Sexual Offences (Scotland) Bill: Stage 3
The next item of business is stage 3 proceedings on the Sexual Offences (Scotland) Bill. Members should have with them the bill as amended at stage 2—that is, Scottish Parliament bill 11A; the marshalled list—that is, SP bill 11A-ML; and the groupings, which I, as Presiding Officer, have agreed. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate, and 30 seconds for all other divisions. I remind members that, if they wish to speak to any grouping, they should press their request-to-speak buttons when the group is announced.
Section 10—Circumstances in which conduct takes place without free agreement
We start with group 1. Amendment 1, in the name of Margaret Curran, is the only amendment in the group.
Amendment 1 is an important amendment that seeks to close a significant loophole in the bill. I express my thanks to Central Scotland Rape Crisis and Sexual Abuse Centre, Scottish Women's Aid and the Equality and Human Rights Commission for their guidance and support towards the lodging of amendment 1.
It is important to remember the context in which I lodged amendment 1. Scotland's conviction rate for rape of 3.7 per cent, which is a welcome improvement, is nonetheless still appalling and still the lowest across Europe; no doubt that will be said often during the debate. We must focus on that point and ensure that, for that reason, we tighten everything that we can in the bill.
Section 10(2) sets out a list of circumstances in which free agreement is considered to be absent. It is welcome that the bill addresses circumstances in which the complainer is incapable of consent to conduct through the effect of alcohol or any other substance. However, amendment 1 is necessary because it addresses the issue of prior consent. Just as it is not permissible to argue that consent was given when the victim was incapable of doing that, my amendment prohibits a defence that consent was given earlier. If, at the time of sexual activity, consent is not forthcoming, the activity is non-consensual. Amendment 1 ensures that there are no get-out clauses; the argument can no longer be made that consent was given earlier.
As members reflect on my amendment in reaching a decision on it, I ask them to consider the evidence from Rape Crisis Scotland. As we heard, some men go to bars and clubs to target, deliberately, women who are very drunk. We must close any loophole that such men can exploit. Furthermore, as Rape Crisis Scotland argued, the notion that someone can give advance consent to sex at 6 pm and that that consent should still apply at 1 o'clock in the morning when they are incapable of giving meaningful consent is absurd.
I welcome the support that has been expressed for amendment 1. I make it clear that in no way does it change the burden of proof; indeed, even with the provision, the burden of proof that the Crown must discharge is very high. As the Scottish Parliament information centre briefing indicates, amendment 1 is a significant amendment. I am sure that it will gain support across the chamber.
I move amendment 1.
I know where Margaret Curran is coming from and I sympathise with what she is trying to do, but I want to be sure that she has got right this notoriously difficult area. She is rightly concerned about the principle of sexual autonomy and the problem of men who target drunk women for sex—indeed, all situations in which people take advantage of those who are inebriated. My fear is that, if we are not careful, her amendment may water down the overriding principle of sexual autonomy.
My understanding of the proposed definition is that it applies not only to rape but to sexual assaults of all types—it goes beyond the rape issue. I refer not only to sexual intercourse, but to sexual touching or physical contact of a sexual kind. An indictable crime would be committed when someone is incapable of consenting at the time of the activity because of the effect of alcohol or other substances. The effect of amendment 1 will be that free agreement to sexual activity is absent. It seems to do away with the overriding necessity for the Crown to establish that no consent was given to sex. If amendment 1 is agreed to, it will be a serious crime, always and in every circumstance, to have sex or sexual contact with a person who is drunk. That may be right; it is a possible alternative to what exists at present.
My question for Margaret Curran is this: am I right in believing that, when a husband and wife go out for the evening to celebrate their wedding anniversary and overdo the wine to the extent that one of them is drunk and incapable, the other commits the serious crime of rape if sex takes place? Could even an intimate cuddle in bed amount to sexual assault because the drunk partner is legally incapable of giving consent? I am serious in making the point; it is an important one.
The proposal goes beyond the recommendation of the Scottish Law Commission. I accept that there is a possible qualification, given that section 10(1) states:
"free agreement to conduct is absent in the circumstances"
that are described, but it says, too, that that is
"without prejudice to the generality of"
section 9, which is where the definition of free consent is given. I am not entirely clear about the effect of all that, but it may be to retain the need for the Crown to prove the absence of free agreement.
I have three questions for Margaret Curran and, more particularly, for the Cabinet Secretary for Justice. First, is it the intention that sexual intercourse, including sexual contact and touching, when one party is drunk and incapable, will be a criminal offence in all circumstances whatever? That seems to be the effect of amendment 1. Secondly, will juries find it easier to convict on the basis of incapacity than on the basis of lack of consent? No definition of incapacity is given. Thirdly, is the overriding principle of free agreement still contained in the bill? What is the effect of the qualification in section 10(1) that all this is
"without prejudice to the generality of"
section 9? In short, does amendment 1 close the loophole that Margaret Curran thinks she has identified? If so, does it do that in a way that will not create more complexity and confusion in this difficult area?
Like others, Liberal Democrats are concerned that people who commit rape and other serious sexual crimes should be convicted. If we are reassured on these matters, we are prepared to support amendment 1. However, we have some doubts over the effect of amendment 1, as set out by Margaret Curran.
Clearly, the vast majority of the amendments that we will consider are non-controversial. Margaret Curran's amendment 1 is important. We, on this side of the chamber, are very pleased that the Scottish Government will accept it.
As Robert Brown said, Margaret Curran's amendment deals with the vexed issue of prior consent. I welcome whole-heartedly the fact that the cabinet secretary listened to the concerns that were raised not only by Margaret Curran in lodging the amendment, but by Rape Crisis Scotland and other organisations. They support the intention to, as the cabinet secretary himself put it,
"provide greater protection from unwanted sexual activity to those lacking the capacity to consent."
That is an important principle, which amendment 1 guarantees. It will be for Margaret Curran and the cabinet secretary to answer Robert Brown's questions directly, but we think that the amendment strikes the right balance.
I am not convinced that amendment 1 will have the effect on the bill that Robert Brown says it will have. It will still be available to prosecutors to make the most sensible decision. I think that we are reaching a consensus that the amendment is the right way forward. The issue is difficult, and I am pleased that the cabinet secretary sees the amendment as the best balance to strike. In the past few weeks, I have not exactly been fulsome in my praise for the cabinet secretary, but his approach to the bill has been constructive and his approach to the amendment has been the right one. Labour supports amendment 1 enthusiastically, and the amendment is also supported by Rape Crisis Scotland and the other organisations that have taken a great interest in the detail of the bill and its effect. I hope that it will receive support throughout Parliament today.
At this stage, the Conservatives have some reservations about amendment 1. However, perhaps for the first time in her life, Margaret Curran has the opportunity to persuade me. We will listen carefully to what she says when she winds up on the amendment.
Part 2 of the bill deals with consent and the circumstances in which conduct takes place without free agreement. The list of circumstances is not exhaustive; nor, for the purposes of simplicity, should it be, as that could result in loopholes being discovered in the act—we are all anxious to avoid that.
A great deal of time and effort has been expended on the bill in general and on this part in particular; I know that Margaret Curran accepts that. All members wish to ensure that the maximum protection is available, but if there is a loophole that requires to be plugged, it has not been effectively identified by the Scots Law Commission, the Scottish Government or the Justice Committee. The matter was certainly not canvassed at stage 2. If the law is to be successful—and we all hope that the bill, when passed into law, will be successful—we must ensure that it is workable and not unnecessarily complicated. The Conservatives wish to ensure that that is the case.
