Children’s Hearings (Scotland) Bill: Stage 3
Resumed debate.
14:55
The next item of business is continuation of stage 3 proceedings on the Children’s Hearings (Scotland) Bill. In dealing with amendments, members should have the bill as amended at stage 2, the marshalled list and the groupings, which the Presiding Officer has agreed. There is a supplement to the marshalled list containing manuscript amendments that were lodged yesterday and which the Presiding Officer agreed can be taken. The supplement also provides information about where the amendments are grouped and when they will be called. The division bell will sound and proceedings will be suspended for five minutes for the first division this afternoon. The period for voting for that division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate and all other divisions will be 30 seconds.
Section 170—Children’s hearings: procedural rules
We start with group 18. Amendment 146, in the name of Margaret Smith, is grouped with amendment 147.
It is essential that children remain at the heart of the children’s hearings system and that children feel able to express their views to panel members. At stage 2, at the request of the Scottish Child Law Centre, I lodged amendment 86, which would have required a separate report on the child’s views to be put to the hearing. My key motivation was to ensure that the child’s voice is heard and taken into account. We all know that, although some children feel able to speak on their own behalf at a hearing, the majority probably find that a fairly daunting prospect. It is likely that some at least would say that they were content that their views had been taken into account, even if they had not been, just to get the process over and done with.
The minister accepted the principle and the concern behind my stage 2 amendment, but he did not wish to add a further report and felt that the child’s view could be incorporated into reports that are already produced for panel members. As ever, I am less bothered by the mechanism and more bothered by the outcome. I want to ensure that the child’s point of view is heard. So, following discussion with the Government, I have lodged amendments 146 and 147. Amendment 146 will insert a specific rule-making power into section 170 to enable rules to be made in connection with obtaining views of the child. Amendment 147 creates a duty to ensure that any views that are expressed by the child are included in the report that is put before the hearing.
The amendments are supported by several children’s organisations. I hope that the Parliament will support them, as part of the efforts that are being made through the bill to listen effectively to the views of children who are directly affected by the hearings system.
I move amendment 146.
I thank Margaret Smith for lodging amendments 146 and 147. At stage 2, the Education, Lifelong Learning and Culture Committee agreed to several amendments that put children at the heart of the bill. The amendments are in keeping with that, so Labour members are happy to offer our support for them.
I share Margaret Smith’s concern that the views of the child must be heard at a hearing. The law already provides for that, but many children feel that they do not have the chance to contribute at hearings and, if and when they have the chance, they do not always feel that they are being listened to. That has to change. The bill and wider reforms provide a greater opportunity to make that change.
There are significant provisions in the bill to that end. Every hearing will now check that a child has had the chance to express their views before a hearing and, yesterday, we agreed Christina McKelvie’s amendments on advocacy support. When we discussed the issue at stage 2, I made it clear that the Government will look to use the procedural rules to make it more explicit that the information that is provided to panel members in advance of hearings must include the views of the child.
I welcome and support amendments 146 and 147, which helpfully take us in that direction. They strike the right balance, in making it clear that the views of children must be provided to hearings, but that that should not require additional paperwork or bureaucracy. The amendments will also allow flexibility in how the views are gathered and provided to take account of the particular circumstances of the child. In due course, we will give further thought as to how we can further strengthen the rules, but the bill and the rules will not by themselves secure the positive change that we want. That is as much, if not more, about changing practice and culture. We will continue our work with partners to help deliver that in the coming months.
15:00
I welcome the support for my amendments from the Government and others. I echo the minister’s comments that, although we have made progress throughout the bill’s stages, an awful lot of other things can be done to allow the child’s voice to be heard, such as changing culture and practice. I am absolutely certain that panel members throughout Scotland are committed to doing just that.
Amendment 146 agreed to.
I move to group 19. Amendment 96, in the name of the minister, is grouped with amendment 96A.
Amendment 96 relates to a new provision made during stage 2 that amended section 170 of the bill. That provision enabled the Scottish ministers to make rules specifying the matters that could be considered by pre-hearing panels. The matters are set out in a closed list in section 78 of the bill and although I do not intend to adjust them in the near future, it is appropriate that flexibility is available without the need to adjust primary legislation. In light of the potential for those rules to adjust matters contained in primary legislation, I consider that affirmative procedure is required. That is what amendment 96 will achieve.
Amendment 96A, on behalf of the Subordinate Legislation Committee, provides that rules containing provisions on certain matters in section 70(2) be subject to affirmative procedure. I offer my support for that amendment.
I move amendment 96.
I am grateful for what the minister has just said. On behalf of the Subordinate Legislation Committee, I propose amendment 96A, which seeks to amend the Government’s amendment 96.
Section 170 of the bill enables the Scottish ministers to make rules about the practice and procedures of the children’s hearings system, but we are concerned specifically about section 170 (2)(a) to (m). As the bill stands, those paragraphs are subject to negative procedure. When we looked at the bill, we questioned whether negative procedure was appropriate in all those cases and, as the minister mentioned, we were concerned about paragraphs (d) to (f), (h) and (k), which deal with substantive rights such as attendance at, excusal and exclusion from hearings, the withholding of documents, and representation at hearings, all of which could engage the European convention on human rights. In those cases, we asked the Scottish Government to consider making the provisions subject to affirmative procedure. In doing so, my committee seeks to safeguard the Parliament’s ability to ensure proper scrutiny. I am grateful to the minister for deciding to accept amendment 96A. It is very much to his credit and that of the Parliament.
