The next item is stage 3 proceedings on the Human Trafficking and Exploitation (Scotland) Bill. Members should have copies of the bill as amended at stage 2, the marshalled list of amendments and the groupings.
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, and 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 buttons as soon as possible after I call the group.
Members should now refer to the marshalled list.
Section 3—Exploitation for purposes of offence of human trafficking
We start with group 1, on exploitation for the purposes of the offence of human trafficking. Amendment 1, in the name of the Cabinet Secretary for Justice, is the only amendment in the group. I call the cabinet secretary to speak to and move amendment 1.
Section 3 of the bill describes cases of exploitation for the purposes of the human trafficking offence in section 1. Section 3(8) deals with cases in which a victim is used to provide services or benefits for another person on the basis of their vulnerability. The bill as currently drafted requires that a person using a victim in that way must have “chosen” the victim on the basis that they are a child or vulnerable adult.
We have reflected on the concerns raised by Jenny Marra at stage 2 and on similar concerns that were raised in written evidence by the Legal Services Agency. Although we remain of the view that the package of amendments to section 3(8) proposed by Jenny Marra at stage 2 went too far, we are satisfied that there is a case for modification of section 3(8), not least because the current provision may require the thought process of the accused or of any other person involved in exploitation to be established in evidence in court, which may be problematic and may make securing convictions difficult.
Amendment 1 therefore removes the reference to the choice made by the person exploiting the victim. Instead, it focuses section 3(8) on the victim’s vulnerability. It would therefore be sufficient to establish exploitation under section 3(8) for a child or vulnerable adult to have been used to provide services or benefits to another person if a person who is not a child or vulnerable adult would have been likely to refuse to provide those services or benefits.
Again, I would like to thank members of the Justice Committee, Jenny Marra and other stakeholders for highlighting the fact that an amendment in those terms would improve the practical implementation of the bill.
I move amendment 1.
Amendment 1 agreed to.
Section 4—Slavery, servitude and forced or compulsory labour
We move to group 2. Amendment 2, in the name of the cabinet secretary, is grouped with amendment 12.
As I have indicated throughout the passage of the bill, the Government wants to create a society in which all children and young people have the right to be cared for and protected from harm, and where they can grow up in a safe environment. Amendment 2 supports that ambition.
Members are aware that section 4 of the bill deals with the offence of slavery, servitude and forced or compulsory labour. Section 4(3) provides that,
“In determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour,”
a court must have regard to
“any personal circumstances of the person ... that may make the person more vulnerable than other persons.”
Amendment 2 is intended to provide absolute certainty that being a child, as defined in section 36 of the bill, is a personal circumstance that makes a person more vulnerable than others to being exploited in that way. If the amendment is accepted, the bill would be clear that a court would need to have regard to the fact that a victim is a child, given the particular vulnerability of children to exploitation. I hope that all members can support amendment 2.
Amendment 12, in the name of Jenny Marra, seeks to further adjust section 4(3). It would require courts to consider any work or services that were provided by potential victims of the slavery, servitude or forced or compulsory labour offences. That would expressly include work or services provided in circumstances constituting exploitation for the purposes of the separate offence of human trafficking.
In determining whether an offence has been committed under section 4, courts and juries are already permitted to consider any form of work or service provided by a victim, provided that it is work or a service that has been provided in circumstances that amount to a breach of article 4 of the European convention on human rights. Not all forms of exploitation listed in sections 3(3) to 3(8) will necessarily amount to a breach of article 4, so amendment 12 would make the scope of section 4 offences less clear.
Amendment 12 also links section 1 and section 4 offences. We take the view that the distinction between the offences should be maintained, because conflating these issues may make the scope of the individual offence less clear, and any confusion in that respect could jeopardise the prospect of successful convictions.
We have demonstrated that we have been prepared to review the wording of sections 1 and 4 by lodging amendments to both those sections at stages 2 and 3, having listened carefully to members and other stakeholders. However, in the case of amendment 12, we are satisfied that no further change is needed and that the scope of section 4 is sufficiently clear to allow for successful prosecutions in appropriate cases.
I ask members to support amendment 2 in my name, and I ask Jenny Marra not to move amendment 12.
I move amendment 2.
I welcome the Government’s amendment 2, which provides much-needed clarity that the situation of children and their particular vulnerability to slavery and forced labour should be taken into account when deciding if an offence under section 4 has occurred.
However, there is another aspect of the offence that needs to be addressed to ensure that section 4 enables the law effectively to prosecute those who exploit children. Section 4 has a much narrower definition than the human trafficking offence, because it contains no clear definitions of slavery, servitude or forced or compulsory labour, nor does it benefit from a wider definition of exploitation in section 3, which pertains only to the section 1 human trafficking offence.
I am concerned, despite the cabinet secretary’s remarks, that that may present an obstacle to prosecuting cases of child exploitation. Children are often exploited in ways that are less defined than forced labour and servitude. That includes forced criminal activity such as cannabis cultivation, shoplifting or enabling others to obtain benefits, for example through fraudulent claims. Such forms of exploitation can be prosecuted under the section 1 offence of human trafficking, through the related definition of exploitation in section 3. However, if the details of the case do not allow a human trafficking charge to be brought, section 4 does not cover those forms of exploitation so clearly.
Amendment 12 specifically allows the court to consider those wider circumstances of exploitation in determining whether an offence has been committed under section 4. That will enable prosecutions under section 4 when the form of exploitation may not easily be defined narrowly as forced labour or human trafficking.
I am sympathetic to amendment 12 in Jenny Marra’s name, which widens the definition of exploitation from servitude or forced and compulsory labour to include forced criminal activities, such as trafficking for the purposes of the cultivation of cannabis. That is not something that people are widely aware of, despite the fact that cannabis farms are discovered almost daily in Scotland. Amendment 12 makes sense and would be an improvement to the bill.
I will clarify the matter further. As the bill currently stands, any form of work will fall within the scope of section 4, provided that the work is done in circumstances that amount to slavery, servitude or forced or compulsory labour as set out in article 4 of ECHR. If a person, including a child, is forced to undertake work in relation to—I take the examples given by Jenny Marra—cannabis cultivation or to carry out shoplifting for another person’s benefit, that will be an offence under section 4 of the bill.
The specific example to which Jenny Marra referred is covered by section 4. That is why we do not think it necessary to amend the section.
The question is, that amendment 2 be agreed to. Are we agreed?
Members: No. [Interruption.]
I am afraid that I did not hear the answer clearly, so I will put the question again.
The question is, that amendment 2 be agreed to. Are we agreed?
Members: Yes.
Amendment 2 agreed to.
Thank you.
Amendment 12 moved—[Jenny Marra].
The question is, that amendment 12 be agreed to. Are we agreed?
