Meeting of the Parliament

Meeting date: Thursday, June 22, 2023

Official Report 1203KB pdf

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Children (Care and Justice) (Scotland) Bill: Stage 1

The next item of business is a debate on motion S6M-09610, in the name of Natalie Don, on the Children (Care and Justice) (Scotland) Bill at stage 1.

15:03  

First, I thank the Education, Children and Young People Committee for its scrutiny of the bill, its detailed stage 1 report and its support for the general principles of the bill. Scotland and all the parties in Parliament committed to keeping the Promise by 2030, and the bill will implement various key aspects of the Promise and mark a significant step in that journey. Just last week, I spoke on the bill to more than 200 experts at the national youth justice conference in Stirling and there was warm support for its objectives and direction of travel.

Fundamentally, the bill provides that, when children come into contact with care and justice services or come into conflict with the law, that should happen in age-appropriate systems and settings. The bill also advances rights under the United Nations Convention on the Rights of the Child, and it brings consistency across various parts of care and justice legislation to the definition of a child as a person under 18. That approach builds on our getting it right for every child principles and on our youth justice vision to 2024.

Members will be aware, from the responses that have been given to calls for views and from expert evidence that has been given to committees, that there are inconsistencies in how Scotland treats particular 16 and 17-year-olds. Provided that it does not prevent children’s realisation of their rights or leave them vulnerable to harm, policy and legislation relating to children and young people may legitimately operate with different age thresholds.

That is encouraged under the UNCRC where this furthers children’s rights in line with evolving capacity. An example of this in Scotland is that children over 16 have the right to vote. However, where inconsistencies either have, or risk having, a harmful effect on children’s rights, we need to address that. In particular, we need to bring coherence—

Will the minister take an intervention?

Yes, I will.

Would the minister agree that consistency is infinitely preferable to confusion, and that, if there is confusion about what the age of a child is in relation to one aspect of law as opposed to another, that is not a good thing?

I would not agree that inconsistency always leads to confusion, no. I have been quite clear that when children’s rights can be furthered at that age, that is an appropriate thing to do, but where inconsistencies can have a harmful effect on children’s rights, we absolutely need to address that.

In particular, we need to bring coherence to how children experience the children’s hearings and criminal justice systems and how those two systems interplay. The bill makes provisions to improve the safeguards that are available to all children in the criminal justice system.

One of the challenges, particularly with regard to the UNCRC, is cross-border placements. Will the minister address that issue in her opening speech?

Absolutely. If the member does not mind, I will cover that later on in my opening remarks.

By raising the maximum age of referral to the reporter, the bill takes positive action under the UNCRC. All children should be able to access the hearings system in cases where they may need the care and protection of that system, including when they are in conflict with the law.

Importantly, the bill does not disturb the constitutional independence of the Lord Advocate. Procurators fiscal will retain the discretion to prosecute children and young people in court, where that is necessary in the public interest. Where justice and safety demand it, Scotland’s courts will still be able to deprive a child of their liberty. Yet, in line with the Promise, the bill makes it clear that detention should normally be in secure accommodation rather than in a young offenders institution—at least until that deprivation of liberty needs to end or they turn 18.

I know that members of the committee have visited secure centres across Scotland and HM Young Offenders Institution Polmont. Despite the strengths in that facility, I hope that we can all agree that YOIs are not primarily designed as environments for children. Secure care centres, however, are designed, established and staffed to levels that allow them to be trauma-informed and age-appropriate settings. They offer a high staff to child ratio of skilled professionals with the specific qualifications that are required to meet the complex care and support needs of those young people.

Secure care can, and already does, care for those children aged 16 to 17 who pose the greatest risk of serious harm. The supervision and support arrangements in secure centres are intensive. Members will have seen from their visits that, when a child is placed there, public protection and safety are critical elements and facilities are locked.

I know that stakeholders unanimously expressed support for ending the placement of children in YOIs but also that some concerns have been raised about capacity and resourcing for secure care. The Scottish Government is already active in that area. That is why the reimagining secure care project, which the Children and Young People’s Centre for Justice is undertaking on our behalf, is running in tandem with the bill. A national implementation group for the bill, which is looking at costs, workforce issues and system readiness, began its work in early June.

I know that stakeholders have expressed support for the bill but have also raised issues about resourcing more broadly.

Does the minister share my concern—a concern that is shared by the Finance and Public Administration Committee—over the bill’s financial implications and the ability to resource what is outlined in the bill?

I understand that many concerns have been raised—these concerns were raised in the committee. Again, that is something on which I intend to update members during the debate.

In terms of public expenditure, it is important to recognise the wider backdrop of the benefits that those change programmes are advancing. The negative costs—

Will the minister take an intervention?

I am sorry, but I cannot take another intervention at the moment—I have got a lot to get through.

The negative costs, both economic and social, to society of offending and crime—both at the time and into the future—are well documented. The Promise “follow the money” report estimated the cumulative private costs of physical and emotional harm to care-experienced children, lost output and public service costs to be £3.9 billion. Investing in services that take an early intervention approach can lead to more positive pathways for individuals and our communities.

We are coming from a strong baseline. Between 2008-09 and 2019-20, there was an 85 per cent reduction in the number of children and young people who were prosecuted in Scotland’s courts and a 93 per cent reduction in 16 and 17-year-olds being sentenced to custody. The Government is not complacent and recognises that there will always be a level of offending and a requirement for care and protection in any society, but the bill represents a solid step forward.

The Government has engaged widely to prepare cost forecasts. In addition to our full public consultation, extensive engagement has taken place with a host of partners and stakeholders. The cost forecasts that are in the financial memorandum are based on the feedback and figures that were provided in that engagement. I am aware that, as has been raised today, the stage 1 process has brought to light helpful additional detail and updated information. That is part and parcel of the legislative process, and we welcome it. The Government is alert to the need to ensure that forecasts are refreshed and are as up to date as possible.

That is why the multi-agency implementation group, which started meeting earlier this month, will be crucial to our preparations and to the bill’s later parliamentary stages. We will work with partners to explore in more depth individual and combined resource requirements and we will report any necessary updates or clarifications to the Parliament.

That work will feed into budget profiles for next year and the years beyond, as is the established process for financial planning for proposed legislation. We are mindful that parliamentary agreement is required, so we will keep projections refreshed as the bill is amended through scrutiny processes.

Secure care funding has been a key topic at stage 1. Earlier this year, we ran a last vacant bed funding pilot in each of the four independent secure care centres. I am happy to confirm that £4.6 million will be invested to extend that exercise to fund up to 16 secure beds, so that sufficient capacity will stand ready should the bill be passed. We are also looking closely at the appropriate mechanisms for funding remand costs, and we will update Parliament when we have concluded that work.

I turn briefly to cross-border placements. None of us wants children and young people to be removed from their communities and placed far away from home, family and friends. However, such arrangements need to be able to happen in some very exceptional circumstances. There must be rigour in how such placements are planned for and implemented, and it is vital that they are not detrimental to children’s rights. The bill will provide further powers to ensure that, for temporary placements, responsibility remains—rightly—with the placing authority, which knows the child and plans their care.

Minister, you need to conclude.

By helping to address the causes of a child’s offending behaviours, we can assist them to desist and to rehabilitate. In turn, we can prevent further harm and minimise the number of victims.

I hope that those opening remarks were helpful. I move,

That the Parliament agrees to the general principles of the Children (Care and Justice) (Scotland) Bill.

With apologies, I advise members that there is no time in hand, so interventions will have to be subsumed in speaking time allocations. That means that members cannot say, “In conclusion,” as they reach their four or six minutes.

15:13  

I am delighted to speak on behalf of the Education, Children and Young People Committee. I thank my colleagues for their diligent work on the bill so far, and all the people and organisations that provided evidence in person or in response to our call for views.

