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Chamber and committees

Meeting date: Thursday, December 1, 2016

Meeting of the Parliament 01 December 2016

Agenda: General Question Time, First Minister’s Question Time, Small Business Saturday, Minimum Age of Criminal Responsibility, Ending Violence Against Women and Girls, Business Motion, Decision Time


Minimum Age of Criminal Responsibility

The Deputy Presiding Officer (Christine Grahame)

Good afternoon. The next item of business is a statement by Mark McDonald on the minimum age of criminal responsibility. As the minister will take questions at the end of his statement, there should be no interventions or interruptions.

The Minister for Childcare and Early Years (Mark McDonald)

The Government is clear about the country that we aspire to be: a Scotland that upholds the rights of its people, including children and young people, so that they can play a full part in society. Our focus is on transforming the lives of our children and young people and on opening the doors of opportunity to all, and our aim is to make Scotland the best place to grow up and to give all our young children the best possible start in life.

That involves considering what more we can and should do to support our most vulnerable children and young people, which is why we recently announced a review of our care system. We will update Parliament on that in due course. Moreover, in last week’s debate on adoption and permanence, I announced measures to help achieve secure, safe and loving homes for more children and young people more quickly, and we are leading work to improve Scotland’s child protection system, including reviewing the law to ensure that it provides adequate protection against all forms of abuse, neglect, violence and harm.

For more than half a century, the legacy and influence of the Kilbrandon report have resonated through our children’s hearings system and now underpin the getting it right for every child approach. We are rightly proud that, in Scotland, we continue to respond to children’s deeds in the context of their needs. As our understanding of the impact of poverty, deprivation, abuse and neglect grows, we know that children and young people whose childhoods are compromised by their circumstances are also more likely to engage in risky behaviours, including behaviours that might risk their own safety as well as that of others and bring them to the attention of the police and other agencies.

That is backed up by recent research that was conducted by the Scottish Children’s Reporter Administration into the backgrounds of 100 “offending” children under 12. The research showed that three quarters had previous referrals to the children’s reporter; one in four had been victims of physical or sexual abuse; more than half had educational issues; and more than half had previous long-standing involvement with children’s services. The evidence tells us that children under 12 who engage in harmful behaviour are primary school-aged children who, through no fault of their own, tend to be disadvantaged, victimised and vulnerable.

We have already acted to address that by raising the minimum age of prosecution. In 2010, with support across the chamber, we changed the law to ensure that no one under 12 could ever be prosecuted or sentenced in the criminal courts. That significant reform has helped ensure that children are kept out of the criminal justice system, but those children have continued to face consequences as a result of their previous harmful behaviour, including through the disclosure of such behaviour via criminal record disclosures.

Moreover, the low age of criminal responsibility in Scotland—and, indeed, the United Kingdom—has continued to attract the attention of the United Nations Committee on the Rights of the Child, including in its most recent concluding observations from August, when it again called on UK Administrations to raise the minimum age of criminal responsibility in accordance with acceptable international standards. I can announce today that we will raise the minimum age of criminal responsibility in Scotland from eight years to 12, and we will introduce a bill in this session to do so.

The establishment last year of an advisory group by the Cabinet Secretary for Justice was a necessary and sensible step to examine in detail the implications of raising the age to 12, and I thank all the group’s members for sharing their knowledge and insight. The group looked at four key areas: the management of risk in relation to children’s behaviour; changes that might be required to the children’s hearings system; police powers and issues in relation to disclosure certificates; and the weeding and retention of non-conviction information.

The advisory group represented a wide range of disciplines, including those working with children and with victims, as well as the police and the Crown Office, and it reported in March 2016 with a number of recommendations on which we have consulted. That consultation ran from March to June, with 95 per cent of all respondents supporting an increase in the minimum age of responsibility to 12 or above. That overwhelming support was across the board, including statutory agencies such as the police, organisations that support victims of crime and charities that support vulnerable children. We also undertook engagement over the summer with key groups that are likely to be affected by any change in the law, including young people themselves. Throughout June and July, we listened to more than 200 children and young people, including those whose childhood experience resulted in early contact with the criminal justice system and those who have been victims of child offending. I thank them all for taking part, sharing their experiences, and providing valuable insight into the issue.