Members: No.
There will be a division. As this is the first division of the afternoon, I suspend the meeting for five minutes.
14:27 Meeting suspended.
We move to the division on amendment 12.
For
Baillie, Jackie (Dumbarton) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Davidson, Ruth (Glasgow) (Con)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Finnie, John (Highlands and Islands) (Ind)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Macintosh, Ken (Eastwood) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Wilson, John (Central Scotland) (Ind)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
The result of the division is: For 49, Against 61, Abstentions 0.
Amendment 12 disagreed to.
After section 4
We move to group 3. Amendment 3, in the name of Rhoda Grant, is grouped with amendment 21.
Sexual exploitation is a major driver for human trafficking. A person can be sold over and over again, which makes them very profitable to traffickers. In recognition of that connection, I lodged amendments at stage 2 to criminalise the purchase of sex, which sought to make those who feed the industry directly responsible for their actions. As part of those amendments, I sought to decriminalise those who are in prostitution, regardless of whether they were trafficked, because we in Scotland recognise that prostitution is violence. That is clearly outlined in the equally safe strategy and is signed up to by the majority of the members of this Parliament.
I also lodged a stage 2 amendment to require the Scottish Government to provide exiting services for those who are in prostitution—again, for those who are trafficked and those who are not. Help for victims should be the utmost priority.
In response to calls from those who responded to the Government and committee consultations on the bill by highlighting the need for such an approach, the cabinet secretary commissioned a review of research, in order to make an informed decision. To allow him space and time to commission and receive that research, I decided against lodging my stage 2 amendments again. I understand that that research will involve stakeholders.
My stage 3 amendments were lodged in recognition of that work. They would set it in a legislative framework to ensure that it is in keeping with the equally safe strategy to address violence against women by encompassing a gendered analysis of violence against women.
The final part of amendment 3 would require the cabinet secretary to put on record his response to that research and consultation. Amendment 21 is a consequential amendment.
The amendments are measured and in keeping with the Scottish Government’s policy. Indeed, they take into account the progress that the Scottish Government is making—albeit that it is turgidly slow—and take the Government at its word in telling us that it understands that sexual exploitation, whether or not the victim is trafficked, is violence against women.
In light of that, I sincerely hope that the Scottish Government and Parliament will accept the amendments, which are in keeping with Scottish Government policy.
I move amendment 3.
I will speak against amendment 3 for different reasons. We have heard from Rhoda Grant that this is about violence against women. Violence against women is abhorrent, but it is worthy of a much bigger debate, and not a debate during the passing of the Human Trafficking and Exploitation (Scotland) Bill.
I do not doubt that there may well be violence against women in the act of trafficking human beings, but that is not to be singled out in this case. There are acts of violence against men, women and children that we hope that the bill will address. There is no evidence to highlight prostitution as an area that is worse than any other through human trafficking.
Human trafficking can involve slavery of the worst sort in different professions, whether that is in agricultural work or other areas of work in which people are driven as slaves. It is not only about prostitution. Whatever debate there is about prostitution, it should not be carried out in this debate about human trafficking.
I support Rhoda Grant’s amendment 3. It is unfortunate that Jean Urquhart takes the view that she takes. In doing so, she will be aware that many others in the chamber and out in the public domain disagree with the views that she expressed.
There has been huge controversy about the whole area of the abuse of women and the sale of sexual services. Rhoda Grant’s amendments would acknowledge the Government’s work in the field and encourage a report back to the Parliament so that all parliamentarians benefited from the review and could deal with evidence and not supposition. I therefore support Rhoda Grant’s amendments.
I, too, support Rhoda Grant’s amendment 3. The issue that relates to the bill is the control of demand for women for sexual exploitation, which relates to the crime of human trafficking. Rhoda Grant’s amendments do not specifically refer to the criminalisation of the purchase of sex; they ask purely for a report on the research that the Government is undertaking, which Parliament should have sight of, and they ask for the opportunity to assess whether such exploitation of women, which many members believe is a form of violence against women, has to be regulated.
Members have never shied away from discussing these things, but trying to put amendment 3 in the bill seems to be a most unusual way of moving the debate forward. I do not doubt Rhoda Grant’s sincerity, but she had the issue debated at stage 2, when the Justice Committee made it very clear that it was not appropriate to bring the issue into discussion of the bill at that late stage.
At stage 2, the minister gave an assurance on the record that the research would be done. It seems to me unusual to press amendment 3.
I am not quite sure how anyone could doubt that there is a strong link between the sex trade and human trafficking. Clearly there are other aspects of human trafficking, but we cannot deny that strong link.
It is necessary to look at tackling demand. Much of the written evidence on the bill highlighted that, including evidence from the Scottish Trades Union Congress and the trafficking awareness-raising alliance, which Jenny Marra visited this morning. I pay all credit to TARA for the great work that it has done. It said that we must address the issue of tackling demand.
I see the issue through a gender inequality prism, but members do not need to do that to believe that research would help to inform the debate about the wider issues. Jean Urquhart will shortly introduce a bill that is based on a different perspective. Surely research will inform the wider debate on that, as well as be relevant to the Human Trafficking and Exploitation (Scotland) Bill.
Voting for amendment 3 would not necessarily commit members to holding the view that Rhoda Grant has put forward. Research is important in itself, and the issue is certainly relevant to the bill, so I support her amendment.
Prostitution has been debated over a number of years and the Scottish Government very firmly recognises it as being on the spectrum of violence against women and children. Most of those who are involved in prostitution are vulnerable and a great many have been trafficked, so amendment 3 is entirely appropriate. It seems only logical that purchasers should be criminalised and that the victims should not be. In my opinion, that would help to stop trafficking.
Research is very little to ask for and, if the research has already been agreed to, there is no reason why we should not support the amendment. I support amendment 3.
Had amendment 3 stopped at commissioning research, we would have supported it, but it goes on to be more prescriptive. In general, I do not believe that this is the right time for the discussion to take place. It does the issue a disservice to press amendment 3, as the amendment says that the Scottish Government’s response to the research would trigger legislation.
There will be an opportunity to move the issue forward, perhaps in a more timely fashion, by discussing it as part of considering the proposed abusive behaviour and sexual harm bill. For those reasons, we will—regrettably—not support amendment 3.
I reiterate my colleagues’ comments that Rhoda Grant carefully worded amendment 3 so that the cabinet secretary would consider the evidence. The amendment was informed by how the Government wants to take forward the issue.
I am very surprised by Jean Urquhart’s denial of the link between prostitution and trafficking. [Interruption.]
