments 143 and 144 moved—[Maree Todd]—and agreed to.

Section 39, as amended, agreed to.

Section 40—Right to have advocacy worker present

Amendments 145 to 150 moved—[Maree Todd]—and agreed to.

Section 40, as amended, agreed to.

Section 41—Child not to be questioned while unaccompanied

Amendments 151 to 153 moved—[Maree Todd]—and agreed to.

Section 41, as amended, agreed to.

Section 42—Information to be provided to child

Amendments 154 to 157 moved—[Maree Todd]—and agreed to.

Section 42, as amended, agreed to.

Section 43—Appeal against decision under section 34

Amendment 158 moved—[Maree Todd]—and agreed to.

Section 43, as amended, agreed to.

Section 44—Questioning of child in urgent cases

Amendments 39, 38, 41 and 40 not moved.

Section 44 agreed to.

Section 45 agreed to.

Section 46—Guidance

Amendments 159 and 160 moved—[Maree Todd]—and agreed to.

Section 46, as amended, agreed to.

Section 47—Limitation on taking prints and samples from children under 12

Amendments 43, 42, 45 and 44 not moved.

10:30  

The Convener

Amendment 161, in the name of the minister, is grouped with amendments 162 and 163.

Maree Todd

It is important that our legislation to raise the age of criminal responsibility does all that it can to safeguard the interests and rights of children.

Section 47 sets out the circumstances in which the police can take a sample and makes clear that the limits and requirements under sections 52 and 57, or any other enactment, apply. It also makes clear that the requirements do not apply where a child is a victim of an offence or seriously harmful behaviour.

Amendment 161 seeks to clarify the use that can be made of samples that are taken from a child under the age of criminal responsibility on the basis that they are a victim of an offence or seriously harmful behaviour of another child. It clarifies that a sample taken from a child under 12 on the basis that they are thought to be a victim cannot be used for the purposes of investigating any suspected seriously harmful behaviour of that child. It also allows for the use of the sample, if the child previously agreed that the sample can be taken, to investigate an incident if the child is 12 or over. Amendment 161 will not affect the ability of the police to apply for a section 52 order or, in urgent cases, to use the emergency power in section 57 to obtain a new sample.

Section 55 provides for the destruction of samples taken under section 52, which applies to children under the age of criminal responsibility. However, section 55 does not specify what should happen to samples that are taken under the authority of a section 52 order that is appealed. The purpose of amendment 162 is therefore to specify that if the appeal is successful and the section 52 order is either quashed or altered in such a way as to mean that samples that were originally taken would no longer be authorised, those samples and all information associated with them must be destroyed as soon as possible. That will prevent authorities from keeping hold of samples from children under the age of criminal responsibility in such circumstances.

Amendment 162 will enable samples that are obtained before the appeal is lodged, or before the police are informed of the appeal, to be retained until the outcome of the appeal is known, although no use can be made of the samples until the appeal is decided. That means that if the appeal is unsuccessful, the sample can be used for the purposes of the investigation and thereafter destroyed in accordance with section 55 or the new section that will be inserted by amendment 163. The crucial point is that that avoids the need for a sample to be taken from the child twice if there is an unsuccessful appeal against the order. Amendment 162 seeks to make clear the process to be followed and to ensure that the child’s interests are at the core of the process.

Section 48(1)(b) provides that samples may be taken with consent from a child aged 12 or over in relation to suspected seriously harmful behaviour of the child when they were under 12. However, the bill does not provide for the destruction of samples that are taken on that basis. Amendment 163 will apply to those cases the same requirements for the destruction of samples that are contained in section 55. That is, the samples and all information derived from them will be destroyed if a decision is made not to pass information to the principal reporter about the case or following the conclusion of children’s hearing proceedings in connection with the case.

As I mentioned, the amendments in this group are technical, but they are very important and I think that they need to be made. I am happy to go into more detail if required, but I think that the proposed measures are important for protecting children’s rights.

I move amendment 161.

The Convener

No members wish to comment on the amendments, so I invite the minister to wind up.

Maree Todd

As I said, the amendments are important. They are designed to protect the rights of the child by clearly setting out processes for retention and disposal requirements. I hope that all committee members will support my amendments.

