Protection of Children and Prevention of Sexual Offences (Scotland) Bill: Stage 3
The next item of business this afternoon is stage 3 of the Protection of Children and Prevention of Sexual Offences (Scotland) Bill. For the first part of stage 3 proceedings, members should have the following: the bill; the marshalled list, which contains all amendments selected for debate; and the groupings.
I will allow an extended voting period of two minutes for the first division. Thereafter, I will allow a voting period of one minute for the first division after debate on a group. All other divisions will be 30 seconds.
Section 1—Meeting a child following certain preliminary contact
Group 1 concerns the definition of "sexual activity" and "sexual services". I point out that if amendment 8 is agreed to, amendment 40 will be pre-empted; if amendment 10 is agreed to, amendment 41 will be pre-empted; and if amendment 12 is agreed to, amendment 49 will be pre-empted. Amendment 1, in the name of the minister, is grouped with amendments 2 to 8, 40, 9, 10, 41, 12, 49, 13, 14, 52, 53, 16, 21 and 22.
These amendments do a number of things, but the effect of all the Executive amendments in this group is to provide clear and consistent definitions of "sexual activity" and "sexual services" for the bill.
We propose to change the way in which the grooming offence is constructed. As the provisions were drafted originally, the grooming offence would be complete if, following prior communication or meetings, the accused met or arranged to meet a child with the intention of committing a relevant offence. A list of sexual offences was included as relevant offences in schedule 1. However, the Crown expressed concerns about that approach. Its concern was that the court might require it to prove precisely which of the relevant offences the accused intended to commit. We recognise that that might create a loophole that would allow an accused to escape conviction if the Crown were not able to specify the exact offence that the accused had in mind—for example, whether it was to be rape or some other sexual assault.
Amendment 1 and consequential amendments propose a new approach, whereby the offence will be complete if, following prior communication or meetings, the accused meets or arranges to meet a child with the intention of engaging in unlawful sexual activity with the child. The approach is different from the one that is taken in England and Wales, but we think that it will work well in Scotland. The Crown will be required to prove that the accused intended to engage in unlawful sexual activity involving, or in the presence of, the child. However, the Crown will not be required to prove the specific activity in which the accused intended to engage.
In order to make that change, we must provide a definition of "sexual activity" that will apply to the grooming offence. The bill contains such a definition for risk of sexual harm orders, but amendment 21 will provide a new definition. The focus of the definition remains on whether a reasonable person who took into account all the circumstances of the case would consider the activity to be sexual. However, the approach also allows the purpose of the accused's activity to be taken into account alongside other circumstances, such as the nature of the activity.
Kenny MacAskill and Margaret Mitchell lodged amendments that attempt to take the approach that I described, but the Executive's proposed definition will go further, by including a range of associated activities, such as an attempt or conspiracy to engage in sexual activity and aiding and abetting another person in relation to engaging in sexual activity. The proposed new definition will be applicable consistently to all references to "sexual activity" in the bill.
Amendments 49 and 53, in the name of Kenny MacAskill, would simply lift the definition of "sexual" that applies in England and Wales, whereas the Executive amendments fit with the unique, Scottish approach that we have taken in the bill. During this morning's debate, Stewart Stevenson suggested that Kenny MacAskill had adopted a new Labour approach; this afternoon, Kenny MacAskill is trying to promote for Scotland an approach that was designed for England and Wales. The Executive's approach is more appropriate to a Scottish bill.
Executive amendments will amend provisions that refer to "prostitute" and "prostitution" so that they refer instead to
"the provision of sexual services".
As I said at stage 2, the approach means that we will be able to catch not only those who knowingly pay for sexual services from young people or arrange for young people to work in prostitution but those who exploit young people—particularly, but not exclusively, young women—in so-called work such as lap dancing, pole dancing, stripping and operating telephone sex lines. Any kind of sexual service will be covered by the bill. To do that, we must ensure that we are happy with the bill's definition of "sexual services". Therefore, other Executive amendments in the group will provide a consistent definition of "sexual services" throughout the bill, which can easily be based on the new definition of "sexual activity" that will apply throughout the bill. Amendment 16 sets out exactly what is meant by "sexual services".
I am sympathetic to the aims of Kenny MacAskill and Margaret Mitchell in lodging their amendments, but I strongly argue that the Executive amendments will go further. I hope that Kenny MacAskill and Margaret Mitchell will agree that the Executive amendments will address the matters about which they were concerned and ensure that there is a single, clear, consistent definition in the bill. I hope that on that basis they will not move their amendments.
I move amendment 1.
I welcome the new, more straightforward approach that the Executive has proposed, whereby unlawful sexual activity will be an offence and there will be no need to have recourse to schedule 1. As the minister rightly suggested, I lodged amendment 40, which relates to a communication that is sexual, and amendment 41, which relates to an image that could be regarded as sexual, because I was concerned about the interpretation of section 2.
Amendments 40 and 41 seek to protect anyone who is involved in teaching sex education, including professionals such as teachers or doctors, from malicious or false claims. They make it absolutely clear that for a communication to be sexual there must be the crucial element of sexual gratification—a term that is in line with the minister's own definition in amendment 12, which includes a reference to sexual gratification. I seek further assurance from the minister that professionals who are involved in sex education will not be left vulnerable by our failing to include a requirement to prove that a communication has been for personal sexual gratification.
I call Kenny MacAskill. I apologise—I will start again. I call Bruce McFee to speak to amendment 49 and other amendments in the group.
Thank you, Presiding Officer. I am not new Labour, which will be useful for me.
Amendments 8 and 10, in the name of the minister, seek to make matters clearer, but amendments 40 and 41, in the name of Margaret Mitchell, would do anything but. By introducing the criterion that for a communication to be sexual a reasonable person must in all circumstances regard it to be sexual and for a person's own gratification could open up a Pandora's box. What if the communication is clearly for the gratification of a third party? We have heard much evidence about the operation of paedophile rings and the preparation of children to be abused by third parties. The bill hammers down that escape route and it is not worth while potentially opening it up again.
Amendments 49 and 53, in the name of Kenny MacAskill, seek to amend sections 8A and 8D. I accept some of what the minister said with regard to Executive amendment 12, but amendment 49 seeks to implement recommendations that were made by the Law Society of Scotland. It seeks to convert what is at present an objective test into a subjective one, so that even if an individual does not look likely to commit a sexual offence but is intent on committing one, that will still be covered. Amendment 53 is consequential on amendment 49.
The Subordinate Legislation Committee had concerns about section 1(5), which confers powers on the minister to modify schedule 1 by order, subject to negative resolution. We thought that if that power stayed, the provision should be amended to the affirmative procedure. However, as we heard from the minister, the Executive undertook to reconsider the matter, and it has lodged amendment 22, which will remove schedule 1, and amendment 5, which will remove section 1(5), so we are pleased.
I have nothing much to add, except to say to Margaret Mitchell that the point that she raised will be addressed later in the discussion.
Amendment 1 agreed to.
Amendments 2 to 5 moved—[Hugh Henry]—and agreed to.
Section 2—Risk of sexual harm orders: applications, grounds and effect
Amendment 36, in the name of Pauline McNeill, is grouped with amendment 37.
I make clear from the outset that I lodged amendment 36 as a probing amendment, because without it there would have been no discussion of the implications of section 2 at stage 3. The Justice 1 Committee felt strongly that Parliament's attention should be drawn to section 2, because in order to protect children we are taking strong measures. We want to ensure that Parliament is absolutely satisfied that the right balance has been struck.
A chief constable will be able to apply to the sheriff court for a risk of sexual harm order if certain criteria are met, after which the sheriff will grant an order if he or she thinks that one is necessary. A sheriff can use the order to take any action that he or she thinks is necessary to protect a child. It is important to establish that, although the orders are a serious measure, they will be a civil measure and therefore the decision to grant one will be made on the balance of probabilities, not using the usual criminal test. Further, the conduct to which the chief constable may refer in the application for an order might be criminal behaviour, even though there might not be enough evidence to proceed with a criminal trial.