We have taken the Government’s approach and tried to separate the issues, but it would be fair to recognise that we have not been able to have a full debate or to vote on the issue in the chamber before, because the Scottish National Party has not supported any moves to criminalise the purchase of sex. I strongly encourage members on the Government benches to support Rhoda Grant’s amendment 3, which would require the Government to review the evidence and take the measure forward. I would expect a Government that stands up for being progressive to do that; it would be embarrassing if it did not.
I call Jim Hume.
I apologise—I do not want to speak.
14:45
At stage 2, the Government made clear our view that the bill is not the appropriate legislation for dealing with the substantive and complex issue of criminalising the purchase of sexual services, and that is still the case. However, I acknowledge the wide-ranging views on the matter and I welcome the opportunity to set out the Scottish Government’s position on Rhoda Grant’s amendments 3 and 21.
I make it clear that the Scottish Government very much respects the strongly held views of those who support criminalisation and of those who oppose it. Rhoda Grant and those who support criminalising the purchase of sexual services point to the research that has been undertaken to show that the Swedish or Nordic model is working to reduce the demand for sex and is preventing sexual exploitation and trafficking. However, those who oppose criminalising the purchase of sexual services point to other research that shows that the Nordic model is not working and that sex workers have become more vulnerable as a result of such criminalisation.
Therefore, it is clear that there is a lack of consensus about the conclusions that may be drawn from existing international research and about the relevance of that research to the specific circumstances of prostitution here in Scotland. That is why I committed at stage 2 that the Scottish Government would commission research into the matter. I also confirmed that the findings of that research would be published in February 2016. When I met Rhoda Grant on 15 September, I explained that the Scottish Government had already commissioned the Scottish centre for crime and justice research to undertake a desk-based review of the impact of criminalising the purchase of sexual services and a review of the existing literature on prostitution in Scotland.
To supplement that evidence, researchers in the Scottish Government’s justice analytical services will work with relevant agencies and key stakeholders to explore and summarise up-to-date evidence on the nature and scale of prostitution in Scotland. That will include a summary of existing evidence on the scale and nature of sex work; the evidence on the number and profile of victims who have been trafficked for sexual exploitation and links to organised crime; the impact of prostitution on communities; the scale and nature of the demand for prostitution services; and the scale and nature of existing support services and an assessment of those services.
The research will involve police, local authorities and key health boards. Researchers also intend to speak to a range of third sector organisations, including TARA, Women’s Aid, Glasgow Community and Safety Services and the Women’s Support Project. Both strands of the research will be subject to independent scrutiny by academics to provide a quality assurance check.
The implications of the research findings will be discussed with key stakeholders at an event that is being planned for February next year. It will focus on the possible impact of the criminalisation of the purchase of sex, taking account of the circumstances in Scotland, and will determine whether further work is required.
Rhoda Grant’s amendments 3 and 21 would not assist the conduct or delivery of the research that is in progress. I am advised that, if the Scottish Government was statutorily obliged to undertake the research project in the way that her amendments set out, it would not be possible to finalise the report in February 2016, as I have set out to Parliament.
The Scottish Government has not come to a policy decision on the merits or otherwise of the criminalisation of the purchase of sexual services. We will not reach such a decision until the research and the findings of the workshop are published and considered properly.
The Scottish Government considers that the bill is not the appropriate vehicle for legislating on criminalising the purchase of sexual services, including the timescales for research, or for making policy decisions, and nor do I think that the provisions on the detailed method and content of research would be appropriate as a legal requirement in the bill. For those reasons, I invite Rhoda Grant not to press amendment 3 and not to move amendment 21.
I think that a number of people who spoke against amendment 3 were actually speaking against my stage 2 amendments. I explained that I was not lodging those amendments again and that I was taking account of the work that the Government is doing.
Amendment 3 would enshrine in legislation the research that the cabinet secretary just highlighted. It would follow the same timescales as he mentioned. Indeed, the provision on reporting back would give him more time than he outlined today.
I welcome the cabinet secretary’s comment that he will pull stakeholders together in February, but nothing in amendment 3 would stop that happening. It would only put into the legislation what the Government’s position already is, but it would ask the Government to report back to the Parliament within a year of the publication of the research.
I urge the Scottish Government to rethink its stance on what is a measured approach and to vote for my amendment.
The question is, that amendment 3 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Gavin (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (Mid Scotland and Fife) (LD)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
The result of the division is: For 27, Against 79, Abstentions 0.
Amendment 3 disagreed to.
Section 7—Lord Advocate’s guidelines on prosecution of victims of offences
We move to group 4. Amendment 4, in the name of the cabinet secretary, is grouped with amendment 5.
Amendments 4 and 5 respond to specific concerns raised by Elaine Murray and others at stage 2 and subsequently, with regard to section 7, which requires the Lord Advocate to issue instructions to prosecutors on the prosecution of victims. A fresh draft of instructions reflecting stakeholder views has now been issued by the Lord Advocate and shared with the Justice Committee, and a copy is also available in the Scottish Parliament information centre.
The concerns related first of all to the fact that although the draft instructions to be issued under the bill deal separately with adults and children, the bill makes no specific mention of the application of the instructions to children. Concern was also expressed in relation to compulsion—in particular, that compulsion should not require to be established when determining whether to prosecute child trafficking victims.
Having considered those issues, we have lodged amendments 4 and 5, which seek to adjust section 7 to make it clear that the Lord Advocate’s instructions, now and in the future, must always contain provision about the factors to be taken into account or steps to be taken by prosecutors when deciding whether to prosecute children who are victims of the offence of human trafficking or of slavery, servitude and forced or compulsory labour and who appear to have committed an offence as a consequence of their being such a victim. The amendments accordingly remove the focus on compulsion to commit an offence as far as children are concerned and, as such, I ask Parliament to support them.
I move amendment 4.
I rise to welcome and speak in support of amendments 4 and 5, and to thank the cabinet secretary for lodging them. They will make the evidential test in the Lord Advocate’s instructions regarding the prosecution of child victims different and simpler, and removing the compulsion element will allow the particular indirect pressures faced by children who have been trafficked to be reflected.
I, too, greatly welcome these amendments. As the cabinet secretary said, they address concerns that were raised with us at stage 2 and discussed before stage 3, and they recognise the additional vulnerabilities of children who have been trafficked.
Amendment 4 agreed to.
Amendment 5 moved—[Michael Matheson]—and agreed to.
After section 7
We move to group 5. Amendment 6, in the name of Margaret Mitchell, is grouped with amendments 11 and 22.
Amendments 6, 11 and 22 would provide a statutory defence for victims. There is precedent for such a defence in the UK’s Modern Slavery Act 2015 and in Northern Ireland’s human trafficking legislation.
The possible inclusion of a statutory defence was widely discussed with stakeholders at stage 1, and Elaine Murray lodged amendments at stage 2 that aimed to introduce such a provision. At that time, the cabinet secretary identified a loophole in the relevant stage 2 amendment: it left the listing of offences to be done through regulations, although the list would need to be composed prior to the commencement of the provision. As there was no requirement in the stage 2 amendment for that to be done, it was withdrawn. Amendment 22 remedies that situation.