As Margaret Curran suggests, there are some people—usually men, I have to concede—who behave in a highly predatory manner and who home in on women who are drunk or who are incapable because of drugs. The bill is clear that were such a person to home in on a particular woman, to take that woman to their home or even to premises outside, and to have sexual intercourse with her, that would be rape. The law, as outlined in the bill, is especially clear on that. What I suggest—and I seek reassurance from Margaret Curran on this point—is that, basically, the law would not revert back to the issue whereby the woman was incapable of giving consent. Therefore, what is the problem? The Crown can seek a conviction. The wording of the bill is clear that if the woman is incapable of consent because of drink or drugs, it is a case of rape or sexual assault, as defined in part 1.
At the same time, we must look in other directions and anticipate the difficulties. There are some difficulties that we will not overcome, for example juries; I will turn to that issue in the wider debate. We must be careful. The defence of reasonable belief, which is dealt with in part 2, would cover the danger of any injustices.
My initial view was that the law as defined in the bill is adequate. It is no great issue, perhaps, but I seek reassurance from Margaret Curran that our agreement to amendment 1 will not have the unintended consequence of making something a little bit more complicated than it needs to be.
Mr Aitken suggests that section 12, which relates to reasonable belief, would be an overriding defence that would exist notwithstanding amendment 1. However, I am not sure that that is right. This is not about knowledge, or about consent in the normal sense of the word; this is about the key issue being the incapacity of a person at the time. There is at least a question mark over whether section 12 would apply.
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That is an arguable point that, as well as the degree of incapacity of the person, will have to be determined by the court. I acknowledge the point, but I am reasonably relaxed about it. I look to Margaret Curran for wider reassurance.
Like Margaret Curran, I acknowledge that certain men target, very deliberately and in a predatory way, individuals who are drunk and incapable. If the scope of amendment 1 is only in relation to sexual assault and rape, I agree that it is proportionate. However, like Robert Brown, I would like to ask a couple of questions that I hope Margaret Curran and the Cabinet Secretary for Justice will be able to address.
I am new to the bill, but it seems to me that the definition of circumstances in which free agreement is absent, which will be changed by amendment 1, relates to the whole of part 1 of the bill. That will include not only rape and sexual assault but sexual communication and other less serious issues. Am I correct in saying that amendment 1 will change the definition of consent in relation to sexual communication or the operation of recording equipment? Such things might be entirely appropriate and none of the law's business in the context of an established relationship but might subsequently be the subject of a complaint if the relationship broke down. I am simply concerned about the scope of amendment 1 and about what its full impact will be if we agree to it.
We are grateful to Margaret Curran for making her valuable points and for lodging amendment 1. We support the amendment. We acknowledge that this is a complicated area of law, and Mr Brown, Mr Harvie and Mr Aitken have acknowledged that too. However, we believe that the amendment is proportionate and balanced.
The central principle of the bill is that people should have the autonomy to give their consent but also to withdraw it. A person might be incapable because of alcohol or another substance, or because they are asleep, and the law should make it clear that the person cannot give consent while in that state. That is how the law operates at present, and it is our clear intention that there should be no lessening of the protection afforded to people who are incapable of giving consent.
Rape Crisis Scotland and others have expressed concern that the bill fails to protect the sexual autonomy of people who are incapable of consenting to sexual activity because of the effects of alcohol or any other substance. The Government agrees that the law should protect the vulnerable. Amendment 1 will amend section 10(2)(a) so that there can be no consent to sexual activity if the conduct occurs when the complainer is incapable of consent because of the effects of alcohol or any other substance. The Government agrees with that.
Furthermore, we consider that amendment 1 will bring greater clarity to the law. It will send a simple message: that sexual activity with a person who is so intoxicated that they are not capable of giving consent is criminal.
We are not suggesting that anyone who has consumed alcohol, or even anyone who is quite drunk, cannot consent to sexual activity. The provision that we are discussing is concerned only with protecting people who are so intoxicated as to have lost the capacity to choose whether to engage in sexual activity.
Am I correct in thinking that amendment 1 changes the definition of consent in relation to the sending of sexual communications, including text messages and phone calls? Will it become a criminal offence to send such messages, under section 6 in part 1, if the recipient is drunk?
That is a separate matter, and not the one that Margaret Curran has correctly raised. The convener of the Justice Committee rightly suggested that there was a lacuna. The issue was raised by Rape Crisis Scotland and it has been pursued by Margaret Curran. This is about protecting intoxicated people from what might happen to them in their vulnerability.
Text messaging and other matters are dealt with in the bill because we realise that sexual offences come in a variety of forms other than rape and sexual activities. However, what we are dealing with here relates specifically to consent to sexual activity. I cannot foresee any circumstances in which sending a text message to somebody who was comatose, for whatever reason, would be relevant to that. The amendment tidies up one specific matter. Mr Harvie raises issues of concern that are dealt with elsewhere in the bill but not in the amendment, which deals with other specific matters.
The purpose of the amendment is to protect those who are unable to consent. It is not to interfere with people's opportunity to do whatever they choose when they have had too much to drink. Nevertheless, there are some people—as Mr Harvie has said—who target people and seek to use alcohol or other substances to get people into a state in which they cannot consent. Therefore, we fully agree with Margaret Curran.
Does the cabinet secretary agree that there is already a safety net in the bill and that the fact that a woman was incapable of making a decision is picked up earlier in the bill, so there is no requirement for the amendment?
We are having belt and braces, to be frank. Yes, there are other aspects of the bill that provide other protections, but the amendment deals with the specific matter of somebody being so incapable that they cannot consent. There are other protections in the bill relating to a myriad of matters from text messaging to the abuse of children, but we believe that Margaret Curran has made an important point and we are happy to support the amendment.
I call Margaret Curran to wind up the debate on amendment 1.
I do not know whether it will be an achievement or a disaster if I persuade Bill Aitken to agree to the amendment, but I will give it a go anyway. I thank members for their comments on the amendment.
I should have said during my opening remarks that I pay tribute to the Justice Committee, the Government and all who have been involved with the bill. The process has been very thorough, and it is a tribute to that process that, at stage 3, we can still listen to people who have considerable expertise in the subject. I genuinely respect the thorough work that has been done by Bill Aitken and my colleagues on the committee. I also appreciate the work of the Government on the issue. I know from experience the thorough work that is done by bill teams to ensure that we do not agree to amendments that have unintended consequences such as those that Robert Brown and Bill Aitken were, quite properly, concerned about.
I think that the amendment is more narrowly drawn than Robert Brown has suggested. It deals with the very significant principle of consent to sexual activity. Even within marriage, people cannot assume that any kind of sexual activity is a given. That is the principle that I am trying to protect. The principle behind the amendment is that, if someone is so incapable that they cannot give their consent, it cannot be argued that prior consent applies. That is the core argument on which I ask members to focus their minds.
I take it that members have had the opportunity to look at the SPICe briefing, which I interpret as supporting my amendment. It sets out that my amendment is trying to make explicit what we intend the legislation to do. Judging by what I have heard from all members in the debate, none of us wants a get-out clause that would allow prior consent to be used as an excuse even by a very small minority of exploitative people. The amendment makes that explicit and ensures that there is no doubt about that.
