Chamber and committees

I am grateful, convener. Is the minister prepared to share the response that her officials have received from, in essence, the judiciary? The minister raised a number of matters that fundamentally boil down to the Scottish Government’s apparent disagreement to adding “and rights” after the word “welfare” throughout the bill. When we are talking about legislation, we are talking about the rights that are given or, indeed, taken away in response to the coming together of a young person and the criminal justice system, the welfare system and most aspects of a young person’s life.

The rights of a child sit above that. We debated the UNCRC long and hard in this Parliament over a long period of time, and, across the chamber, there was very strong agreement about the hierarchy of protections that young people have. Sitting at the top are rights, but there has always been the question of a challenge between one individual’s rights and another individual’s rights. The entire process of the court system and the environment of that decision making is about balancing those rights, but we heard across the chamber during the enactment that, across Scotland, we put children’s rights at the top of that. That does not mean that those rights will be applied every time, but it means that those rights will have to give way to other individuals’ rights only in exceptional circumstances and for exceptional reasons. Even with the amendments that I have proposed, there are facilities whereby that can happen.

With regard to comments about the court and resources, I say with respect that, again, the minister appears to be saying, “We can’t do this because of resource.” Of course there are challenges, but there are always challenges. There were challenges when a number of courts across Scotland were closed, with people making representations in that respect, but it is a very dangerous position to take if we are saying to our young people, “The resources aren’t there for the particulars of your case, so it’s not important.”

That issue arises particularly with regard to amendment 204, which relates to the co-accused and the acts of adjournal in the courts. Even with my amendment, there would still be exceptional circumstances in which the court could act according to what is right, but the presumption would be that the procedure adopted by a court should accord with the child’s needs, which I would suggest in a co-accused case must always take priority over the needs of an adult co-accused. I have thought and struggled long and hard to find a situation in which the rights of an individual child who has been co-accused with an adult would give way to the rights of an adult, simply from the point of view of competency, understanding and age.

In this space for questions—I am sorry, convener; I am adjourning—

Will the minister take an intervention in relation to this section?

Section 14 of the bill deals with the steps to safeguard the welfare and safety of children in criminal proceedings. My amendments include provisions to take better account of young people, and to insert in various parts of the bill the obligation to consider not just the welfare and the safety of young people but the rights of young people.

A number of the amendments are short, but amendment 196 would add a provision to section 14 of the bill—which, in turn, adds a section to the 1995 act—to allow

“the child an opportunity to express the child’s views in”

a way that the young person prefers.

As we have already heard in relation to a number of amendments this morning—and this is the position of the Scottish Government—the young person, including their role, maturity and ability, needs to be taken into account. As a consequence, we must also take into account the manner in which the young person can express their preferences and understanding. That would extend to having regard to the child’s views, taking into account their “age and maturity” in particular. I have already pressed the Government in respect of the test that would be applied to that and it has offered to discuss that.

All of my amendments refer to the importance of a young person being able to understand what is happening to them and being in a position in which they can, as far as is practicable, be comfortable with those around them so that they can express their views. It is important that they are able to understand the consequences of decisions that they might be asked to make in circumstances in which they would, understandably, be concerned, stressed and emotional. Given the purpose of the bill, it is important to have a requirement to make their journey not only as comfortable as possible but as understandable as possible to the young person in a way that is appropriate to their age and their levels of understanding.

I could go into some detail with regard to specific amendments, but, having detailed amendment 196, I will just mention that amendment 198 and subsequent amendments would remove “may” to insert “must” so that the requirement is that the adults—not just those immediately around the young person but those who are involved in the administrative processes—must take account of the young person.

I have nothing further to add, but I will respond to any questions that members might have, and I will respond to any comments that the minister might make subsequently. I will move all of my amendments in this group when required.

I move amendment 193.

Will you take an intervention, minister, or would you rather take it at the end?

Will the member take an intervention?

Or an undercapacity problem.

I am very grateful for that. That was helpful.

On the issue of restorative justice for children, such an approach can work only when all parties are open to it and maintain that openness as they go through the system. We have seen challenges arising with restorative justice in other environments in which there has been a misunderstanding as to what the restorative justice is, or rather a misunderstanding among those surrounding the individuals who take part in restorative justice. The minister was right to mention the 2017 publication. Is there an intention to revisit, to review or, indeed, to republish that guidance under the provisions of the bill that the committee has already amended? Will that be taken forward?

It is right to say that others’ rights and an individual young person’s welfare can clearly come into conflict. However, when a young person’s own rights and own welfare could come into conflict, I struggle to see when the decision would be that their welfare should take priority over their rights. Will the minister expand on when she sees the potential danger of a conflict between a young person’s rights and their welfare?

On that point, is there not a challenge, given that, when you have a victim who is within the children’s hearings system through one part of the referral, their welfare is taken into account, but a victim who does not happen to be part of the children’s hearings system, because of the circumstances of the individual referral to it, will go unheard?

It is a pleasure to take part in this stage 2 debate. For the purpose of practice, if nothing else, it may be beneficial that there is only one amendment in this first group.

Amendment 164 aims to highlight the importance of the purpose that underpins the bill, which is to promote the wellbeing and rights of children in the children’s hearings system and the criminal justice system. That was reflected in the policy memorandum that was published when the bill was introduced, but clearer evidence as to the purpose behind the bill should be given in the preamble.

I move amendment 164.