The key point of which I want members to be aware is that the RSHO is a far-reaching measure. We all know that we need our system to go further to protect children, but we must also do our best to satisfy the criterion of protecting the rights and interests of the accused, who in our system are innocent until proven guilty. The suggestion in amendment 36 is that not only the chief constable should be involved in assessing whether an application for an order should be made, but other people who may have important relevant information. In evidence to the Justice 1 Committee, social work organisations suggested that they have important information on, for example, those on their sex offenders list, whose previous convictions would not exclude them from a risk of sexual harm order. The organisations felt that they should have an input into the chief constables' decisions on applications.
I am satisfied that the Executive has got the measure right, but if I had not lodged amendment 36, many members would not be aware of the matter. The bottom line is that the provision puts a lot of faith in chief constables, given that they alone will decide whether applications should be made. I am sure that, like me, all members have a lot of faith in chief constables, but we must consider the possibility that they may make a wrong decision. If that happens, by the time that the application gets to the sheriff court, because the decision is to be made on the balance of probability, there might be a domino effect and an innocent person might be subject to an order.
I lodged amendment 36 to ensure that members have an opportunity to speak on section 2, although I know that we will talk about interim RSHOs later. Amendment 36 is simply a probing amendment, so I will seek agreement to withdraw it at the appropriate time.
I move amendment 36.
I have a lot of sympathy with the intent behind amendment 36.
I lodged amendment 37, which is also a probing amendment, to gain further and more specific information about the circumstances in which evidence or other information that has been submitted during a trial that has resulted in a not guilty verdict could be used as the evidence of one of the two acts that are necessary to trigger an application for a risk of sexual harm order. I ask the minister to elaborate on the exact circumstances in which he envisages such evidence being used.
Certain aspects of section 2 were discussed at stage 2, during which I lodged an amendment that sought to address issues relating to doctors, teachers and the publishing industry. I did not lodge a similar amendment for stage 3 because we agreed not to accept my amendment at stage 2, as the minister had suggested another way of dealing with the issue. In essence, the issue was that, under section 2(3)(c), one of the acts that can trigger an RSHO is
"giving a child anything that relates to sexual activity or contains a reference to such activity".
Of course, such references may be made as part of sex education or advice in a magazine or newspaper. I accept that section 2(4)(b) states that the sheriff must be satisfied that
"it is necessary to make such an order for the purpose of protecting children generally or any child".
However, it would be helpful if the minister were able to indicate firmly on the record that teachers who are discussing matters sexual with children for their protection and not for any other purpose, doctors who, in matters of sexual health, are talking to children or indeed giving them things that are sexual in nature, and responsible publishers such as D C Thomson, which I know we can trust in that regard and which has expressed some concerns to me, have the kind of assurances that will enable them to feel in no way inhibited in continuing to do the beneficial things that they do, which, in a narrow sense, could be caught by the provisions in the bill.
I understand what Pauline McNeill and Margaret Mitchell are attempting to achieve with the amendments in their names, but I cannot support those amendments. I turn first to amendment 36, in the name of Pauline McNeill. It would be wrong to be prescriptive about whom a chief constable should consult in considering an application for an RSHO. Every case will be different, and it will be necessary to consult different parties in each individual case. If the bill required some parties to be consulted but not others, it could be assumed that it is not necessary to consult the others, even though it most certainly could be necessary in some cases. I would prefer that we issue guidance on the act setting out for chief constables the criteria that they should take into account in considering an application for a RSHO. The guidance will also list those whom they should consider consulting before making an application. That is a more appropriate way of dealing with that than setting it out in the bill.
What is made explicit in the bill, however, is that applications should be made only in cases where the chief constable considers that inappropriate behaviour has occurred on at least two occasions and that the person in question poses a risk of sexual harm to a child or to children generally. Pauline McNeill is right to point out the seriousness of the measure, to indicate that it could be far reaching, but she recognises that it is right for us to take action to protect children from serious harm.
Stewart Stevenson raises a point that was touched on earlier by Margaret Mitchell, to do with concerns expressed in relation to sex education, sexual health advice or indeed what may be included in some teenage magazines, and the fear that teachers, doctors and journalists or editors might be caught by the provisions in the bill. I want to put it on record and to give the assurance that groups or individuals communicating with a child about sexual matters for the purposes of sex education or health education will not result in an application for a risk of sexual harm order. However, I would not want that to be taken as carte blanche for irresponsible and inappropriate activity, either by any individual in those professions or by any groups. Responsible people behaving in a responsible manner and acting appropriately for the purposes of their profession would not be exposed to the risk of an application for a risk of sexual harm order. However, with that would go the warning that anyone who behaved inappropriately would leave themselves open to the risk of action, should that be appropriate.
Before applying for an order, the chief constable would have to believe that the person in question posed a risk of sexual harm. Before making an order, the sheriff would also have to be convinced that the person presented a risk of sexual harm to a child or to children. Those who are properly providing advice to young people should therefore continue to do so. They will not be caught by the provisions. I state in the clearest terms that it is not our intention to interfere with such advice or prevent it from being given. It is also worth noting that similar provisions were introduced for England, Wales and Northern Ireland in the Sexual Offences Act 2003 without any specific exceptions for those providing advice.
I understand the intention behind amendment 37, in the name of Margaret Mitchell, but it would not be wise to accept the amendment. Let us consider for example a person who is accused of committing a sexual offence against a child and is found not guilty of that offence. As members will be aware, such a verdict does not prove that the offence did not take place. It means rather that the case was not proved beyond reasonable doubt. However, it might still be possible to conclude on the balance of probability that the incident took place and we believe that if it was combined with a further such incident, it should be admissible for the purposes of making an application for a RSHO, not ruled out by virtue of the previous criminal trial.
The minister said that doubts still remain about someone who is found not guilty in a trial. My understanding, which perhaps stretches the point, was that that might be the case if a court returned a not proven verdict but, surely, someone who is found not guilty is not guilty.
I have tried to explain that point, but I will go back over it. Phil Gallie is right in that if someone is found not guilty, it means that the case was not proved beyond reasonable doubt. The point that I am trying to make is that it might be possible to conclude on the balance of probability that an incident took place. We are talking about two different tests—a criminal test and a civil test—and saying that it is right that we should be able to take into account something that, on the balance of probability, we believe to have happened. To repeat the point, it is only right that the police and the courts should be able to take into account all sexually inappropriate behaviour against children to protect a child from further risk and there might be circumstances in which an incident that resulted in a not guilty finding should be used as part of an application for an RSHO.
Amendment 37 is a probing amendment to aid understanding of how that would work. What would happen if someone was found not guilty because the case was time barred, but sufficient evidence had been gathered to give cause for concern? Could that be a circumstance in which it would be legitimate to use the incident?
There could be a range of reasons why someone was found not guilty or action was not proceeded with. I emphasise that we would not be taking criminal proceedings against such a person for the incident, as we would not be saying that they had committed a criminal offence—that brings us back to Phil Gallie's question—but saying that there was reason to believe that they posed a risk of sexual harm to children. In those circumstances, it is our duty to protect the children who are involved, which is why we are proceeding as we are.
I accept that we could be too prescriptive about who is to be consulted and I withdraw amendment 36 on the understanding that, as the bill stands, the only person who has the right to gather information is the chief constable—no one else is mentioned in the bill—and on the understanding that the minister will produce guidance, which is the most sensible way to proceed. I hope that, in due course, the relevant committee will get to see the guidance that is issued.
Amendment 36, by agreement, withdrawn.
Amendment 37 not moved.
Group 3 is on RSHOs and referral to Scottish ministers. Amendment 38, in the name of Stewart Stevenson, is in a group on its own.
The minister will know of the concerns that voluntary and other bodies that work with children have about the bill, as those concerns form a theme that has run through discussion of the bill. Under previous legislation, those bodies are required to obtain from Disclosure Scotland information that tells them whether people are fit and proper to work with children. The difficulty is that when an RSHO is granted there is no process whereby that information is provided to Disclosure Scotland and is therefore available to anyone who performs checks on people. My amendment 38 seeks to provide sheriffs with the power to refer cases to the Scottish ministers and to ask them to consider whether someone against whom an RSHO has been granted should be added to Disclosure Scotland's list of people who are unsuitable to work with children. The amendment would leave open the process of referring back to the sheriff any appeal of the decision that is made.