I move amendment 96A.
Amendment 96A agreed to.
Amendment 96 agreed to.
Amendment 147 moved—[Margaret Smith]—and agreed to.
Section 173—Sharing of information: panel members
Amendment 97 moved—[Adam Ingram]—and agreed to.
After section 173
Amendment 98A moved—[Ken Macintosh]—and agreed to.
Amendment 98 moved—[Adam Ingram]—and agreed to.
Section 176—Amendment of section 32 of Sheriff Courts (Scotland) Act 1971
I move to group 20. Amendment 148, in the name of Ken Macintosh, is the only amendment in the group.
In speaking to amendment 148, I thank the minister for the effort that he has made to address the criminalisation of children—
I am sorry; I am one step ahead of myself and have moved on to the next group.
We are dealing with representation before a sheriff.
I beg your pardon, Presiding Officer, and the minister’s.
Amendment 148 seeks to clarify the way in which a lay person may represent a party to proceedings under the Children’s Hearings (Scotland) Bill, when enacted. It would do so by adding the line,
“including through the making of oral submissions to the sheriff on the party’s behalf”.
Currently, section 176 outlines the circumstances under which a lay representative may appear at the sheriff court. Section 107 similarly stipulates that a person who represents the child or relevant person at the hearing need not be a solicitor or advocate.
It is unclear whether either or both references to a lay representative allow them to speak on a child’s behalf. If that is the case—I understand that it will be allowed under section 176—I ask the minister to clarify whether he envisages similar provisions around using lay representation as have recently been approved under sections 126 and 127 of the Legal Services (Scotland) Act 2010.
I move amendment 148.
Mr Macintosh was, in the Glasgow vernacular, chapping at the right door but up the wrong close in respect of amendment 148. Overall, I am not entirely satisfied that the amendment is necessary at this stage.
The principle to which Mr Macintosh refers is well established in civil matters down south. The Lord Justice Clerk highlighted in his recent report that the so-called McKenzie friend principle can in time be introduced in civil legislation in Scotland, which would allow lay representation. However, it seems—as Mr Macintosh himself indicated in his submission—that other sections of the bill already allow for that. I do not think that much divides members on the issue, but I would be grateful for some clarification from the minister.
I thank Ken Macintosh for lodging amendment 148. It is not strictly necessary, as the court rule power in section 176 already provides that a person can be represented in court proceedings by someone other than a lawyer. Such representation would include the making of oral submissions, but I am content for that to be made explicit, so I support Mr Macintosh’s amendment.
I thank the minister for his support and his clarification.
Amendment 148 agreed to.
Section 177A—Rehabilitation of Offenders Act 1974: treatment of certain disposals by children’s hearings
We move to group 21. Amendment 99, in the name of the minister, is grouped with amendments 100 to 103 and 149.
I am grateful to the Education, Lifelong Learning and Culture Committee for supporting my stage 2 amendments, which tackled the unequal and in some cases disproportionate disclosure of offences that emanate from children’s hearings. We have taken a real step forward in striking the right balance between taking a proportionate response to the offending behaviour of children and young people and protecting the public. There is much work to be done in implementing those complex changes, but the stage 2 amendments provide a robust legal framework.
Only one of my amendments signifies a slight shift in policy, which is to reduce the time until an alternative to prosecution with compulsory supervision order disposal becomes spent. Spent periods were set out at stage 2 as three months where a case is discharged and six months where a compulsory supervision order is made.
On reflection, we believe that those time periods depend too much on the disposal of the case. As other members will know, that often does not reflect the seriousness of the offence. I therefore propose that in all cases, regardless of the disposal, an alternative to prosecution should become spent after three months of the grounds being accepted or established. I know from discussions with stakeholders that they support that shift.
My other amendments bring the bill into line with my stated intentions at stage 2, when I advised the committee that the legislation would be retrospective. The amendments ensure that disposals that are made under the Children (Scotland) Act 1995 and the Social Work (Scotland) Act 1968 are brought into the bill.
Amendment 103 will allow the order that sets out serious and violent offences to differentiate between degrees of seriousness. In particular I am keen that, as was discussed in committee, we are able to differentiate between assault and assault to severe injury. That will allow for full and proper consideration of what it is proportionate to include in the list.
I understand the intention behind amendment 149, which Ken Macintosh lodged, but I am slightly disappointed to see the amendment, following the sensible and well thought-out discussion on disclosure and public safety at stage 2, which the committee considered in reaching its decision. The amendment does not appear to be in line with those considerations and raises several concerns.
As I have no doubt that Ken Macintosh will explain, the amendment would allow an individual to make an application to a sheriff to have the fact that they have committed a serious violent or sexual offence removed from their disclosure certificate. I will explain why I am concerned about the amendment’s implications.
The disclosure would come into play only if the individual wished to work with vulnerable children and adults or in positions of trust. If the amendment was agreed to, we would offer a person who had committed a serious crime the opportunity to work with the most vulnerable in our society. The right would be available only to a young person whose criminal behaviour had been dealt with by the children’s hearings system and not by the courts. The unintended consequence could be that courts would be the preferred route for dealing with young people who committed serious crimes, regardless of the circumstances that led to that behaviour. That could take children away from the best forum that is available to provide the support that they need—the children’s hearing.
