Chamber and committees

If the member does not mind, I would just point out that that is covered in what I am about to say. I will get on to that as I speak.

Amendment 17 also contains detail on the persons that such a service would apply to and what might be provided in terms of such support as well as providing a non-exhaustive list of statutory consultees. The Government has had in-depth discussions with victim support organisations, which have helped inform the amendment. At this point, I thank the committee for altering the stage 2 deadline, as it has allowed much more room for discussion of the topic.

I think that we can all agree that qualitative research would be welcome in this area to ensure that we are maximising, within the confines of the law, what would be helpful for persons reporting offences by children whose situations are dealt with by the hearings system. Work has already begun between SCRA and Victim Support Scotland on a research proposal, with interim reports planned for autumn, and it will look at gaining an increased understanding of how and by whom the victim information system in SCRA is used; understanding the experiences and needs of victims; understanding the experiences and needs of the children who have harmed others; understanding models of victim information and support provision; and identifying whether SCRA’s victim information service should move from an opt-in to an opt-out service.

That research has been scoped and will start in February 2024, with an interim report in July to October this year and a full report expected in February 2025. The work merits meaningful research, as the committee will appreciate, and it will take time for it to be done properly.

I am conscious that there are similarities between my amendment 17 and amendments 122 and 181, which have been lodged by Willie Rennie and Pam Duncan-Glancy respectively. I will first highlight some aspects in relation to amendment 122 and why my preference is to pursue the Scottish Government’s amendment 17.

First, amendment 122 is restricted to information sharing. It does not extend to other support services for victims, and it is less flexible than amendment 17.

Secondly, some of the specifics of amendment 122 go beyond what would be appropriate to share with victims. For example, I am concerned that they could enable the sharing of information to the detriment of a child’s welfare and privacy.

Thirdly, amendment 122 could result in the sharing of information in a situation where a child moves from secure care to prison, which is not a disposal that can happen in the hearings system.

Finally, amendment 122 would also have the effect of imposing an opt-out service on victims, meaning that they would receive information about decisions made about a referred child unless they took action to stop it.

As I have highlighted, SCRA and Victim Support Scotland are working together on a research project that will consider the current opt-in service and whether there is any need for change and on which they will engage with those with lived experience of the current service. It would be prudent to await the results of that study before effecting any change.

I am happy to engage further with Willie Rennie on the detail of my amendment, if that would be helpful, particularly to reassure him that what amendment 17 will achieve will be more beneficial to victims. I should highlight that the regulation-making duty in amendment 17 will also require prior consultation and engagement, including with victim support organisations.

The aims of amendment 181, in the name of Ms Duncan-Glancy, are similar to those of amendment 17, but it is restricted to a simple single point of contact provision. Amendment 181 does, however, prescribe regulations that are subject to affirmative procedure rather than the negative procedure outlined in amendment 17. If Pam Duncan-Glancy is amenable, should the Government amendments be supported, I will be open to discussion on that point, as the member has suggested, ahead of stage 3. With that said, I must ask members with amendments in this area to consider whether they still wish to move them.

Finally, I wish to address amendments 123 and 183, which concern reporting duties in relation to victims and movement restriction conditions. Amendment 123 potentially creates significant demands relating to victims’ experiences of the hearings system on a range of agencies. Some of that information is already published; for example, SCRA publishes offence referral data annually, which is broken down by offence type. However, the additional information stipulated in the amendment could lead to an incomplete and misleading representation of victims in the hearings system, and it is not clear to what end. How agencies collect and retain information in relation to victims varies according to their role and functions.

The SCRA victim information service does a huge amount of work to identify victims through the referrals received from police and, for a wide range of reasons, a victim is not always identified in the information provided. The age profile of the victim is also not always identifiable from the information that the SCRA has available. Any work in that area must be attentive to the considerations around sensitive data, how that data is shared, what is published and for what purpose. It would perhaps be more appropriate to deal with that through qualitative research in conjunction with appropriate victim support organisations.

Any information and support that a victim receives must be given sensitively and in confidence. Detailed reporting on the information and support given to victims is likely to be incomplete, and it is not clear what value it adds. In any case, general information on the kind of things that agencies can do for victims is otherwise available.

Likewise, in relation to amendment 183, as I mentioned earlier, significant amounts of data are already broken into numerous categories and are available through the online dashboard provided by the Scottish Children’s Reporter Administration. The SCRA also publishes an annual, in-depth and detailed analysis of its statistics and details of MRCs, and that will be available from next year onwards in its annual report.

The amendment, as framed, extends further than the information that can be provided by the SCRA, and it is difficult to know at this stage the extent to which the use of MRCs will change. If the numbers stay low, the victim experience, for example, will not be capable of meaningful analysis. However, there is merit in having further discussions on how to enhance the transparency of MRCs and other relevant measures for victims of cases referred to the children’s hearings system in future, without the need for legislation. If Willie Rennie is in agreement, I ask him not to move his amendment in order to have those further discussions.

I will move amendments 13, 15 and 17. As I cannot support the other amendments in the group, I ask members not to press them and, if they are pressed, ask that the committee reject them.