I agree with what the minister said in response to Patrick Harvie's questions. I cannot understand the circumstances in which text messaging would be used to cut across the amendment. I hope that I can offer reassurance on that.
Will Margaret Curran respond to the practical question of what the Crown will have to prove if the amendment is agreed to? Will it still have to prove the absence of free agreement, or will the need for it to do that be taken away entirely by the amendment?
As I understand it, the Crown will still have to prove that free consent is not there. What my amendment does is disallow a defence of prior consent. I hope that that clarifies the matter.
Amendment 1 agreed to.
Section 20—Belief that child had attained the age of 13 years
Amendment 2, in the name of the minister, is grouped with amendments 10, 21 to 47 and 69 to 71.
The amendments in the group deal with restrictions on the defence of mistaken belief as to age, which can be a defence to offences against children. Amendment 2 provides that section 20, which states that it shall not be a defence to an offence against a young child that the accused believed the child to have attained the age of 13 years, shall apply to the new offences against young children that were introduced at stage 2.
Amendment 10 is a technical amendment that is intended to ensure consistency in the wording of the provision in section 29. Amendments 21 to 47 amend schedule 1Z to add other sexual offences to the list of relevant sexual offences. If an accused person has previously been charged by the police with such an offence, that will preclude an accused from claiming the defence of reasonable mistaken belief as to age, when they are charged with an offence against an older child. The amendments have been lodged to take account of the commencement of the Sexual Offences (Northern Ireland) Order 2008 and to ensure that the schedule covers all sexual offences against children in Scotland, England and Wales and Northern Ireland, both current and historical.
Amendments 69 to 71 make consequential amendment to section 9 of the Criminal Law (Consolidation) (Scotland) Act 1995, which makes it an offence to permit a girl to use premises for intercourse. Section 9 of the 1995 act provides that an accused can make use of a defence of reasonable mistaken belief as to age, and sets out the restrictions on making use of that defence. The amendments provide that the defence under section 9 of the 1995 act cannot be used if an accused person has previously been charged by the police with a relevant sexual offence, or is subject to a risk of sexual harm order. That was done to make the defence in section 9 of the 1995 act subject to the same restrictions that are placed on the equivalent defence in section 29 of the bill.
I move amendment 2.
It is important to stress that a great deal of time was spent on consideration of this matter in respect of the way in which offences could be carried out against young people.
The amendments in this group simply highlight changes that the Government thought about making. In particular, I underline the point that the defence of mistaken belief is one that has to be fairly tight—one can make a mistake in these matters once; it is stretching credibility somewhat to say that the mistake can be made more frequently than that.
Amendment 2 agreed to.
Section 21—Having intercourse with an older child
Amendment 3, in the name of the minister, is grouped with amendments 4 to 9, 11 and 12.
These amendments are technical amendments to the provisions at section 30 and 30A concerning circumstances in which it is not possible to establish beyond doubt whether a child had or had not attained a particular age at the time when an offence was committed. Those amendments extend those deeming-of-age provisions to the new offences that were introduced at stage 2. The amendments also make minor changes to the drafting of the provisions for clarity and brevity, but they do not have a substantive effect on how the provisions will operate.
I move amendment 3.
Amendment 3 agreed to.
Section 21A—Engaging in penetrative sexual activity with or towards an older child
Amendment 4 moved—[Kenny MacAskill]—and agreed to.
Section 22—Engaging in sexual activity with or towards an older child
Amendment 5 moved—[Kenny MacAskill]—and agreed to.
Section 23—Causing an older child to participate in a sexual activity
Amendment 6 moved—[Kenny MacAskill]—and agreed to.
Section 24—Causing an older child to be present during a sexual activity
Amendment 7 moved—[Kenny MacAskill]—and agreed to.
Section 25—Causing an older child to look at a sexual image
Amendment 8 moved—[Kenny MacAskill]—and agreed to.
Section 26—Communicating indecently with an older child etc
Amendment 9 moved—[Kenny MacAskill]—and agreed to.
Section 29—Defences in relation to offences against older children
Amendment 10 moved—[Kenny MacAskill]—and agreed to.
Section 30—Special provision as regards failure to establish whether child has or has not attained certain ages
Amendments 11 and 12 moved—[Kenny MacAskill]—and agreed to.
After section 30A
Group 4 is on a requirement to undertake an information and publicity campaign for children. Amendment 120, in the name of Robert Brown, is the only amendment in the group.
Amendment 120 echoes an amendment that I lodged at stage 2 and withdrew on the condition that I would have discussions with the minister before stage 3.
Members will recall that the second half of part 4 of the bill is on sexual activity by or with older children—that is, those aged between 13 and 16. Members of all parties and many knowledgeable organisations and individuals who gave evidence on the bill were concerned, as we all are, about the high and increasing levels of underage sexual activity and pregnancy, the risk to sexual health that that involves, and the need for sound relationships that support stable and supportive families in the future. It is thought that one young person in three is sexually active before the age of 16, and there is a strong link between teenage pregnancy and levels of deprivation and vulnerability.
The background to the amendment is the fact that, when the Government prepared the bill, it did not consult young people to find out their views and attitudes on the matters that it covers, despite the obvious necessity for policy to be closely informed by what young people tend to think, how they react, and what circumstances have led to the issues being more problematic in Scotland than they are in most other European countries. Those criticisms were echoed by Scotland's Commissioner for Children and Young People and a number of children's organisations.
The Government responded to those criticisms, to a degree, at stage 2. The purpose of amendment 120 is to push the cabinet secretary a little further than he went before. The Government has undertaken to implement an age-appropriate information and publicity campaign about the bill, and the cabinet secretary said that the campaign will link in with plans to increase drop-in services for young people throughout Scotland. That is all well and good, although it would be helpful to hear more detail about that.
I am less satisfied with the further commitment that the cabinet secretary made at stage 2, which sounded more promising at the time than it reads on the record. He said that the Government would consult young people on the best way in which to communicate with them. That misses the point. The aim of the Justice Committee and, I hope, of the Parliament is to make a difference—to equip young people to make responsible choices about sex, to influence and if possible delay the age at which sexual activity begins, and to ensure that there is good access to services, perhaps with an emphasis on the needs of more vulnerable families. Everyone agrees that sexual relations under 16 are not a good thing and that they raise all sorts of difficult issues. The process must be informed by knowledge of young people's attitudes to the bill and the motivation and drivers that influence them.
Does the member agree that any such campaign should identify the distinctive experiences of boys and girls, and young women and young men? There is some evidence that young women are inappropriately pressured into being involved in sexual activity. Does the member agree that any such campaign must have at its heart an understanding of proper respect between boys and girls?
I recognise that entirely. I thank Johann Lamont for making that point, which emphasises the main point that I am trying to make, which is that it is important to know what drives young men and women towards particular actions and situations.
The Terrence Higgins Trust expressed to me its fear that the change that the bill brings about in the liability to criminal prosecution of girls under 16 might send out mixed messages to young girls and discourage them from accessing services. That view was also expressed to the committee in evidence from witnesses.
Any information and communication campaign on such matters must be informed by the views of young people. We should consult them not just on the slightly condescending aspect of how to communicate with them but on the substantive matter of what they think about the issues. That is essential if the campaign is to be focused, targeted and successful. I will be happy to seek to withdraw the amendment if the cabinet secretary can assure me on that specific point.