If new evidence comes to light that casts doubt on whether the child committed the offence, the child has the right to seek a full review by a sheriff of the grounds determination that led to the disclosure. If that review succeeds, the information will be entirely wiped from disclosure.
Amendment 149 contains no criteria to identify the validity of a request for a review, apart from requiring a minimum time to have passed since the grounds were accepted or established. Neither does it contain criteria to assist the sheriff in making a decision, beyond an assessment of assertions from the applicant that he or she will not reoffend and does not pose a risk to public safety.
I will set the scene for how the amendment could be used. A 15-year-old boy has committed a serious sexual offence that has been dealt with through children’s hearings. He might be under compulsory supervision for that offence until he is 18. If Ken Macintosh’s amendment was agreed to, that boy could work with vulnerable groups at the age of 17 and his employer would be told nothing of his past offence.
I understand the intention behind the amendment—to be fair to those who do not reoffend and who go on to lead perfectly respectable lives. The answer to achieving that is in the work that is under way on weeding rules. The Association of Chief Police Officers in Scotland is reviewing the weeding and retention rules that dictate for how long an offence is disclosed. ACPOS shares my view that the rules are too long and need to be shorter. That work holds the answer to the legitimate concern about how long information should be available for disclosure. Mr Macintosh’s amendment seeks to address the same issue but would have consequences that I presume are unintended and which would not be sensible or safe.
I ask members to consider that disclosure consequences apply only to serious violent or sexual offences—not shoplifting or childhood pranks. Disclosure certificates would show the information only if the individual wanted to work with vulnerable children or adults or in positions of trust. Amendment 149 is well meant, but it gets the fundamental balance wrong and would risk undermining public safety. Given the points that I have made, I urge Ken Macintosh not to move the amendment.
I move amendment 99.
15:15
I thank the minister for his comments and for his efforts at the earlier stages of the bill in considering the issue of the criminalisation of children as they move from childhood to adult life without any assessment being made of their risk of reoffending or their danger to the public. I welcome the amendments that the minister lodged and in particular the retrospective application.
I appreciate the minister’s comments on the potential danger of the approach in amendment 149, although I am not sure that I accept his argument. The point of amendment 149 is that it would introduce not a blanket acquittal of all children who have been found guilty of a sexual or other serious offence in childhood, but the principle of a review or appeal procedure for young people who have gained such a record, which will follow them into adult life. We discussed the matter in detail at stage 2, as the minister said, and I have redrafted an amendment that I lodged then, to focus simply on the review—that is, the opportunity to look again at a young man or woman’s life.
At stages 1 and 2, I put forward the case of a young man who, at the age of 13 or 14, commits a sexual offence and admits to it, and therefore cannot appeal on the ground of new evidence. The young man’s case will not be picked up by the approaches in the Government’s amendments. Indeed, even though he is on the straight and narrow as he becomes an adult, his criminal record—the offence that he admitted to as an adolescent of 13—will follow him until he is 40.
The minister was right to say that it is about proportionality. We must consider whether we have got the balance right. The minister and members know that many children’s organisations, such as Children in Scotland, the Scottish Child Law Centre and Scotland’s Commissioner for Children and Young People, submitted evidence on the point that I have raised. The children’s commissioner said:
“At present, the system administers blanket criminalisation of children who accept an offence ground referral ... The consequences through the Disclosure system last for decades ... In my view, this cannot be reconciled with Scotland’s children’s rights obligations, which require an approach that avoids criminalisation and promotes rehabilitation and reintegration of the child into society”.
The commissioner noted that it has been argued that the current approach
“does not contribute to promoting desistance from offending”.
We heard evidence for that at stage 2. The commissioner went on to say:
“I therefore support amendment 149 ... which would give affected persons the right to apply to a sheriff for removal of offence information from their criminal record, where the sheriff is satisfied that the person does not pose a significant risk to another person, or of reoffending.”
I would welcome members’ comments. I appreciate that the minister expressed a couple of concerns, particularly about the possibility of different procedures between the sheriff court and children’s hearings. I was pleased to hear what he said about the weeding and retention system on which ACPOS is working. There is no single way of addressing the matter, but it was worth raising the issue again at stage 3, to emphasise that the problem has not gone away and will need to be considered by the Parliament.
The group contains various amendments, but it is amendment 149, in the name of Mr Macintosh, that must be carefully considered. The minister was correct to say that it is all about proportionality. No one wants to damn a youngster for ever, but the public interest and public safety must come into consideration.
There are a couple of issues. First, there could be ECHR compliance difficulties with regard to retention in a case of the type that Mr Macintosh described, in which a 13-year-old could find himself unable, under the bill as it stands, to have a particular conviction reviewed or taken from the disclosure record. Secondly, the check and balance in this context would be the judicial determination of the sheriff. Some members might argue that we are seeking to introduce a legal aspect in an area in which the principle has been to try to remove legalism as far as possible, but that is the check and balance, because nothing could happen unless a summary application had been made and the sheriff had considered the matter.
A sheriff would seriously consider any risk of danger to the public in light of the appellant’s pattern of behaviour and would almost invariably refuse applications of the nature that we are considering.
I imagine that such applications would be very rare. The fact that both Mr Macintosh and the minister had to stretch for hypothetical examples—for the best of purposes—illustrates the difficulties that could arise.
I think that the appropriate safety factor is in place, but the minister has the opportunity to persuade us to take a different route. At the moment, I think that amendment 149 is commensurate with the degree of difficulty that might arise.