The Scottish Government and, in particular, the Lord Advocate have continued to oppose the inclusion of a statutory defence, giving three reasons for so doing: that it would govern and influence any instructions that were produced; that it would place a burden on the victim to raise a defence; and that it would apply to only a small number of people. I will deal with each of those reasons in turn.
It has been established—and this was accepted by the Scottish Government at stage 2—that the Lord Advocate’s instructions and a statutory defence are not mutually exclusive. In other words, there can be both, and a statutory defence would ensure additional protection for victims. That brings me to the second point, which is that, rather than a statutory defence placing a burden on victims, it would provide them with a safety net. With regard to the final reason, the fact that it would apply to only a small number of individuals is not a reason to deny those people the right to added protection.
I make the chamber aware of one final and extremely important point that was highlighted by the Law Society of Scotland. It argues that
“if there is no statutory defence available, then the accused may find himself or herself in the situation where the prosecution don’t accept the accused’s position regarding compulsion”,
which is to say that the prosecution might not accept that the individual was forced into criminal activity. On the basis that it is the Lord Advocate’s decision whether to prosecute, he, in effect, becomes judge and jury. That means that the additional protection that is afforded to a victim by a statutory defence, which is available elsewhere in the United Kingdom, will be denied to a victim in Scotland.
I move amendment 6.
I rise to speak against the amendments in the group. When the bill was introduced, I supported the idea of a statutory defence, and I have wrestled with the issue as the bill has gone through committee. I had thought that instructions and a statutory defence would not be contradictory, and that a statutory defence would perhaps be a safety net for anyone who was not picked up by earlier procedures. We heard from the Aberlour Child Care Trust in particular that some young victims of trafficking had been prosecuted.
However, the Lord Advocate has made a compelling case for the alternative approach of instructions, and the cabinet secretary has restated that case. In this instance, instructions will lead to a more victim-centred approach, allowing for the earliest intervention to take place and the most support to be available.
The Lord Advocate has argued that
“if a statutory defence was introduced in legislation this would result in a two tier system for potential victims of trafficking as my instructions would only apply post conclusion of criminal proceedings”.
We need to keep victims of trafficking outside the criminal process as far as possible. I urge members to vote against the amendments.
The amendments in this group are similar to amendments that I lodged at stage 2. As Margaret Mitchell indicated, she has addressed the technical objection that the Scottish Government raised at that time.
On the morning when we considered my amendments at stage 2, the Lord Advocate issued a letter that no one had the opportunity to discuss with the stakeholders who were supportive of a statutory defence.
I subsequently asked both the Law Society and the Faculty of Advocates to have a look at the Lord Advocate’s letter. As Margaret Mitchell said, the Law Society continues to have concerns. It states in its briefing:
“We continue to question whether the duty of the Lord Advocate in terms of Section 7 of the bill as amended to issue and publish instructions about a victim of trafficking, taken on its own, meets with Article 26 of the European Convention on Action against Trafficking which states that ‘Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so’.”
The Law Society also points out that, as it stands, the bill would not give victims the same amount of protection as they would have under the Modern Slavery Act 2015 in England and Wales or the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015.
15:00
I support the position that has been adopted by my colleague Alison McInnes. Elaine Murray is right to say that there have been a lot of exchanges about legal matters; indeed, we had a very interesting legal debate in the Justice Committee. People might instinctively be minded to support something that is headed up as a defence for victims of offences, but we want to prevent people from ending up in the dock in the first place. The Lord Advocate’s approach is a way of doing that. For that reason, I do not support Margaret Mitchell’s amendments.
I welcome the opportunity to address amendments 6, 11 and 22, in the name of Margaret Mitchell, and to set out once again the Scottish Government’s position on a statutory defence for victims of human trafficking, slavery, servitude and forced or compulsory labour. I do not believe that the case has been made that adding a statutory defence would provide any further benefits to victims of those crimes. If the amendments were to be agreed to, I would be deeply concerned that they could have a detrimental effect on victims by placing an unnecessary burden on them.
In his letter to the Justice Committee of 28 April, the Lord Advocate set out three key concerns in relation to the use of a statutory defence. First, he was concerned that, as in the UK Modern Slavery Act 2015 and the equivalent Northern Ireland legislation, there would be a large number of exceptions for offences to which the statutory defence could not apply. That would significantly restrict the protection for victims. Any decision that was made or approved by Parliament on the question of which offences were to be outwith the scope of the defence may require to be reflected in the Lord Advocate’s instructions. Secondly, the statutory defence would require evidence of a standard that could be presented at court for its application. Thirdly, and maybe most significant, given our desire to take a victim-centred approach in the bill, the statutory defence would require the victims of human trafficking to do the work to establish that evidence themselves, requiring them to be proactive in providing information to their solicitor.
Identification of the victims of human trafficking is challenging, as victims may not consider themselves to be victims. Equally, victims may be reluctant to disclose their status to the authorities because of mistrust or fear of reprisals. It is, therefore, crucial that any mechanism to identify victims and prevent them from being prosecuted does not rely on disclosure by a victim. If someone who may not be able to speak English and who may be unfamiliar with our legal system has been rescued from the traumatic situation of having been trafficked and exploited, why would we want to place a further burden on them in requiring them to raise a statutory defence? The use of the Lord Advocate’s instructions will provide a flexible and comprehensive safeguard in relation to victims of human trafficking and exploitation who are compelled to commit offences by those who exploit them. Instructions will allow anyone—not just the victim—to bring forward evidence or intelligence that an alleged offender is a victim of human trafficking.
I am also concerned about time limits. A statutory defence would require to be raised in sufficient time so that the court was properly notified of the intention to rely on it. Given the challenges involved in the identification of victims, delayed disclosure can be an issue, making strict time limits unrealistic and unhelpful and potentially acting as a limit on the victim’s access to protection.
Instructions will apply at all stages of the criminal justice process. Even after someone has been convicted and sentenced for an offence, prosecutors may still consider information provided to them, and if it comes to light that a victim was compelled to commit the offence steps can be taken to have the conviction quashed.
Instructions offer a flexible approach, with no restriction on the information that prosecutors can consider when making decisions about the discontinuation of proceedings. Such information could be in the form of intelligence, opinion evidence, hearsay evidence, evidence from other jurisdictions or evidence reported by individuals who do not wish to provide a police statement or be part of the criminal justice process.
By contrast, as the Lord Advocate made clear, reliance on a statutory defence would require the defence to be supported by evidence admissible under Scots law. Decisions would be made within the confines of the evidence presented during the trial, rather than with the benefit of all the information available, notwithstanding issues of admissibility.