We have taken time to consider the content and implications of the advisory group’s report, the springtime consultation and the summer engagement results along with the lessons from data and independent research.

The case for change is now clear and compelling, but it is important that we address remaining concerns that some might have about the law changing. There must be appropriate safeguards to deal with not only exceptional cases but all types of cases for under-12s, especially where the police and agencies do not get co-operation from parents and carers.

We therefore intend to bring forward a bespoke package of police powers to ensure that the police can investigate harmful behaviour involving children under 12 so that all necessary steps can be taken to keep them and others safe. We also intend to ensure that there are powers to allow the police to seek a warrant to take forensic samples to investigate an incident where a young person or their parent or carer has not provided consent.

To ensure the protection of other children and vulnerable adults, it will remain possible to disclose relevant information that relates to serious incidents involving children under 12. That disclosure process will provide the right balance between the best interests of the individual and the need to protect the public from harm. If young people have demonstrated harmful behaviour in early childhood and continue to do so as they move to adulthood, specific arrangements to manage and monitor risk will be put in place.

I assure members that raising the minimum age of criminal responsibility will not remove the need to maintain the current range of interventions that are used to address harmful and risk-related behaviour by children. Those interventions include our successful whole-system approach to youth justice and compulsory supervision through the children’s hearings system, which includes the power to place a child in secure accommodation if that is considered necessary to protect the child or the public.

The advisory group rightly required to consider how the exceptional cases might be dealt with if the age of criminal responsibility was increased. Although the James Bulger tragedy 23 years ago continues to cast a long shadow, it is important to note that there has been no similar Scottish case in that time. The possibility of serious cases has to be contemplated, but that should not distort our overall approach. Sensible and proportionate safeguards will be put in place to address those cases.

As the law stands, if a child under 12 killed someone, he or she would not be prosecuted in court but would instead be referred to the children’s hearings system on offence grounds, with lifelong disclosure of the offence applying. However, in future, such a case would still be referred to the hearings system without reliance on finding offence grounds proved, but with all the current powers and interventions remaining available. Civil disclosure into adulthood would continue to be possible and will occur when there is a compelling justification to protect the public. The action that is taken to manage risks that are posed by young people who have shown a capacity for harmful behaviours will integrate seamlessly with the steps that are already available to manage risks that are posed by those who are over 18.

It is important to place the proposed change in context. Over the past 10 years, there has been a large and sustained reduction in youth crime referrals. The number of children under 12 who are involved in harmful behaviours is small and reducing, and only a handful require compulsory measures of supervision. Across Scotland in 2015-16, approximately four under-12s each week were referred to the reporter for offending. That is a tenth of the number 10 years ago and a quarter of the number five years ago.

As we take forward the reform, it is vital that we address the impact of changing the law on the victims of children’s harmful behaviour. To be clear, the harm that is caused to victims, who may be children, will not be changed or undone by raising the minimum age of criminal responsibility. The needs of victims must continue to be met. Indeed, changing the law could offer a positive benefit to vulnerable victims. Victim Support Scotland’s view is that

“Dealing with harmful behaviour using the civil standard of proof (through non-offence grounds) would enable facts to be established without the need for victims and witnesses to give evidence directly. This would minimise the impact on victims and witnesses.”

I know that many members will welcome the change in the law, and I look forward to working with them to deliver that. However, I acknowledge that some will be concerned about the change and its impact. It should reassure them that children and young people, victims groups, and the police and prosecutors want it, and the United Nations has called on us to do it. We can sustain and build public confidence by anticipating and addressing the questions that will be posed by the sort of exceptional cases that I have referred to, but we should not lose sight of the fact that they are very rare.

The reform signals our commitment to a smart, evidence-led and rights-proofed approach. It marks a major step forward in fulfilling a promise to our young people to be genuine corporate parents by treating them as children first and acknowledging that, in most cases, it is unmet needs that give rise to harmful deeds.