I move amendment 120.
We support Robert Brown's proposal. The requirement to undertake an information and publicity campaign for children on their attitudes to part 4 of the bill was raised in the Justice Committee and in its report, not least by my colleague Cathie Craigie. I accept that the cabinet secretary has made a commitment to undertake such a campaign and to provide age-appropriate materials, but amendment 120 is still beneficial. If it leads to further reassurances on the point and more detail on the Scottish Government's plans for a campaign, that will be welcome.
The issue is particularly important because there was such a focus on it during the committee's deliberations and in the stage 1 debate, as Robert Brown pointed out in some detail, and members throughout the chamber have stressed that young people need education and support on the issues. Notwithstanding the questions that the cabinet secretary raised in his letter to Margaret Curran, about the detail of implementation of the amendment, it is pretty clear how its intention would be achieved.
I do not doubt that such a campaign will be forthcoming, but I am sure that the chamber will be further reassured by details of what it will cover and when it will take place. At this stage, though, we are minded to support amendment 120, which addresses a particular concern for the committee.
Before I call Bill Aitken, I propose to exercise my power under rule 9.8.4A(a) and (c) to extend the time limit for debating groups 1 to 5 to allow this group to be debated and to allow members to speak to the amendments in group 5.
As Robert Brown stated, he quite properly canvassed this issue at stage 2, although he did not press his amendment at the time.
Mr Brown makes an arguable case. It is clear that the wider we consult on and publicise this matter, the better, given, as he has pointed out, Scotland's significant problem of underage pregnancies and sexually transmitted disease. Unfortunately, when one looks at the practicalities of the matter, it is difficult to see how any kind of balanced consultation and information exchange could be carried out. We also have to bear in mind the cost factor.
Although the case for amendment 120 is arguable, I do not think that at the end of the day it would be workable, and we are not inclined to support it.
The Parliament will be aware of the Justice Committee's concerns about the consultation process for this bill, particularly the lack of consultation with young people. How the Government has gone about this surely cannot be in line with best practice or meet the requirements of the United Nations Convention on the Rights of the Child, to which the Scottish Government claims to be committed. When, during the bill's committee stages, I asked the cabinet secretary to consult young people and perhaps to extend the time between stages 2 and 3 to allow such a consultation to take place, he declined.
Amendment 120, which I am minded to support, is the second-best option, given that the consultation has not been carried out before we pass the bill. However, it is important that we consult young people in an age-appropriate way. After all, we will never know what encourages some young people to engage in underage sex and others to delay sexual activity unless we ask them about it.
I have no objection to consulting young people; indeed, I think that the whole chamber agrees with such a move. However, does the member not recall that, at stage 2, Robert Brown decided to withdraw his amendment and reconsider the matter for stage 3 when the cabinet secretary made a commitment to consult young people? I think that that is the appropriate way of dealing with this issue. Surely putting a provision in the bill without any financial commitment or even context does not set a helpful precedent.
I realise that amendment 120 is not the best way of proceeding with this matter, but we are in this situation because the Government failed to consult young people. I remind Mr Maxwell that, although the Scottish Government is committed to the UN Convention on the Rights of the Child, it did not meet that commitment. I am therefore concerned that its commitment to consult young people will also not be met. Amendment 120 might ensure that the Government carries out this consultation, gets to the bottom of young people's needs and tackles the very difficult situations that arise not only for young people but for their families as a result of underage sex.
I fully appreciate Robert Brown's comments and will do my best to reassure him that the issue that has been raised is a matter of concern and that how we address and discuss it with our young people is important.
However, Stewart Maxwell has made an appropriate point. It is difficult to deal with the matter in the bill, when we are dealing with specific matters relating to sexual offences, or even for me to be able to provide a reassurance in the heat of a debate. However, I can give a general view on the Government's general direction of travel, which is that we will ensure that we deal with the matter.
Amendment 120 seeks to impose two obligations on the Government that it would require to discharge before part 4 of the bill is commenced. The first obligation would be to consult under-18s on their attitudes to part 4 of the bill; the second would be to
"undertake an information and publicity campaign about this Part."
Both obligations must be carried out before part 4 of the bill is commenced. The motive behind the amendment is to be applauded, but there are considerable flaws in both those aspects, which is why we urge members to vote against the amendment.
The minister makes valid points, but can he give me any reassurance that young people's attitudes will be considered as part of the information campaign that he will undertake? We need to understand such things; that is the motivation behind the amendment. If the minister can give me a degree of satisfaction that young people's attitudes will be considered in his consultation, that will be satisfactory.
Absolutely. I hope that Robert Brown will take what I am going to say in the spirit in which it is meant. A requirement to consult children on their attitudes to part 4 of the bill after it has passed into law seems to be of very limited value. We agree that it would be helpful to consult children and young people to help us to decide how best we should progress the bill, but their attitudes to part 4 should not be the focus. It would be much more productive to engage with children and young people on how best we can communicate with them about the issues that the bill deals with—certainly in part 4, but not exclusively in that part. The bill deals with other issues that will be relevant to children and young people, particularly its provisions on consent and positions of trust.
Before the minister proceeds to the next issue, can he assure me that the Government has done what it can do to engage the makers of videos, the literature that young people read and so on? Those things carry the culture that the Government is seeking to change with a piece of legislation.
We are doing what we can. The Government has made it clear that we believe that the bill, as amended by Margaret Curran, Bill Aitken and perhaps by others, is appropriate and that we should have an appropriate legislative base. However, we would delude ourselves if we thought that the problem in Scotland would be entirely solved by the legislative base. We must change the culture and attitudes that are prevalent among far too many people, albeit that those people represent a minority of our population. It is a journey.
I again raise the point that I raised with Robert Brown. Will the cabinet secretary confirm that any such campaign will recognise the distinctive experiences of boys and girls and that some attitudes of young men towards young girls must be addressed? If girls are to be kept safe, some boys' attitudes that have perhaps been prevalent in the past must be challenged.
Absolutely. There is a requirement on the Government under the European convention on human rights to make aspects of the law gender neutral. Equally, it is clear that young females face different problems. The pressure that has been mentioned is clearly one matter. The issue is how to implement things—through the police, the prosecution or the health service, for example. We need to raise awareness, change attitudes, do what we can to protect the vulnerable, and have the legislative basis to ensure that we can prosecute predators and those who act against the will of our Parliament and our laws.
As I explained when Mr Brown lodged his amendment at stage 2, our response to the committee's stage 1 report on the bill confirmed that
"The Government intends to undertake an information and publicity campaign following enactment of the Bill and that this will include age-appropriate material aimed at young people."
I am happy to confirm that that continues to be our intention. As I have said previously, as part of our planning for that campaign, we intend to consult children and young people on the most effective way in which to communicate with them on the important issues that the bill deals with and, indeed, on other matters that are, as Margo MacDonald suggested, equally important in terms of getting the message across.
I am happy to repeat our earlier commitment that the Government will undertake a publicity campaign before commencement of part 4 of the bill. I am also happy to reiterate our commitment that children and young people will be consulted on the best way for that campaign to communicate with children on part 4.