I will describe a scenario that illustrates the concerns that YouthLink Scotland and the organisations that it represents have about the administrative procedure by which it will be possible, under the provisions of the bill, eventually to get someone with an RSHO on the list at Disclosure Scotland. Of course, the minister may well disagree with aspects of the scenario, in which case I will be happy to hear from him. It is a complicated issue.
When the court grants an RSHO, the person's employer—that includes a person who is responsible for a volunteer—will be notified, if that is appropriate. It is then up to the employer to consider what action is appropriate. If the RSHO requires that the person must not work with children, the onus is on the employer to take the necessary action. In the case of small employers or bodies, the person might have to be fired because there are no positions that do not involve working with children. The bill gives no statutory right for the employer to fire the person. Under employment legislation, the option is open for them to dismiss the person. That would be subject to review in the normal way and people could challenge it. Only after the person has been fired would they end up on Disclosure Scotland's list.
I describe the situation as I understand it. There may be other views, but it appears that there is a huge onus on organisations, and particularly on small ones. Such organisations were alarmed about the burden that was placed on them by the need for them to check with Disclosure Scotland when they employ people who will work with children, although they are now reassured. However, the core of the concern is that unless the matter is put on a statutory basis, failings in the system will put children at risk. It will certainly make things more complicated for voluntary bodies and there is concern that they might withdraw or reduce their commitment.
Unless we put the matter on a statutory basis that enables us, in the quickest and most effective way, to put people against whom RSHOs have been granted on to Disclosure Scotland's list of people who are unsuitable to work with children, we will have a problem. I hope that the minister will reassure us that we will not put children at risk by leaving the gap and that there is another way forward, or that he will accept the amendment. I will be interested to hear what he has to say. We have not resolved the matter yet and this is the last chance saloon for us to do so.
I move amendment 38.
I agree with Stewart Stevenson that we should do nothing that puts children at risk. I whole-heartedly agree that if RSHOs are sought against people who work in child care positions, their employers should be told about it. We are working on the implementation of the Bichard recommendations, and when they are fully implemented, employers will be notified as a matter of course where appropriate. However, that new system is still a couple of years down the line. I acknowledge that in the meantime we need an interim system that will work effectively to ensure that in appropriate circumstances employers are told if an RSHO is sought against one of their employees. That would allow the employer to consider whether they need to take action. There is therefore no real difference between small and large organisations or what currently pertains to legislation.
I will be quite clear about this: I do not believe that an automatic referral to the list of people who are disqualified from working with children is an option. Amendment 38 is defective in a number of ways. It does not link in with the legislative scheme for including people on the list of those disqualified from working with children that was established under the Protection of Children (Scotland) Act 2003. That means that the procedure for putting someone on the list, such as giving the person an opportunity to make representation, giving notice of inclusion, rights of appeal and so on, would not apply. The Protection of Children (Scotland) Act 2003 sets out the criteria that the courts must take into account before referring a person for automatic inclusion on the list, but amendment 38 sets out no such criteria.
The minister said that the Bichard recommendations will not be implemented for some time, so there will be interim guidance. Is that not justification for supporting Stewart Stevenson's amendment, because it would provide that added protection now?
To repeat two points, I said that we need an interim system that will work effectively and that will allow employers to consider whether they need to take action, and I believe that there is a fundamental defect in the amendment. Not only are we taking steps to put in interim measures, but it would be wrong to introduce a measure that we believe to be defective.
It is true that the current legislation allows for referral from the courts as a result of criminal conviction and anyone referred in that way is automatically placed on the list. However, to give the sheriff the power to refer for automatic inclusion on the list, with all the consequences for an individual's livelihood, on the basis of a civil order that can be time bound and quite specific, would raise important issues under the European convention on human rights. An administrative procedure that works within the current Protection of Children (Scotland) Act 2003 is the most effective way to achieve the outcome that we seek, which is getting the information to the employer and putting the person on the list in cases where that is appropriate.
We will develop guidance, along with the police, to ensure systematic consideration of the need to disclose information in respect of an individual being considered for or issued with an RSHO. In building the case to apply for an RSHO, the police will be expected to ascertain the individual's access to and dealings with children, including employment or other voluntary activities. Where an RSHO is made, the police will consider whether it would be appropriate for the existence of the RSHO to be disclosed to the employer or to a voluntary organisation. If the subject of the RSHO is employed in a child care position or works with children in a voluntary capacity, that would certainly be grounds for the information to be disclosed.
To ensure that organisations are not left wondering what to do when they are told about an RSHO, we will issue guidance explaining RSHOs and encouraging organisations to assess whether it would be appropriate to move the person from working with children or to dismiss them as a result of the information. The guidance will remind organisations of their duty, if they take action, to refer the person to Scottish ministers for consideration for inclusion on the list. Even if the person is not placed on the list, if a subsequent disclosure check is made, the fact that an RSHO demonstrates concern about a risk to a child or children would be grounds for information about its existence to be released. So whether a person is currently working with children in a paid or unpaid capacity, or applies to work with children, I am confident that information about the existence of the RSHO will be and can be released to their employer, prospective employer or voluntary organisation.
Is the minister saying that, under all circumstances, all RSHOs pertaining to children will prohibit or inhibit someone from working, or from doing things that would end up known to Disclosure Scotland?
I think that that would be a logical conclusion. There might be circumstances that do not come to mind at the moment where that might not happen. That would be the logical conclusion, however.
I am confident that the employer or voluntary organisation will have sufficient guidance to know how to deal with the information. Some might view the requirements as an additional burden on organisations. In reality, however, employers and voluntary groups must assess the risk to children from their workers when they recruit or when any concern comes to light. I hope that child care organisations will be reassured, and that Stewart Stevenson, given those assurances, will accept that his amendment should be withdrawn.
I am slightly worried about a lack of clarity on the question whether the RSHO would, where appropriate to children, always end up on the register.
For the avoidance of doubt, if someone is working in a child care position and an RSHO is sought against them, that information will immediately be notified to the scheme. It will then be available for the organisations concerned. That person's suitability to work with children would then require to be reassessed. Their employer would be notified of any change in status.
That is crystal clear. I make the general observation that, in seeking to introduce risk of sexual harm orders, we are acknowledging the fact that the criminal justice system cannot completely cover the risks in the ways that we would wish. That is why we agree with the Executive as a matter of policy in supporting the introduction of RSHOs.
I am delighted that the minister has assured us that, in all instances, the RSHO, where it concerns children, will end up being noted on the list. People making inquiries of Disclosure Scotland will therefore not fail to see that a relevant RSHO is in place. That is at the core of what we are trying to achieve. On that basis, and with that assurance, I seek to withdraw the amendment.
Amendment 38, by agreement, withdrawn.
Group 4 is on the serving of RSHOs and interim RSHOs. Amendment 39, in the name of Margaret Mitchell, is grouped with amendment 45.
Amendments 39 and 45 seek to ensure that there can be absolutely no doubt that the subject of an interim or full RSHO realises and is aware that the order has been served on them. That is necessary, given the sensitive nature of such orders and in recognition of the fact that, if an order is breached, the subject of that order is automatically guilty of a criminal sexual offence. That in turn can have far-reaching consequences regarding disclosure, employment and public hostility. It is important to make the crucial distinction in how the orders are served and to ensure that they are served by sheriff officers.
I move amendment 39.
The bill was amended at stage 2 so that it now specifies that an application for an RSHO
"shall be made by summary application."
As such, the normal sheriff court summary rules will apply. Those rules already contain provisions on the service of court orders. We expect specific summary application rules to be made in due course to provide further detail about how persons will be notified of the existence of RSHOs.
Such court rules have recently been made in connection with antisocial behaviour orders. The rules require that an ASBO must either be given to a person who is in court when the order is made or be sent to the person by recorded delivery or registered post. I am of the view that a similar provision would be suitable for RSHOs. Requiring a sheriff officer to serve the order on the person in all circumstances is both costly and unnecessary. In any event, the appropriate place for rules about the service of court orders is the summary application rules. Margaret Mitchell's amendment 39 is therefore unnecessary.
Before I call Margaret Mitchell I ask members to be just a little bit quieter. Miss Mitchell, please wind up and indicate whether you intend to press or withdraw your amendment.
I will press amendment 39, because I think there has been a failure on the part of the minister to recognise that there is a difference between breaching an antisocial behaviour order for something such as vandalism and breaching an RSHO with the sexual connotations that it has. For that reason I remain convinced that RSHOs should be served by sheriff officers.