The committee thanks Gerry Michie, Mary Geaney, Jim Shields and their respective teams, who all generously gave their time and shared their insights when the committee visited HM YOI Polmont, Rossie Young People’s Trust and St Mary’s Kenmure. In particular, we are grateful to the young people whom we met on our visits to Rossie and St Mary’s Kenmure.

The committee is also grateful to the Criminal Justice Committee, the Delegated Powers and Law Reform Committee and the Finance and Public Administration Committee for their work to scrutinise the bill and for sharing their conclusions and recommendations timeously, so that we could reflect on them when considering our report.

As our report makes clear, there is broad support for raising to 18 the maximum age at which a young person can be referred to the children’s hearings system. That would end the current inequity that means that only some 16 and 17-year-olds can be referred to a children’s hearing, whether on offence grounds or, as is the case for the vast majority, solely on welfare grounds.

However, our report also makes it clear that the success of the legislation will depend on the ability to give young people the support and interventions that they require to address their underlying needs.

The bill will pose significant resourcing and training challenges for a number of key agencies, including Children’s Hearings Scotland, the Scottish Children’s Reporter Administration and local authorities, including social work teams. The committee heard that social work teams and others are already stretched and that they do not currently have the capacity to deliver the increase in support that the measures in the bill will require.

The committee was concerned about the lack of financial information relating to some parts of the bill and the lower estimates that have been used in respect of other parts, so it would welcome the minister’s committing to providing an update and expanded costings.

Will the member take an intervention on that point?

No—I will not yet, if the member does not mind, given the time restraints. I hope that I will cover the member’s point. Mr Whitfield might catch my eye later.

Given how vital support packages are for children and young people for successfully reducing reoffending and providing care for children with complex needs, the committee was firmly of the view that those updated and expanded costings must be provided ahead of the debate, to ensure that Parliament had the full information before being asked to vote on the bill.

Although we appreciate that the Scottish Government’s response to our report identified areas for possible inclusion in its supplementary financial memorandum, the committee is gravely concerned that the actual costs have not been placed before Parliament before it is asked to vote on the bill.

The timing of the debate was of the Scottish Government’s choosing. Given that the Scottish Government could not make the full financial information available ahead of today’s debate, it could have postponed it until a time when it did.

The committee’s visits to HM Young Offenders Institution Polmont and the secure accommodation services that are run by Rossie Young People’s Trust and St Mary’s Kenmure helped us to understand the different environments and the tools that staff have to support the young people in their care.

There was broad support, including from the governor of YOI Polmont, Mr Michie, for the measures that will ensure that 16 and 17-year-olds who are to be deprived of their liberty are no longer sent to prison or a young offenders institution, but rather to secure accommodation.

Many stakeholders highlighted that secure accommodation provides a more therapeutic environment than YOIs, by having staff who have more specialised training and higher staff-to-child ratios. The committee heard that such environments offer a far better opportunity for a child to receive care, be rehabilitated and importantly, following their time in secure care, reintegrate into their community.

However, the committee heard that 78 of 84 places in the secure accommodation estate are provided by charities that are dependent on occupancy rates of 90 per cent to remain viable. The Scottish Government ran a pilot scheme earlier this year to hold a bed in each of the independently run secure accommodation services, should a Scottish child need it. The committee noted that the Scottish Government was seeking to extend and increase that pilot scheme, to secure four places in each of the services, to provide capacity and, importantly, to make the centres more financially viable. I am pleased that the minister has confirmed today that the pilot scheme has been extended. I am sure that that will give a lot of support and reassurance to the secure care providers.

However, given the vital nature of their work, it is essential that secure accommodation services are financially sustainable. Although we recognise that a review of secure care, which is considering the funding of the sector, is under way, it is not due to report until spring 2024.

The committee asked the Scottish Government to urgently produce interim findings to set out how the measures in the bill are likely to affect the financial sustainability of the secure care sector, and we welcome the minister’s commitment to do that in August.

The Education, Children and Young People Committee supports the general principles of the bill. However, successful implementation will depend on services that have not been adequately costed. There must be full costings and a commitment to provide the resources that are required in order to ensure that the bill can achieve its aims.

15:19  

There is a lot to digest in the Children (Care and Justice) (Scotland) Bill, and I am sure that many members would have preferred to have a stand-alone debate this afternoon. I fully understand the challenges for members who have been allocated only four minutes, because they will be stuck for time to develop their arguments. That does not allow for good debate. However, I understand that it is process-related and is a matter for the Parliamentary Bureau. When it comes to important bills such as this one, members need the time to debate and challenge the thoughts of others in the chamber.

On the bill itself, I will start on a positive note. The Minister for Children, Young People and Keeping the Promise and I recently had a productive meeting in which we discussed issues relating to her brief, which I shadow. I hope that we can work together on the bill and across other issues. We both care about the wellbeing and safeguarding of children and young people. I also agree with the principle of the Children (Care and Justice) (Scotland) Bill—supporting young people, whether they are victims or perpetrators of minor crimes, to try to reduce reoffending, and ensuring that wraparound care is available.

Should the bill be approved by the Parliament, it would increase the age of definition of a child from 16 to 18 in the criminal justice system and will mean that most offences that are committed by under-18s will be dealt with by the children’s hearings system rather than by the court system.

However, the bill does not come without its problems. Some are historical but it is imperative that we MSPs do not allow bad law to pass through Parliament.

I welcome the opportunity to debate at what age a child becomes an adult. I have struggled with that when looking at devolved law, because the Scottish National Party has moved the goalposts, depending on portfolio area. For example, a person can get married at 16 and can buy alcohol or get a tattoo at 18, but is not viewed as an adult until 21 or 25 for justice-related issues.

Then there is the Gender Recognition Reform (Scotland) Bill. The SNP suggests that young people should be able to change their gender at 16, but the Children (Care and Justice) (Scotland) Bill changes the age of a child from 16 to 18. We need to have a serious conversation about age, but I understand that that discussion will need to be for another day.

My colleague Sue Webber, in her capacity as convener of the Education, Children and Young People Committee, highlighted the valid concerns of MSPs who sit on that committee. She raised the important issue of finance and resource. As it stands, the bill lacks detail on costings and outlines issues regarding key agencies. The Finance and Public Administration Committee also highlighted the lack of financial information in the financial memorandum. That already puts the bill at a disadvantage; it causes doubt about its deliverability and provides no reassurance that bodies such as local authorities and Children’s Hearings Scotland will be able to implement the changes that the proposed legislation will introduce.

I could not agree more with Sue Webber about the timings for the bill. With no full costings, debating the proposed legislation is like putting the cart before the horse.

Does Meghan Gallacher recognise that the full costings were worked out with key stakeholders and that we have committed to providing a supplementary financial memorandum, as is the usual process for legislation?

I take the minister’s point, but Sue Webber’s point was that linking the bill to that information would have been more appropriate so that we would debate the proposed legislation with better costings than we have. My concern is that agencies and key bodies that will be imperative to the bill’s implementation do not know whether they will be able to implement what it asks them to do.

I will now consider issues relating to the children’s hearings system.

At present, the system is stretched to breaking point. It is a volunteer system, but there are areas, including Aberdeen, that find it difficult to recruit volunteers and have to rely on people from other areas to fill the gap and deal with the backlog of cases. If the changes in the bill are approved, the children’s hearings system would need to recruit an additional 270 panel members. That would be a challenge, given the current recruitment issues.

However, former panel members have also raised serious concerns about the culture and behaviour within the children’s hearings system. It has been reported that panel members have had their reputations ruined because of the internal complaints system within CHS, and people have called for an investigation into behaviour within the organisation. I would be grateful if the minister could meet the group of former panel members to hear their concerns before stage 2, if she has not done so already, because the bill proposes extending the measures that may be included in a compulsory supervision order, which would give the children’s hearings system greater choice when deciding on which measures are suitable for a child’s individual needs.