Finally, we consider that there are technical defects in the drafting of amendment 120. It does not make clear what kind of consultation with children and young people is required. It is also unclear whether ministers are required to consult every child under 18 in Scotland. If they are, can very young children be said to have formed attitudes about the content of part 4? If the intention is that consultation should be limited to certain age groups, the amendment does not set a lower age limit on children who should be consulted.
The requirement for "appropriate" consultation does not appear unreasonable, but it does not answer the question of what appropriate consultation is. In addition, amendment 120 does not set out what ministers should do following such a consultation. In effect, that means that the duty to consult is somewhat meaningless. As mentioned, a statutory requirement to consult children before the commencement of part 4 would not appear to serve any purpose, in light of the fact that the law, which reflects the will of the Parliament, will already have been passed.
I acknowledge the points that Robert Brown and other members have made. What matters is that we communicate to our young people and children, whether they are being pressured to engage in such activity or are doing it out of foolhardiness or whatever. We need to get that right. I give Robert Brown the undertaking that we will seek to ensure that the communication is age appropriate. That is perhaps not best dealt with by me. We have people who are better qualified to ensure that we have the appropriate vehicles and mechanisms. However, I give Robert Brown that reassurance.
I confess to being a bit disappointed with the cabinet secretary's response. I went out of my way to say that we must not simply consult young people but must have a bit of input from them. The process should be not only about us telling them but about them telling us and informing the communications that then take place. Unfortunately, I did not get a sense from the cabinet secretary that that is the intention. I accept that the detail of the campaign will be worked out by people who are more expert in the field than he is. I take that as a reasonable assurance on the matter. There is an element of good will.
I accept Stewart Maxwell's point—perhaps not for general application, but in the context of the bill—that including measures on an information and publicity campaign is not ultimately the appropriate approach. That campaign should take place before the commencement of the act. I take note of that point.
Against that background, I seek to withdraw my amendment, but I do so with reluctance, as I had hoped to get a little more out of the cabinet secretary. I hope that he will reflect on the debate and discuss with his advisers some of the points that have been made in it. I hope that he takes account of the views of the children's groups and others who know about the issues. They know how important it is that the Government does not simply communicate to young people, but hears their voice.
Amendment 120, by agreement, withdrawn.
Section 37—Penalties
Group 5 is on offences by non-natural persons. Amendment 13, in the name of the minister, is grouped with amendments 14 and 19.
Amendments 13, 14 and 19 deal with offences by non-natural persons, that is, companies. Although the nature of the offences in the bill are such that they cannot normally be committed by a non-natural person as the principal actor, a non-natural person could be found guilty of aiding and abetting or indeed conspiring to commit the offences that are contained in the bill. For example, as sexual offences against children are extra-territorial in extent, a company that is involved in the arrangement or facilitation of child sex tourism might be art and part guilty of offences in the bill. The amendments will ensure that we are fully compliant with our international obligations to establish the liability of persons, including non-natural persons, who are guilty of certain behaviour concerning the exploitation and abuse of children.
It is not possible to imprison or impose a community penalty on a non-natural person. Amendments 13 and 14 will ensure that it will be possible to impose a fine on a non-natural person, such as a corporate body or partnership, that is convicted of an offence for which a fine cannot be the sole penalty that is imposed on an individual. Amendment 19 provides that, if any offence in the bill is committed by a non-natural person with the consent or connivance of—or because of neglect on the part of—any director, manager, secretary, partner in a partnership, trustee of a trust, member of an unincorporated association or other similar non-natural person, including any person who purports to act in that capacity, that individual, as well as the non-natural person, commits the offence and may be liable to be prosecuted and punished accordingly.
I move amendment 13.
Amendment 13 agreed to.
We come to group 6, which is on penalties. Amendment 121, in the name of Robert Brown, is grouped with amendments 122, 124 and 125.
These amendments are intended to deal with a loophole that was inadvertently created at stage 2 and identified in the SPICe briefing on the matter. At stage 2, the Justice Committee rightly took the view that the penalty on conviction of a rape or serious sexual assault could not conceivably include the option of a fine by itself. Accordingly, the option of a fine was removed for rape, sexual assault with an implement and sexual assault, following conviction on indictment. A fine still remains possible for a more minor summary conviction in the sheriff court for sexual assault, that is entirely right, because sexual assault covers a wide range of situations from extremely serious and harrowing attacks to more trivial matters.
Will Robert Brown confirm what he means by "trivial matters" in relation to sexual assault?
I will deal with that in a second.
Another situation might occasionally occur. Someone who is indicted before a jury on a serious sexual assault charge, or charges, which if proved, would justify a prison sentence might be acquitted of the serious aspects of the charge, or the serious charges, and convicted only of a relatively minor matter. In that event, a fine might indeed be an appropriate disposal. If we fail to give the court that option, the judge or sheriff might in practice be left in the invidious position of either imposing a prison sentence, which is clearly inappropriate for the offence, or admonishing the individual.
I will provide an example to answer Paul Martin's question. Suppose that a 21-year-old man is indicted before a jury for a significant sexual assault on an 18-year-old girl at a party. In the event that the evidence does not stand up fully and he is convicted only of kissing the girl against her will to her considerable upset, a fine might be manifestly the proper penalty. I am sure that no one in the chamber—I hope not even Paul Martin—believes that that should lead to a prison sentence. Equally, however, I do not think that anyone in the chamber would think that such a person should get off scot-free.
Similar considerations could apply to a 17-year-old convicted in similar circumstances of an offence against a 15-year-old, which is why the same principle would be applied, by amendment 122, to the offence of sexual assault on a child.
Let me be absolutely clear that I am not suggesting—I am not imposing this on anybody—that a fine should be the outcome for one of the situations that I have described. I am saying that there should be a judicial option of a fine in a situation in which a fine would have been available if the individual had been charged summarily in the first place. It should be exactly the same when a person is convicted of a more minor offence. Such situations will not occur often, but they will occur and the court has to have the appropriate tools to deal with them if justice is to be done.
I reiterate that, if the option of a fine was not put back into the bill, the judge could possibly have only the option of a prison sentence or an admonition and absolute discharge. I am sure that that was not the intention of the member who moved the stage 2 amendment.
During stage 2, I said that I thought that the Government had got it right by lodging amendments to ensure that a fine may not be imposed as the sole penalty when an accused is convicted of rape, sexual assault or sexual assault by penetration or rape of a young child. I do not say this often, but the Government got it right on that occasion, and we were satisfied with its approach during stage 2.
Robert Brown's attempt to reverse that, which the Government supports, is wrong. In effect, those who have been charged on indictment with sexually assaulting a child could get a fine, which is beyond belief.
Paul Martin asked me for an example and I gave him the example of a 17-year-old girl being forcibly kissed by a man at a party. In that case, the conviction would be for sexual assault of a child. Does he believe that there ought to be a mandatory prison sentence as a consequence of such a conviction?
I think that that is a serious offence. It is sexual assault and it demeans the girl. Robert Brown provides a minor example of something that can be a serious sexual assault, for which the possibility of a sentence and a fine is required. I do not think that Robert Brown has provided a very clear example. We believe that we should proceed on the basis of the amendments that were agreed to at stage 2.
I must again exercise my power under rule 9.8.4A (a) and (c) of standing orders to extend the next time limit, to allow this group to be debated and to allow members who are entitled to speak on the next group to do so.