Amendment 161 agreed to.

Section 47, as amended, agreed to.

Section 48—Limitation on taking prints and samples from children aged 12 and over

Amendments 47, 46, 49 and 48 not moved.

Section 48 agreed to.

Sections 49 to 56 agreed to.

After section 56

Amendment 162 moved—[Maree Todd]—and agreed to.

Sections 57 and 58 agreed to.

After section 58

Amendment 163 moved—[Maree Todd]—and agreed to.

Sections 59 and 60 agreed to.

Section 61—Additional powers and duties of constable

Amendments 51, 50, 53, 52, 55 and 54 not moved.

Section 61 agreed to.

Section 62—Offences

Amendments 57 and 56 not moved.

Section 62 agreed to.

Section 63—Interpretation of Part 4

Amendment 164 moved—[Maree Todd]—and agreed to.

Section 63, as amended, agreed to.

The Convener

I suspend the meeting briefly to allow the minister’s officials to change over.

10:39 Meeting suspended.  

10:40 On resuming—  

After section 63

The Convener

Amendment 119, in the name of Mary Fee, is in a group on its own.

Mary Fee

I lodged the amendment following the oral and written evidence that we received when scrutinising the bill. We heard evidence from a number of experts who discussed the different stages of child and young adult development. Psychologists argue that the part of the brain that focuses on rationality does not fully develop until young adults are in their late teens or early 20s. In other words, although all children develop simultaneously, they do so at different rates, so each child has a different age of capacity for understanding the consequences of their actions.

Capacity is usually understood to have a cognitive and a conative component, which translates as the need to prove the presence of an understanding of wrongfulness and an ability to control one’s behaviour in accordance with such an understanding.

The Law Commission takes the view that anyone who completely lacks criminal capacity should not be found criminally responsible. It draws out three capacities that are needed for the fair imposition of responsibility:

“the ability rationally to form a judgment, the ability to understand wrongfulness, and the ability to control one’s physical actions.”

Children and young people may not be able to conform to some or all of those requirements, because of immaturity.

It is in such situations that my amendment 119 could be used. To assess whether a child has full capacity, a report would have to be obtained from an approved medical practitioner or psychologist. The assessment would provide further information for the courts and the children’s hearings system in determining what action to take when dealing with a young person.

If we are serious about dealing with young people compassionately and providing them with the support that they need to move on from the acts that they may or may not have committed, it is important that we fully understand their capacity to understand the consequences of their actions.

I understand that there may be nervousness about using the term “diminished responsibility”. My amendment seeks to differentiate between “abnormality of mind” and “developmental immaturity”. However, we have a duty to ensure that children who are developmentally immature and who do not have the capacity to understand the consequences of their actions are supported. I urge the committee to support my amendment.

I move amendment 119.

Alex Cole-Hamilton

I support amendment 119. Amendments in my name to increase the age of criminal responsibility have not been agreed to. Mary Fee’s amendment with its progressive angle strengthens the bill. It recognises that children may have a range of things going on in their lives that are sometimes beyond their control and that contribute to their actions.

The amendment speaks to those arguments that we have had about equalising the rights of children and those of adults. An adult with the mental age of 14 on trial would be dealt with differently from an adult who has the same mental age as their peers.

We also recognise that there is a science to the issue. At stage 1, we heard in great detail that adverse childhood experiences are responsible for offending or harmful behaviour—such behaviour is a reaction to those experiences. ACEs can alter children’s brains at the molecular and genetic level and affect their ability to process joy and their understanding and intellect. If we are to continue to deal with 13, 14 and 15-year-olds in the children’s hearings system on an offending basis and potentially give them criminal records, it is vital, in terms of equalising their rights, that we recognise that they may have diminished responsibility as a result of their mental capacity.

10:45  

Fulton MacGregor

I have serious reservations about amendment 119. I can see where Mary Fee and Alex Cole-Hamilton are coming from in their progressive approach—to use Alex’s words—to the bill, but I think that amendment 119 would be a retrograde step.

I say that for a few reasons. Currently, when a child presents to the children’s hearings system, the reporter requests a report from the social work department, which contains a section on health. As part of that, a judgment is made about which health services will be asked for information. Not every child needs direct psychological support, but the reporter can make a request for such input.