We have listened to children’s experiences, considered the evidence and taken on board the views of victims and the expertise of justice agencies, and we have a vision of the kind of Scotland that we aspire to be. This is emphatically the right time and the right approach to raise the minimum age of criminal responsibility. I look forward to working with members across the chamber to deliver the reform in time for our year of young people in 2018.

The Deputy Presiding Officer

The minister will now take questions on his statement. I intend to allow around 20 minutes for questions, after which we will move to the next item of business.

Douglas Ross (Highlands and Islands) (Con)

I thank the minister for the early sight of his statement. I also thank the advisory group and the stakeholders who contributed to the consultation earlier this year. Their feedback has been invaluable.

The Law Society of Scotland has emphasised that raising the age of criminal responsibility would bring it into line with the age of criminal prosecution. That seems a sensible approach that will create coherence and consistency in the law, but we on these benches will wait to see the full details of the Government’s proposed legislation.

Can the minister confirm whether the Scottish Government will introduce a standalone bill on the issue, which is what the Law Society has recommended is the best approach?

I also welcome the minister’s sensitivity with regard to the fact that some people will have concerns about the proposed change in the law. Can he advise how the Scottish Government will, as he says, build and sustain public confidence to ensure that the approach will not be perceived as diminishing the seriousness of child and youth offending?

The minister highlighted the horrendous death of James Bulger. I appreciate what he said about the fact that such cases are extremely rare, but safeguards must be in place. The minister mentioned safeguards with regard to police powers, but what other safeguards will be put in place for crimes such as that to ensure that the law continues to act as a deterrent and guarantees that victims’ families receive the justice that they deserve?

Mark McDonald

I thank Douglas Ross for his constructive approach to the issue. I will answer his questions in turn.

On whether we will have a standalone bill, the answer is yes—we will bring forward standalone legislation in relation to the minimum age of criminal responsibility.

On how we sustain and build public confidence, there obviously needs to be engagement as we progress with the legislation. That will happen at the stage at which we develop our understanding of how the legislation is to be drafted, as well as during the course of the legislation’s passage. Those stages will provide opportunities for consultation.

In my statement, I have been clear that we want to work with members across the chamber to ensure that we deliver a package of legislation that not only meets the requirements that I have set out in the statement but is capable of securing the confidence of members across the chamber and of the wider public. I give a commitment that we will work on a basis that looks to sustain and build public confidence.

The advisory group set out a range of safeguards. It would probably stretch the Presiding Officer’s patience if I were to list them all in turn, but I make a commitment to place a copy of that list in the Scottish Parliament information centre so that all members can see it. We will not necessarily take forward every safeguard on that list, but it provides us with a useful starting point for consideration as we look to draft the legislation. For example, where, in exceptional circumstances, there is no co-operation from parents, a safeguard would enable authorities to take a child to a place of safety, interview them and obtain—and potentially retain—forensic samples, and crave a warrant to obtain further forensic samples. Those measures would be rooted in child protection procedures and powers that the police already have available to them. That perhaps gives a flavour of the kind of approach that we would seek to take. However, as I have said, this will be very much an iterative process based on consultation across the chamber as we look to draft the legislation.

Claire Baker (Mid Scotland and Fife) (Lab)

I thank the minister for the advance copy of his statement, and I welcome the announcement that the minimum age of criminal responsibility will be raised to 12. From the advisory group to the consultation submissions to the minister today, the argument has been persuasively made for such a raise, and the minister has the support of Scottish Labour in taking the proposal forward.

The minister will know that there is a debate around the extent of police powers. In relation to forensic samples, can he say how long forensic information will be retained?

On the issue of disclosures, can the minister inform Parliament whether there will be independent ratification, as called for by the advisory group?

Although a strong case has been made for raising the age of criminal responsibility, the Government will be aware that securing public confidence can at times be difficult. The minister must not underestimate the challenges that there might be in that regard. Although, in his response to Mr Ross, the minister talked about the legislative consultation that will take place, it is important to recognise that that might not be enough. What else is the Government prepared to do to win over people’s hearts and minds when it comes to this significant change?

Mark McDonald

I thank Claire Baker for outlining Scottish Labour’s support and I look forward to working with Ms Baker and her colleagues on the issue.