The question is, that amendment 39, in the name of Margaret Mitchell, be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Curran, Frances (West of Scotland) (SSP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Johnstone, Alex (North East Scotland) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Tosh, Murray (West of Scotland) (Con)
Against
Adam, Brian (Aberdeen North) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 21, Against 88, Abstentions 0.
Amendment 39 disagreed to.
Section 3—Interpretation of section 2
Amendments 6 and 7 moved—[Hugh Henry]—and agreed to.
Amendment 8, in the name of the minister, has already been debated with amendment 1. I remind members that if amendment 8 is agreed to, amendment 40 will be pre-empted.
Amendment 8 moved—[Hugh Henry].
The question is, that amendment 8 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fox, Colin (Lothians) (SSP)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Against
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Johnstone, Alex (North East Scotland) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Tosh, Murray (West of Scotland) (Con)
The result of the division is: For 94, Against 14, Abstentions 0.
Amendment 8 agreed to.
Amendment 9 moved—[Hugh Henry]—and agreed to.
If amendment 10 is agreed to, amendment 41 will be pre-empted.
Amendment 10 moved—[Hugh Henry]—and agreed to.
Section 5—Interim RSHOs
Group 5 is on interim RSHOs. Amendment 42, in the name of Kenny MacAskill, is grouped with amendments 43, 44 and 46.
Amendments 42 and 46 originated from the Law Society of Scotland—[Interruption.]
Members will need to be just a little bit quieter. That would be helpful to the speaker and to us up here.
It is a good thing that we are talking about RSHOs rather then ASBOs.
The amendments in Kenny MacAskill's name are intended to bring the wording in the bill more closely into line with the way in which other legislation is worded. The effect of amendment 42, therefore, is technical.
Amendment 46, however, relates to an important policy issue. If an interim RSHO is taken as the precursor to a full hearing of the case for the granting of an RSHO but it is not followed up by such a hearing, the person who was subject to the RSHO is entitled to have their character returned to the state that it was in at the outset. We know perfectly well that, in this delicate and difficult area of public policy, malicious accusations are made from time to time. It is right that those accusations be tested, because we cannot tell at the outset whether they are malicious. If an interim RSHO is granted and it transpires that the basis on which it was granted was false and, therefore, no full order will be granted, the person concerned is entitled to have their character returned to a lily-white state.
The SNP will support Margaret Mitchell's amendments, which relate to the setting of periods.
I move amendment 42.
It is nice to start on a note of unity. The Conservatives will be supporting the amendments in Kenny MacAskill's name, which were inspired by the Law Society of Scotland, on the basis that the addition by amendment 42 of the term
"in the interests of justice"
would make the process more transparent and that amendment 46 is fair and reasonable.
Amendment 43 stipulates that the interim order should be in place for a maximum of three months, rather than the unspecified fixed period in the bill, and amendment 44 would ensure that, where an application has been made for extending the period of the order's effect, that period should be limited to a maximum of an additional three months.
I have listened to Stewart Stevenson, who spoke to Kenny MacAskill's amendments, and to Margaret Mitchell, but I am unconvinced that their amendments are necessary. Despite Stewart Stevenson's comments on amendment 42, I cannot for the life of me see the difference between saying it is "just" to do something and saying that it is
"in the interests of justice"
to do something.
However, not being a lawyer, I thought that I should have the matter checked out. After all, Kenny MacAskill, who comes from that noble profession, might well have some insight into it that I did not have. When I asked our lawyers to double and triple-check that I was not missing anything, they said that they could not see any significant difference between the two terms. Indeed, they believe that our formulation is more appropriate.
The effect of both formulations is the same. The sheriff cannot make an interim RSHO unless he is satisfied that it is just to do so. As a result, he would have to be satisfied that it is
"in the interests of justice"
to make the order. I hope that that is clear; indeed, I think that users of the legislation will certainly consider the matter to be clear. Perhaps members of the Law Society of Scotland will argue over the matter on cold, dark, wet nights when they have nothing better to do, but I do not think that amendment 42 is necessary.
I am also not convinced that amendment 46 is necessary. When the committee and I discussed the matter at stage 2, the committee agreed that an amendment was unnecessary. I believe that, even in cases in which an RSHO is not granted, the type of behaviour that leads to the application is sufficiently serious for the information to be kept. The police hold what might be regarded as soft information about people for a variety of reasons. Indeed, it is vital that they do so; after all, if they have suspicions about someone, we rely on them to retain intelligence about that person to assist them in preventing potential crimes.
Moreover, there are various reasons why an RSHO might not be made. For example, it might not be possible to prove that the alleged behaviour took place. The sheriff might not be convinced by the evidence before the court that the person is a risk to children. I am sure that we would agree that, if a sheriff is not convinced of such things, he should not make an RSHO. However, that does not mean that the police should not be able to retain information about the person's behaviour if they still suspect that the person might be a risk. If they retain information on such behaviour, it is surely ludicrous not to retain the fact that an interim RSHO had once been made. What happens if the person in question engages again in sexually inappropriate behaviour with the child? If information about previous behaviour is not retained, it will appear as though that is the first incident of such behaviour.
Although one might argue that that is the effect of amendment 46, the intention behind it is certainly not to expunge from the record the information that leads the police to apply for an interim RSHO. After all, if, because of repeated malicious accusations from the same source, such information had turned out to be false, one would wish to retain that fact.
With all due respect, however, I should say that that issue is quite different from that of deleting from available records the fact that an interim RSHO had been granted. I would be interested to hear the minister confirm whether he has been advised that the effect of amendment 46 would be that the police were required to delete that information. That is neither the intention behind the amendment nor the understanding that I or the Law Society have.
I accept Stewart Stevenson's comments about the intention behind amendment 46. However, we are worried that it could have the undesired effect that I have set out. I will come later to his point about malicious and vexatious allegations.
Because it would not be possible to make another application for an RSHO until the person behaved in such a way again, a child could be put at more risk. Even worse, if a person were to move to another police force area and behave in such a way, the police in that area would be entirely unaware that that person had already come to the police's attention for those reasons. Indeed, we have had some cases in which people have moved between police force areas but information has not been properly transferred and the people have gone on to commit serious offences.
The Justice 1 Committee expressed concerns at stage 2 about cases in which full orders are not made because it had become apparent that an allegation had been malicious or vexatious. I explained in a letter to the committee that information about the complainant and the interim order would not be retained in such cases. A robust reviewing and weeding policy underpins the retention of police intelligence, and information found to be based on malicious or vexatious allegations would be deleted. The only circumstances in which information might be kept would be if it allowed the police to put together a case against the person making vexatious allegations. Stewart Stevenson has correctly drawn attention to the fact that we might need to be able to act on behalf of the person who is the victim of such vexatious or malicious allegations. However, I assure members that, in such cases, the information would be retained purely on the basis that the subject of the allegation was a witness to the case.
Moving on to amendments 43 and 44, in the name of Margaret Mitchell, I make it quite clear that an interim RSHO cannot be sought unless it is accompanied by the main application or unless the main application has already been made. An interim RSHO has effect only for the fixed period specified in the order and will cease to have effect, if it has not already done so, on the determination of the main application. The normal sheriff court summary time limits will apply to the determination of the main application, so it would not be possible for interim RSHOs to apply for long periods without the sheriff court considering whether a full application should be made. I hope, therefore, that Margaret Mitchell will agree that her amendments are unnecessary, that she is reassured by what I have said and that she will not move amendments 43 and 44.
I shall seek leave to withdraw amendment 42, on the basis that we can let the lawyers fight it out and see whether the minister gets any invitations to Drumsheugh Gardens.
I shall press amendment 46, however, because I am not satisfied with what I have heard. It seems that I am being told that, if interim RSHO information is retained, that information will be available to chief constables other than the one who applied for the interim order, yet the intelligence that led to the granting of the interim order would not be available. I am not at all convinced that that is a reasonable line of argument and that it is not possible to share intelligence across Scottish police forces without the fact being recorded that an interim RSHO has been made. I shall certainly protect our position by moving amendment 46 when the time comes.
Amendment 42, by agreement, withdrawn.
Amendment 43 moved—[Margaret Mitchell].