After the bill is passed at 5 o'clock, as I am certain it will be, the Crown's attitude will be more and more to prosecute offences under the new act. Much of the relevant common law will no longer apply. Under existing common law, the full gamut of court disposals is available for such offences, including a fine. The fact is that—sadly—we got it wrong at stage 2. I confess that I should perhaps have been clearer about the unintended consequence, which is precisely as described by Robert Brown.
Will the member take an intervention?
Unfortunately, I do not have time to take an intervention.
In the vast majority of cases that are indicted for such offences, a lengthy prison sentence will be the only appropriate disposal. However, when the judge or the jury shreds the indictment so that only a minuscule part of it is left, the ability to impose a monetary penalty will be important. The amendments will allow that disposal to be available, which is appropriate.
I prevented Mr Baker from speaking, so he can have one second for an intervention, to which Mr Aitken can respond.
The key point for us is that, whatever the intention behind the amendments, they would have the effect that conviction for a sexual assault or a sexual assault on a child that was prosecuted on indictment could result in the imposition of a fine. We feel strongly that that would be unsatisfactory.
The answer is straightforward. When an indictment is served, it could concern a serious matter for which only imprisonment would be appropriate. The issue is what would happen when only a minor part of the indictment was left. At that stage, a fine would be appropriate.
I thank Robert Brown for explaining his purpose in lodging amendments 121, 122, 124 and 125, and the Justice Committee's convener for his lucid explanation. I am sure that every member agrees with the committee's stage 1 report that a fine is not an appropriate sole penalty for a person who is convicted of a serious sexual offence. That is why we lodged stage 2 amendments to ensure that a fine cannot be imposed as a sole penalty when a person who is tried on indictment is convicted of rape, rape of a young child, sexual assault by penetration, sexual assault on a young child by penetration, sexual assault or sexual assault on a young child.
However, as Mr Brown and the committee's convener explained, a person who is tried on indictment for a serious sexual assault might be cleared of most allegations and convicted only of a relatively minor sexual assault that would not normally be tried on indictment. In those circumstances, it would be inappropriate to provide that the court could impose only a sentence of imprisonment or, indeed, an admonition. The full range of sentencing options should be available to the court in dealing with people who are convicted of sexual assault or sexual assault on a young child.
I make it clear that the bill will give the High Court the power to jail for life anyone whom a jury convicts of rape or sexual assault. We would expect any conviction for a serious sexual assault to result in a tough sentence and not just in a fine. It is simply the case that no substantive evidence suggests that that will not happen.
I will raise a technical point. If Robert Brown's amendments were agreed to, would it be possible for a sexual assault on a child to result in only a fine?
The position is clear. For the avoidance of doubt, I will run through again the list that I gave earlier—it relates to convictions of persons tried on indictment for rape, rape of a young child, sexual assault by penetration, sexual assault on a young child by penetration, sexual assault and sexual assault on a young child.
We seek to address the situation, which Mr Brown dealt with lucidly. The intention is to make sentencing options available to the court, as under the current common law. The bill will consolidate and improve the law on sexual offences and will deal with the matter that Margaret Curran raised. We do not want the law of unintended consequences, which was raised in relation to Margaret Curran's amendment 1.
If the amendments in the group were not agreed to, we would allow the unintended consequence of not making the option of a fine available, as elucidated by Mr Aitken and Mr Brown. Jail will be available and should be the option in most instances for those who are tried on indictment. However, when the offence is reduced and when the wisdom of hindsight shows that it should have been dealt with in summary proceedings, the court should be in the position that currently applies.
In winding up the debate, Robert Brown should state whether he will press or withdraw amendment 121.
Let me say immediately that amendment 121 deals not with an issue that I have invented at the back of my mind but with a loophole that was identified—and rightly so—by parliamentary researchers. Across the parties in the chamber—apart from, amazingly, the Labour Party—there is broad acceptance that the amendment is necessary. Let me also say that the amendment would make no change to the position that was agreed to at stage 2 regarding rape or sexual assault with an implement. For such offences, the option of a fine alone will continue not to be available.
I thought that I had given a clear example, which even the smallest mind could understand, of the sort of offence that should not result in a prison sentence. I gave that example to illustrate why it is important that the option of a fine should be available to our judges. Amendment 121 would not require judges to impose such a sentence. In the limited circumstances in which the conviction before the High Court or the sheriff court with a jury—
Does Robert Brown agree that, in the circumstances that pertain today, the common law under which such offences are indicted provides for the facility of a fine? Does he agree, therefore, that the amendment would in effect result in no change?
I agree absolutely, although I point out that it will not now be possible to impose a fine alone for rape or sexual assault with an implement.
All members accept that sexual assault can range from extremely serious offences, for which long prison sentences are manifestly appropriate, to relatively much more trivial and insubstantial offences, which are nevertheless criminal and so must be marked by a penalty, for which a fine should be one option that is available to the court. I am not sure whether Paul Martin understands that the options that will be available to the court—
Let me finish the point, if I may.
If amendment 121 is not agreed to, the options available to the court will be limited to prison, probation, community penalties, or admonition and absolute discharge. The court will be able to admonish an accused. Amendment 121 will add to those options the much more relevant option of imposing a fine.
As I said before, few people would consider a custodial sentence appropriate for minor offences such as a boy kissing a girl against her will at a party. Under the bill as it stands, the only option would be to send such an offender to prison or to let him off scot-free. There will be cases in which those found guilty of such minor sexual assaults deserve more than a slap on the wrist, but prison might not be the right punishment. People who commit minor sexual assaults can develop into those who commit more serious sex crimes later in life, so it must be clear to offenders that sex crime will be punished. That should act as a deterrent. That is why we are pushing for fines to be available as a separate penalty.
Robert Brown raises a genuine challenge in highlighting the issue of the forcible kiss that he referred to, but we should also look at the other end of the spectrum. If amendment 121 is agreed to, it will be technically possible for the sexual assault of a child to result in a fine. Surely we should deal with that loophole, which would clearly exist.
It is also technically possible for someone who is charged on indictment with a serious assault—sexual or otherwise—to end up with an admonition. That is the point that is being made.
It is very important that our judges are provided with the appropriate penalties and are not unduly restricted in the sentencing options for those who are found guilty of sexual assault. Amendment 121 will deal with a loophole that needs to be closed.
I have some difficulty in understanding where the Labour Party is coming from on the issue. I know that Labour members have been briefing the press all through the night about the issue, on which they seem to be very exercised for some reason. The reality is that amendment 121 is a reasonable, technical, sensible amendment that will put a conviction on indictment in those limited circumstances in the same position as a conviction on summary charge for the offence of sexual assault or sexual assault on a child. Having been given some good examples, I think that members can now make up their own minds about the matter.
I insist on amendment 121.
The question is, that amendment 121 be agreed to. Are we agreed?
No.
There will be a division. As this is the first division, there will be a five-minute suspension.
Meeting suspended.
On resuming—
We move to the division on amendment 121.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Allan, Alasdair (Western Isles) (SNP)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Keith (Ochil) (SNP)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Campbell, Aileen (South of Scotland) (SNP)
Carlaw, Jackson (West of Scotland) (Con)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Finnie, Ross (West of Scotland) (LD)
FitzPatrick, Joe (Dundee West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Central Scotland) (SNP)
Hume, Jim (South of Scotland) (LD)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Kidd, Bill (Glasgow) (SNP)
Lamont, John (Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
MacDonald, Margo (Lothians) (Ind)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McLetchie, David (Edinburgh Pentlands) (Con)
McMillan, Stuart (West of Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
O'Donnell, Hugh (Central Scotland) (LD)
Paterson, Gil (West of Scotland) (SNP)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robison, Shona (Dundee East) (SNP)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Russell, Michael (South of Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Tolson, Jim (Dunfermline West) (LD)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Foulkes, George (Lothians) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
The result of the division is: For 77, Against 45, Abstentions 0.