I have set out how far the Government amendments go and I have agreed that there is scope for us to go further. It would be prudent for the member and I to discuss any areas of concern that he still has, such as those that he has just mentioned, ahead of stage 3. As I said, we can certainly look at that instead of pressing on with the amendments in their current form.

I say at the outset that I appreciate the intentions behind the amendments that have been lodged by Mr Whitfield and Ms Duncan-Glancy.

On the training of panel members, which is addressed in amendment 187 and is clearly an important area, measures have already been put in place by the national convener to ensure necessary and proportionate training. However, it is not clear why the particular subjects in this amendment would need to be legislated for above others in this way.

As Children’s Hearings Scotland is a listed public authority under section 15 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, it is required not only to comply with the UNCRC but to report on action that it has taken, or which it intends to take, to ensure compliance and

“secure better or further effect of the rights of children.”

Given that children’s rights training for panel members is already offered and will form an integral part of the reporting requirement, that aspect appears to have already been covered appropriately by other legislation.

Establishing a good understanding of child development is part of panel members’ existing training and can be a key consideration in how a child effectively participates in their hearing. However, the Children’s Hearings Scotland guidance that is issued to panel members states that

“Panel Members are not, and should not attempt to be seen as, child development specialists.”

Similarly, all panel members receive training on domestic abuse as part of their wider training on trauma. Panel members must know how to approach cases in which domestic abuse is one of the grounds of the referral but also those in which domestic abuse is intertwined with other issues that need to be addressed by a hearing. However, domestic abuse is one of many child welfare concerns that might come before a panel and will not be a relevant consideration in all cases.

Therefore, I am not clear why domestic abuse and child development would need to be specifically elevated in status under schedule 2 to the 2011 act. I am comfortable that they form a proportionate part of the comprehensive training that is already offered to panel members and that children’s rights training is appropriately covered by other legislative requirements. On that basis, I do not support amendment 187.

I probably will not be able to go into specifics on every amendment on which I give such a commitment today.

I have had extensive engagement with committee members between stages 1 and 2, and a lot of what they have raised with me has been formulated into the Government amendments that we have lodged. I hope that that emphasises my willingness to work with members and my willingness to listen to them, because, as I have said before, my priority is to get this right for Scotland’s children and young people. Although I cannot tell Pam Duncan-Glancy exactly what will be detailed in the discussions, I am willing to have them, and I am willing to have as many of them as needed until we get to a point at which it is workable.

Fundamentally, at the root of our position is the fact that the Conservatives’ amendments in this group would interfere with the constitutional independence of the Lord Advocate in relation to prosecutorial decision making. Just as the Parliament cannot undermine that, I, as a minister, cannot undermine that.

Members will be aware that, following the committee’s stage 1 report, in which a recommendation was made concerning the Lord Advocate’s prosecution guidelines, the Lord Advocate wrote to the committee, stating:

“It is a fundamental principle of Scots constitutional law that, as the independent head of the systems of criminal prosecution and investigation of deaths in Scotland, the Lord Advocate takes decisions independently of any other person.”

That same principle is being breached by the amendments in this group. Should the committee be minded to agree to them, it would seem very likely that similar representation would be made, and action needed by the Parliament, at stage 3.

I will come on to some of the difficulties around this, but I agree with a lot of what the member says about social media. There are gaps across a range of issues to do with social media. The issue that the member raises might need to be monitored and looked at in the future, as would other difficulties with social media.

I will move on. Amendment 16 increases the maximum penalties for a breach of a reporting restriction in relation to a children’s hearings case. It increases the maximum penalty on summary conviction to imprisonment for a term not exceeding 12 months—

Oh, I am sorry—I am repeating myself. I lost my place. Apologies for that.

Breaching reporting restrictions is an offence. Therefore, increasing the maximum penalties for breaching such restrictions recognises the severity of that and reflects stakeholders’ stage 1 evidence.

Amendments 43 and 84 also provide appropriate statutory defences for breaches of reporting restrictions. That is to avoid unfairly criminalising individuals or publishers for the sharing of already published information when they had no reason to know or suspect that the original publication was done unlawfully or did not know that it included relevant information.

Again, those concerns were raised by stakeholders at stage 1. The amendments reflect the realities of social media and bring greater consistency with existing children’s hearings legislation and provisions in other United Kingdom jurisdictions in respect of court proceedings. However, as I have already stated, Mr Whitfield, I think that we need to continue to monitor that.

Amendments 43 and 84 also clarify individual culpability where an organisation commits an offence for breaches of reporting restrictions pre-court and during and after court proceedings respectively. The provisions provide a further disincentive to committing the offence of breaching reporting restrictions.

Amendment 43 also has the effect that the Crown cannot be found criminally liable for the offence created by section 106BB(1). However, through the mechanism in subsection (2), any unlawful conduct on the part of Crown bodies can be declared unlawful by the Court of Session. That is consistent with existing legal provision and usual practice.