The Education, Children and Young People Committee also raised concerns about section 3 of the bill, when considering victims and trauma. Section 3 could put the onus on victims to avoid people and locations that are harmful to them, so I agree with the committee that the Scottish Government must consider the wider needs of victims and how they can be met, especially when they are navigating the criminal justice system and the CHS.

I have not even touched on the bill’s intention to clarify the test that is to be applied when a children’s hearing or sheriff is considering secure accommodation or a compulsory supervision order, the introduction of an interim compulsory supervision order, cross-border placements, or care-experienced young people.

My last point—I understand that I need to close my remarks—is on the severity of crime and information that can or cannot be shared. There will be some nervousness among members about what is classed as a severe crime. Of course, there are the obvious examples of murder and rape, but we need to tread carefully with regard to where a young person is detained, especially in respect of crimes that are so severe.

I will conclude my remarks, Presiding Officer. There is merit in the Children (Care and Justice) (Scotland) Bill, but I feel as though there have been many missed opportunities. We will no doubt get to those at stage 2.

I call Pam Duncan-Glancy. You have up to five minutes, Ms Duncan-Glancy.

15:25  

Thank you, Presiding Officer—I will do my best.

Before I begin, I thank all those who gave evidence to the committee on the bill. I also thank the secure accommodation providers and the people who live in secure accommodation who allowed the committee members to visit and see at first hand the work that they do.

Scottish Labour welcomes and supports the general principles of the bill and will be voting in favour of it at decision time today. We stand firmly in support of its purpose, which is to improve the experiences of and outcomes for, and strengthen the rights of, children and young people who come into contact with the criminal justice system.

However, as was made clear throughout the committee’s scrutiny—and as we have heard already today—there are a number of issues with the bill and a number of areas that need greater clarity, not least in terms of the associated costs and the financial memorandum. Members will be aware that both the Education, Children and Young People Committee and the Finance and Public Administration Committee have raised concerns about that. Although I accept that legislation of this nature will of course be subject to some level of approximation when it comes to figures, it is clear that, in this case, even the rough estimates appear to be far off the mark in many areas of the bill, such as the cost of training panel members, the implications for social work services and the impact on legal services and legal aid, to name a few.

Local authorities, the Convention of Scottish Local Authorities and Social Work Scotland have all raised concerns that the Government has not given an accurate representation of the resources that are needed to implement properly, and get the full benefit from, the changes that the legislation proposes.

It has also become apparent—I know that the minister has accepted this—that the projected number of additional hearings that is used by the Government is lower than the numbers that are suggested by the Scottish Children’s Reporter Administration. Those numbers must be revised.

The same is true of the estimated costs arising from the extension of the use of movement restriction orders. The Government has accounted for only the costs of monitoring itself, and not for the costs for the additional support that must go along with that. Widening the availability of these orders as an alternative to secure care must go hand in hand with proper support measures, so that people can understand why they are restricted and are supported to adhere to that.

In addition, it appears that across many areas of the legislation, the Government has lost sight of the Kilbrandon principles: that the best interests of the child, wellbeing and support must be central to the system. That all needs proper resource, training and support, and I worry—as others do—that the finance associated with the bill is instead based on a minimum standard of delivery.

I welcome the minister’s acknowledgement that the financial memorandum needs updated and I appreciate her commitment to do that, but I make clear on the record today my firm disappointment that, despite the committee’s clear recommendation for that to happen prior to today’s debate, updated figures have not been provided.

It is important that members have a clear picture of the resources that are needed in order to do the legislation, and young people, justice. Almost every contribution to the committee’s call for evidence called for more resources to be provided for what is an already overstretched and strained system. In many respects, those changes will increase demand in areas where capacity is creaking.

The changes that the bill sets out could have the potential to improve lives, but if the support around it and the services that are needed to give that support do not have the resources to do that, it will not live up to its potential. In some cases, the situation could end up being even worse than it is now, and none of us wants that.

I am conscious that other members will expand, and already have expanded, on the financial challenges, so I will move on to cover some of the other areas.

The changes that are set out in section 1, which redefine a child in the system as anyone under 18, are welcome and align with the definitions that are set out in article 1 of the United Nations Convention on the Rights of the Child. I have made clear my frustration with the delays to incorporation of that convention on many occasions, and I remain disappointed that the Government has still not moved to bring the bill back to Parliament. However, in its absence, I welcome wider legislative changes that seek to better align devolved policy and practice with its principles.

I am, however, concerned that the way in which that change is set to operate in practice will continue to fall short of what is required. The Government has indicated that the effective cut-off age for referral will be set at 17 and a half to take account of the processing time in the system. It suggests that the imminence of an 18th birthday would make it impractical and impossible for the child to be dealt with appropriately by the children’s reporter, but that fails to take account of the UNCRC stipulation that the date of the incident should be the one that is important, not the date at which processing has been completed.

Will the member take an intervention?

I am afraid that I do not have time.

I understand the logic behind that decision but cannot support it. Should the Government be particularly concerned about complications that might come about from someone exceeding 18 by the point at which they are dealt with in the system, it should focus on reducing delays, not on abandoning the principle of equal access.

It is also important to make it clear that, should a children’s panel find a person guilty of an offence, that can remain on their record. Therefore, it is vital to ensure that any admission or finding of guilt comes in a fair and just manner. We on the Labour benches feel strongly that provisions should be made to ensure that legal representation is available in any conversation that could lead to a conviction.

To ensure that the bill is equipped to deliver on its aims and meet its potential, clarity on finance must be addressed, there must be sufficient funding to resource it, there should be enhanced victim support, which must be forthcoming, and the best interests of the child must be at the heart of it. That, I believe, is a principle that all of us in the chamber today support.

I re-emphasise the tightness of time. I will now have to keep everybody to exactly their time, if not less. Willie Rennie, you have up to four minutes.

15:31  

The committee visited Polmont. It was a prison and I do not think that children should be in prisons. I have been in court before and I do not think that children should be in court. That is fundamentally what we need to do with this bill, and that is why the Liberal Democrats will support the bill.

The Promise oversight board’s report today emphasises how we need to act with speed in order to deliver the Promise. Young people have great expectations about what this Parliament will do for them and we need to match those. We have heard much about the concerns over the costings, which I think speaks to a deeper anxiety in local authorities and delivery partners that they might be left to pick up the tab on that. That is why we are asking all these questions about whether the costings are real, so I hope that the minister takes that on board.

I understand the points about getting the most up-to-date figures. I get that, and I understand the desire to move at pace but, at the end of the process, we must end up with a system that is deliverable and can be funded. If we do not, the very children we have just talked about will be let down. I hope that the minister takes that on board and makes sure, at the next stage, that we have the fullest of costings, that they are realistic and that local authorities and others will have the money that they need in order to deliver the Promise.

The bill is full of principle, but on some occasions I think that the balance between principle and compromise tips towards compromise. Take the issue about 17 and a half-year-olds: I understand the practicalities of the processing time, but young people should not suffer because of the inadequacy of the system. They need to be given their rights, no matter what.

Perhaps the response to that has to be the youth justice reforms, which I hope will come more in line with what we are intending for young people. The Glasgow youth court proposals and pilots will perhaps speak to a bit of that. However, we need to reflect on the issue of 17-and-a-half-year-olds, because I do not think that it is necessarily fair or sticks to the principle.

Will the member take an intervention?

I have very little time, I am afraid.

The other issue is police custody. The report says that police cells are not a place for children but goes on to say that, if it is necessary to have children in police cells, this is how we should ensure that the practice is applied. If the cells are not suitable for children, we need to move at lightning speed to create facilities that are suitable for children, rather than putting them up in the cells.

The final issue is secure transport. I read the minister’s response to the committee on that and it is almost as if she is shrugging her shoulders because she does not know what the solution is. She is saying that legislation is not the answer. The Care Inspectorate says that it is not responsible for it. The issue needs to be resolved at speed.