I have concerns about a psychological assessment being made in every instance. As Alex Cole-Hamilton rightly pointed out, the vast majority of—if not all—children who become involved in offending or harmful behaviour are likely to be traumatised, and the psychological assessment process has the potential to retraumatise them. I know from my experience as a social worker that even the introduction of psychological input for a young person has to be managed very carefully.

Alex Cole-Hamilton

Do you agree that, if we are to get the proper comprehensive suite of interventions for a young person who has exhibited harmful behaviour, for which the children’s hearings system in Scotland is rightly celebrated, we need to understand the full picture of what is going on with the child, and an understanding of mental capacity is absolutely part of that?

Fulton MacGregor

I know where you are coming from, but I do not think that amendment 119 would have the effect that you are looking for. We did not take evidence on the issue as such, and I am not sure what the children’s organisations that have supported some of your proposals would think about a standardised psychological assessment.

I ask Mary Fee not to press amendment 119 to give the minister time to consult and perhaps come back with a compromise. I have serious concerns about amendment 119 and I will not support it.

Gail Ross

I ask the minister what currently happens in the children’s hearings system. Fulton MacGregor said that a psychological assessment is carried out if that is deemed necessary. I believe that all the child’s circumstances are taken into account, so I would hope that the power to order a psychological assessment exists, so we need not make it a requirement to do that for every child.

I am also concerned about the use of the term “diminished responsibility”. As far as I am aware, that is a special defence in criminal law in relation to murder and culpable homicide.

Oliver Mundell

I hear the points that Gail Ross made about the terminology but, although there might be things about amendment 119 that are not perfect, I support Mary Fee and hope that she will press it, because it will focus ministers’ minds on the need to come up with a substantive amendment in the area at stage 3.

Amendment 119 is a practical step forward, which is about looking at the full facts and circumstances of a case. Professionals and others try their best and often look to the best interests of the child, but it is important that we have a system in which a psychological assessment is a requirement or can be requested by the child’s representative as an automatic right. When it comes to disposal, such an approach will help to ensure that the right solution is found in individual cases.

We received a little evidence on special defences. We heard about the defence of infancy that was used in England. The area is worth exploring because, fundamentally, it is about children’s rights.

Maree Todd

I have grave concerns about amendment 119, which conflates the plea of diminished responsibility in criminal proceedings with the broader concept of developmental immaturity. It is, therefore, important to say up front that the amendment cannot be supported, on account of the fact that it creates a new definition for a concept that is narrowly defined in Scots criminal law at the moment, and it would create great uncertainty in law.

The amendment seeks to introduce a new section on diminished responsibility. Diminished responsibility is defined in statute and is available only as a plea to a charge of murder, reducing the charge to one of culpable homicide. The amendment seeks to expand the presently available plea that is used in criminal proceedings in Scotland and make it available in relation to all cases in the children’s hearings system. In expanding on that understood definition and use in our legal system by including developmental immaturity, the amendment appears to describe diminished responsibility as a condition either of abnormality of the mind or of developmental immaturity.

In Scots law, the plea can be used only in circumstances in which the following criteria have been established: there has been an aberration or weakness of mind; there is some form of mental unsoundness; there is a state of mind that is bordering on though not amounting to insanity; there is a mind so affected—

Oliver Mundell

Does the minister recognise that putting the further specifications into statute would just be expanding that defence? Saying that there is an existing defence does not mean that a defence cannot be changed or expanded. Obviously, Scots law in this area has expanded and changed over the centuries. My understanding is that diminished responsibility was a common law defence before it was one in statute. That means that statute has already defined and changed what diminished responsibility is.

Maree Todd

The defence of diminished responsibility is used only in the situation of murder, and I think that it is unhelpful to introduce it in this case. These children are not charged. We are all agreed that there is a bright line at the age of 12, and that, under the age of 12, children are not held criminally responsible.

Oliver Mundell

Under the proposal, they would not be held to be criminally responsible. In fact, the proposal would potentially allow for their actions to be fully explained and understood so that the best assessment could be made. It is unhelpful to mix the two things—

Maree Todd

I agree—

Oliver Mundell

That is a mischaracterisation—

The Convener

I know that there is a lot to be debated, but I ask everyone to speak through the chair.