I approach with an open mind the questions on the extent of police powers and the length of time for which samples can be retained, and on independent ratification of disclosure. I am interested to hear the views of other members and experts.

We have a suggested package of powers and safeguards that the advisory group has outlined, and I will place that in SPICe. It provides us with a useful starting point, from which we need to consider what the best approaches will be to satisfy public concerns and to ensure that children’s rights are paramount in our consideration.

Two things will help with public confidence. The first is the broad range of stakeholders, including Victim Support Scotland, who have come forward to say that they support the measure. If groups who represent victims say that the measure will bring benefit to the approach to children who come into the hearings system and to victims who might find that they do not have to give evidence directly, that will help to give confidence.

It will also build confidence if members of the Parliament speak in a supportive manner about the measure, take the message out to communities and demonstrate that there is broad political support for it. That will help to derive broad public support. I do not doubt that there will be those who have concerns and I am keen to ensure that we address those in as many ways as we possibly can.

The Deputy Presiding Officer

Ten members wish to ask questions so, as usual, can I have short questions and, if possible, short answers where appropriate?

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I welcome the increase in the age of criminal responsibility, which is a progressive step that brings Scotland in line with other European nations.

Can the minister give further detail on why the decision was made to set the age of criminal responsibility at 12? What evidence is there that that is the most appropriate age? How will changing the law contribute to the Scottish Government’s desired outcomes for children?

Mark McDonald

A number of factors were taken into account in making the decision. The age of 12 aligns with the minimum age of prosecution and it meets international expectation from the United Nations. It also reflects the age at which children are presumed to have the capacity to instruct a solicitor, as well as the existing presumptions about maturity, rights and participation in the children’s hearings system.

The proposed approach is founded on clear evidence, including research from the SCRA on the vulnerable background of many under-12s who engage in harmful behaviour. The issues become more complex when children over the age of 12 are involved, with the risk of harm to themselves and others, and with the higher number of offences that are involved. Changing the law will allow us to continue to embed the GIRFEC approach into how we support the needs of our most vulnerable children, consider all the needs of children and make that a focus.

I recognise that some have called for the age to be raised higher than 12, but I consider that we have the balance right and should be guided by the evidence that we have gathered from our substantial engagement on the issue.

Margaret Mitchell (Central Scotland) (Con)

The children’s hearings system already deals with cases as appropriate, and the low number of referrals demonstrates that eight to 11-year-olds are held criminally responsible only in exceptional cases. If the age of criminal responsibility is to be raised to 12, will the minister confirm that the children’s hearings system and any secure accommodation that might be required will be appropriately and properly resourced to deal with any exceptional cases of recognised crime, such as murder and other serious violent offences, that are committed by the under-12s?

Mark McDonald

Margaret Mitchell will be aware of the work that is being done on the children’s hearings improvement programme. I have a meeting later this afternoon with Children’s Hearings Scotland at which we will discuss the programme and the implications of my statement. We are undertaking an approach that looks at the skills of panel members and the approaches that are taken in children’s hearings.

To put some of this into context, in the 2015-16 data, the total number of referrals to the panel was 210. The number of hearings that took place on offence grounds was six. The number of referrals does not therefore necessarily relate to the number of hearings that actually take place—we are talking about exceptionally small numbers. Therefore, although I recognise the resource question that Margaret Mitchell has highlighted, it is worth reflecting on the number of referrals that we are talking about versus the number of cases in which hearings take place. Beyond that, the number of cases in which compulsory measures are taken is often much lower than the number of cases that are referred in the first place.

Christina McKelvie (Hamilton, Larkhall and Stonehouse) (SNP)

I welcome the minister’s announcement of a move that, in my view, is long overdue. He will be aware that, if we want to achieve the fairer Scotland that he highlighted, in which children are treated equally, it is key that we embed the UN Convention on the Rights of the Child in all relevant policy areas. Can he advise me whether a child rights-focused approach was taken in exploring the issue and, if so, how that approach was achieved, and what the implications of changing the law are for children?