We should not have vehicles travelling from Portsmouth to take children from one part of Scotland to the other—sometimes, the shortest distance is 50 miles, which is just insane. We need to have a system of secure transport that is based in Scotland and affordable, because money will be tight. I hope that the Government takes a lead on that issue instead of shrugging its shoulders.

A number of difficult issues exist with regard to victim notification, secure unit viability and the capacity of the children’s hearings system, and we need answers around all that. The debate is far too short—we need much longer, and I hope that we get more time in future debates.

On a point of order, Presiding Officer. I am sorry to disturb the chamber with this but, under rule 9.3.2 of standing orders, a bill that is introduced must be

“accompanied by a Financial Memorandum which sets out best estimates”.

We have heard from the convener of the Education, Children and Young People Committee that the figures that have been published in the financial memorandum are in fact the lowest estimates, and we also heard evidence that they are ranging estimates. Are you aware of any confirmation from the Government that the figures in the financial memorandum are the “best” estimates?

My understanding is that that would be a matter for the lead committee. In the first instance, it would be for the Finance and Public Administration Committee and then it would be a matter for the lead committee, the Education, Children and Young People Committee, to take account of. It will be the responsibility of the Government to speak to the financial memorandum that attaches to any bill.

For clarity, and given the evidence that has come from both committees, which have raised concerns about how wildly out the financial memorandum is for this bill, are you saying that the responsibility to ensure that a financial memorandum is the best estimate of the cost of the legislation is with the committee, with the Government or with the office of the Presiding Officer?

In the first instance, the preparation of a financial memorandum is a matter for the Government. It is then for the Finance and Public Administration Committee to satisfy itself as to the veracity or otherwise of the financial memorandum, a view that the lead committee—in this instance, the Education, Children and Young People Committee—will take account of.

On a point of order, Presiding Officer. This is so important. We are making law in such a compressed time—frankly, it almost verges on farcical. The lead committee for the bill reported that the financial memorandum is utterly unsuitable and unacceptable. In fact, it specifically said that it should be “updated” in advance of the debate. Whose judgment are we operating on here? If it is the committee’s judgment, I suggest that we should perhaps adjourn the debate, because we are in a situation where we are addressing ourselves to subject matter that is, frankly, unknown.

I thank Mr Kerr for his further point of order. As I have said, the Education, Children and Young People Committee has made clear its view on the matter. It is up to Parliament to take a view later this afternoon as to whether it is satisfied with the response that it has had. The issue has been aired as part of the debate; I cannot add anything more in relation to those points of order.

We move to the open debate. I call Ruth Maguire for a very strict four minutes.

15:38  

It is not possible in the time available to cover all the aspects of this really important report. In the short time that I have, I will speak to two areas of concern, on which I would welcome further discussion with the minister in order to explore possible resolution or amendment at stage 2: legal representation and treatment of child victims of crime.

On legal representation, it is of grave concern to me that a young person could accept offence grounds without understanding the full implications of that decision. As Katy Nisbet of Clan Childlaw explained in her evidence, offence grounds are libelled in the same way as a criminal charge would be, including reference to the crime and the behaviour that supports that the crime has been committed. When those grounds are agreed by the child, without a hearing on evidence and with no automatic right to legal advice, they can be disclosed in protection of vulnerable groups—PVG—checks years later.

I acknowledge the points that were made in the Government’s response to the committee’s report in that an offence that is dealt with through the hearings system is spent immediately. However, it is the case that offences such as serious sexual violence, theft and fraud remain visible on PVG checks, and it is not difficult to see the impact that that would have on future employment opportunities in later life.

A child will be referred to a solicitor only if they refuse to agree the grounds or do not appear to understand the grounds, in which case the matter will be referred to the sheriff court for what is known as a proof hearing. Although advice by way of representation can be applied for, it is considered on the basis of a means and merit assessment. In other words, it is not granted as a matter of right, nor is there a duty on the children’s reporter to ensure that a child knows about the option to obtain legal advice.

The seriousness of the consequences of agreeing offence grounds—that it will be treated as a criminal conviction in certain disclosure contexts—is not adequately explained, and neither is the potential impact of the disclosure of the criminal offence. As such, I support Clan Childlaw’s calls for automatic legal representation for children when being presented with offence grounds, and I feel that that should be addressed in the bill.

Our committee’s report recognises the challenge of balancing the rights of offenders against those of the victims who are harmed by offending behaviour. That is never starker than when both parties are children. From their case work, MSPs will recognise situations in which the balance has been off and has not felt just and in which the harmed child has been further traumatised by the actions of our care and justice system, which intended to do its best for the child who caused harm.

Giving evidence for Victim Support Scotland, Kate Wallace stated that the balance of rights in the bill, as currently drafted, is not correct, with the focus being on the child who has harmed and not as much on the child who has been harmed. With regard to information sharing, she explained that

“if you are offended against by an adult, you can opt into a victim notification scheme in order to get information if someone has escaped or absconded from prison. You are also entitled to know when they are released. However, if, for example, you have been subjected to a serious sexual assault by a child or young person who ends up in secure care and goes through that route, at the moment, you will not be informed about when they leave that secure establishment.”—[Official Report, Education, Children and Young People Committee, 29 March 2023; c 45.]

I fully understand the challenges around information sharing, but it is simply not good enough that, in such circumstances, victims cannot plan effectively for their own safety.

To build on Scotland’s progressive approach to children’s rights in line with the UNCRC, we must not shy away from acknowledging and addressing the potential conflict of rights and then carefully and openly working our way through the issues to balance them. It can and must be done. It is essential and fundamental for obvious reasons of fairness. In addition, and just as important, by getting the balance right, we will ensure that the public have confidence in these really important reforms to improve our justice system for children and young people.

15:42  

I agree with the principles that are behind the proposed legislation. Considering my very vocal stance on anything Promise related, I accept that we must move forward with some speed if we are to uphold the good intentions of the Promise report. That said, there are parts of the bill that need to be carefully thought through and properly analysed as it progresses through stages 2 and 3.

I note the change in the age of referral to a children’s hearing from 16 to 18, which will move us towards upholding the Promise by extending the provisions of the children’s hearings system to incorporate older children and incorporating the UNCRC into Scots law by upholding children’s rights.

However, the age change raises a valid point that we should debate—although not today, obviously. I refer to the suggestion from the Faculty of Advocates that there should be a review of the definition of “child” across Scots law, which begs the question: when, in a legal sense, does a child become an adult? In the short time in which I have been a member of the Parliament, we have debated and discussed contradictory arguments on that point—contradictions based not on political lines or overarching ideologies but on the bill that we have before us.

Currently, a 16-year-old can legally leave school, move out of their parents’ home, apply for a passport, get married, have children, have a job, pay taxes, vote and even change their name. However, they cannot drive, get a tattoo, watch an 18-rated film, buy cigarettes or buy a pint in a pub, and that is before we take into consideration the Scottish Government’s policies on changing gender and standing for Parliament. If, in a care and judicial setting, a young person is a child till the age of 18, why is a young person not a child till the age of 18 in all other aspects of the law?

Will the member take an intervention?

I am really short of time—I apologise.

I also note the changes to the children’s hearings system that Sheriff David Mackie proposed in the recently published “Hearings for Children” report and the fact that the move towards a single point of authority—a paid position to support care-experienced young people through the hearings system—will have an effect on the on-going bill process.

Although that report looks to radically change the process of volunteering for children’s hearings and panels, it is important to highlight that, if we are to increase the number of young people who utilise the hearings process, we must ensure that adequate training, support, funding and expertise are provided. We know that there is currently a shortage of children’s panel volunteers, and it is estimated that the bill will result in a need to increase the number of panel members by 10 to 20 per cent. We do not have the capacity.

We will be asking panel members to review some of the most concerning cases in a judicial capacity, and it is imperative that all relevant training and support are provided to ensure that the process works not only for young people from a care-experienced environment, but for all young people in Scotland. If we do not ensure that the capacity is there, we will fall—and fail—at the first hurdle.