Maree Todd

I agree that it is unhelpful to mix the two categories, but I think that the amendment does that. The factors that we are discussing are not the same. The factors relating to diminished responsibility, as defined in Scots law, are not the same as a general concern to ensure that a child’s development and maturity are understood and taken account of when we are thinking about how best to respond to an incident of harmful behaviour in a way that meets their needs. It is deeply unhelpful to conflate the two.

I sympathise with what I think is the intention behind the amendment, which is to ensure that all children who come into contact with the system have their specific needs understood and addressed, and I agree that, when that does not happen, it absolutely shows that there has been a failing in our system. However, I do not think that the amendment is the way to address the issue.

The amendment would require that a psychological assessment be carried out in all cases, regardless of the grounds. Whether the child has displayed offending behaviour or whether the child has been harmed, that is absolutely not appropriate in all cases. As has been alluded to, a psychological assessment could be a damaging experience for a child, as it would force them to immediately confront their acts in order to analyse their capacity to understand the consequences. It is also likely to result in unnecessary delays, which would serve only to increase the distress and anxiety of the child.

The Solicitor General made the point in evidence that children are different and need to be considered as individuals in individual circumstances. She said that the approach should depend on the background and circumstances of the child. I absolutely agree with the law officers on that point. I think that a universal psychological assessment of every child in the hearings system would be more damaging than beneficial.

Alex Cole-Hamilton

I heard that evidence from the Solicitor General, too. I think that she was asking us to get a picture in the round of every child who comes before a children’s hearings panel. Judgment of mental capacity and maturity should be part of that picture; it will be different for every child, but that is why we need to assess it.

Maree Todd

We already assess it. It is necessary in some cases, and the Children’s Hearings (Scotland) Act 2011 provides that a children’s hearing can defer making a decision and make a medical examination order for the purpose of obtaining any further information or carrying out any necessary further investigation before the subsequent children’s hearing. We also heard from the law officers at stage 2 that the Crown will carry out a psychological assessment in appropriate cases. To answer Gail Ross’s question, there is already facility to carry out such an assessment, where it is considered helpful.

I want to reassure Mary Fee on the broader issue of children’s mental health. In summer 2018, a specific task force on child mental health was launched, on the back of the Audit Scotland report “Children and young people’s mental health”, which said that

“a step change is required to improve children and young people’s mental health”.

It was pointed out that there is a strong indication of a gap in services for young people and children who do not meet the criteria for the most specialist help.

That unacceptable gap in our public services’ response to children and young people with additional support needs is, I believe, what Mary Fee seeks to address in amendment 119. I assure her that specific work on that has begun, through a workstream in the children and young people’s mental health task force that is considering at-risk young people, including those who are involved in offending behaviour. That group is expected to make recommendations to the task force on how at-risk people can receive improved access to mental health services. With respect, I suggest that amendment 119 does not deliver what the member intends. Specific concentrated work is already under way to address the current gaps in access to appropriate specialist services for young people.

My other concern about amendment 119, which my colleague Fulton MacGregor touched on, is about the possible unintended consequence of introducing the concept. If psychological testing can be used to show that older children are too developmentally immature to understand the consequences of their action, potentially, it could be used to establish that younger children are mature enough to do so. That causes me grave concern. It opens up the possibility of children under 12 being considered fit to stand trial.

As drafted, amendment 119 applies to all children—for example, a three-year-old would fall within its scope—and to all grounds of referral, regardless of whether the decision is about the child’s conduct. The effect of all that is unknowable. As drafted, the purpose of the amendment is unclear. It gives no clarity on how the medical report will affect the outcomes of the hearing or what the hearing is to do with the report.

As I said, amendment 119 suggests that it is possible for children of any age to be assessed to be of a sufficient maturity to determine or control their conduct. It appears to introduce an approach where children under the age of criminal responsibility could be assessed as having the capacity to understand the consequences of their actions. What then?

Amendment 119 would import a concept from murder charges into a child-centred process and could undermine the bill’s key principle of decriminalisation. It would obscure the clarity of the bill’s approach. The amendment’s meaning and intent are unclear and its consequences are unknowable.