I am minded to take a motion without notice to extend the next time limit by 10 minutes.
Motion moved,
That, under Rule 9.8.5A, the remaining time limits be extended by 10 minutes.—[Bruce Crawford.]
Motion agreed to.
Throughout the bill process, members of the Education, Lifelong Learning and Culture Committee and the Government have been concerned about the criminalisation of children. The committee took evidence on that important issue from a number of children’s charities and from Scotland’s Commissioner for Children and Young People. Many of us were concerned that, rather perversely, a system that was meant to have the child’s best interests at its heart ended up letting the child down.
Children who accepted offence grounds or had offence grounds established were left with a criminal record for the next 20 years. That seemed particularly perverse where a child had admitted the offence, especially because the evidence against them had not been tested in court and it is at least debateable whether they would have known the full consequences of their acceptance of offence grounds. Where the offence was minor, it seemed even more perverse and wrong that that should compromise a child’s rehabilitation and job prospects in later life. That is why we were pleased when the minister lodged amendments on the issue at stage 2.
A balance must be struck between decriminalising the child and maintaining public safety. That is why I accepted at stage 2 that it is right that some offences ought to appear on disclosure certificates. Convictions for serious violent and sexual offences will continue to be disclosed when someone is seeking to work in regulated work—for example, with vulnerable adults or children. That is absolutely right and brings a sense of proportion that was previously lacking in the system.
The Scottish Government will consult on the list of serious, violent and sexual offences, and the matter will be subject to affirmative procedure in the Parliament. There will also be welcome changes to procedural rules, so that it will be the reporter’s responsibility to inform the child and relevant persons of the consequences of accepting such grounds. The hearing panel chair will also check that with the child before the hearing begins. I believe that the Government has responded reasonably and proportionately and urge the Parliament to support its amendments. I particularly welcome the retrospective nature of the Government’s proposals.
At stage 2, Ken Macintosh attempted to bring a level of risk assessment into the system by placing a duty on the panel to make judgments about whether a person poses a risk of reoffending. His stage 2 amendment was roundly rejected by all other members of the committee. I accept that amendment 149, which he has lodged at stage 3, is different. This time the sheriff, rather than the children’s panel, is asked to make decisions about the risk of further offending. The member’s main motivation appears to be that he does not like the blanket approach that the minister’s amendments take. In my view, the minister’s approach has the benefit of delivering clarity, as it enables a child and their family to know in advance what the consequences of accepted offence grounds may be.
I share some of the minister’s concerns about Mr Macintosh’s amendment. Now, information from the children’s hearings system will be disclosed only about people who committed a serious violent or sexual crime, if they are seeking employment with vulnerable groups or in positions of trust. It is not unreasonable for society to maintain that position on public safety grounds. Amendment 149 might also make the courts a preferable route, which we want to avoid.
Bearing in mind the minister’s comments on the right to a review under existing rules and the on-going work of ACPOS, I urge the Parliament to accept the minister’s amendments and to reject amendment 149, no matter how well meaning Mr Macintosh’s intention. I accept absolutely that the member wants to ensure that children have the opportunity to get on with their lives and are not held back by something that they did in their teens. However, given the seriousness of the offences that we are discussing, we must be proportionate. The proportionate response is to reject amendment 149.
I will respond to Bill Aitken on a couple of points. I ask him, rhetorically, how he can predict what the sheriff would do, given that amendment 149 does not spell out any criteria whatsoever. Secondly, I do not quite understand his point about ECHR compliance. It is fine as far as we are concerned, because the system is based on consent and was approved under the Protection of Vulnerable Groups (Scotland) Act 2007. There is no ECHR problem.
Rather than reprise all the arguments that I made in my opening remarks, I will leave members to answer some key questions. How will the sheriff make his decision? How will that protect public safety? How does it protect vulnerable groups? How does it protect children from being processed through the courts more frequently than happens at present—bypassing the children’s hearings system?
Would the minister not agree that, although predicting judicial determinations can be a little difficult under any circumstances, judges get them right in the vast majority of cases?
The minister is making some fairly good points in respect of the rest of the matter, but he would surely also agree that, in the extreme cases—which are few and far between—the matter is most likely to go to a court, which would have to be the place for it.
I merely respond by saying that it is notoriously difficult to predict whether people will reoffend. Essentially, Mr Macintosh’s amendment 149 suggests that we are not leaving a lot of time between the original disposal and the right for the person to come before a sheriff for a review. It could be a matter of months before that happens. I do not think that that is a risk worth taking with public safety, particularly when it comes to vulnerable groups, which is what the disclosure process is for.
I urge members to support the Government amendments in the group and to oppose amendment 149.
Amendment 99 agreed to.
Amendments 100 to 102 moved—[Adam Ingram]—and agreed to.
Section 177B—Criminal record certificates
Amendment 103 moved—[Adam Ingram]—and agreed to.
Amendment 149 not moved.
After section 177C
We come to group 22. Amendment 104, in the name of the minister, is the only amendment in the group.
Amendment 104, which is of a technical nature, relates to the effect of orders made outside Scotland. Section 33 of the Children (Scotland) Act 1995 enables regulations to be made to allow court orders that are made in other parts of the UK to have effect as if they were supervision requirements. As supervision requirements will be replaced by compulsory supervision orders, amendment 104 inserts a new section into the bill to enable regulations to be made to allow an order that has been made by a court in England, Wales or Northern Ireland to have effect in Scotland as if it were a compulsory supervision order. The amendment also enables the modification of the bill or of the Social Work (Scotland) Act 1968 in their application to such orders, where appropriate. That is similar to provision that is contained in the 1995 act.