The question is, that amendment 43 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Leckie, Carolyn (Central Scotland) (SSP)
Lochhead, Richard (North East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Tosh, Murray (West of Scotland) (Con)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
White, Ms Sandra (Glasgow) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 45, Against 65, Abstentions 0.
Amendment 43 disagreed to.
Amendment 44 moved—[Margaret Mitchell].
The question is, that amendment 44 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Leckie, Carolyn (Central Scotland) (SSP)
Lochhead, Richard (North East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Tosh, Murray (West of Scotland) (Con)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
White, Ms Sandra (Glasgow) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Mrs Margaret (Moray) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 44, Against 66, Abstentions 0.
Amendment 44 disagreed to.
Amendment 45 moved—[Margaret Mitchell].
The question is, that amendment 45 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Johnstone, Alex (North East Scotland) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Tosh, Murray (West of Scotland) (Con)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Leckie, Carolyn (Central Scotland) (SSP)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Abstentions
Byrne, Ms Rosemary (South of Scotland) (SSP)
Fox, Colin (Lothians) (SSP)
The result of the division is: For 20, Against 87, Abstentions 2.
Amendment 45 disagreed to.
Amendment 46 moved—[Stewart Stevenson].
The question is, that amendment 46 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hyslop, Fiona (Lothians) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Leckie, Carolyn (Central Scotland) (SSP)
Lochhead, Richard (North East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Tosh, Murray (West of Scotland) (Con)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
White, Ms Sandra (Glasgow) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 44, Against 64, Abstentions 0.
Amendment 46 disagreed to.
Section 7—Offence: breach of RSHO or interim RSHO
Group 6 is on breaches of RSHOs or interim RSHOs. Amendment 11, in the name of the minister, is in a group on its own.
The purpose of amendment 11 is to make it clear that RSHOs made in England, Wales or Northern Ireland under the Sexual Offences Act 2003 will apply in Scotland and that a breach of those orders in Scotland will be a criminal offence.
The 2003 act allows RSHOs to be made in England, Wales or Northern Ireland. The intention behind the 2003 act is that, unless the orders are expressly limited to a particular geographical area, they will apply in each of the other jurisdictions and that a breach of an order in one of the other jurisdictions will be an offence there. However, it is not clear that the orders would apply in Scotland, as the provisions in the 2003 act do not extend to Scotland. The amendment puts that beyond doubt.
Of course, orders that apply to a particular area or premises—for example, a particular school or sports centre—will not be breachable in Scotland. If the conditions in the order apply only to a particular area or premises, they will be breached only if the person does what he or she is restricted from doing in that particular place. However, orders that apply generally will apply in Scotland. For example, if a condition is not to go within a certain distance of any school, a criminal offence will be committed if that condition is breached in Scotland, even if the order was made in England.
I want to be absolutely certain that, if people who come to Scotland from other parts of the United Kingdom put our children at risk, we will have the powers to deal with them. It is also important that those who are the subject of an RSHO in Scotland cannot break the conditions of the order in other parts of the UK.
For those reasons, we are working with the Scotland Office and the Home Office on an order under section 104 of the Scotland Act 1998 to put it beyond doubt that RSHOs that are made in Scotland will apply in other parts of the UK and that breaching such orders will be an offence in the jurisdiction in which the breach takes place. I am pleased to be able to confirm that I have agreement in principle from the Parliamentary Under-Secretary of State for Scotland that such a section 104 order will be laid. I hope that the Parliament will agree that amendment 11 is necessary.
I move amendment 11.
Amendment 11 agreed to.
After section 8
Group 7 is on the disclosure of RSHOs in criminal proceedings. Amendment 47, in the name of Pauline McNeill, is in a group on its own.
Amendment 47 is a probing amendment, which I lodged because I was not wholly satisfied during stages 1 and 2 that the existence of an RSHO could not be referred to in a criminal trial. In my view, the presumption against disclosing such information should be similar to that which applies to previous convictions, as the information could be prejudicial to the jury's decision. The key issue about disclosure is that, as legislators, we need to be clear about what we intend by the bill. I want to be clear about the purpose of the RSHOs and how such orders will connect with the rest of the criminal justice system. I will be pleased if the minister can clarify what will happen in such circumstances.
I move amendment 47.
I am sympathetic to the intention behind amendment 47, as it is important that criminal proceedings are not prejudiced by information about the accused that is not relevant to the case. However, the relevancy of the information is the key issue. If a person is prosecuted for breaching an RSHO, it will of course be necessary for the existence of the RSHO to be disclosed to the court. Without such information, the trial would be meaningless.
In general, however, the Crown Office advises that the normal rules of evidence will apply to the disclosure of the existence of an RSHO. In other words, the court will not allow the existence of an RSHO to be disclosed unless it is satisfied that that is relevant to the case. Even if the accused is being prosecuted for a sexual offence, the Crown Office advises that the fact that an RSHO had been imposed previously would be unlikely to be relevant to proving that the behaviour in question had taken place. Indeed, even if the accused is being prosecuted as a result of one of the incidents that led to the imposition of the RSHO, the fact that the RSHO had been imposed is still unlikely to have any relevance to the trial.
In a criminal trial, the court would be required to consider whether there is sufficient evidence to prove beyond reasonable doubt that the incident had taken place and that the accused was responsible. The fact that, in civil proceedings, the court had considered that there was sufficient evidence to prove on the balance of probabilities that the incident had taken place would be completely and utterly irrelevant. If the Crown attempts to lead irrelevant evidence in a criminal trial, it will be prevented from doing so by the judge. Therefore, I am confident that the normal court procedure and rules of evidence will ensure that irrelevant information about the existence of an RSHO will not be disclosed to the court during a criminal trial.
I am confident that amendment 47 is not necessary and I hope that Pauline McNeill will accept that reassurance.
I am extremely happy with that answer, which is the one that I wanted on both counts. We now have clarity on the issue and I think that we have the right relationship between the RSHO and criminal proceedings. On that basis, I am happy to seek the Parliament's approval to withdraw amendment 47.
Amendment 47, by agreement, withdrawn.
Section 8A—Paying for sexual services of a child
Group 8 concerns the offence of paying for sexual services of a child. Amendment 48, in the name of Kenny MacAskill, is grouped with amendments 50 and 51.
In view of the time, I will be very brief. Amendment 48 aims to catch someone who is seeking to buy the sexual services of a child for someone else and to ensure that, notwithstanding the fact that it may be possible to catch them elsewhere in the legal code, the offences prescribed in the bill are applicable to a third person who buys sexual services on behalf of someone else. The amendment is a simple, logical extension of the protections that the bill provides.
I move amendment 48.
We will support the Law Society-inspired amendment in Kenny MacAskill's name, which covers a potential loophole in the bill by including a reference to a third party.
My amendments 50 and 51 seek to ensure consistency in the approach in Scots law to the offence of having sex with a child under the age of 13. At present, unlawful sexual intercourse with a girl of that age can attract a maximum sentence of life imprisonment under section 5 of the Criminal Law (Consolidation) (Scotland) Act 1995. However, under section 8A of the bill, if payment or promise of payment is made in return for sexual intercourse with a child under 13 years of age, the maximum penalty is 14 years' imprisonment. The amendments seek to ensure that the offence in the bill carries a penalty as severe as the penalty for which the 1995 act provides.
First, I will address the amendment in Kenny MacAskill's name, to which Stewart Stevenson spoke. I do not believe that the amendment is necessary. I argue that the behaviour that Kenny MacAskill is trying to catch in the amendment is already likely to be an offence. If a person is deliberately assisting another to purchase the sexual services of a child, that person could be charged with aiding and abetting or conspiracy to purchase the sexual services of a child. Alternatively, if the person is deliberately arranging for the child to become involved in the provision of sexual services, so as to provide those services to another, that person could be caught by the offence at section 8D of the bill, which concerns arranging or facilitating.
Secondly, I turn to the amendments in Margaret Mitchell's name. I am not convinced that it is sensible to add another level of penalties in the bill for offences relating to those aged under 13. I am aware that the equivalent Westminster legislation includes a life penalty in cases where the offence was committed against a child under 13, but there are important differences between the Westminster legislation and ours. Whereas Margaret Mitchell's amendment takes in all the offences relating to under-13s, the Westminster legislation takes a two-tier approach, so that a life penalty is available only in cases where the sexual services constitute certain aggravated behaviour relating to the penetration of the body of the child.