Some members may question why it is an either/or situation and ask why the bill cannot contain provision for both a statutory defence and the Lord Advocate’s instructions. In his letter to the Justice Committee of 15 June, the Lord Advocate made it clear that, if the Parliament were to introduce a statutory defence in legislation, that would result in a two-tier system for potential victims. He stated:
“my instructions would only apply post conclusion of criminal proceedings, as the statutory defence would be the choice of Parliament in transposing the Human Trafficking directive in domestic law in relation to the criminal proceedings. My instructions could only apply when the statutory defence was not available.”
The Government’s preferred option is therefore to place a duty on the Lord Advocate to produce instructions to prosecutors to deliver our victim-centred approach to the issue. As I have made clear, that approach is supported by the Lord Advocate, who made the case against the statutory defence in the strongest possible terms in his oral evidence and in subsequent written correspondence to the Justice Committee. I urge Margaret Mitchell to withdraw amendment 6 and not to move her other amendments.
In a letter dated 29 September, the Lord Advocate has again written to the Justice Committee about a statutory defence and his instructions on the prosecution of victims of human trafficking or exploitation. In that letter, he infers that one can have either his instructions or a statutory defence. That is simply not the case. It was categorically stated in evidence that one can have both. That is where the argument that it is better to have a victim-centred approach, which has been advanced by my colleagues Alison McInnes and John Finnie, falls down. I reiterate that the two approaches are not mutually exclusive and that both can be used. A statutory defence would provide additional protection for victims; without it, the Lord Advocate would be judge and jury. That would simply not be fair.
The most bizarre argument of all is the one that the cabinet secretary has just repeated: it is an unnecessary burden on victims to have the additional protection of a safety net. How bizarre is that? That means that the Lord Advocate alone will decide on the credibility and reliability of information that supports whether an individual has been trafficked. In effect, if amendment 6 is voted down, an individual in Scotland will be denied the protection of a statutory defence—a protection that is afforded to victims in England, Wales and Northern Ireland. I urge members to vote for amendment 6.
The question is, that amendment 6 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Davidson, Ruth (Glasgow) (Con)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (Mid Scotland and Fife) (LD)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
The result of the division is: For 40, Against 70, Abstentions 0.
Amendment 6 disagreed to.
Section 8—Duty to secure support and assistance
We move to group 6. Amendment 13, in the name of Jenny Marra, is grouped with amendments 14 to 16.
Amendments 13 to 16 seek to strengthen the section 8 provision of support to victims of trafficking.
The policy memorandum states that the bill will
“ensure the rights of trafficked victims to access support and assistance—placing a duty on the Scottish Ministers to secure the provision of relevant immediate support and recovery services for adult victims of trafficking”.
However, I am concerned that section 8 will not do what we think it will do.
Section 8 will not oblige ministers to provide immediate support for the person who identifies as a possible victim. Support is guaranteed only once a decision has been made that
“there are reasonable grounds to believe that”
the person
“is a victim”,
which, at present, requires a decision under the national referral mechanism.
The first few hours and days of a person being identified as a possible victim can be the most traumatic. That person might have taken the brave step of disclosing what happened to them or have been found during a police raid. In such moments, the offer of assistance should be automatic and guaranteed—not dependent on a discretionary provision.
Amendment 13 would ensure that whenever there are sufficient signs that a person may have been trafficked to lead to a referral to the national referral mechanism, the person will have an immediate right to basic support and assistance from the moment when the referral is made. They should not have to wait for a reasonable-grounds decision or a decision to exercise the discretionary power because that would be to put bureaucracy ahead of human need.
Each situation is, of course, different and individuals who do not need or want support will not be obliged to accept it. Providing support from the point of referral is the approach that has been adopted in Northern Ireland, which is the only other part of the United Kingdom to have a statutory duty to provide trafficking victims with support. We would do well to do the same.
Amendment 14 addresses two other key problems with section 8. First, it will put into statute a minimum time of 45 days for which the victim is entitled to support. Secondly, it will ensure that victims who receive a positive conclusive determination before the end of the support period will continue to be entitled to support.
Consequential amendment 15 would remove the power to provide discretionary support where it is superseded by the entitlement in amendments 13 and 14, but would retain the power to provide such support beyond the time when the positive conclusive determination is made.
Amendment 16 would introduce a requirement for publication of guidance about the exercise of the power to provide victims with discretionary support. I have already mentioned some of my concerns about relying on discretionary powers.
I move amendment 13.
15:15
I support Jenny Marra’s amendment 16, which would require the Scottish ministers to publish guidance on the support and provision of assistance to victims of an offence of human trafficking.
Although I am sympathetic to amendment 13 because I feel that there is a real issue about how someone who has potentially been trafficked is dealt with in the first hours, it would be difficult to determine exactly what the “sufficient signs” would be. Amendment 16 will perhaps cover things in the meantime and give us an accurate reflection of how the discretionary power is working.
I welcome the opportunity to set out again the Government’s position on the issues that are raised by Jenny Marra’s amendments 13 to 16. Amendments similar to 13 to 15 were considered but not accepted by the Justice Committee at stage 2. We did not support the amendments at stage 2 because they went against the Government’s approach in section 8 to providing for compulsory or discretionary support. The Government’s amendment at stage 2, which was accepted by the committee, provides further flexibility by allowing those issues to be considered and changed through regulations.
The Government’s position has not changed since the amendments were rejected at stage 2; we still have significant concerns that the amendments are too wide in the context of the bill. For example, amendment 13 would impose a duty to provide support where a reference is “about to be” made. That test is insufficiently clear to provide any sort of certainty to victims or support providers on when mandatory support duties will be triggered.
Amendment 14 seeks to ensure that a victim of a section 1 offence would receive support or assistance for a period of at least 45 days. We believe that Jenny Marra’s approach would severely restrict the Government’s ability to deal with changes to the national referral mechanism process, on which section 8 of the bill relies. The Scottish Government’s preferred approach is to rely on the regulation-making power in section 8(2) to set out the period of support. The power that was added at stage 2, and which is now in section 8(8) of the bill, also allows ministers to adjust the way in which a conclusive determination is made.
That allows the Government to take into account the outcome of the national referral mechanism pilots that are under way and which are examining how the national referral mechanism can be streamlined and improved. The outcomes from those pilots will help to establish the most effective approach. Allowing the level of support and assistance to be determined under those regulation-making powers provides more flexibility to change the minimum or maximum period for which support and assistance must be provided under the mandatory support provisions in section 8(2).