I move amendment 104.
There is too much noise in the chamber.
Amendment 104 agreed to.
Section 181—Subordinate legislation
Amendment 161 moved—[Adam Ingram]—and agreed to.
After section 183
15:30
Amendment 150, in the name of Karen Whitefield, was debated with amendment 4. Ms Whitefield to move or not move.
Not moved—[Interruption.] Moved, Presiding Officer.
I had not put the question, Ms Whitefield, but you will have to be much quicker than that in future. That is not acceptable.
Amendments 150A to 150C moved—[Adam Ingram]—and agreed to.
Amendment 150 agreed to.
Section 184—Meaning of “child”
We come to group 23. Amendment 105, in the name of Robin Harper, is grouped with amendment 106. I draw members’ attention to the information on pre-emption that is given in the groupings paper.
Making children’s hearings the default option for minor offences that are committed by young people up to the age of 18 would bring Scotland into line with the United Nations Convention on the Rights of the Child, which has rightly been ratified by Britain and should be honoured. If my amendments in the group were to be agreed to, young people between the ages of 16 and 18 would not face criminal charges for minor offences and would instead be dealt with in the children’s hearings system. We would serve justice, our communities and our young people better if young people were not criminalised the first time they committed an offence that could attract a short jail sentence.
The majority of our prisoners, young and old, have problems—drug problems, health problems, mental health problems, learning difficulties and alcohol problems—and, above all, they need help to reduce the likelihood of reoffending. Stripping a 17-year-old boy of the remains of his self-esteem knocks out any confidence he may have left. Locking him up with hardened criminals after his first indictable offence is one good way of ensuring that he is more likely to reoffend. That is evidenced by the fact that we lock up more young people than almost any other country in Europe.
Sheriffs can already refer offenders between the ages of 16 and 18 to the children’s panel reporter, but the power has rarely, if ever, been used in recent times. There are many programmes that help young people who have offended or who are at risk of offending. One such programme is Action for Children’s youthbuild, which has a 70 per cent success rate in getting young people into work. Sheriffs could use all of those programmes at a fraction of the cost of the £31,000 a year it costs to lock up a young person who has committed his first offence.
I moved a similar amendment at stage 2 at the Education, Lifelong Learning and Culture Committee. I did not press it, given the committee’s somewhat lukewarm response. Its members have had time to reconsider. I will listen carefully to responses before deciding whether to press or seek leave to withdraw amendment 105. I ask the minister to respond in particular to my last point.
I move amendment 105.
As Mr Harper said, amendments 105 and 106 mirror amendments that he lodged at stage 2. I share Robin Harper’s view that we must, where possible, seek to avoid any young person being deprived of their liberty, and this is an important debate, but the proposed change is not the right way to achieve that goal. It is important to be clear about the value and flexibility of our system. The children’s hearings system focuses its efforts and resources on identifying and addressing the welfare needs of the youngest and most vulnerable in our society, whose risks and needs are, in the vast majority of cases, apparent long before their 16th birthday. That has to be right. The idea is attractive in principle, but I cannot support carte blanche inclusion of 16 and 17-year-olds in the children’s hearings system.
I firmly believe that the current system already allows an appropriate measure of flexibility in dealing with such young people. First, 16 and 17-year-olds are already in the hearings system. Supervision requirements can and do continue until children reach the age of 18, and the bill provides for that practice to continue. Secondly, in the context of offending behaviour, courts already have the power in some cases to choose to seek advice from a hearing or to remit a 16 or 17-year-old back to the system for disposal, whether or not they have been in the hearings system before they turned 16.
We have a good adult court system and a children’s hearings system. We must consider how those systems can be used effectively to manage appropriately the needs and risks of these young people. Further, such a change would require extensive consultation to determine the potentially profound impacts that it would have on policing, the courts and the children’s hearings system.
A change to the existing provision is not needed to get the best out of the systems that we already have. I believe that flexibility is key in order to best focus the resources that we have at our disposal on those who are most in need, and that the current system provides it. Although I understand Mr Harper’s intentions, my concern is that his amendments would risk that flexibility and focus.
I do not support Robin Harper’s amendments, and I hope that he will withdraw amendment 105 and not move amendment 106.
Amendments 105 and 106 echo those that were lodged by Robin Harper at stage 2. Although I have some sympathy with the view that we should try to keep young people out of Polmont and out of prison and that we should be particularly attentive to the needs of children coming out of care, I had a number of issues with the amendments, which Mr Harper chose not to press at stage 2.
First, it is fair to say that, despite arbitrary age limits, there is no age below which all people are children and above which all are adults. Different Governments have taken a range of different approaches to the issue. It is also fair to say that there are some 15-year-olds who are more mature and capable than some 17-year-olds. Therefore, what we need is a flexible system and approach to these issues, and I believe that the current system has that flexibility.
Currently, young people can stay under the care of the children's panel up to the age of 18 if they have been dealt with by the hearings system and are, for example, subject to an order. There is flexibility in the system and courts already have the power to remit 16 and 17-year-olds back to the hearings system for disposal, regardless of whether they have been in the hearings system before.