Mark McDonald

I confirm that the approach was very much a children’s rights-proofed approach. A child rights and wellbeing impact assessment was commissioned as part of the review. I am happy to arrange for that document to be placed in SPICe, alongside the advisory group recommendations, which I committed to Douglas Ross will be placed in SPICe, so that members can be reassured that a child’s rights agenda is absolutely at the heart of the policy.

Mary Fee (West Scotland) (Lab)

I, too, thank the minister for the advance copy of his statement. As he is aware, I have a keen interest in children and families who are affected by imprisonment. The advisory group points out that children who get involved in serious harmful behaviour do so because of a range of difficulties in their home lives, including parental imprisonment. What actions will the Government take, in line with the statement today, to support children with such difficulties, to prevent them from having negative outcomes, including imprisonment, in later childhood and as adults?

Mark McDonald

I recognise Mary Fee’s long-standing interest in the area that she highlights. She touches on areas that sit outside what I have referred to in my statement but which are, nonetheless, just as crucial.

On the approaches that we want to take, I am heartened by the good work that is being done through our prison system to empower parents who are imprisoned and to ensure that they continue to play a positive role in their children’s lives, both while they are in prison and their children come to visit and on release. I am also heartened by the approach that is being taken to support children to better understand the nature of the justice system, particularly when it relates to parental incarceration. A lot of good work is being done out there, which needs to be joined up and spread more widely. I am happy to work with Mary Fee in relation to that, given her depth of knowledge and interest in the subject.

John Finnie (Highlands and Islands) (Green)

I thank the minister for early sight of the statement and for its evidence-based content. The Green Party will support the Government’s direction of travel—particularly regarding the observations of the UN Committee on the Rights of the Child, which are very welcome.

In his statement, the minister talked about bespoke police powers, and police officers’ experience is that it is very challenging to deal with young people in offending situations. Experience from the areas of domestic violence and child protection shows the benefit of collaborative working across agencies and with the third sector. Will a training package be put in place in support of any forthcoming legislation to ensure that the best practice of interagency working and work with the third sector continues?

Mark McDonald

John Finnie highlights an important point. We must ensure that the appropriate approaches are taken to the children involved. As I have said, we start with an open mind. We have a list of recommendations from the advisory group. That gives us a starting point, but it is not the end point. There is discussion to be had.

I am interested in the points that Mr Finnie has raised. There are good examples of such interagency working, and we should definitely try to ensure that it happens across all areas rather than in pockets. I am happy to work with Mr Finnie and to look at those examples as part of the process.

Liam McArthur (Orkney Islands) (LD)

I, too, thank the minister for early sight of his statement. I warmly welcome the decision to raise the age of criminal responsibility and look forward to working with him on the detail. Perhaps he could have taken time to acknowledge the pivotal contribution of my former colleague Alison McInnes, whose amendments to the Criminal Justice (Scotland) Bill led directly to the establishment of the advisory group, whom I thank and whose recommendations the Government is now rightly taking forward.

In relation to the proposals, how will the powers on disclosure avoid undermining efforts to address the concerns of many campaigners that the actions of a child aged between eight and 11 will result in that child having a record that follows them into adulthood and perhaps for the rest of their life? Will the minister’s proposals have any retrospective effect for those who have a record on the basis of action or behaviour that they engaged in when they were between the ages of eight and 11?

Mark McDonald

I agree with Liam McArthur and put on record my gratitude to Alison McInnes for the work on the issue that she undertook in the previous session of Parliament. I know that Mr McArthur will understand that the Government chose not to accept Alison McInnes’s amendments to the Criminal Justice (Scotland) Bill on the basis that the advisory group’s work was on-going. We all received letters from the Children and Young People’s Commissioner Scotland that asked us to allow the advisory group to conclude its work. However, I put on record my thanks to Alison McInnes, whom I think the Parliament misses greatly. Although she and I were often in disagreement, I never had occasion to find her disagreeable.

As regards how we should proceed on the disclosure powers, the disclosure of what would be classed as “Other relevant information” would be possible, but that would probably happen only in exceptional circumstances, depending on the seriousness of the offence. Work will have to be undertaken on that to ensure that we get the balance absolutely right.