We all want to ensure that the best information is available when we take decisions about children. If there are concerns regarding a child’s understanding, developmental immaturity or mental health, it is absolutely the case that the right information should be available at the right time. Medicalising all children is not an appropriate response to those challenges.

I am more than happy for me and my officials to sit down with Mary Fee to tease out exactly what the intent of amendment 119 is and to seek to bring something back at stage 3 that delivers on that intent. However, at present, I urge Mary Fee to withdraw amendment 119. If she does not, I would ask the committee to resist it.

11:00  

Mary Fee

I have listened carefully to all the comments from my committee colleagues and the minister. I say at the outset that I absolutely understand the concerns that have been raised by some members and by the minister. Notwithstanding that, I still believe that we need to put in place a system that fully supports the welfare approach that we are taking to all children. The minister made a point about the gap in mental health services. There is such a gap and our young people are being failed by the mental health services that are available to them. I believe that the admission that there is a failure and a gap in our mental health services supports what amendment 119 proposes to do in the bill.

I accept that social work assessments are carried out on children when they go through the children’s hearings system and I do not by any means intend to diminish the importance of the assessments that social workers do. However, they are not psychological assessments and do not deal with behaviour and capacity issues, which is what I am trying to rectify with amendment 119. All psychological assessments would be done with the child at the centre of them, the age of the child would be taken into account and there would be a child-centred approach. The assessments would not be a standard form of psychological assessment that would be done in the same format for every child, regardless of their age; they would be tailored to the individual child.

The issue is the equalisation of rights. If we truly want to take a welfare-based approach to all our children and fully use the powers that we have through the getting it right for every child approach—and we talk about GIRFEC all the time—we have to get it right for every child. As parliamentarians, we have a responsibility to ensure that we properly support all our children.

Fulton MacGregor

The minister has made Mary Fee a good offer. As I said, I know what Mary Fee is trying to achieve through amendment 119 but, through my previous experience as a social worker, I have real concerns that it will not achieve what Mary Fee intends. The minister offered to hold discussions with Mary Fee to help her to achieve what she is looking for at stage 3, and I think that that offer would work.

At the moment, a report comes into social work that goes back to the reporter, but amendment 119 would mean that there would also be a psychological assessment. However, a professional could say, for example, that a child was not suitable for a psychological assessment, because they had suffered far too much trauma. Where would that leave the psychological assessment? I honestly have real concerns about amendment 119 and I hope that Mary Fee will take up the minister’s offer, as that would allow her to find a way to get the effect that she wants and to avoid the potentially damaging consequences of amendment 119.

Mary Fee

I appreciate the member’s intervention but, if the convener allows it, I will continue.

I have the greatest sympathy for the concerns that Fulton MacGregor has raised, but I go back to my point about taking a welfare-based approach and using GIRFEC. My final point is that we are guarantors of human rights, which means the rights of everyone, no matter their age. The Parliament has a responsibility to ensure that the human rights of every individual are protected.

Maree Todd

Will the member take an intervention?

Mary Fee

I am just about to close.

Amendment 119 would ensure that those human rights are taken into account. I will therefore press amendment 119.

The Convener

The question is, that amendment 119 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 4, Against 3, Abstentions 0.

Amendment 119 agreed to.

The Convener

Amendment 120, in the name of Daniel Johnson, on review of the Scottish Children’s Reporter Administration, is in a group on its own.

Daniel Johnson

At the heart of the bill—and of all the committee’s comments, this morning and throughout the bill process—the importance of treating children with the care and respect that they need, and upholding their rights, is absolutely central.

At root, there is a consensus that we have a history in Scotland of taking a progressive approach to the treatment of children, especially when they come into contact with the authorities and the justice system. That approach is long established: in 1960, Lord Kilbrandon convened his committee and did his work to look at whether Scotland could take a different approach; and in 1971, the children’s reporter first convened and undertook its work.