Amendment 121 agreed to.
I invite a motion without notice to extend the time limit for the next debate by 15 minutes, to allow proceedings on amendments to be concluded and to allow discussion on this important bill.
Motion moved,
That, under Rule 9.8.5A, the debate on Groups 6 to 9 be extended by 15 minutes.—[Bruce Crawford.]
Motion agreed to.
Amendment 122 moved—[Robert Brown].
The question is, that amendment 122 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Allan, Alasdair (Western Isles) (SNP)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Keith (Ochil) (SNP)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Campbell, Aileen (South of Scotland) (SNP)
Carlaw, Jackson (West of Scotland) (Con)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Finnie, Ross (West of Scotland) (LD)
FitzPatrick, Joe (Dundee West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Central Scotland) (SNP)
Hume, Jim (South of Scotland) (LD)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Kidd, Bill (Glasgow) (SNP)
Lamont, John (Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
MacDonald, Margo (Lothians) (Ind)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McInnes, Alison (North East Scotland) (LD)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McLetchie, David (Edinburgh Pentlands) (Con)
McMillan, Stuart (West of Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
O'Donnell, Hugh (Central Scotland) (LD)
Paterson, Gil (West of Scotland) (SNP)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robison, Shona (Dundee East) (SNP)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Russell, Michael (South of Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Somerville, Shirley-Anne (Lothians) (SNP)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Tolson, Jim (Dunfermline West) (LD)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Foulkes, George (Lothians) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
The result of the division is: For 77, Against 44, Abstentions 0.
Amendment 122 agreed to.
Amendment 14 moved—[Kenny MacAskill]—and agreed to.
Section 38—Power to convict for offence other than that charged
Group 7 is on alternative offences. Amendment 15, in the name of the minister, is grouped with amendments 16 to 18 and 48 to 68.
The amendments in this group are minor, technical amendments that are consequential to changes that were made to the bill at stage 2. Amendments 15 to 18 will amend the provisions in section 38, which provide a court with powers to convict an accused of an offence other than that charged, to take account of the new offences that were introduced at stage 2. Amendments 48 to 68 will amend schedule 2, which lists the alternative verdicts that are available in respect of the offences that are contained in the bill, again in consequence of the new offences that were introduced at stage 2.
I move amendment 15.
May I ask Mr Tom McCabe why he pressed his request-to-speak button? I cannot see him in the chamber.
I did not know that I had pressed it.
Mr Tom McCabe made a mistake and then sat with the Tories, which was very helpful of him. [Laughter.]
Amendment 15 agreed to.
Amendments 16 to 18 moved—[Kenny MacAskill]—and agreed to.
Before section 45
Amendment 19 moved—[Kenny MacAskill]—and agreed to.
Section 46—Orders
Group 8 is on ancillary provision and parliamentary procedure. Amendment 20, in the name of the minister, is the only amendment in the group.
Amendment 20 is intended to address concerns that the Subordinate Legislation Committee expressed in its stage 1 report. It provides that any order made under the ancillary order-making power at section 45, which contains supplemental, consequential or incidental provision, will attract affirmative procedure, and that an order that makes transitional, transitory or savings provision will be subject to negative procedure. That means that a higher level of scrutiny will be afforded in relation to ancillary provision that contains supplemental, consequential or incidental provision, because affirmative procedure will apply, whether or not such provision will modify primary legislation.
We proposed the change because we recognised that special circumstances apply to the subject matter of the bill, because it replaces the common law and deals with the sensitive area of sexual offences. Therefore, the higher level of scrutiny that affirmative procedure affords is appropriate in the circumstances.
Any ancillary order that makes transitional, transitory or saving provision will be subject to negative procedure irrespective of whether it modifies primary legislation. That is considered to be the appropriate level of scrutiny for provisions of that nature. The transitional provisions that are required for the bill—in particular, those that relate to criminal trials—are significant. As a consequence, we have included the necessary provisions in the bill, which means that they have already been subject to parliamentary scrutiny. The Subordinate Legislation Committee indicated at its meeting on 2 June that it is content with the approach that we have proposed.
I move amendment 20.
Amendment 20 agreed to.
Schedule 1Z
Relevant sexual offences
Amendments 21 to 47 moved—[Kenny MacAskill]—and agreed to.
Schedule 1
Penalties
Amendment 124 moved—[Robert Brown].
The question is, that amendment 124 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Allan, Alasdair (Western Isles) (SNP)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Keith (Ochil) (SNP)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Campbell, Aileen (South of Scotland) (SNP)
Carlaw, Jackson (West of Scotland) (Con)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Central Scotland) (SNP)
Hume, Jim (South of Scotland) (LD)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Kidd, Bill (Glasgow) (SNP)
Lamont, John (Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
MacDonald, Margo (Lothians) (Ind)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McLetchie, David (Edinburgh Pentlands) (Con)
McMillan, Stuart (West of Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
O'Donnell, Hugh (Central Scotland) (LD)
Paterson, Gil (West of Scotland) (SNP)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Somerville, Shirley-Anne (Lothians) (SNP)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Tolson, Jim (Dunfermline West) (LD)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Foulkes, George (Lothians) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
The result of the division is: For 77, Against 43, Abstentions 0.
Amendment 124 agreed to.
Amendment 125 moved—[Robert Brown].
The question is, that amendment 125 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Allan, Alasdair (Western Isles) (SNP)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Keith (Ochil) (SNP)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Campbell, Aileen (South of Scotland) (SNP)
Carlaw, Jackson (West of Scotland) (Con)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Finnie, Ross (West of Scotland) (LD)
FitzPatrick, Joe (Dundee West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Central Scotland) (SNP)
Hume, Jim (South of Scotland) (LD)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Kidd, Bill (Glasgow) (SNP)
Lamont, John (Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
MacDonald, Margo (Lothians) (Ind)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McLetchie, David (Edinburgh Pentlands) (Con)
McMillan, Stuart (West of Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
O'Donnell, Hugh (Central Scotland) (LD)
Paterson, Gil (West of Scotland) (SNP)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robison, Shona (Dundee East) (SNP)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Russell, Michael (South of Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Somerville, Shirley-Anne (Lothians) (SNP)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Tolson, Jim (Dunfermline West) (LD)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Foulkes, George (Lothians) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
The result of the division is: For 78, Against 45, Abstentions 0.
Amendment 125 agreed to.
Schedule 2
Alternative verdicts
Amendments 48 to 68 moved—[Kenny MacAskill]—and agreed to.
Schedule 4
Minor and consequential amendments
Amendments 69 to 71 moved—[Kenny MacAskill]—and agreed to.
Group 9 is consequential amendments on sexual assault by penetration, voyeurism, sexual exposure etc. Amendment 72 is grouped with amendments 76 to 82 and 84 to 98.