For some individuals, it will be right that, between the ages of 16 and 18, they remain within the hearings system. For others, possibly with a long-term history of offending, it will be right for them to be dealt with by the adult courts. The current system has the flexibility to make those decisions in the best interests of the child or young person.
I think that, if we are to reconsider the issue, it would be useful to do so in the wider context of the different approaches that are being applied to youth criminal justice. Only last week, when I asked Fergus Ewing a question on youth violence, he was able to give me quite encouraging statistics on the progress that is being made on the issue. We should consider the issue in that context, rather than try to deal with it, rather late in the day, through this bill. The system that we are working with has the flexibility to get the approach right for each and every child.
In response to Margaret Smith’s suggestion that I was not able to quantify the effects of the proposal, I say that that would involve a major piece of research that would be best done by the Government. I was not capable of doing that on my own.
There remains a problem with regard to young people between the ages of 16 and 18—particularly those who have just reached 16 and those who are leaving care. Far too many of those young people fall through a hole in the system, and disproportionate numbers of those young men end up in institutions such as Polmont. I hope that successive Governments will do more to address the problems in that area.
We need to keep in mind our commitment to the UNCRC to move to treating young people between 16 and 18 as children. The final problem that has not been addressed is that sheriffs do not use the powers that are available to them. Obviously, we cannot direct the law in that respect, but will the Government respond on the issue of advice and help to sheriffs on alternatives to prison, particularly for young people?
I will not press amendment 105.
Amendment 105, by agreement, withdrawn.
Amendment 151 moved—[Adam Ingram]—and agreed to.
Amendment 106 not moved.
Amendment 152 moved—[Adam Ingram]—and agreed to.
Section 185—Meaning of “relevant person”
Amendment 107 moved—[Adam Ingram]—and agreed to.
Section 187—Interpretation
Amendments 108 and 162 moved—[Adam Ingram]—and agreed to.
Schedule 1—Children’s Hearings Scotland
Amendment 109 moved—[Adam Ingram]—and agreed to.
We come to group 24. Amendment 110, in the name of Elizabeth Smith, is grouped with amendments 111 to 117.
The most challenging part of the bill—certainly the one that has given the Education, Lifelong Learning and Culture Committee the greatest amount of work and has led to probably the greatest number of representations from a large number of people, including panel chairs, panel members, safeguarders, local authorities and families—is how to balance the need for better national training and more consistent standards throughout Scotland with preserving the best possible practice at local level.
At the start of the process, questions were asked about whether new legislation was necessary—questions with which I had a great deal of sympathy. Were we in danger of compromising some of the best practice in the existing system at the expense of setting up a large and overcentralised bureaucracy, which would find it difficult to represent the needs of children who come from diverse parts of Scotland and whose circumstances may vary considerably? I note with interest that some of those concerns remain, especially among the panel chairs.
It has been our duty as parliamentarians to take those concerns seriously. The will of the committee at stage 2, however, was that legislation was needed, particularly when it came to improving consistency throughout Scotland. Therefore, it was incumbent on us all to try to create an effective balance between retaining the best parts of the existing system and adopting new practices that would not get in the way of that effective local delivery. It was, in simple terms, a debate about how to avoid localism being compromised at the expense of increasing centralisation; how to avoid the powers of the new national convener being excessive; how to define more carefully the links between area support teams, local authorities and panels themselves; and how to improve accountability, all the while remembering that what was central to the debate was the best interests of our children rather than complex systems and unnecessary legal wrangles.
At stage 2, concerns were raised by the Scottish Government about whether my attempts to preserve local autonomy at the same time as recognising the need for a national convener would encounter incompatibilities with the ECHR. Clearly, those concerns were extremely important, provided that they could be proven to be genuine rather than based upon a perceived fear that there would be a problem, when in fact none existed.
As ever, there was complex legal advice to be considered and some paring down of what was and was not a relevant consideration. I still have a few concerns that, at times, the ECHR has been driving too many aspects of the bill rather than just the essential sections where incompatibility was a real issue. Nonetheless, I put it on the record that I am grateful to the minister and his team for allowing David McLetchie and me to discuss those legal concerns with them on several occasions, and for the Scottish Government’s willingness to move to accommodate our concerns about how to preserve localism in the bill. Amendments 110 to 117 are the result of those deliberations. I hope that members will feel able to support them on the basis that they help to underpin the central ethos of ensuring that there continues to be effective local delivery in local areas.
I move amendment 110.
15:45
The central tenet of the bill has undoubtedly been the policy intent of strengthening the children’s hearings system by ensuring that the decision-making process is independent while ensuring that there is consistency throughout the country and improved levels of accountability.
It is fair to say that the aspect of the bill that we are discussing has been the subject of more debate, deliberation, and briefing and lobbying of the committee than any other. Panel members, panel chairs and the Convention of Scottish Local Authorities all raised considerable concerns about the bill. I accept that the Government listened to those concerns. That is why the original bill was withdrawn and redrafted. The reintroduced bill was a much better attempt. However, despite the minister’s best attempts, concerns continued to be raised.
The Labour members of the Education, Lifelong Learning and Culture Committee were happy to support Elizabeth Smith’s amendments at stage 2 because we believed that they went some way towards addressing the outstanding concerns of key stakeholders about the tension between the day-to-day operation of the children’s hearings system and the role of the national convener. The fact that we now have a series of further amendments highlights the complexity of the area. We all want to do the right thing and ensure that we continue with what is best about the local delivery of Scotland’s children’s hearings while allowing for a much more consistent service throughout the country. That is why the Labour Party will support Elizabeth Smith’s amendments at stage 3 today. We believe that they take us slightly closer to meeting those objectives.