In conclusion—I have gone faster than I thought—although I support the intentions of the bill and am encouraged by the progress that is being made towards implementing the Promise, the Government must recognise the effort that is required to ensure that what the bill proposes will work outwith the care-experienced silo, for all of society.

15:46  

I begin by reiterating the comments that I made during last week’s debate on the Education, Children and Young People Committee’s report on its college regionalisation inquiry. Although I joined the committee only recently, I would like to thank everyone who was involved—the other members of the committee and the clerking team, who have done a fantastic job—in helping to produce our stage 1 report.

Introduced last December, the Children (Care and Justice) (Scotland) Bill aims to make changes to the law in relation to the care of children and the involvement of children in the criminal justice system by legislating in a number of areas, including by changing the age of referral to a children’s hearing from 16 to 18 on welfare and criminal grounds; ending the detention of under-18s in young offenders institutions through the provision of secure accommodation services as an alternative; setting out the support, care and education that must be provided to children who are accommodated in secure accommodation; and extending the meaning of “child” to under-18s in other areas of previous legislation covering children and young people.

I welcome the broad support for the bill’s aims and the measures to achieve them that has been received from the committee and the organisations that gave evidence at stage 1.

In his briefing to members, the Children and Young People’s Commissioner Scotland notes that the bill will help Scotland to meet its international human rights obligations by ensuring that children’s rights are protected when they are in need of care and protection, regardless of whether they are in conflict with the law. The commissioner goes on to welcome the proposed changes to ensure that “child” is understood as meaning any person under the age of 18, in line with article 1 of the UNCRC.

Children 1st, which has more than 130 years of experience of working with children, has also welcomed the proposed changes, but it believes that any changes need to be considered holistically, in tandem with changes to other services such as the introduction in Scotland of the Scandinavian barnahus model, in relation to which Children 1st and partners are leading practice developments. They stress that, in their view, it is essential that bairn’s hoose developments are aligned with the Children (Care and Justice) (Scotland) Bill.

That view is backed by Barnardo’s Scotland, which echoes that point by saying that many of the children, young people and families with whom they work have experienced trauma, loss and abuse, which can have significant, lasting impacts on their lives. Barnardo’s says that what they particularly need is support with their mental health and wellbeing, as well as other holistic and intensive support.

I hope that the committee revisits that point as part of its stage 2 considerations, and I look forward to hearing more from the organisations that I have mentioned about how we can facilitate that in the bill.

Barnardo’s and others strongly support the bill’s intention to remove all children under the age of 18 from young offenders institutions. They also note that, although the number of children who are detained in prisons has drastically reduced in recent years, as of June 2023, there are still a small number of children under the age of 18 who remain in residence at the young offenders institution in Polmont. Although they strongly welcome the proposals to ensure that not even a small number of children should be detained in YOIs, they share the committee’s view that there should be no loopholes in the system that would allow children aged 17 and a half to be included within the remit of the adult criminal justice system. On that point, as before, I assure those who are listening that the committee will work together at stage 2 to address those concerns.

The Scottish Government’s response to the committee’s report—which the committee received yesterday and which picks up on the committee’s point that it is essential that the public should understand the rationale for the changes brought about by the bill—is welcome, as is the information that the Government is actively considering a communication strategy for the bill. Such a strategy is essential, and I urge the Government to update the committee on its progress as soon as possible. If we want the changes and the bill to be effective, clear and concise information is essential to ensure smooth implementation and to harmonise holistic aims.

15:50  

Children are not the property of their parents; they are the responsibility of society. If they are healthy, educated and loved—rather than born in overcrowded housing into semi-starvation and multiple deprivation—they will grow up to be useful citizens, giving something back not only to their families and communities but to society as a whole.

We live in an unequal, class-ridden economy, with widespread and institutionalised poverty. According to the Scottish Children’s Reporter Administration, two out of every three children who are referred to a children’s hearing are growing up in deprived neighbourhoods—two out of three. They did not choose to be born in those neighbourhoods; that is not within their control. Almost half—half—of those who are referred to hearings are victims of parental neglect. They have been failed from the earliest age, but that is not their choice either.

Many of those young people have been through trauma and are maimed in body and spirit, so it should come as no surprise that there is a strong correlation between those young people who offend and those who have their own welfare needs: they are, all too often, the very same young people. We are all responsible for their care and protection. It is not only our task but our duty, as elected members of this Parliament, to make it possible for them to live useful, fulfilling, loving lives and to do so in peace.

In recent weeks, there have been calls for a takeover of the children’s hearings system to

“change the decision-making model”

to one with

“highly skilled, salaried professionals”,

by which is meant lawyers. We are told of the “complexities” of the European convention on human rights and of the legal arms race in the system, but that is to miss the point. The children and young people in whose best interests that system is meant to work, and who we are here to serve, must be at the centre, which means that they must be able to comprehend the system. If it is being suggested that we scrap and sweep aside experienced and already intensively trained adult lay panel members because it is all too complicated for them, what chance do our children and young people have?

In this economically and socially segregated society of ours, how many of those professionals live in the same local communities as those children, let alone in the most deprived neighbourhoods, where the vast majority of those children live? Putting the professional managerial class in control of the system breaches the very ethos, principles and philosophy of Kilbrandon, taking away the voice of community and lived experience from the panel.

Abandoning the use, in the words of Kilbrandon, of

“a lay panel to reach decisions on treatment”

in

“a preventive and educational approach”

where

“the paramount question in every case must be the child’s interests”

would not be a step forward—it would be a step backward. It would undermine the democratic nature of the panel itself. Worse, it opens the door to the unwanted and tawdry influence of money on Scotland’s children’s hearings system.

That is not to say that there are not reforms that could usefully be made. Better alignment with mental health legislation, an end to the national scandal of child and adolescent mental health service provision and alternatives to the hospitalisation of our youngsters in acute psychiatric wards would be a start.

However, attention needs to be paid to the analysis about the financial memorandum not being adequate, because we need to get this right. Too many young people and too many children, some as yet unborn, depend on it.

15:55  

I am very pleased to speak in the debate as convener of the Criminal Justice Committee, which is a secondary committee for consideration of the bill. We took evidence on the justice provisions, and I thank all the witnesses who gave evidence.

In the short time that is available to me in the debate, I want to highlight two key issues. The first is the use of secure care. The bill proposes that any child aged 18 or under should be held in a secure care setting rather than in a young offenders institution. It also provides for a young person up to the age of 19 not to automatically transfer to a YOI if that is in their best interests and it is not contrary to the best interests of other children in the secure care facility.

During our scrutiny, the governor of HMP and YOI Polmont told us that, at that point, he had seven young people in custody, but he said:

“no 16 or 17-year-old child should be in our care.”

He said that holding them in secure care rather than in a YOI was

“Morally ... the right thing to do.”—[Official Report, Criminal Justice Committee, 29 March 2023; c 19.]

His view was supported by other witnesses, including Linda Allan, whose daughter Katie took her own life in Polmont and who now campaigns on behalf of young offenders. I pay tribute to Linda for her courage when speaking to the committee.

Secure care is not a soft option. A young person in secure care is still removed from the community, but they will receive far more appropriate care than they would get in a prison setting. Staff-to-offender ratios are better, and staff are more appropriately trained and skilled to provide a trauma-informed setting within which young people are better supported and their needs met.

It is for those reasons that there was strong support for the proposal that young people aged 18 or under should no longer be held in a YOI and that they would be better held in a secure care setting. However, we need assurances that the necessary resources will be put in place to deliver the changes that will be necessary, given that secure care places can cost up to four times as much as a place in a YOI.

Will the member take an intervention on that point?

I will come back to the member if I can.