We have widened the reach of the bill so that a range of sexual services is covered. Although we agree that paying for sexual intercourse with an under-13 may justify a life sentence, I am not convinced that everything that is found to fall within the definition of sexual services would justify a life penalty. In any event, it is important to reassure members that, in cases where someone has sexual intercourse with a child under 13, whether or not payment has been made, it will often be more appropriate to take proceedings under another offence. Section 5 of the Criminal Law (Consolidation) (Scotland) Act 1995, for example, makes provision for the offence of unlawful sexual intercourse with a girl under the age of 13 and provides a maximum penalty of life imprisonment. It will, of course, be for the Crown to decide in each case which offence the accused should be prosecuted under. I hope that Margaret Mitchell will be reassured by my comments and will not move her amendments.
It is worth saying that section 8D would have the effect that the minister described should we agree to amendment 52. At the moment, however, that section relates only to child prostitution and pornography and not to sexual services. Therefore, there are some technical complications with the sequencing and I am not clear that the penalties that would apply without the amendments would be as serious. Can the minister indicate his answer so that I do not take up too much time?
I am not sure about that—
On that basis, I will press amendment 48.
The question is, that amendment 48 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Canavan, Dennis (Falkirk West) (Ind)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Leckie, Carolyn (Central Scotland) (SSP)
Lochhead, Richard (North East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Eleanor (Highlands and Islands) (Green)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Tosh, Murray (West of Scotland) (Con)
White, Ms Sandra (Glasgow) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 41, Against 58, Abstentions 0.
Amendment 48 disagreed to.
Amendment 12, in the name of the minister, has already been debated with amendment 1. I remind members that, if amendment 12 is agreed to, amendment 49 will be pre-empted.
Amendment 12 moved—[Hugh Henry].
The question is, that amendment 12 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Finnie, Ross (West of Scotland) (LD)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Leckie, Carolyn (Central Scotland) (SSP)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Tosh, Murray (West of Scotland) (Con)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
White, Ms Sandra (Glasgow) (SNP)
The result of the division is: For 85, Against 21, Abstentions 0.
Amendment 12 agreed to.
Amendments 50 and 51 not moved.
Section 8B—Causing or inciting child prostitution or pornography
Amendment 13 moved—[Hugh Henry]—and agreed to.
Section 8C—Controlling a child prostitute or a child involved in pornography
Amendment 14 moved—[Hugh Henry]—and agreed to.
Section 8D—Arranging or facilitating child prostitution or pornography
Amendment 52 moved—[Hugh Henry]—and agreed to.
After section 8D
Amendment 53 not moved.
Section 8E—Sections 8B to 8D: involvement in pornography, etc
Amendment 16 moved—[Hugh Henry]—and agreed to.
Section 8H—Indecent photographs of 16 and 17 year olds
Amendment 54, in the name of Marlyn Glen, is grouped with amendments 55, 56, 17, 57 to 59, 18, 60 to 62, 19, 63 to 65 and 20. I will list the considerable number of amendments that might be pre-empted. If amendment 54 is agreed to, I will not call amendments 55, 56 or 17. If amendment 56 is agreed to, I will not call amendment 17. If amendment 57 is agreed to, I will not call amendments 58, 59 and 18. If amendment 59 is agreed to, I will not call amendment 18. If amendment 60 is agreed to, I will not call amendments 61, 62 and 19. If amendment 62 is agreed to, I will not call amendment 19. If amendment 63 is agreed to, I will not call amendments 64, 65 and 20. If amendment 65 is agreed to, I will not call amendment 20.
I ask Marlyn Glen to move amendment 54 and to speak to the other amendments in the group—if she can be heard, because a lot of talking is going on. Mr Stevenson might have had a point when he mentioned antisocial behaviour orders. I ask members to keep quiet, please.
Section 8H is a difficult section. I want to clarify a few points about the amendments in my name and I welcome the opportunity that that presents for the Parliament to have a debate on complex issues.
The bill seeks to protect children. It is relatively easy for us all to sign up to a measure that will protect vulnerable children and I applaud the bill's intention to give protection from abuse to young people up to the age of 18. However, tension arises because the age of sexual consent is 16, whereas the upper threshold of childhood in the bill is 18. It was right to ratify the European directive that followed article 1 of the 1989 United Nations Convention on the Rights of the Child. The state should protect children from all forms of sexual exploitation and abuse. It was also right to ratify the 2000 optional protocol to the UN convention on the sale of children, child prostitution and child pornography. Those issues are not in dispute.
However, the bill's purpose is to combat sexual exploitation; its purpose is not to regulate the sexual life of young people. There was no intention to undermine the rights of young people who are over the age of consent—people to whom we usually refer as "consenting adults"—and who act within a legitimate, non-exploitative relationship. There is no call to change the age of consent. Young people, as well as older people, have the right to a private life. Section 8H deals with the private, consensual use of images; it does not address wider issues of pornography. We must deliver consistent, clear messages about sexual health and self-esteem, but it is highly questionable whether legislation offers an effective means of doing so.
My amendments 54, 57, 60 and 63 relate to the exceptions for photographs of 16 and 17-year-olds that are taken in private and with consent. The amendments would remove the exemption for people who are "married to each other" or "partners in a relationship", because there are real questions about whether the existence of a relationship gives protection. The bill is not gender specific, but it is widely recognised that young women in some relationships are vulnerable as a result of a gender-specific imbalance of power. The YWCA Scotland's excellent display in the garden lobby at Holyrood this week makes that point.
The logical, legal and moral implications of the matter need much further consideration—more than we can give in this debate. There should be a wide discussion on the matter. We should concentrate on working to give young people, particularly young women, the confidence and self-esteem that they need if they are to value themselves and make informed decisions. The approach of the amendments in my name is supported by Council framework decision 2004/68/JHA, which provides that
"Even where the existence of consent has been established, it shall not be considered valid, if for example superior age, maturity, position, status, experience or the victim's dependency on the perpetrator has been abused in achieving the consent".
I hope that the minister will give a commitment to keep the workings of section 8H under proper and timely review and to come back to the Justice 1 Committee and the Parliament so that we may consider how the approach that the amendments propose works in practice and whether further adjustments are necessary.
I take the opportunity to support amendment 61, in Pauline McNeill's name. It is essential that the Executive is consistent in treating marriage and civil partnerships on a par in legislation. I welcome the fact that that is being done in other bills that are before Parliament and I support amendment 61 on that equal opportunity basis.
I understand the intention behind amendment 65, in the name of Kenny MacAskill, but do not support it. It sets out to introduce an exemption for those in a civil partnership, but unfortunately not on a par with that for those in a marriage. It also seeks to introduce an exemption for people who are living together, but since 16 and 17-year-olds who are in relationships often do not live together, the amendment is not helpful. Further, it uses the unfortunately clumsy description of a same-sex relationship that has
"the characteristics of the relationship between husband and wife"
rather than the characteristics of the relationship of civil partnership, so I do not support amendment 65.
I look forward to hearing members' speeches, in particular the minister's speech, and to what I hope will be a much wider-ranging discussion in the near future.
I move amendment 54.
I will speak to amendments 55, 58, 61 and 64 in my name and other amendments in the group. As Marlyn Glen indicated, my amendments are about the reference to civil partnerships in the bill. We have the Civil Partnership Act 2004, so if we are going to include exemptions for relationships, we should also refer to civil partnerships. I oppose amendment 65, in the name of Kenny MacAskill, because attempts to refer to other types of relationship that are not defined in law are convoluted and difficult. It is appropriate that we adopt terms that are already used in our legislation.
As indicated, and with your permission, Presiding Officer, I will say something on behalf of the Justice 1 Committee about the process, because it is worthy of putting on the record. The Justice 1 Committee was advised in December that the Executive intended to lodge amendments at stage 2, which we understood to be the result of United Nations protocols and a Council framework decision to combat the sexual exploitation of children and child pornography. It is important to note that those place obligations on the Parliament.
We wrote to the Minister for Parliamentary Business a few days before the beginning of stage 2 to say that we had still not seen the amendments. At that time, we thought that they were fairly uncontroversial and straightforward. For the most part they were, with the exception of the amendment that Marlyn Glen has referred to.