One of the key problems that we have tackled in considering the bill to date is how we can have a consistent system that is based on consistent standards when we want it to remain local in its delivery and accountability. We all agree that it is important that the system is rooted in the local community. That is a key part of our unique system. However, it is fair to say that, at various points, we have not had agreement from stakeholders about how we should achieve that. Committee members have done their best to try to come up with a position that squares the two sides of the equation.
In response to concerns about the powers that are being given to the national convener, Liz Smith lodged stage 2 amendments 71 to 74 and 78, which placed area support teams under the control of local authorities rather than the national convener. Those amendments were prompted by concerns that the bill did not achieve the right balance between local and national decision making. The intention was to tip the balance in favour of local delivery to respond to the many concerns that had been raised on the issue.
The minister argued that the amendments were not ECHR compliant, that they undermined the independence of the hearing, and that they set up potential conflicts of interest because local authorities would be in control of the system and would also be the bodies that were charged with taking on the provision of services to children who had come through the system. I certainly accept that that was a danger. Although committee members supported the amendments, we were clear that it would be preferable if further options were discussed and explored by Elizabeth Smith and the minister that addressed all those issues.
I know that Elizabeth Smith and the minister have put a lot of time and effort into finding a solution that all who were concerned could accept. I am therefore pleased that the discussions have led to the group 24 amendments, which will give the national convener the power to set up and maintain area support teams. Limits have been put on the number of local authority members on the teams so that the teams will not be controlled by local authorities; that will ensure that the teams are independent. Current children’s panel advisory committee members will automatically become members of the area support teams, thus aiding transition from one system to another. The amendments provide more local influence than was given in the bill as it was first presented, but they pose no questions over ECHR compliance.
I accept that concerns have been raised about the position that the committee adopted at stage 2. By accepting Elizabeth Smith’s amendments, I hope that we will allay the fears of panel chairs, Children 1st, CPACs, and various other people who have lobbied us strongly on these issues all the way through the bill process.
More importantly, by accepting the new proposals we are going a long way towards achieving the national and local balance that we need if the new system is to be successful for Scotland’s children.
I am grateful to Elizabeth Smith for lodging amendments that overturn amendments 71 to 74 and 78, which were passed at stage 2. As others have said, the stage 2 amendments gave control of area support teams to local authorities, and that gave local authorities direct influence over issues such as the recruitment, selection and appointment of panel members, and decisions over training. As I said at stage 2, that represented a serious attack on the impartiality and independence of panel members, so the provisions had to be removed.
If those provisions remain in the bill, they will lead to the construction of a system that fails to comply with the ECHR duties that have been placed on the Scottish Government and Parliament as part of the Scotland Act 1998 and the Human Rights Act 1998. Panel members are clear about the independent nature of their role in making crucial decisions about a child’s life. In making such decisions, it is vital that the hearing upholds human rights, particularly those in article 6 of the ECHR, which demands that
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law”.
It would have been impossible to meet that obligation if local authorities had responsibility for area support teams. That is because a local authority, which has to implement and pay for the decisions of the children’s hearings system would also control the body—the area support team—that is responsible for recruiting and servicing the decision maker, or the hearing, that is taking the decision.
As Margaret Smith and others have said, the Education, Lifelong Learning and Culture Committee and members in general have received a large number of representations from stakeholders who had serious concerns about the amendments that were passed at stage 2. I wrote to the committee with a clear explanation of the legal position and the potential consequences of those earlier amendments. Of all the issues in the bill that were debated, this is the most critical and it must be resolved today.
For the record, if the bill were to retain after stage 3 the changes that were made by amendments 71 to 74 and 78 at stage 2, it would lie outwith the legislative competence of the Scottish Parliament in terms of the Scotland Act 1998. That is the Scottish Government’s unequivocal position. The bill could therefore be subject to referral to the Supreme Court by the Lord Advocate, the Advocate General, or the Attorney General, for consideration of its legislative competence. That would, of course, be a decision for each of those law officers. If such a referral is made, the bill cannot be submitted for royal assent until the Supreme Court has made its decision and the issue of legislative competence is resolved. Such a situation has not arisen since devolution, and we should avoid this bill being the first to trigger such a legal dispute.
I am convinced that the amendments that have been presented today by Elizabeth Smith overturn those that the committee supported at stage 2, and they provide greater clarity about the powers of the national convener and the role of local authorities in providing local support to panel members. They also allow for the continued contribution of the volunteers that are central to the hearings system without compromising the bill’s key principles and objectives to protect the independence of decision makers, improve consistency and introduce accountability.
As Liz Smith described, the amendments place a duty on the national convener to establish area support teams with the agreement of local authorities; to provide local authorities with guaranteed membership of the teams with an appropriate balance; to include panel member representation in area support teams; to allow for the automatic continuation of CPAC volunteers in area support teams; and to delegate rota management to area support teams.
Amendment 117 reinstates the powers and duties of the national convener in training panel members. Training is the primary means of developing the skills of panel members to make decisions in a hearing. Those decisions centre on making compulsory supervision orders that place a duty on local authorities to provide support to children, so it is wholly inappropriate to provide local authorities with a level of influence over the training of panel members, who we must remember are lay members, on the decisions that they should be making for children.