As background, I say that the national referral mechanism review was commissioned by the Home Secretary in April 2014. The review was asked to examine, and to make recommendations to the Home Secretary on, six key areas: identification of victims; how they access support; the level of support that victims receive; decision making; governance of the NRM; and collection and sharing of data. The report of the review of the NRM recommended providing support based on an assessment of the individual needs of the victim, and that consideration should be given to entry and exit timescales and support following conclusive identification. That chimes with the victim-centred approach that we want to take in the bill.
Members will wish to be aware that the review also recommended an overhaul of the referral process of the national referral mechanism. We believe that section 8(3) of the bill provides the appropriate and flexible approach to discretionary support. Amendment 16 seeks to require ministers to publish guidance on that. We do not consider that a separate guidance document would be necessary or helpful in this context. We should be very cautious about setting out detailed guidance—as appears to be envisaged here—on the circumstances in which discretionary support is to be provided. That support must be directed towards the needs of individual victims; I would be concerned that lengthy guidance on the matter would constrain rather than encourage provision of such support.
In addition, amendment 16 does not work well with section 8. For example, amendment 16 suggests that guidance would cover an external authority making a determination about discretionary support, when it is ministers who exercise the discretion to provide support under section 8(3). It is also the case that, since the duty to which the guidance relates is a duty on Scottish ministers, the amendment would in effect amount to a requirement on ministers to issue guidance to themselves. Such guidance would, of course, have limited legal effect.
Members will wish to be aware that section 31(3)(c) of the bill covers the strategy, and states that the strategy may set out
“support and assistance which is, or is to be, available ... to adults or children who are, or appear to be, victims of an offence under this Act.”
My officials plan to visit at least one of the pilot areas to find out how the pilots are progressing. On the back of that visit, I am happy to make an offer to Jenny Marra and Christina McKelvie, who are co-conveners of the cross-party group on human trafficking, that my officials will work with the group to get its input and views on the matter. We will carefully consider options on how support and assistance should be accessed, delivered and evaluated and, looking forward, we will of course consult key stakeholders on the drafting of regulations.
I therefore urge Jenny Marra to seek to withdraw amendment 13 and not to move her other amendments.
I welcome the cabinet secretary’s commitment that his civil servants will engage with the cross-party group on human trafficking. He knows as well as I do that the legislation that we are considering today is the first step in our fight against human trafficking.
However, I believe that my amendments provide a great deal of clarity, and I am slightly surprised that the minister thinks that putting commitments into legislation could compromise or discourage the provision of support for trafficking victims.
Section 8 is a central part of the bill—perhaps the most important part—and the needs of and care for victims must remain a primary focus of not only the legislation that we are considering today but our strategy and the ground-level action that will follow.
It is an important marker that our legislation gives a statutory basis to victims’ entitlement to support. We need to ensure that the legislation that we pass today does not, in the guarantees that it provides, short-change people who are extremely vulnerable. I press amendment 13.
The question is, that amendment 13 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Gavin (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
The result of the division is: For 33, Against 77, Abstentions 0.
Amendment 13 disagreed to.
Amendment 14 moved—[Jenny Marra].
The question is, that amendment 14 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Finnie, John (Highlands and Islands) (Ind)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Wilson, John (Central Scotland) (Ind)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Gavin (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
The result of the division is: For 37, Against 73, Abstentions 0.
Amendment 14 disagreed to.
Amendment 15 moved—[Jenny Marra].
The question is, that amendment 15 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Gavin (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
The result of the division is: For 33, Against 77, Abstentions 0.
Amendment 15 disagreed to.
Amendment 16 moved—[Jenny Marra].
The question is, that amendment 16 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Davidson, Ruth (Glasgow) (Con)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Finnie, John (Highlands and Islands) (Ind)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Wilson, John (Central Scotland) (Ind)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
The result of the division is: For 47, Against 62, Abstentions 0.
Amendment 16 disagreed to.
Section 8B—Independent child trafficking guardians
We move to group 7. Amendment 7, in the name of Christina McKelvie, is grouped with amendments 17 and 9.
I thank the cabinet secretary, my parliamentary colleagues and all the stakeholders who have helped to develop the content of the amendments on these issues. I especially thank Lisa Gamble from Barnardo’s, who has helped us all to understand the particular challenges that are faced by children who are at risk or who have been trafficked. Amendment 7 builds on and strengthens what is an important piece of work to further the interests of vulnerable unaccompanied trafficked children in Scotland.
Amendment 7, which reflects amendments that were lodged by Alison McInnes and Jenny Marra at stage 2, seeks to broaden the pool of children who will be eligible to receive a guardian. The broadening of the criteria will include children who are at risk of and vulnerable to becoming victims of trafficking, rather than merely children who are believed to have been trafficked already. At stage 2, the Scottish Government committed to working with Justice Committee members and stakeholders to get a better understanding of who that cohort of children should be. I believe that the Government has done that.
Amendment 7 would broaden the scope so that the provision of independent child trafficking guardians would extend to children who are or may be a victim of trafficking and, crucially, those who are vulnerable to trafficking in the future. That will have the effect of protecting unaccompanied children where a determination of trafficking might not be immediately apparent, therefore giving such children the immediate support that they need, and protecting unaccompanied children who, simply through their circumstances, are vulnerable to being trafficked.
I move amendment 7.
I welcome amendment 7, in the name of Christina McKelvie, which will extend the provision of a guardian to children who are vulnerable to trafficking. I am grateful to the cabinet secretary for listening to the concerns of those of us who lodged amendments on the issue and pressed the issue at stage 2. The cabinet secretary has moved a long way on the issue, from insisting that the named person was sufficient protection for trafficked children to accepting the much more comprehensive amendment that Christina McKelvie has just moved, which gives a legal guardian to all separated migrant children, including EU migrant children.
15:30The migrant crisis that we witness on our television screens means that the possibility of unaccompanied migrant children arriving in our communities becomes all the more real, so the cabinet secretary’s shift in thinking on the issue is very welcome today. However, I seek clarification about the terminology used in amendment 7 to confirm that the amendment will, indeed, ensure that under section 8B all separated migrant children will receive a guardian, and about what criteria will be used to determine whether an individual child is vulnerable to becoming a victim.
Amendment 17 seeks to provide the protection of a guardian for children whose parents are suspected of being involved in trafficking or exploiting their own children. The bill currently provides a guardian only for children who do not have in the United Kingdom anyone with parental rights and responsibilities. That provision assumes that the parents of a child will act to support and protect the child’s best interests in the way that a guardian would. Sadly, for some children, that is not the case and they are exploited by their own parents. I believe that if we leave section 8B as it stands, we are leaving some very vulnerable children at risk by not providing them with a guardian. I cannot think of a more vulnerable position for a child to be in than to be exploited by their own parents.