This group is a series of minor technical amendments, most of which are consequential on changes made to the bill at stage 2. Amendment 72 amends the consequential amendment to section 10 of the Criminal Law (Consolidation) (Scotland) Act 1995 to take account of the introduction of new offences at stage 2.
Amendment 76 ensures that paragraph 2(3) of schedule 4 is amended to ensure that the description of section 7(8)(b)(i) of the Criminal Procedure (Scotland) Act 1995 reflects the fact that district courts are to be replaced with justice of the peace courts.
Amendments 77 to 82, and 84 to 98 are consequential on the introduction of the new offence provisions at stage 2. They extend amendments to the 1995 act concerning the retention of DNA samples of violent and sex offenders; powers to impose extended sentences for sex and violent offenders; prohibition on personal conduct of defence in cases of certain sexual offences; and provisions concerning offences against children under 17 years of age to which special provisions apply as to when a person can be brought into custody without a warrant, so that they cover the new offences introduced at stage 2.
I move amendment 72.
Amendment 72 agreed to.
We come now to group 10, on the Criminal Law (Consolidation) (Scotland) Act 1995. Amendment 73, in the name of the minister, is grouped with amendments 74, 75, 123 and 116.
During stage 2, Robert Brown MSP lodged amendments that were intended to clarify that the remaining offence provisions in section 13 of the Criminal Law (Consolidation) (Scotland) Act 1995 are concerned solely with male prostitution. I am grateful to Mr Brown for raising that issue during stage 2. He pointed out that section 13(9) of the 1995 act contains an offence of soliciting or importuning to procure the commission of a homosexual act, but that it is not clear that the offence is restricted to male prostitution. I agree that the offence as drafted goes wider, but I am informed by the Crown Office and Procurator Fiscal Service that it is no longer to prosecute behaviour other than that of those who live off the earnings of male prostitution. However, the offences at section 46 of the Civic Government (Scotland) Act 1982 and section 1 of the Prostitution (Public Places) (Scotland) Act 2007 criminalise soliciting or loitering in any public place for the purpose of engaging in prostitution, by a male or female. As such, we consider that the element of section 13(9) to which I referred is not required to deal with male prostitution activity. Amendment 75 therefore repeals that element of the offence. That leaves the remaining offence at section 13, which is concerned solely with activity relating to male prostitution.
Amendment 74 amends the title of section 13 to "Living on earnings of another from male prostitution", as this is all that the remaining offence provision at section 13(9) is concerned with.
Amendments 73 and 116 repeal and replicate section 13(10) of the 1995 act to provide that, for the purpose of offences at sections 11(5) and 12 of the 1995 act, a premises shall be treated as a brothel if it is resorted to for homosexual acts in circumstances in which resort thereto for heterosexual practices would have led to its being treated as a brothel for the purposes of those sections. The amendments also include a definition of a homosexual act in new section 12A and consequently repeal section 13(4) of the 1995 act.
Amendment 123 amends schedule 5, to make further consequential repeals to section 13 of the 1995 act.
I move amendment 73.
Amendment 73 agreed to.
Amendments 74 to 82 moved—[Kenny MacAskill]—and agreed to.
We come to group 11, on notification of the defence of consent. Amendment 83, in the name of the minister, is grouped with amendment 118.
These amendments are consequential on the amendment made at stage 2 to retain the existing provisions requiring an accused to give advance notice to the Crown if he or she intends to claim in defence that the complainer consented to the conduct to which the charge relates. The Scottish Law Commission had provided for the repeal of those provisions, considering them redundant as the offences are now defined in terms of the absence of consent and, as such, that is an element of the crime that the Crown would always have to prove. However, the Crown Office and Rape Crisis Scotland are both of the view that the provisions are valuable in providing advance notice to the complainer of the accused's intent to claim that sexual activity did occur but that the complainer consented to the act, and that the bill's provisions do not change that fact. Amendments 83 and 118 delete the repeals that were consequential on the repeal of these provisions.
I move amendment 83.
Amendment 83 agreed to.
Amendments 84 to 98 moved—[Kenny MacAskill]—and agreed to.
Group 12 is on consequential amendments to the Protection of Children (Scotland) Act 2003 and the Protection of Vulnerable Groups (Scotland) Act 2007. Amendment 99, in the name of the minister, is grouped with amendments 115, 117 and 119.
Amendment 99 amends schedule 1 to the Protection of Children (Scotland) Act 2003. It adds the offences that are contained in the bill to the list of offences against children, conviction for which will lead to an offender being listed as unsuitable to work with children.
Amendments 115 and 119 reverse the amendments to the Protection of Vulnerable Groups (Scotland) Act 2007 on the offences that will lead to the offender being listed as unsuitable to work with children and protected adults. The provisions have not been commenced as yet and a wider consultation will be held later in the year. The question of the treatment of the offences that are contained in the bill will be considered as part of that wider consultation exercise.
Amendment 117 ensures that offences of sexual abuse of trust and non-consensual sexual acts with a person with a mental disorder, which the bill repeals, will continue to be considered as sexual offences for the purpose of section 210A of the Criminal Procedure (Scotland) Act 1995. The effect is to enable extended sentences to be imposed.
I move amendment 99.
I seek reassurance from the cabinet secretary on the list of offences for which conviction results in an automatic listing as unsuitable to work with children. Will not the absence of the provisions in the schedule allow unsuitable people to work with children in the period until the consultation on the list of offences is concluded? I seek further detail on that and the timescale for the consultation.
The measures will remain in place. Clearly, protection of our children is fundamental. The purpose of the consultation is to ensure that we get right the Protection of Vulnerable Groups (Scotland) Act 2007. The member has my assurance that measures will remain in place to ensure the protection of our children. We will consult as widely as we can. I am more than happy to discuss with him at some future juncture how to ensure that we get that right. Our current protection remains in place. We will ensure that we enhance protection in future.
Amendment 99 agreed to.
I am minded to take a motion without notice to extend the debate by up to 15 minutes.
Motion moved,
That, under Rule 9.8.5A, the debate on Groups 10 to 13 be extended by a further 15 minutes.—[Fergus Ewing.]
Motion agreed to.
If it is any comfort, we will probably not need it.
Group 13 is on sexual offender notification requirements. Amendment 100, in the name of the minister, is grouped with amendments 101 to 114.
Amendment 100 deals with shameless indecency and public indecency. It addresses an issue that has arisen as a consequence of the decision in the Webster v Dominick case in 2003 that certain conduct that had previously been prosecuted as "shameless indecency" should in future be prosecuted as "public indecency". The amendment provides that an offender will be subject to sex offender notification requirements when convicted of public indecency in the same circumstances as would have applied had he or she been convicted of shameless indecency prior to the Webster decision.
Amendments 101 to 113 ensure that, in circumstances where an offender would be subject to the sex offender notification requirements on imprisonment, the offender will also be subject to the notification requirements if he or she is detained in hospital due to having been found insane in bar of trial, or not guilty by reason of insanity.
Amendment 114 is a technical amendment that preserves the general power to make offenders subject to sex offender notification requirements where there is a significant sexual element to their offending and even where the offence is not otherwise specified in schedule 3.
I move amendment 100.
Amendment 100 agreed to.
Amendments 101 to 115 moved—[Kenny MacAskill]—and agreed to.
Schedule 5
Repeals
Amendments 123 and 116 to 119 moved—[Kenny MacAskill]—and agreed to.
That ends consideration of amendments.