The secure care estate may need to be reconfigured so that the very small minority of young people aged 18 or under who may present a risk to others can be held securely while the risk of them harming themselves or others is minimised. The committee also heard that, in future, consideration should be given to having a more flexible, individualised system rather than one that is based on age criteria alone.

The second issue that we considered was the rights of children who are held in police custody. Although we broadly welcome the bill’s provisions, we again seek assurances about resources. We recognise the funding implications that arise for local authorities from their proposed new role of providing an alternative place of safety for a child, rather than their being held in a police cell.

This is an important bill. Although it was not for our committee to reach a conclusion on its general principles, we heard support for the two main provisions that I have covered in the short time that was available to me today. I thank my fellow committee members for their constructive and collegiate approach to scrutiny of those provisions and I thank all the witnesses who engaged with us.

15:58  

The bill’s intentions have been welcomed across Parliament and, I believe, across the country. Although our committee process has raised serious concerns that should be addressed, it is clear that substantive consideration has been given to some of the really tricky issues, such as the balance of rights between children who have committed offences and those who are the victims of that offending. That is particularly difficult given that a high proportion of children who offend are also victims.

In the time that is available to me, I will focus on the situation in secure transport. Transport provision for young people in secure care has been a missing link when it comes to the gradual raising of standards, quality and accountability in recent years.

I want to thank the hope instead of handcuffs campaign for raising the profile of the issue. It highlighted to Parliament that children in Scotland are being inappropriately restrained when in the care of secure transport providers, including by the use of handcuffs in situations where they are simply not necessary.

The use of restraint against children has rightly been the subject of significant scrutiny and debate in this Parliament and in council chambers across the country in recent years, and progress has been made in relation to schools, specifically with much-improved guidance having been produced, but restraint in secure transport settings has been underscrutinised up until now.

The evidence received by the committee made it clear that key stakeholders, including local authorities and secure accommodation providers, want to see the gap closed. With that broad agreement, much of our discussion in the committee at stage 1 focused on the method by which we could apply clear rules and standards. It could be via guidance, which COSLA and key partners are already working on; via regulation, by amending the bill to give ministers that power at a later date; or we could put it directly in the bill.

There were mixed views on the route to take. It would be fair to say that the balance of views leaned towards the regulations approach, which would give us flexibility as well as the opportunity to take a bit more time to develop specifics than would be the case if we placed those standards directly in the bill.

I highlight that other contributors, such as the Children and Young People’s Commissioner Scotland, stated a preference for putting the standards in primary legislation. I am firmly of the view that they need to go into legislation, but I do not have a particularly strong feeling for whether that should be primary legislation or regulation via secondary legislation. I look forward to engaging with the minister and officials before stage 2 to consider that.

There is a clear need to restrict the use of restraint against children in secure transportation, but it is based on anecdotal evidence, which demonstrates the second issue: the lack of reporting. At present, there are no consistent reporting requirements for secure transport providers. After incidents of restraint, some inform the accommodation provider, and some inform the local authority, but in many cases it seems that no report is made at all. Even when reports are made, there is no mechanism for them to be collated.

COSLA and its sector partners are doing good work there, but they agree that the bill is an appropriate way to set clear reporting requirements. Not only should the bill set those requirements in each individual instance, but clear responsibility needs to be assigned, whether it is to the Care Inspectorate or another appropriate national body, for the collation of those reports, to give us an accurate picture of what is going on.

One issue that was raised during evidence gathering on the bill, and which certainly needs addressed—although that should be done largely outside of legislation—is the availability of secure transport. We on the committee were stunned to hear that secure transport providers are so close to non-existent in Scotland that accommodation providers are being forced to procure transport from as far south as Portsmouth for journeys as short as going from Montrose to Ninewells hospital or from one side of Glasgow to the other.

We did not have time to fully understand the lack of Scotland-based transport providers, but it is clear that the system is currently incredibly inefficient and is failing the young people involved, so I welcome the minister’s commitment to take action through and outwith the bill to improve the situation in secure transport for children and young people. However, I share Willie Rennie’s concerns about the level of ambition that we need to place on the issue, because it is clear that the current situation is unacceptable to all those involved.

I look forward to working with the minister on amendments and the wider policy changes that are required to make the improvements that we all agree are necessary.

16:03  

I thank members for their contributions so far. It has been an interesting but far too short debate—something that we have become accustomed to. This is an important and complex subject that merits far more chamber time. I cannot believe that we are squashing a stage 1 debate and a stage 3 debate into two and a half hours of chamber time on a Thursday afternoon. It does not do any justice to the great work that was done by all the committees. The Government and its business managers need to reflect on the issue. It is becoming a problem, and is stifling debate—no one can take inventions, for example.

I have just a few points to make on the bill. I was part of the Criminal Justice Committee, which was one of the feeder committees, and we did a good report on the bill. We did not spend a huge amount of time on it, but we certainly looked at the justice elements and at children’s experiences of secure accommodation, young offenders institutions and, of course, sadly, as we know, prison, although those numbers are reducing.

There is a general feeling—I am certainly picking it up this afternoon—that there is consensus that the bill is well intentioned. The concept of promoting consistency in our criminal justice system and doing more to uphold the human rights of children in that system are welcome objectives. I see and hear no political adversarial arguments about that, but it is clear that there are concerns, not least those around the financial memorandum, deliverability and inconsistencies in how the bill interacts with other legislation. Those are serious issues that the lead committee will have to grapple with in the coming months.

Please do not rush this—let us not have another farcical situation where we have last-minute amendments to legislation that mean that we end up with a bill that does not make sense and is unworkable and financially unaffordable. We have seen that far too often in the past couple of years.

I want to make a couple of points about the issue of detention. The proposal that someone could stay in secure care beyond their 18th birthday, until their 19th birthday, is controversial, but I understand the flexibility that that might afford individuals and that, in certain circumstances, it might be the right thing to do. That is why the Criminal Justice Committee said that we were okay with the proposal. However, like many people, we have a problem with the possibility of an extension to the 18-to-21 group, or even to the 21-to-25 group, and we took evidence about the issues in that regard.

I was quite worried when the minister said that the Government might consider that. I do not think that that scenario should be entertained. A secure care environment that is designed to house children should not house any adults—whatever the definition of an adult is these days—because we know the tragic consequences of getting that wrong. As Victim Support Scotland has said, and as Ruth Maguire noted in her speech, older children do bad things to younger children, and the safety of those young people is absolutely paramount. I echo recommendations that any changes to the age at which a young person can be sent to a YOI should be made only through primary legislation.

Another problem is that we all too often fail to listen to the victims, often women or girls of varying ages, who are suffering at the hands of young men. When they speak to committees, all that they ask for is some fairness and balance in the system. They understand the need to take action that is appropriate in relation to people’s rights and that the law is one way of dealing with that, but all they ever ask for is fairness.

I have absolutely no time whatsoever to talk about the issues of care in custody, of children being kept in police cells or of the availability of appropriate legal representation when a young person is being interviewed by police. There is a bunch of issues that we do not have time for, and I hope that we have an opportunity to discuss them—we would have had such an opportunity if we had had a full and proper debate on this matter.

All that I would say is that I think that we should proceed with caution. This is a well intentioned bill with some positive elements, but there are clearly real concerns. I think that we will hear more of those, not just today, but throughout stages 2 and 3. The Government absolutely must listen to them.

16:07  

There is an old adage that resonates very deeply, which says that one can judge a country by its treatment of its prisoners. Coping with difficulty while retaining compassion and humility is where the challenge really lies. Young people are our present and our future, and we obviously have to nurture them.

There is no denying that the criminal justice system in Scotland has evolved greatly in recent years, not least in its treatment of our young people who find themselves in conflict with the law. As someone who was previously deputy convener of the Education, Children and Young People Committee, I state my support in principle for the bill and I acknowledge the committee’s scrutiny, as outlined by Sue Webber.