My concern is that, through our work and in other committees in which I have been involved, we do a large number of things that impact on the effectiveness of the children’s reporter work, and more important, on the intent for it that Kilbrandon originally set out more than 50 years ago. Important as these changes to the law and our approach are, we should also take cognisance of the impact on the reporter system that the measures will have, whether it is with regard to the age of criminal responsibility or the Justice Committee’s current work on vulnerable witnesses. Malcolm Schaffer, in his evidence to the Justice Committee on vulnerable witnesses, drew attention to the consequential impacts that there may be and questioned whether due thought had been given to the reporter system. Likewise, the Education and Skills Committee has done a thorough report and there was a great deal of concern that the reporter system is becoming litigious and legalistic in nature.

The purpose and central premise of amendment 120 is:

“(2) The matter is whether the Scottish Children’s Reporter Administration continues to perform its role to a satisfactory standard in consequence of the additional responsibilities conferred upon it”.

This is a probing amendment. I recognise that the Government cannot accept reviews and reports in every bill, and perhaps it cannot accept one that is as widely stated as this. However, I urge the Government to take my point seriously and to consider a full and proper review of both the functioning of the reporter administration and the resources that it has available to do its very important work. It is the very foundation of our approach to children in Scotland’s justice system.

I move amendment 120.

Maree Todd

I appreciate the thinking behind the amendment, as I did with Mr Mundell’s amendment 118. I agree that it is crucial to monitor the changes that the bill will bring, and to ensure that the information is collated in order to properly evaluate the bill’s impact on the children’s lives that it will affect.

There are clear and established mechanisms to analyse cases that involve children who are reported to the children’s reporter, including on offence grounds, and the investigations and decisions that flow from that. The SCRA publishes its annual report at the end of every October, which the principal reporter provides to the Parliament. Online and published statistical analysis is available, with data on children and cases that have been referred to the children’s reporter and decisions that have been taken. An online statistical dashboard provides further accessible information.

A focus on the role of just one agency, when others are involved in supporting children, would not cover the full picture. As I said on day 1 of stage 2, we need a strategic approach to collating, monitoring and reporting on measures in the bill, which will take into account all the public services that are involved. I have indicated my willingness to bring forward appropriate amendments in that regard at stage 3, so I hope that Mr Johnson will agree with that approach and not press his amendment. If he presses it, I ask members to resist.

Daniel Johnson

I accept that there is information, but does the minister accept that my amendment proposes a holistic look at the role and functioning of the reporter system and whether it is still upholding the purpose that it was set up to deliver? I do not believe that the statistics provide that picture.

Maree Todd

In relation to the bill, we need to take a wider and more strategic look at the information that we collate. The issue that you raise is slightly separate, but I am more than happy to discuss it and see whether we can find a way forward before stage 3. I agree that we need to understand well what is happening in the children’s hearings system, what decisions are being made and how we can further improve our approach to responding not just to children’s deeds but to their needs.

Daniel Johnson

I set out my case at length in opening on amendment 120. I do not really have anything to add. The children’s reporter system is a cherished part of our justice system that needs to be examined, but I will seek to withdraw my amendment.

Amendment 120, by agreement, withdrawn.

Sections 64 and 65 agreed to.

Section 66—Regulation-making powers

Amendment 98 moved—[Maree Todd]—and agreed to.

Amendments 74, 73, 121, 76 and 75 not moved.

Section 66, as amended, agreed to.

Section 67—Ancillary provision

The Convener

Amendment 99, in the name of the minister, is in a group on its own.

Maree Todd

Amendment 99 makes a minor technical correction of an omission that the Delegated Powers and Law Reform Committee highlighted. The amendment inserts the words “giving full effect to” in section 67 so that the power is consistent with other such ancillary provisions. That will ensure that the power provides the Scottish ministers with the necessary flexibility to give full effect to the bill and provisions that are made under it.

I move amendment 99.

Amendment 99 agreed to.

Section 67, as amended, agreed to.

Section 68—Commencement

Amendments 78, 77, 79, 81 and 80 not moved.

Section 68 agreed to.

Section 69 agreed to.

Long Title

Amendments 59 and 58 not moved.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill. I thank the minister and her officials for their attendance.

The committee will next meet on Thursday 28 February, when we will begin to take oral evidence on the Children (Equal Protection from Assault) (Scotland) Bill.

Meeting closed at 11:14.  

The Presiding Officer (Ken Macintosh)

The next item of business is stage 3 proceedings on the Age of Criminal Responsibility (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list of amendments, and the groupings of amendments.