The changes also seek to bring greater consistency and reflect the proposals in the Victims, Witnesses, and Justice Reform (Scotland) Bill that is progressing through Parliament, noting the committee’s comments in the stage 1 report regarding alignment between provisions in the two bills as well as with penalties under contempt of court legislation. The changes are also important because the bill provisions will also apply to a broader range of potential publishers, including publishers that operate outside frameworks of professional regulation such as the editors’ code or Ofcom regulations.

Amendments 25 and 52 are consequential amendments.

I would be grateful if I could continue with my speaking note, because there is a lot of technical information in here. I am happy to answer any questions at the end.

Automatic provision of legal aid has been targeted to circumstances where hearings are convened in certain circumstances or proceed before a sheriff. Otherwise, a type of legal aid known as assistance by way of representation—ABWOR—is available for every child subject to a children’s hearing, subject to an application to SLAB that addresses a means and merits test.

As a child is unlikely to have any financial resources, the means test is nearly always met. Likewise, the merits test, which is one of “effective participation”, is also nearly always met. SLAB reports a high grant rate for ABWOR applications on behalf of children, at 99 per cent over the past 12 months. A child’s social worker or advocacy worker can assist the child with securing contact with a solicitor to make an application for ABWOR, and every child who is subject has a right to advocacy support.

It should be borne in mind that children’s hearings adopt a welfarist approach that aims to be non-adversarial in nature. Although a children’s panel takes legally binding decisions, it is not an appropriate forum for detailed legal argument and instead is centred around the needs of the child who has been referred to the hearing. It is therefore not expected or desirable that publicly funded legal representation be automatically available in every hearing, and nor would it necessarily be required.

Amendment 185 also seeks to extend the availability of automatic children’s legal aid to any occasion when a referral ground includes an offence allegedly being committed. Although I accept that it is narrower in scope than amendment 186, I am again concerned about the need for such a blanket provision when there is adequate scope under the current rules for children to have access to legal aid when required.

As I mentioned, ABWOR is already available for all hearings to the subject child, by way of application to SLAB, with a very high grant rate. Moreover, paragraph 28C(1)(d) of the Legal Aid (Scotland) Act 1986 already allows for automatic children’s legal aid to be provided for children’s hearings to which subsection 69(3) of the 2011 act applies. That is where a hearing is arranged by the children’s reporter in relation to a child who is being kept in a place of safety having allegedly committed a criminal offence.

The amendment would also result in automatic children’s legal aid for any hearing in which there was a minor offence as a ground of referral—there may be a number of grounds. It is understood that, last year, 2,637 children were referred to the reporter on offence grounds, although not all of those referrals will have resulted in hearings.

Operationally, the amendment would also result in a significant number of duty appointments being required to be put in place by SLAB, along with a knock-on effect for the solicitors currently on the duty list.

I am certainly happy to discuss the matter further with the member.

It is certainly fitting that we begin stage 2 consideration with an amendment that brings us back to the fundamentals of why the bill is important.

Recognising, respecting and promoting children’s rights across Scotland has been and remains at the heart of the Government’s vision. Just last week, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill received royal assent and became an act. We also have a shared commitment in the Parliament to keep the Promise to people who have experience of Scotland’s care system. There could scarcely be a more pertinent backdrop to highlight the imperative on us in the Parliament to uphold the welfare and advance the rights of Scotland’s children.

I hope that we can all keep those objectives at the front of our minds as we consider amendments on the specifics of the bill over the coming weeks. Regrettably, some proposed amendments that have been lodged by Opposition parties not only undermine what we had until now understood to be cross-party commitments and points of consensus on the agenda, but are regressive in the current situation.

Although I understand the sentiment behind amendment 164 and agree with the reason that Mr Whitfield outlined for lodging it, a purpose clause such as the one that he proposes is not necessary. The long title of the bill already lists the bill’s purposes in more detail, and the Scottish Government has been clear on them in the accompanying documents and in evidence to, and statements in, Parliament. Those are the right places to record the bill’s purposes.

The purpose clause that is proposed in the amendment would not work in relation to a bill of this nature. The bill contains almost no freestanding, self-contained provisions. Instead, it achieves what it sets out to do by amending 20 other pieces of legislation. Inserting at the outset a purpose statement such as the one that is proposed would blur the required nuances and leave too many unanswered questions as to how it applied to those enactments. Simply put, it would not add anything to what is set out in the substantive amendments to the other enactments throughout the bill.

Some of those other enactments already contain their own overarching statements of purpose or general principles. For example, section 23A of the Children (Scotland) Act 1995 requires local authorities, when exercising functions in relation to looked-after children, to

“have regard to the general principle that functions should be exercised in relation to children and young people in a way which is designed to safeguard, support and promote their wellbeing.”

Section 21 of the bill seeks to amend the 1995 act to ensure that children who are detained in secure accommodation by virtue of being remanded in custody or convicted of an offence are treated as looked-after children. I am not sure how Mr Whitfield’s proposed general purpose section would sit within the general principle in section 23A of the 1995 act.

As I said, the aims are clear as a matter of established Government policy and action. I am afraid that I cannot support amendment 164 and I urge Mr Whitfield not to press it. If it is pressed, I urge the committee to reject it.

I am sorry, convener, but I still have a lot to say.