Ever since the hugely influential Kilbrandon report of 1964—one of the most important documents in youth justice history—we have proudly strived to take a progressive welfare-based approach, with varying degrees of success. Kilbrandon was able to recognise that the children who were labelled as offenders were hostages to fortune. They were not inherently bad or troublemakers; they were people who had been failed and were as equally in need of care as those who had suffered abuse or neglect. He recognised that, for many, their behaviour seemed inevitable, as if there was no other path.

Community Justice Scotland illustrated that through the story of a now-successful mentor working with vulnerable young people. James had a chaotic start in life, spending a lot of time with his mum in women’s refuges. By the age of seven, he was already engaged with the criminal justice system, having more and more run-ins with the authorities and, by his mid-teens, he had a custodial sentence, spending a night in Barlinnie, followed by time in a young offenders institute. He recalls:

“I was terrified and cried myself to sleep.”

Reading about James’s experience, I am further reminded of my time on the Education, Children and Young People’s Committee, listening to people such as Sue Brookes from the Scottish Prison Service, who said:

“Even if the rest of the establishment was empty, those children should be somewhere else.”—[Official Report, Education, Children and Young People Committee, 29 March 2023; c 13.]

Her dismay and discomfort at having to expose young people to such a harsh environment was palpable and, of course, understandable.

It will come as no surprise that I whole-heartedly welcome the proposal to increase the age cut-off for referral to children’s hearings from 16 to 18 years old and that I support the ending of placing under-18s in young offenders institutions.

I welcome the considerations of the Criminal Justice Committee, which Audrey Nicoll mentioned earlier. The independent care review made it clear that criminalising children and putting them in prison-like settings is deeply inappropriate. If we are to align more closely with the UNCRC, the bill must surely extend to 16 and 17-year-olds. Depriving children of their liberty deprives them of their childhood. That must be a last resort. By protecting that childhood, we move towards keeping the Promise to our young people.

I welcome the minister’s commitment to providing an updated financial memorandum that provides sufficient funding and resourcing for care-based alternatives to custodial sentences. I request that she addresses the transportation issues that my colleague Ross Greer has already mentioned very clearly.

In the words of the late American humorist Erma Bombeck,

“A child needs your love most when they deserve it least.”

We move to winding-up speeches.

16:11  

Kaukab Stewart finished her speech on a very pertinent point about the importance of children who are, quite frankly, bashing up against walls all over the place to find people for whom love can be a way to communicate.

The debate has been a challenging one in respect of time and subject matter and, indeed, some of its content. Scottish Labour will support the principles of the bill at stage 1 under rule 9.5 of the standing orders. However, we have heard contradictory evidence about the financial memorandum. I find that disappointing, because the standing orders are explicit that there is supposed to be the best estimate that the Government can give. I invite the minister to confirm whether the estimates are the best ones. Are they, as we have heard in evidence, the lowest estimates or the estimates of other bodies outside Parliament? If the minister feels unable to deal with that at the moment, we will support the bill at this stage, but it is a huge disappointment that members cannot see the proper financial consequences of a very important bill that speaks to a very important group of people in Scotland.

A number of matters that have been raised are worth revisiting, although I will curtail my speech because of my earlier point of order. Ross Greer made comments about transport and the committee having the opportunity to look into that and to get to the bottom of the problem. I hope that we will see amendments at stage 2 or, alternatively, explicit requests of the Government about how that will be achieved. It seems ridiculous that, in 2023, vans are driven all the way from Portsmouth to transport children in Scotland.

I want to mention Roz McCall’s fascinating speech, and particularly her emphasis on the call for a review of children under Scots law. A number of members have spoken about the challenge that exists in Scots law. My personal point of view is that it is more important that we look at the circumstances of a young person as much as the specific day or date on which they were born. That raises the interesting question of those who are 17 and a half. I am sorry to refer back to the financial memorandum, but it specifies that a young person of 17 and a half is unlikely to be dealt with because of delays in the system. That seems to me to be a very dangerous way to start legislating—building in delay or a problem with the system and inflicting a level of punishment on a person that is entirely dependent on when they were born. As the UNCRC and good practice suggest, it should be the date of the incident that is taken into account.

It would, of course, be remiss of me not to say that we have spoken a lot about the UNCRC, and I am pitching a huge amount on the Government’s statement on the matter next week, if members will allow that. We speak strongly about our desire, and we point our children and young people to the rights that they have, the rights that they should expect and, indeed, the rights that they should expect others to have, but we seem to be unable to bring the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill back to the Parliament.

I am conscious of the time, so I will leave it there. I am disappointed that we are unable to get an answer about whether the financial memorandum meets the requirements of standing orders, but members in committee will have more time on that. I also hope that we will have a lot more time later and we do not have a crushed stage 3 with many amendments.

16:15  

I congratulate my colleagues who have tried their best to use very little time to deal with a complex and important bill. Frankly, it saddens me greatly to have to say this, but our Parliament—Scotland’s Parliament, the Parliament to which we belong and take a great deal of pride in being members of—is developing a reputation for creating bad law. We are developing that reputation, unwanted as it is by us all, because of what we have witnessed this afternoon. Colleagues have tried to address a complex matter and have made excellent speeches, given the little time that they have been allowed, but they have not really got to the issues that are at the heart of the bill, regardless of whether we support them or are concerned about them.

Because there is so little time, I will be clear from the outset. Scottish Conservatives will support the bill at stage 1 because we believe that its principles are essentially correct. However, I will say something now that I will probably repeat more than once before I sit down: good intentions do not make good law. When we in Parliament accept that, we will see an improvement in the efficacy of the measures that are brought before us, we will see better implementation of the measures that we pass, and we will see the intended better outcomes that come with the good intentions that lie behind any bill. The bill is full of good intentions, which is why we will support it, but we will abstain on the financial memorandum.

As was pointed out by Martin Whitford—I mean Martin Whitfield; I have given him a new name. I do not think that we have the authority to give each other new names, although the Presiding Officer talked about nicknames during First Minister’s questions.

As Martin Whitfield pointed out, the requirement for a financial memorandum that reflects the best estimate has been failed, in this case. It is not acceptable that we are having a compressed stage 1 debate with a financial memorandum that is, frankly, not fit for purpose because its figures bear only a passing resemblance to the true costs of implementing the bill. That was the overwhelming evidence that was received by the lead committee, which is convened by my friend Sue Webber.

The committee is entitled to make its position clear in the debate, and it has done so through the voice of the convener. However, Parliament should be saying that we expect the Scottish Government to provide updated costings to reflect stage 2 amendments, and that we should be considering the bill at stage 1 with a financial memorandum that represents the best estimates of the bill as it stands. That is not the case. This is a call to the common sense of the members of the Scottish Parliament for them not to vote for the financial memorandum simply because to vote for it will be an abrogation of our responsibility as members of the Scottish Parliament. I therefore ask members to seriously consider their responsibilities when we get to decision time.

I have two minutes left. Reference has been made to the UNCRC; I support what a number of colleagues have said about how it certainly does not allow the Government to say in one breath that it is redefining the legal age of a child at 18 and then, in the next breath, to say that it does not mean 18, but means 17 and a half. That is not acceptable. The issue of age is at the heart of the bill, so it is important to have a serious review of the confusion that exists in our law relating to the age of a child. By voting for the bill today, we are going to define the age of a child in legal terms as being up to 18, but there are so many anomalies, which Meghan Gallacher touched on.

Would Stephen Kerr recognise that, in terms of children’s rights, there are protective rights and participative rights and that those happen at different ages and stages?

We need to look at the whole issue of how we treat children in the eyes of the law. The point that Ruth Maguire makes has a deal of validity to it, but the age should be reviewed because we have got to the point at which there are so many competing and confusing issues around it.

In the 15 seconds that I have left, I would like to mention the importance of the bill not being seen as soft-touch justice—that is very important—and the need to look at the stresses that we will cause to the children’s hearings system, which we have touched on but not properly dwelt on—in particular, in response to Sheriff Mackie’s recent report on the Promise. There are many issues, which have been touched on by colleagues, that must be addressed in relation to the children’s hearings system.