In 1687, our Court of Session heard the tumbling lassie case, which was about a little girl who was sold by her parents in this country into the circus. Our Court of Session just up the road deemed the sale of a person and child illegal in Scottish common law, but the awful situation in which parents are suspected of exploitation still exists. Today, children would be removed from the parents’ care for their protection, but I believe that that is insufficient. We must ensure that such vulnerable children are given the same protection as unaccompanied children arriving on our shores: they should be given a legal guardian. However, I cannot see that section 8B would allow the appointment of a guardian, so I urge the cabinet secretary to complete section 8B’s protection of children vulnerable to trafficking by supporting amendment 17.
I thank both Christina McKelvie and Jenny Marra for their amendments. I am fully supportive of amendment 7, which will have the effect of widening the eligibility criteria to include children who are unaccompanied and may be vulnerable to being trafficked. The services of a guardian, as currently provided for in the bill, are for children who do not have anyone in the UK with parental rights and responsibilities. However, amendment 17 seeks to widen the cohort of children who are eligible to be appointed a guardian to include children where a person who holds parental rights and responsibilities is not in regular contact or has a conflict of interest with the child.
Child protection services, including among others the police and children and families social workers, already have responsibilities to work with children and anyone who holds parental rights and responsibilities in relation to them when that is in the best interests of the child. In the extremely serious situation where a person with parental rights and responsibilities has condoned or, indeed, been actively involved in the trafficking of a child, child protection mechanisms are available to remove that child in order to protect them from harm.
Local authorities also have wider responsibilities to any child in need and to children who are looked after, where they are required to provide them with services, support and, where necessary, accommodation in order to address the child’s needs and to support them. That will be articulated in the strategy to be prepared under the bill, where we will emphasise the existing support mechanisms and how they should be deployed to ensure the care and safety of trafficked children.
I therefore want to make clear that through the existing mechanisms all children, including those who are not eligible to receive a guardian as provided for in the bill, will receive the support and protection that they require. No child will be excluded as we already have appropriate support in place through Scotland’s highly regarded and widely experienced child protection workforce. The services of a guardian, as provided for in the bill, are for children who do have anyone in the UK with parental rights and responsibilities. Such children might, for example, require particular and specialist support for overcoming language barriers or obtaining legal services for an interview with the Home Office to determine their immigration status. It is not necessary or appropriate to extend that provision to children who do not face the same set of challenges or who already have support via existing domestic measures. I therefore urge members to resist amendment 17.
Amendment 9 relates to a stage 2 amendment from Alison McInnes that resulted in the bill allowing relevant authorities to make a referral to appoint a guardian for a child. At stage 2, the Government’s position was that only local authorities should make such a referral. The list of relevant authorities that was put into the bill as a result of Alison McInnes’s amendments includes local authorities, the police, health boards, the Crown Office and Procurator Fiscal Service and the UK visa and immigration service. That list could raise some legislative competence issues in relation to the specification of the UK visa and immigration service, which is part of the Home Office. It is also not appropriate to include the COPFS because it is not a legal entity.
I recognise the point, however, and that is why I lodged amendment 9, which amends the definition of relevant authorities in the bill and gives ministers an enabling power by regulation to add to the proposed list of relevant authorities. That will allow time to consider which agencies over and above local authorities should be added as appropriate referring agencies. I therefore ask members to support amendment 9.
I recognise the point about the legislative competence of including the UK visa and immigration agency. Will the cabinet secretary put it on the record that he recognises the need to consider that there will be other organisations that can make a referral to the system, and perhaps indicate a timetable for bringing forward regulations?
As I have just outlined, the purpose of the enabling power and the regulations is to allow us time to consider what enabling authorities should be listed in the bill. That will achieve the objective that the member is seeking to achieve. Regulations relating to the bill will commence once the bill has been approved by Parliament, with the due consultation exercise that would normally surround the development of such regulations.
I ask members to support amendments 7 and 9 and I ask Jenny Marra not to move amendment 17. If it is moved, I urge members to resist it.
I speak in support of amendment 7. At stage 2, Christina McKelvie, Jenny Marra and I all lodged amendments with similar intent to amendment 7, although they were withdrawn to give the Government time to explore whether there was a gap in provision. I am pleased that the Government has recognised the vulnerability of all unaccompanied children.
When we spoke about it at stage 2, we felt that there was a need to create a presumption that a child who is travelling alone and who is seeking asylum might have been trafficked. If we want all children who have been trafficked to be referred to the guardianship service, we must surely acknowledge that many separated children who present in the first instance as asylum seekers will subsequently be identified as having been trafficked. Those most vulnerable young people might present with a cover story or they might not understand that they have been trafficked, and they deserve the earliest possible intervention.
We are talking about a small number of children who might not realise that they have been trafficked. If amendment 7 does not pass, there could be an increased risk that the child could be retrafficked before they have been identified. I support that amendment.
I recognise the point about legislative competence in relation to amendment 9, but it is important to recognise that there is merit in organisations having the capacity to refer a child to an independent guardian as soon as is reasonably practical after they have been given grounds to consider that the child might be a trafficking victim. Local authorities are not necessarily the first point of contact for a trafficked child and I welcome the cabinet secretary’s commitment to bringing forward regulations about that.
We need to be careful about the language that we use when we describe unaccompanied young children in the system, especially when we are talking about the refugee crisis—it is not a migrant crisis, and we must ensure that we describe people as refugees.
As Alison McInnes said, separated and unaccompanied children are very vulnerable. At this morning’s meeting of the European and External Relations Committee, we heard from people who have just returned from Lesbos, who told us that children as young as 10 are travelling on their own. The children have been separated or are unaccompanied, and some are being indentured into becoming traffickers themselves. This is a huge issue. If we give such young people the right support, at the right time and with the right guardian, we might start to break the cycle that is going on in Lesbos and other islands, in Turkey and in some of the refugee camps across Europe and beyond.
On amendment 9, I take up the cabinet secretary’s request that we get involved. It is important that all children receive the support and protection that they justly require, and a multi-agency approach has always been the best way of doing that. As we consider enabling authorities in that regard, we should look at the first responder process in the children’s hearings system, to ensure that the best holistic approach is taken to a young person, for all the reasons that I gave.
Amendment 7 agreed to.
Amendment 17 moved—[Jenny Marra].
The question is, that amendment 17 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Davidson, Ruth (Glasgow) (Con)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Finnie, John (Highlands and Islands) (Ind)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Urquhart, Jean (Highlands and Islands) (Ind)
Wilson, John (Central Scotland) (Ind)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (Mid Scotland and Fife) (LD)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
The result of the division is: For 44, Against 62, Abstentions 0.
Amendment 17 disagreed to.
We move to group 8. Amendment 18, in the name of Jenny Marra, is grouped with amendments 8, 19 and 20.