As far as retrospective effect is concerned, we need to give the issue careful consideration. We need to determine whether retrospective application would be possible and what the outcome of that might be in relation to existing serious cases. I will be happy to look into those matters as part of the work that I want to do across the chamber, and I will be happy to discuss them further with Mr McArthur as we take forward the legislation.

Gil Paterson (Clydebank and Milngavie) (SNP)

Can the minister give any further detail on the arrangements that will be put in place to ensure that there is monitoring and risk management of young people who have demonstrated harmful behaviour in early childhood offending and who continue to cause concern as they become adults?

Mark McDonald

Children can and do change—that is fundamental to the Scottish concept of social education and our reintegrative model. As I outlined in my statement, we need a system that reflects that and furthers our approach to addressing needs as well as deeds. For young people who are nearing their 18th birthday, appropriate plans should be in place to manage risks and we should ensure that those plans are shared with all the relevant agencies that have responsibility for supporting them and managing any potential risks. That happens currently.

Additional safeguards will be put in place for a young person moving into young adulthood whose behaviour has been assessed as continuing to be a source of serious concern and in relation to whom compulsory risk management measures are considered necessary and proportionate. That is our starting principle, and work on that will be progressed as the legislation is drafted.

Gordon Lindhurst (Lothian) (Con)

A very small number of children can be guilty of conduct of the most serious kind. The question in the public mind will be why, if they are capable of serious criminal conduct, they should not be dealt with on the basis of that conduct.

There is an issue on which I would like the minister to give a commitment to allay the fear in people’s minds. If someone commits a crime as an adult, having at an earlier age conducted themselves in a certain way that would have been criminal but for this change in the law, will the previous conduct be taken account of for the purposes of sentencing, inclusion on the sex offenders register, imposition of lifelong restriction orders and so on? It might be that the general principle is all that the minister can commit to today and that the detail will have to follow.

Mark McDonald

As I have said, in exceptional circumstances, disclosure into adulthood will be a possibility.

In response to Mr Lindhurst’s point, the approach that I take is that I do not think that it is acceptable to say that we should categorise all eight-year-olds as being potential serious criminals. I recognise that we need to do some work to ensure that we respond appropriately when exceptional circumstances arise, but the figures that I have given indicate that such circumstances are indeed exceptional, and I do not think that we should start from the premise that we should categorise all children between the ages of eight and 12 in that manner.

Iain Gray (East Lothian) (Lab)

In his statement, the minister explained how a child who killed would be dealt with now and under the proposed legislation but he also pointed out how rare that is. With the increased early sexualisation of children, a more likely case might be of a child under 12 but over eight who committed a sexual offence. Will the minister elaborate on how that would be dealt with and how, if necessary, there might be appropriate protection against further offending?

Mark McDonald

That comes back to the identification of the vulnerability of children and the fact that the deeds are dictated by those needs. I accept that interventions will be needed in the circumstances that Iain Gray described. As I outlined in my statement, the full range of interventions would remain available to the children’s hearings system. However, work also needs to be done on the areas that he identified. In other Government streams, work is taking place on, for example, child sexual exploitation, the sexualisation of children and the behaviours that arise as a consequence of those. We need to join up those approaches to ensure that children are prevented from adopting such behaviours; that if they arise, they are dealt with appropriately to keep the child and other members of the public safe; and that we take the time to address the needs that underlie the deeds.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

In his statement, the minister referred to a “bespoke package of police powers”. Will he elaborate on whether that package will give the police new powers to address harmful behaviour by children?

Mark McDonald

As I outlined in my answer to Mr Ross, the police currently have many of those powers. Further detailed work on the matter is obviously required before legislation is introduced. As I said, I am keen to involve stakeholders and members in that work. As a starting point, I will place the advisory group’s recommendations in SPICe to allow members to examine them in more thorough detail. However, as I confirmed to Ms McKelvie, a child rights and wellbeing impact assessment was commissioned as part of the process, which demonstrates that the proposals and safeguards on police powers have been rights-proofed at the design stage and that screening will continue as proposals are developed.