Basically—if I might indulge in making a few more points, Presiding Officer—we need a new financial memorandum, we need to deal with age inconsistency in law, we need to deal with the age being defined as 17 and a half as opposed to 18 and—for those who go to secure accommodation—there has to be absolutely guaranteed access to mental health services, which currently they might get in Polmont but might not get in secure accommodation.

At that, I can see that I have tried the patience of the Presiding Officer to the point at which I should sit down. Thank you.

Thank you, Mr Kerr. I call Natalie Don to wind up. You have up to seven minutes, minister.

16:22  

Before I begin, I would really love to know how many seconds of time in the debate have been wasted discussing the amount of time in the debate, rather than the subject itself—[Interruption.]—so I encourage members to focus on the debate at hand. [Interruption.]

I repeat my thanks for the lead committee’s report on the general principles of this important bill, and for the diligent scrutiny by other committees. My hope is that the Scottish Government’s response, which was published earlier this week, reflects the spirit in which we will continue to develop and debate these important reforms.

I also thank members for the questions and points that they have raised in the debate today. I will take away those thoughts and give them serious and sincere consideration. However, I am disappointed by the use of the term “bad law” to describe the bill, because, as far as I am concerned, that is not what the young people and the key stakeholders whom I have been talking to are saying. [Interruption.]

The Scottish Government will work right across the relevant sectors throughout the period before stage 2 to determine whether and where the bill can be improved. Despite the concerns and questions that have been expressed here today, I am heartened by members’ approach to the issues and I am further encouraged by the broad consensus on the underlying reach of the bill.

The bill’s policy objectives and the direction of travel that it sets are the right ones at this time. However, some concerns have rightly been raised today; I hope to address those. We have heard concerns about resourcing and readiness. I recognise the significant challenges that the sector currently faces, including recruitment and retention issues that are faced by social work services and Children’s Hearings Scotland. We absolutely have to ensure capacity building and system readiness, which will be key. That is exactly why we have convened a national multi-agency implementation group, which had its inception meeting on 5 June and has more meetings scheduled right into the autumn.

Concerns have also been expressed about the financial memorandum. I have been clear that there is a need to provide more information to Parliament at later stages of the bill. We are therefore working with key partners.

I thank the minister for taking this intervention.

Surely she must agree that members are being asked to support the general principles of a bill without fully understanding its cost implications and without certainty that the Scottish Government understands them, either.

We have not published, and could not publish, a supplementary financial memorandum ahead of today, not least because the data for 2022-23 is not yet available. This will become—

You should have waited then.

I have said that my priority is keeping the Promise by 2030, and the bill is a key part of that. The financial side can be progressed in further stages—

That is not what standing orders say.

My priority is to ensure that the bill proceeds for the benefit of children and young people.

I ask members not to comment from their seats.

Last month, I was privileged to meet care-experienced young people at the launch of the hearings system working group. From that conversation, I understood the need to act with urgency and to take every opportunity to learn and listen, which is exactly what I am doing. Scotland’s young people—especially those who have faced adversity and disadvantage—need us to get this right. I will take that same listening and learning approach to the bill, as it progresses.

Members have commented on the hearings system. We know that it is already dealing with 16 and 17-year-olds, and that the people who work in the system are well equipped to think and act in a trauma-informed way for that age group. There is an appetite among all the relevant workforces to keep improving the hearings system. We are considering the redesign report of Sheriff Mackie’s hearings system working group, which we will respond to in full later this year. On where we are now with Children’s Hearings Scotland, I met the chair and the national convener last week, when those matters, as well as the upcoming recruitment campaign, were discussed.

As I said in opening, additional Scottish Government funding for 16 secure beds will be made available to ensure that providers of secure accommodation have the required resources. They need support for the capacity to be there to cope with young people who would otherwise be placed in YOIs.

The important work that is under way on reimagining secure care will help to identify any areas that can be improved for children who need those services. Profiling the needs of young people who are currently in YOIs will continue alongside the progress of the bill, so that secure centres can be supported to address the full spectrum of young people’s needs.

I will touch on some things that we have not discussed or had time to explore fully. The bill will make it easier for a child, including a child victim, to remain anonymous during the investigation of a crime and in court proceedings. That is crucial to children’s safety, rights and recovery. The bill will give courts discretion to extend anonymity for children who are found guilty of an offence, to allow them to be rehabilitated without damaging intrusion and speculation.

Importantly, the bill will put tighter inspection regimes in place for providers that set up in Scotland to take children from elsewhere in the UK. It is vital that cross-border placements be used only in exceptional circumstances and when they are in the child’s best interests. I was due to meet the UK Government Minister for Children, Families and Wellbeing, Claire Coutinho, around this time today to discuss that matter, but the meeting will be rescheduled, and I will be happy to give an update on it.

Questions have been asked about the reference to the age of 17 and a half that was used in the financial memorandum. The bill will enable all children who are under 18 to access the children’s hearings system, which will be treated on a case-by-case basis. It will be a matter for the Lord Advocate, if and when the current guidelines are reviewed, to consider whether a cut-off age is needed.

I move to specific contributions. I thank Ruth Maguire for her comments and appreciate where the concerns come from. I would be happy to meet her to discuss the matter further. Audrey Nicoll was right to highlight that secure care is not a soft option. The bill is not about soft justice but about providing a trauma-informed and age-appropriate setting that gives children the maximum opportunity for rehabilitation. I appreciate the concerns that Ross Greer and Willie Rennie expressed, although I do not like the suggestion that I am “shrugging” anything off. Work is on-going on a national service specification for secure transport that looks specifically at data gathering, information sharing and who is best placed to provide transport.

I urge members to support the bill and to allow it to move to the next stage in the parliamentary process. Scotland’s children need the changes to be brought in and need improvements to be made to the outcomes that we seek for them and the support that we provide. I am absolutely committed to keeping the Promise and to ensuring that children have their needs met in a trauma-informed and age-appropriate way. That cannot happen when they are in systems that are designed for adults.

The bill will have life-changing impacts for our children and young people—especially those who are from disadvantaged and care-experienced backgrounds, who are disproportionately represented in the youth justice system. There is no doubt that the approach is preventative and will offer our young people the best chance for rehabilitation and the best chance to alter their life path.

Please conclude, minister.

We all have a responsibility to get it right for every child, but we can do so only if we all work together.

On a point of order, Presiding Officer.

At the risk of exhausting your patience, I feel that there is some confusion about standing order rule 9.3.2, which was referred to earlier by Martin Whitfield. It says clearly in the standing orders of this Parliament that

“A Bill must on introduction be accompanied by a Financial Memorandum which sets out best estimates of the costs, savings, and changes to revenues to which the provisions of the Bill would give rise, and an indication of the margins of uncertainty in such estimates. The Financial Memorandum must also include best estimates of the timescales”.

However, we have now heard from the minister that the financial memorandum does not represent the best estimates of the costs that will be associated with the bill and its implementation because they have not been properly scoped.

Presiding Officer, I appeal to you for guidance on whose responsibility it is to enforce standing order 9.3.2. In this scenario, given that the minister herself has said that the financial memorandum does not represent the best estimates of the implementation costs of the bill, where do we go from here? It seems to be a very odd predicament to find ourselves in—to be passing a bill at stage 1, on its way to becoming law, when we and the Government have no idea how much it will cost to implement the measures, however well intentioned they are.

I thank Mr Kerr for his point of order. That is a matter for scrutiny by the lead committee and the Finance and Public Administration Committee. Members are considering and debating those matters this afternoon and will later vote on the financial resolution and general principles of the bill, at which point they will take into account what they have heard.

That concludes our debate on the Children (Care and Justice) (Scotland) Bill at stage 1.