Chamber and committees

One concern with the legal age of marriage is around the potential vulnerability of young people to forced marriage. What protections and safeguards are currently in place for those who may be vulnerable to or at risk of forced marriage?

To ask the Scottish Government, in light of its latest “Building a New Scotland” paper, what its position is on how a written constitution could protect democracy, the sovereignty of the people, freedom and the rule of law in an independent Scotland. (S6O-02430)

The sovereignty of the people is a proud tradition in Scots law, but it is clearer now more than ever that that tradition is simply not upheld as part of the UK with a dominant Westminster Parliament. Will the minister lay out how transformative it would be for our citizens to have a written constitution that transfers power to the people in an independent Scotland?

I welcome the publication of “Creating a modern constitution for an independent Scotland”. The opportunity that it sets out for the people of Scotland to directly shape a new, modern and more democratic country with constitutional safeguards for democracy and human rights provides hope in what can feel like pretty desperate times—times when important values are under attack by the Westminster Government. That Government has introduced laws that stripped rights from asylum seekers and other vulnerable people; encouraged voter disenfranchisement; limited judicial oversight of Government actions; and placed new draconian restrictions on the right to peaceful protest. It should be noted that none of the UK parties appears to be interested in reversing those attacks as they appeal to general election voters outwith Scotland.

On the Opposition amendments, in summary, I would say three things. Number 1 is that democracy is not a one-off event. Number 2 is that debate and disagreement are normal and healthy and do not have to be divisive. Politicians can take responsibility in displaying that and not fuelling bad feeling and fear among those with different views, beliefs and aspirations. Thirdly, and further to that, as for the point about our not discussing “theoretical ... plans”, at first I smiled at that phrase, because I thought that that is surely how all political policy ideas start out, but then I actually felt a bit sad for whoever wrote it—the misery of it. Goodness me, can we not raise our eyes a bit and imagine a better way of doing things and a better Scotland? If not, I do not know what we are here for.

With no written constitution, the UK is an outlier. It is one of the very few countries in the world that does not have a single written document that could be called a constitution. The issue with the series of laws, conventions and precedents that form how the UK works is that at its heart is the idea that the Westminster Parliament is sovereign and requires a simple majority to legislate on any matter. That means that, no matter how central any law is to our society—such as those on a publicly owned NHS, workers’ rights or even devolution itself—a simple majority vote at Westminster could change or overturn that.

Perhaps the thought of a first line of a Scottish constitution stating “Scotland is an independent country in which the people are sovereign” will not spark as much joy in those for whom sustaining the union is a priority as it does in me and others who want Scotland to regain her independence. However, I hope that, when we get to that point and when the people of Scotland make it clear via the ballot box that independence is the destination that they want, all colleagues in the chamber—as democrats and as people of principle—will see that the chance to create a permanent and modern written constitution that puts rights at the heart of Scotland’s democracy is above party politics. I hope that they will participate fully and positively in a written constitution that the people of Scotland believe in and that has the collective authority of our nation, so that those in power accept that, under the constitution, they are accountable to the people. In a modern, more democratic country, surely we can all get behind that.

The fact that the UK Government can block Scottish legislation that advances and furthers the rights of children is a stark illustration of the limitations of our place within the union and the urgency of regaining our independence. Can the minister provide assurance to the thousands of people who contributed to the passing of the original UNCRC bill—many of them children and young people—that, even with the limitations imposed by the UK Government, the Scottish Government remains ambitious for children’s rights and committed to incorporation?

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.

What more will be done to support the quality and consistency of the implementation of existing policies and practices that improve outcomes for children and young people?

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?

I am surprised that those discussions have not taken place. I thought that I might be picking that up wrong.

I echo colleagues’ sentiments in that, in times when resources are stretched, it would feel inappropriate if those who were furthest away from getting opportunities missed out. It is good to hear that the minister will engage with the youth work and college sectors.

Youth work is an obvious gap in the current Turing scheme. You mentioned that you will engage with the UK Government. What scope do you see for improvement or changes to Turing that Scottish young people could take advantage of?