I realise that we have European Union obligations, and that the timescale is not entirely within our hands, but lessons can be learned. It cuts across everything that we stand for if there is no proper scrutiny or consultation on such subjects. The Justice 1 Committee feels that, as there was no consultation on the amendments that were made at stage 2, and there is no policy memorandum, there is nothing to enable us to say that we know that the right decision has been made because we have consulted on it. That option is not open to us, although it normally would be. The Executive is conscious of that point, and I know that it sympathises with our position, but we need to examine the situation for future reference. We must examine whether other options are available so that it is possible to fulfil our obligations and have the proper scrutiny and standard of consultation that we expect.
The impact of not being able to consult is this: while on balance the Justice 1 Committee agreed with the Executive on putting a list of exceptions in the bill, including one to exempt 16-year-olds in relationships in particular circumstances, there was also a case for not including it. On balance, my view is that if we get a review from the Executive, I am happy to support the provisions, but there is a case for saying that if we feel that we must protect vulnerable 16 and 17-year-olds if indecent images are taken of them, we must ensure that the exceptions that we have are right. We must be wary of exempting people who are in a relationship when the vast majority of people in that age group will not be in a relationship.
As a committee, we have not tested the amendments that were made at stage 2 as members would expect us to have done. That is not necessarily the fault of the Executive, but Parliament should be aware of the situation. I hope that the Executive will accede to Marlyn Glen's request to examine the exceptions at some point in the future, to ensure that those that we pass into law are the right ones and that we have them for the right reasons.
Without question, the sections that were added at stage 2 are the part of the bill that most taxed the Justice 1 Committee, the minister and his officials, to the extent that the minister, unusually and helpfully—at least, it appeared to be helpful at the time—came back after stage 2 with an options paper that had six options. We spent a considerable time having an open-minded discussion about the paper, the aim of which was to help resolve both his and our dilemmas.
I support Pauline McNeill's comment on behalf of the committee that it would have been helpful to have had more information earlier and more time to consult more widely on the issue. I say that without necessarily having the expectation that more information and time would have led us ineluctably to a single clear solution and determination—the issue ain't easy. However, the point is that in the bill, we have accepted in principle that 16 and 17-year-olds require a degree of protection in sexual matters. For the first time, we will create an offence of being the procurer or user of prostitution, for cases in which a 16 or 17-year-old is involved. We do that because we recognise that 16 and 17-year-olds still have maturing to do and deserve our protection. I am delighted with that change, and in the long term I seek the extension of the measure so that the offence in relation to prostitution that involves people of any age will be committed by the person who buys, not the person who provides. However, that is for another time.
Given that we have established the principle that 16 and 17-year-olds need a degree of protection in sexual matters, the question is what degree of protection we should afford them. In relation to the taking of indecent photographs, it is not unreasonable that a couple should be able to indulge in that activity—we would not necessarily wish to encourage it, but we would not want to prohibit it. However, the issue is what happens to the material that is created and what risk there is that it will move outside the relationship and be available to and exploited by others. The issue of where the balance lies is a judgment call for each member.
There is no easy answer, although a number of options are on the table. If the Executive supports Marlyn Glen's amendments, we are minded to go with that. We have lodged a set of amendments that were suggested by the Law Society of Scotland with the aim of clarifying the matter. I accept and acknowledge the merit in Marlyn Glen's comments about the wording of our amendments. We will wait and see what the Executive says, because we—and, I suspect, ministers—remain somewhat uncertain on the issue. The important point is that, post hoc, we do not close our minds to considering the effects of the measures. We should be prepared to say that we got the matter wrong, given that it will be all of us who got it wrong, not one individual or one political party.
I begin by dealing with the issue of process that Pauline McNeill raised on behalf of the Justice 1 Committee. I have apologised to Pauline McNeill for the difficult situation in which we placed the committee in trying to scrutinise and come to a conclusion on the issue. I am happy to put that apology on record again. I accept that, because of our delay in producing amendments, the committee was unable to give them adequate scrutiny or to carry out full and proper consultation, which has caused complications and difficulties. We would not want to act like that as a matter of course; indeed, for a range of bills we have striven to ensure that that has not happened. However, as Stewart Stevenson said, some of the complexities and difficulties in trying to work out what was best caused us to pause or delay, and that had a knock-on effect on the committee. I regret that that caused some problems.
At stage 2, we introduced amendments that extended the current offences in relation to indecent images of children. As a result of those amendments, offences concerning taking, possessing and distributing indecent images would apply to images of young people aged under 18 rather than just to images of people aged under 16. As Stewart Stevenson said, we considered a range of options, which we attempted to discuss. I am not sure that, in attempting to be helpful to committee members, we did not further complicate the problem and introduce further uncertainties. As Stewart Stevenson recognised, it is difficult to know exactly what is right in this matter and to strike a balance; nevertheless, we have to make a decision. Despite some of the earlier uncertainty, we are certain that the balance that we are striking is the correct one. I will return to that.
I want to clarify a point that Stewart Stevenson raised. He said that, if Marlyn Glen was minded to press her amendments and if we were minded to accept them, he would be content to support them. We believe that Marlyn Glen's amendments are at the other end of the spectrum from Kenny MacAskill's amendments; therefore, it would be illogical to see the two sets of amendments as doing the same thing. Indeed, Marlyn Glen said that she could not support Kenny MacAskill's amendments for that reason. Therefore, there is a certain illogicality in Stewart Stevenson's position.
We recognise that 16 and 17-year-olds are above the age of sexual consent and that they can quite lawfully engage in sexual activity and have certain rights in relation to what they can do in their private lives. Nevertheless, as members have said, it is right to remember that those young people are still at an age at which they are vulnerable and deserve our protection. As Stewart Stevenson said, we have recognised that vulnerability in other aspects of the bill; therefore, there is no inconsistency in that respect. The question for Parliament is how we can balance the rights of 16 and 17-year-olds with the protection that they need and deserve.
Does the minister accept that part of the problem with section 8H is in establishing the definition of an established relationship and that the Law Society amendments that have been lodged in Kenny MacAskill's name provide the best definition of the type of relationship that we think the exemption should cover?
No. I think that those amendments introduce a degree of restriction that we have attempted to avoid. We have sought to reflect the fact that marriage is a recognised relationship and so is worthy of exemption. I will talk later about civil partnerships, and we will recognise Pauline McNeill's amendments, which help to clarify the status of such partnerships. However, it is for the courts to examine all the circumstances and to decide not just what constitutes a relationship but what constitutes—in the wording that the Executive amendment uses—an established relationship. It is possible to be in a relationship that is only a day or two days old. That would be a relationship, but that might not be sufficient to justify the kind of exemption that we are talking about. That is why we want to talk about established relationships that have a degree of permanence.
Kenny MacAskill's amendments go a step further and say that the exemption from the offence will apply only if the couple are husband and wife, civil partners or
"living with each other in a relationship which has the characteristics of the relationship between husband and wife except that the persons are of the same sex".
As Marlyn Glen said, the phrase "living with each other" does not reflect the reality of the lives of many 16 and 17-year-olds who are in relationships but neither married nor living together. They might have a relationship of a year or two's standing but still live with their parents, or they might live in separate towns. Kenny MacAskill's amendments 56, 59, 62 and 65 would introduce a degree of restriction on the exempted relationships that does not adequately reflect reality for 16 and 17-year-olds. We must strike a balance, as Stewart Stevenson said, and the Executive has struck a balance that is appropriate in the circumstances.
The exceptions are cases in which the young person is 16 or over and has consented to be in the picture, the picture is for the private use of the accused and is not being shown to anyone else and the accused and the young person in the picture are married or are partners in a relationship. In those circumstances, the accused will be exempt from criminal liability. The introduction of the exceptions resulted in discussion, and the committee was rightly concerned about the difficulty of defining relationships and the need to tighten up what is meant by being "partners in a relationship". That is why we have lodged amendments that seek to give a degree of clarity by referring to an established relationship.
We considered whether we had achieved the correct balance between rights and protection and considered a range of possibilities similar to those that we are examining today. It is our duty to give 16 and 17-year-olds as much protection as we can without overly impinging on their rights to a private life.
