On the first question about sufficient interest, I like that part of the bill. I like the fact that the victim test, which we find in the Human Rights Act 1998, has not been included. It is a significant widening of access to justice. I hear what you are saying about what “sufficient interest” means. As a lawyer, I am not particularly vexed by that issue at the moment because, as was said by Janys Scott and, I think, Aileen McHarg on the previous witness panel, the courts, through AXA General Insurance Limited and others v the Lord Advocate and others and Walton v the Scottish ministers, have interpreted “sufficient interest” pretty widely, to be honest. As a lawyer, I feel that we have a good sense of what it means in practice. However, I have a slight concern about the broader on-going UK-wide discussion, emanating from the UK Government, about looking at judicial review and standing and who can take cases. I have a slight concern about the direction in which that is going, which might look to narrow the definition of “sufficient interest”, and that could play out further in the courts. I am not sure what we can do about that. Perhaps a means of moving it forward in the bill would be to include the words “sufficient interest”. That might be helpful but, again, if the scope narrows in the courts, that does not take us much further. Therefore, I have a slight concern about that but, as it stands, sufficient interest is good.
It is a significant move forward that a child does not need—[Inaudible.] I will give a quick example: I am working with an asylum-seeking young person, who was dispersed this summer into adult accommodation in a hotel in Glasgow that was in terrible condition. My colleagues and I were looking at the prospect of bringing a case to challenge the action of holding asylum seekers, never mind young people, in hotel accommodation with no money. My client was undergoing numerous types of legal process at the time—the age assessment, the asylum process and so on—and he was very unwell and suffering trauma. He was not really in a place to even have the capacity to instruct me to take another case challenging his accommodation. If we did not have the victim test, my organisation or another organisation would perhaps be able to take that case on his behalf. That is the difference; it is substantial.
With respect to the time limits, I note—with great trepidation—that I will probably depart from Janys Scott’s view; I do not often do that, but I have to do so here. There are two broad reasons why I am in agreement with what is in the bill in respect of section 7 on time limits, the first of which Professor Norrie flagged during the earlier panel. It takes into account the evolving capacity and maturity of children and young people as they get older, allowing them to have a say on acts that were done to them when they were too young to take any action themselves. The fundamental aspect—[Inaudible.] That is the first, very basic point.
The second point speaks to the balance of power, which we need to bear in mind and remember. The balance of power most definitely favours public authorities or providers and not the child. There is, of course, a requirement for a level of certainty in order to facilitate good governance. I believe that the bill does not place an onerous burden on public authorities, especially when considered next to the onerous burden that is placed on children to meet strict time limits.
I cannot recall who, but someone on the previous panel described the legal justice system in this country as designed for adults by adults. That is true. I will give the committee a practical example from our own recent experience, which I am afraid is not unique; I could regale the committee with examples all day. This example concerns a child who, having escaped a cannabis cultivation situation, is living in adult accommodation. They were age assessed by local authorities as being over the age of 18 and the assessment outcome was communicated to them verbally through an interpreter. The person therefore knew the outcome of the assessment but did not quite grasp the reasoning, and they were not provided with a written report for another four weeks.
That young person has no experience of living in Scotland, no money, no English language, no education, no social worker, limited practical support and serious trauma. They were at continued risk of retrafficking. When they were eventually referred to my service and we attempted to challenge the assessment in question, the local authority fought hard to knock the case out on the basis of its having been submitted outwith the three-month time limit, in its interpretation of the time limit. The court applied the law and noted that the time started running from the date that he was told of the decision orally and not from the date that it was written to him. That is an application of the law. In the specific facts of the case, it extended the time limit.
There are key things to take away from that. Children and young people are at an inherent disadvantage. Very often, the support that they receive is from the corporate parent against whom they would be taking a case. Many children are looked after and guided by that corporate parent. They may be unaware of their ability to take a case or fearful of doing so. They therefore need an independent third party to help them access that—[Inaudible.] Then there is the bureaucracy: we need to instruct a lawyer, qualify for and obtain legal aid and engage an advocate. The real burden therefore lies with the child and not the public authority.
The second point from my example is that public authorities will use every tool in their legal arsenal to defend a litigation. It is right that they are able to do so and it is right that their advocates—whether that is Janys Scott or anybody else—and legal team advise them as such; that is fair and proper. If the tool is in the shed, they will use it, regardless of the age of the child. There should not be any uncertainty about that.
The current law on time limits in Scotland is robust. Janys Scott’s example from the Supreme Court is one example of that. The outer house held this year that time limits run from when a decision is made and not even from when a person knows about it. As they are, those time limits and strict procedures represent at present a barrier to children taking cases.
Other hurdles need to be cleared to bring a claim for judicial review. In evidence that I have read, there are examples of cases being taken 15 years later. To bring a judicial review, the young person needs to prove merit and, if a case is stale, that could be taken into account by a judge at the permission stage.
10:45
The committee has two options: leave it the way it is or, if you are not minded to do that, make the discretion to extend far wider and more explicit to take into account children’s specific circumstances.
I am sorry for my long answer.