The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as soon as possible after I call the group.

Section 1—Raising the age of criminal responsibility

The Presiding Officer

Members should now refer to the marshalled list of amendments. We start with group 1 on the further increase in the age of criminal responsibility and of prosecution—age and timescale for increase. Amendment 1, in the name of Alex Cole-Hamilton, is grouped with amendments 2 to 77, 145, 155, 78 to 84 and 86 to 89.

I advise members that amendments 1 and 2 are direct alternatives. I also draw members’ attention to the information in the groupings on the other direct alternatives in the group.

I call Alex-Cole Hamilton to move amendment 1 and to speak to all the amendments in the group.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I start by paying tribute to Alison Mclnnes, my friend and colleague, who pushed for progress on this issue in the last parliamentary session. Her efforts met SNP obstruction, similar to that which I fear I will meet again today.

Speaking during stage 1 evidence on a different bill—the Children (Equal Protection from Assault) (Scotland) Bill, currently before this Parliament—Jillian Van Turnhout, a former Irish senator, said something that I think has resonance for our proceedings today. In speaking of her successful efforts to end physical punishment in Ireland, she told us that she went into the chamber

“knowing that even if I was the only person to say that it is not okay to hit a child, children in Ireland would know that somebody”—[Official Report, Equalities and Human Rights Committee, 21 March 2019; c 5.]

in a position of authority was on their side.

I recognise those words today, and if those in my party, the minister’s predecessor Mark McDonald and a handful of others from other parties are the only ones to vote for a further increase in the age of criminal responsibility this afternoon, to at least the international minimum, children in Scotland will know that there are people in authority on their side.

The progress of this bill has been characterised by some very public and unprecedented interventions from the international community, expressing an imperative for us to get to at least 14 and further still. That view was shared by the clear majority of witnesses who gave evidence to the Equalities and Human Rights Committee. Indeed, the day after our stage 1 debate, the United Nations Committee on the Rights of the Child revised general comment 10 to lift the global minimum to 14 years old. That was spelled out to our committee in no uncertain terms by a member of the UN committee in oral evidence. Separately, the Council of Europe’s Commissioner for Human Rights, Dunja Mijatovic, wrote to the minister to express in the strongest possible terms that Scotland should use the legislative opportunity of the bill to get to 14 immediately. The minister’s response to the commissioner was nothing short of an international embarrassment. By pointing to Scotland’s unique children’s hearings system, she sought to lean on a sense of perceived exceptionalism. The commissioner’s reply offered her very short shrift. She said that each national system is unique, but that nobody gets a pass.

In resisting the calls for a further uplift in the age of criminal responsibility that were made at stage 1, the minister also cited a need to carry the people of Scotland with us, but our further call for views at stage 2 revealed that 86 per cent of respondents supported a further uplift to 14 or even 16. To put it simply, if the minister is waiting for the people to come with us on this, they are already there.

On my amendments to increase the ACR to 16, I say this: we simply cannot be the best place in the world to grow up in if we aim for and subsequently miss the bare minimum international standard of expectation in this area. We have spent decades coalescing around the view that 16 is the point at which a person should be credited with the wisdom to choose whom to marry or share a bed with, to decide whether to leave home and to choose who represents them in this Parliament. Either a person has the mental capacity to understand the consequences of their actions or they do not. The Government’s position on the age of majority is wholly incongruous.

The Government has also argued that there is a capacity problem for going further than 12—indeed, the First Minister referred to the “sheer volume” of cases that would move from the courts to the children’s panels. Thanks to clarification from the Lord Advocate, we know that the “sheer volume” of 12 to 14-year-olds being tried in adult courts amounts to a grand total of 11 individuals a year. I accept that additional change to the children’s hearings system might be required to accommodate those cases; that was identified by the Scottish Children’s Reporter Administration, which supports an uplift to 16, and the Lord Advocate.

It has been suggested in several evidence sessions that the proposal would amount to post-18 powers for children’s panels and a shift in the burden of proof from on the balance of probabilities to beyond reasonable doubt for the most egregious cases. That is why my amendments 3, 6, 7 and 8 offer Parliament a sunrise clause that would re-establish the working group and result in commencement of a further upl