Liz Smith’s amendments offer a way out of the situation that we find ourselves in, and I am grateful to her for working with me to find a resolution that guarantees localism in the hearings system while ensuring that the Parliament satisfies its obligations under the ECHR. I strongly support the amendments lodged by Liz Smith.
I am minded to take a motion without notice to extend the next and last time limit by up to 20 minutes.
Motion moved,
That, under Rule 9.8.5A, the remaining time limit be extended by up to 20 minutes.—[Bruce Crawford.]
Motion agreed to.
I put on record my thanks to the minister, to my committee colleagues and to colleagues within my party for their work on the issue. As I said at the beginning, it was not an easy task because we had to take on board the views of those with the expertise and skills who make the system work on the ground, and allay their fears about having excessive bureaucracy put on them.
I am aware of lots of different views on the subject. The process has not been easy, but we have probably got the best possible compromise to ensure that we can take forward the local delivery and have new standards in training and the office of the national convener.
Amendment 110 agreed to.
Amendments 111 to 116 moved—[Elizabeth Smith]—and agreed to.
Schedule 2—The Children’s Panel
Amendment 117 moved—[Elizabeth Smith]—and agreed to.
We come to group 25. Amendment 153, in the name of Ken Macintosh, is grouped with amendment 154.
Amendment 153 is straightforward. It would require the national convener of children’s hearings Scotland to involve children and young people in the training of members of children’s hearings. The proposal was made initially by the Aberlour Child Care Trust and Action for Children Scotland and supported by other children’s organisations in evidence on the bill. It was one of a series of amendments designed to put children at the heart of the new hearings system.
Amendment 153 proposes a practice that would help to create and develop a listening culture and ensure that children and young people feel more involved and have a greater say in key decisions about their lives. The need to develop such a culture emerged in the evidence taken by Action for Children Scotland in its survey and event on the “Where’s Kilbrandon now?” report.
Amendment 153 suggests that the age of 25 be used as the cut-off point so that we may learn from the experience of those who have been through the system. I am aware that the minister agreed in principle to the approach at stage 2, and I hope that he will be able to support the reworded amendment at stage 3. I indicate Labour’s support for Margaret Smith’s amendment 154, which addresses a similar issue.
I move amendment 153.
16:00
As I have said many times during consideration of the bill, it is important that panel members are able to hear the views of the child and that those views are properly taken into account. Amendment 154 places a duty on the national convener, when training or planning the training of panel members, to have regard to the need for members to be trained in the best way to gain the child’s views. I do not pretend that that is always an easy task. I have five children, so I know that it is not always an easy task. Each child is different and, indeed, each panel member is different. Not every panel member will find it an easy thing to do, although some panel members will be adept at it.
Amendment 154 is not prescriptive about how that is to be done. Different approaches might be taken, including taking advice from young people who have gone through the system—Mr Macintosh’s amendment 153 proposes that—or getting input from panel members throughout the country who have developed best practice in this important aspect. Panel members share our aspiration that the child should be a full partner in a hearing that will have a direct impact on his or her life.
I hope that Parliament will support both the amendments in the group.
The Conservative party will support both amendments. If there was any unanimity of views in the committee, it was on the need for better training. Essential to that is the quality of the feedback and that panel members should feel better informed about the impact that their decisions have made.
As I said in relation to the previous group of amendments, panel member training is crucial to the success of the children’s hearings system. It is integral to ensuring that we have panel members with the skills, knowledge and experience to take decisions in the best interests of children and young people. Passing responsibility for training to the national convener as the bill proposes will ensure that we address concerns about consistency of the existing training arrangements and equity of access—panel members are offered more training opportunities in some areas than in others. The bill also gives us the chance to consider training more broadly.
I am keen for children and young people to be involved more consistently in panel member training. It is important that panel members are able to put children at their ease and to communicate clearly and effectively with them. Amendment 153 requires the involvement in that training of young people who have been in the hearings system. That is a welcome step, especially with regard to their involvement in the delivery of training, although it is not immediately clear to me how straightforward it will be to involve those young people in the development of the training. The national convener will, no doubt, relish taking on that challenge in due course.
Amendment 154 requires panel member training in how best to elicit the views of children and young people. That places in statute what happens at present: all panel members receive the training, as they should. Nevertheless, I understand why Margaret Smith would like the provision to be included in the bill. It fits well with other measures that are already in the bill, which seek to ensure that the views of children at hearings are heard.
I do not believe that it is all about the bill. A change in culture and practice is key to ensuring that children are effectively engaged with the hearings system and feel able to speak at hearings. However, both amendments underpin that change and I am happy to support them.
Amendment 153 agreed to.
Amendment 154 moved—[Margaret Smith]—and agreed to.
Schedule 3—The Scottish Children’s Reporter Administration
Amendment 118 moved—[Adam Ingram]—and agreed to.
Schedule 5—Minor and consequential amendments
We come to group 26. Amendment 119, in the name of the minister, is grouped with amendments 120 and 121.
These three amendments seek to add minor and consequential amendments to schedule 5 and further repeals to schedule 6.
I move amendment 119.
Amendment 119 agreed to.
Schedule 6—Repeals
Amendments 120 and 121 moved—[Adam Ingram]—and agreed to.
That ends the consideration of amendments.