Amendment 18 would correct a weakness in section 8B by providing statutory authority for the guardian’s functions. Section 8B(7) confers on the Scottish ministers an enabling power to make regulations about a number of detailed aspects of the guardian system, including guardians’ functions. I welcomed the commitment to making regulations that the cabinet secretary gave at stage 2 in response to an amendment that I lodged, which would have turned the power into a requirement. However, as I said, the power in section 8B(7) enables ministers to bring forward regulations on different elements of the guardianship scheme, and the cabinet secretary has not specifically committed to making regulations about guardians’ functions.
Let me explain why I am highlighting this aspect. If guardians are to support children effectively, they will need a degree of authority, and their role and position will need to be understood and respected by other professionals who work with children. That is recognised in section 8B(6), which requires that anyone who is exercising statutory duties
“in relation to a child for whom an independent child trafficking guardian has been appointed under this section must recognise, and pay due regard to, the guardian’s functions.”
If those functions are not clearly articulated and given statutory authority, meeting that requirement will be much more complicated. By putting guardians’ functions in statute, we will facilitate smooth and effective co-operation between the guardian and other professionals and agencies that are working with the child.
15:45It is for reasons such as those that the European Union Agency for Fundamental Rights handbook on guardianship for trafficked children recommends that
“National law should provide the legal basis of guardianship and define the authority responsible for it ... The legal basis of guardianship in national law should include sufficiently precise legal provisions defining a guardian’s duties and functions.”
Section 8B does not contain precise provisions that define the guardian’s duties and functions and nor does the enabling power guarantee the creation of regulations to meet that requirement.
Even the Modern Slavery Act 2015, which provides advocates for trafficked children—although the outcome of trials must be awaited before that help is made available—more widely meets that requirement. That act states specifically that the advocate’s functions must be set out in regulations.
Northern Ireland’s legislation goes further; it sets out the functions of independent guardians in the primary legislation. It would be a great shame to finish this process with a weaker statutory framework than the rest of the UK has, after Scotland led the way by introducing the Scottish guardianship service several years ago.
I recognise that regulations provide some benefits of flexibility. Amendment 19, in my name, would provide that flexibility by including a power for the Scottish Government to add to the list of guardians’ functions through subsequent regulations. That would make it simple to add to the guardian role any additional responsibilities that are considered necessary in the future.
The essential functions of the guardian that are included in amendment 18 are based on those in the Northern Ireland legislation, which was recommended as a model by expert groups such as the Scottish guardianship service and ECPAT UK during stage 1. The functions also reflect the responsibilities that are recommended in guidelines from international expert bodies, including the EU Agency for Fundamental Rights handbook that I referred to as well as guidelines produced by UNICEF and the United Nations. Those functions are not a dramatic departure from those of the Scottish guardianship service, which already operates in line with international principles.
Amendment 20 would amend section 37 of the bill to require any regulations that were laid under that section about the guardian’s functions—whether they were regulations about functions under the existing power or regulations about further functions under amendment 19—to be made under the affirmative procedure. That would ensure that Parliament could scrutinise any proposed functions for the guardian role and would help to ensure that guardians had the necessary responsibilities to support children effectively and that the role incorporated all the expert recommendations of international best practice.
I move amendment 18.
I will first speak to my amendment 8 before dealing with Jenny Marra’s amendments 18 to 20. Stakeholders’ views are that guardians will be best able to carry out their role by having access to as much relevant information as possible about the child. Section 8B(6) provides that any person who provides services or takes decisions in relation to a child for whom a
“guardian has been appointed ... must recognise, and pay due regard to,”
the independent child trafficking guardian’s functions.
My amendment 8 will amend section 8B to oblige such persons to also provide the independent child trafficking guardian with access to such information relating to the child as will enable that guardian to carry out their functions effectively. I ask members to support amendment 8.
Jenny Marra’s amendments also deal with functions. Amendment 18 seeks to put certain functions of the guardian in the bill. Making that provision without proper consultation with stakeholders would involve significant risks. That is why we want to make legislative provisions on guardians through regulations, which will be made under the bill. By specifying the functions in regulations, rather than in the bill, we will have the opportunity to consult and involve the stakeholders who will work with children, to properly identify what the functions of the guardian will be.
That approach will help us to get the secondary legislation absolutely right. It will also give us the flexibility to add to or amend the functions as needed in order to take account of any emerging changes. The strategy that is being prepared in connection with the bill can help to reinforce the legislation by also referencing the functions.
Our approach will ensure that the functions that are identified are specified via legislation and on the basis of consultation and evidence, so they will be relevant to ensuring that the guardian is able to undertake their role effectively.
For the reasons that I have set out, I do not support amendment 18 and the related amendments 19 and 20, and I encourage Jenny Marra not to press amendment 18. If it is pressed, I urge members to reject it and amendments 19 and 20, but to support my amendment 8.
I invite Jenny Marra to wind up and to press or seek to withdraw amendment 18.
I have nothing further to say. I press amendment 18.
The question is, that amendment 18 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Davidson, Ruth (Glasgow) (Con)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
The result of the division is: For 42, Against 63, Abstentions 0.
Amendment 18 disagreed to.
Amendment 8 moved—[Michael Matheson]—and agreed to.
Amendment 19 moved—[Jenny Marra].
The question is, that amendment 19 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Davidson, Ruth (Glasgow) (Con)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
The result of the division is: For 41, Against 65, Abstentions 0.
Amendment 19 disagreed to.
Amendment 9 moved—[Michael Matheson]—and agreed to.
Section 32—Review and publication of strategy
We move to group 9. Amendment 10, in the name of the cabinet secretary, is the only amendment in the group.
At stage 2, Alison McInnes lodged an amendment to put a maximum of one year between the commencement of parts 1 and 2 and the publication of the trafficking and exploitation strategy. Although I was happy to commit to publishing the strategy within a suitable timeframe and supported the intention behind the amendment—to ensure that there was no unnecessary delay in publishing that important document—I had minor concerns about the amendment as it stood. I therefore agreed to lodge an amendment at stage 3 that would require publication of the first strategy to take place quickly.
I considered a number of options on the timescale, and I take the view that linking the deadline for publication of the strategy to the commencement of section 1 best delivers what Alison McInnes wished to see. The commencement of section 1 will bring the offence of human trafficking into being and is the logical basis for the clock to start running on the requirement to publish the strategy.
I move amendment 10.
Amendment 10 agreed to.
Section 37—Regulations
Amendment 11 not moved.
Amendment 20 moved—[Jenny Marra].
The question is, that amendment 20 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Davidson, Ruth (Glasgow) (Con)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
The result of the division is: For 42, Against 64, Abstentions 0.
Amendment 20 disagreed to.
Section 41—Commencement
Amendments 21 and 22 not moved.
That ends consideration of amendments.