Minister, I am beginning to be a bit concerned about the timetable. I would appreciate it if you were able to bring debate on the group to a close early.
I will pursue the matter quickly.
Unlike Marlyn Glen, I do not accept that it is enough simply for the young person to consent to the taking or possession of the indecent photograph and, as I have said, Kenny MacAskill's amendments 56, 59, 62 and 65 are much more restrictive. Having given the matter further thought, we have come to the view that a requirement for an established relationship will give us the correct balance, and I believe that the exceptions are realistic. Amendments 17 to 20, in the name of Cathy Jamieson, make that proposal. The reference to partners in an established relationship will, of course, include same-sex relationships, regardless of whether they have been formalised into a civil partnership. However, it is important that we recognise such relationships formally, so I am happy to support Pauline McNeill's amendments 55, 58, 61 and 64.
I press the minister on whether he has listened to the request to review and monitor what happens with the provisions.
That is the next point that I was going to make. It is my intention to review the use of the offences over the next couple of years to ensure that we have got the exceptions right. That would apply to any bill that the Parliament passes—we always want to ensure that legislation is right and works appropriately; however, in this case, I put on record my assurance that we will report to the Parliament our findings if there are any unanticipated complications.
I hope that that reassures members. The Executive's intention, like that of other members of the Parliament, is to get the bill right. I hope that Marlyn Glen and Kenny MacAskill will be content not to press their amendments.
I will allow a brief speech from Patrick Harvie.
I am grateful for the time and aware that there is not much of it. I speak in favour of Marlyn Glen's amendments and urge her to press them. I speak not as a member of the committee that has dealt with the bill, but as one with a background in supporting young people in their sexual health and sexual rights.
There is a great danger that the bill, which is intended to address abuse and exploitation, will end up legislating against something of which people merely disapprove. Stewart Stevenson is right to say that 16 and 17-year-olds are entitled to a degree of protection on sex and sexuality. We have a responsibility to offer such protection when abuse and exploitation are the target, but the effect of section 8H will be to catch consensual, non-abusive behaviour of which some people might simply disapprove.
As Marlyn Glen said, young people are less likely to be in relationships. They are much less likely to be in established relationships, as the Executive's amendments have it, but they are over the age of consent. We are talking about 16 and 17-year-olds, who are entitled to have sex lives without interference. They are entitled to make mistakes and to do things of which we disapprove. That is what consent is all about. The minister recognises that they are over the age of consent and are entitled to lead their own sex lives, so why should the state decide to intervene merely because they have made a choice to use their mobile phones to take a few snaps of each other in a perfectly innocent and non-exploitative way?
I am also uncomfortable with the emphasis on marriage and civil partnerships in the provisions, because it seems to imply that for people to have sex lives outside those forms of relationship is to be frowned upon. It is not our business to frown upon that. Consent is consent. We run the risk of legislating because of disapproval rather than legislating against abuse or exploitation. Again, I urge Marlyn Glen to consider pressing her amendments.
One of the difficulties with this part of the debate is that the committee did not have time to examine whether section 8H cuts across the rights that young people have. I am aware of the difficulty that members—not only members of the committee—have in making decisions on the amendments in group 9. However, I listened carefully to the minister's response and I accept his assurances. I will seek the Parliament's approval to withdraw amendment 54. I hope that we will return to have a more wide-ranging debate at a later date.
Amendment 54, by agreement, withdrawn.
Amendment 55 moved—[Pauline McNeill]—and agreed to.
Amendment 56 not moved.
Amendment 17 moved—[Hugh Henry].
The question is, that amendment 17 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Finnie, Ross (West of Scotland) (LD)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Against
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Abstentions
Leckie, Carolyn (Central Scotland) (SSP)
The result of the division is: For 98, Against 6, Abstentions 1.
Amendment 17 agreed to.
Amendment 57 not moved.
Amendment 58 moved—[Pauline McNeill]—and agreed to.
Amendment 59 not moved.
Amendment 18 moved—[Hugh Henry]—and agreed to.
Amendment 60 not moved.
Amendment 61 moved—[Pauline McNeill]—and agreed to.
Amendment 62 not moved.
Amendment 19 moved—[Hugh Henry]—and agreed to.
Amendment 63 not moved.
Amendment 64 moved—[Pauline McNeill]—and agreed to.
Amendment 65 not moved.
Amendment 20 moved—[Hugh Henry]—and agreed to.
Group 10 is on consent in relation to indecent photographs of 16 and 17-year-olds. There is very little time, so I ask members to make the very briefest of speeches. Amendment 66, in the name of Kenny MacAskill, is in a group on its own.
Amendment 66 seeks to make it clear that the child can give consent on the usual legal basis.
I move amendment 66.
I understand the argument but I believe that amendment 66 is unnecessary. It is essential that those who consent as a result of misunderstanding, pressure or threats are not taken to have consented as a matter of law. It is also true that the bill as currently drafted does not contain a definition of consent. However, because a specific definition is not provided, the reference to consent in the current provisions relies on the existing meaning of consent under Scots law. The Scottish courts have made it clear that consent must be freely given by a person who is capable of understanding the implications of doing so. Case law has established that it should not be the direct result of violence or of the accused having taken advantage of an age difference between himself and the victim or of his position of responsibility for that victim. I am therefore confident that the standard Scots law meaning of consent will be sufficient to ensure that young people are protected, and I do not believe amendment 66 is necessary.
The question is, that amendment 66 be agreed to. Are we agreed?
No.
There will be a division.
While the clock is ticking, I advise members that we have gone past the time that is allowed, so I exercise my discretion under rule 9.8.4A(a) to extend the time for the consideration of amendments. That will impact on the time that is available for the stage 3 debate. I might need to take one or two members out of that debate or impose very tight speaking times. We have one more group of amendments to consider and we need to allocate some time for that.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Lochhead, Richard (North East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Neil, Alex (Central Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
White, Ms Sandra (Glasgow) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fox, Colin (Lothians) (SSP)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Leckie, Carolyn (Central Scotland) (SSP)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 44, Against 63, Abstentions 0.
Amendment 66 disagreed to.
Section 10—Interpretation
Amendment 21 moved—[Hugh Henry]—and agreed to.
Schedule 1
Offences for the purposes of section 1
Amendment 22 moved—[Hugh Henry]—and agreed to.
Schedule 2
Minor and consequential amendments
Group 11 is on circumstances in which the offender is subject to 2003 act notification requirements. Amendment 23, in the name of the minister, is grouped with amendments 24 to 35.
The amendments seek to make changes to the way in which sexual services, indecent images and grooming offences are listed in schedule 3 of the 2003 act. Listing in that schedule means that part 2 of the 2003 act applies to the offence. That has several implications, including the imposition of the notification requirements of the sex offenders register. A number of offences are already listed in schedule 3 without qualification, which means that conviction for those offences will result in the automatic imposition of the notification requirements.
We added new offences to schedule 3 at stage 2, although we did so with some qualifications. We specified that the notification requirements would be imposed automatically only in cases where the victim was under 16 and the offender was either 18 or over or had been sentenced to a minimum of 12 months' imprisonment. In order to ensure that no one who should be on the sex offenders register escapes it, we also added a catch-all provision to each offence, so that the court could impose the notification requirements in other cases if it considered it appropriate to do so.
Our catch-all provisions did not, however, allow the court to have discretion in all cases. Because of the way in which those provisions were drafted, the court could have discretion only in cases where the victim was under 16. In effect, if the victim was 16 or over, the court would have no powers to impose a notification requirement on the offender under any circumstances. That was not how we had intended those catch-all provisions to work. The amendments in the group change the way in which the offences are listed in schedule 3, so that the catch-all provisions will apply in all cases regardless of the age of the victim.
There is another technical difficulty with the amendments that were agreed to at stage 2. As they are currently drafted, the catch-all provisions refer specifically to the notification requirements of the 2003 act. That might cast doubt on whether all the other provisions in part 2 of that act would apply, despite the fact that they would apply to the other offences that are listed in schedule 3 to the bill. We want to be clear, for example, that the court can impose a sexual offences prevention order on an offender who had been convicted of taking indecent photographs of a child, but who was only 17.
I move amendment 23.
Amendment 23 agreed to.
Amendments 24 to 35 moved—[Hugh Henry]—and agreed to.