Age of Criminal Responsibility (Scotland) Bill: Stage 3

– in the Scottish Parliament on 7th May 2019.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is stage 3 proceedings on the Age of Criminal Responsibility (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list of amendments, and the groupings of amendments.

The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as soon as possible after I call the group.

The Presiding Officer:

Members should now refer to the marshalled list of amendments. We start with group 1 on the further increase in the age of criminal responsibility and of prosecution—age and timescale for increase. Amendment 1, in the name of Alex Cole-Hamilton, is grouped with amendments 2 to 77, 145, 155, 78 to 84 and 86 to 89.

I advise members that amendments 1 and 2 are direct alternatives. I also draw members’ attention to the information in the groupings on the other direct alternatives in the group.

I call Alex-Cole Hamilton to move amendment 1 and to speak to all the amendments in the group.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

I start by paying tribute to Alison Mclnnes, my friend and colleague, who pushed for progress on this issue in the last parliamentary session. Her efforts met SNP obstruction, similar to that which I fear I will meet again today.

Speaking during stage 1 evidence on a different bill—the Children (Equal Protection from Assault) (Scotland) Bill, currently before this Parliament—Jillian Van Turnhout, a former Irish senator, said something that I think has resonance for our proceedings today. In speaking of her successful efforts to end physical punishment in Ireland, she told us that she went into the chamber

“knowing that even if I was the only person to say that it is not okay to hit a child, children in Ireland would know that somebody”—[

Official Report, Equalities and Human Rights Committee,

21 March 2019; c 5.]

in a position of authority was on their side.

I recognise those words today, and if those in my party, the minister’s predecessor Mark McDonald and a handful of others from other parties are the only ones to vote for a further increase in the age of criminal responsibility this afternoon, to at least the international minimum, children in Scotland will know that there are people in authority on their side.

The progress of this bill has been characterised by some very public and unprecedented interventions from the international community, expressing an imperative for us to get to at least 14 and further still. That view was shared by the clear majority of witnesses who gave evidence to the Equalities and Human Rights Committee. Indeed, the day after our stage 1 debate, the United Nations Committee on the Rights of the Child revised general comment 10 to lift the global minimum to 14 years old. That was spelled out to our committee in no uncertain terms by a member of the UN committee in oral evidence. Separately, the Council of Europe’s Commissioner for Human Rights, Dunja Mijatovic, wrote to the minister to express in the strongest possible terms that Scotland should use the legislative opportunity of the bill to get to 14 immediately. The minister’s response to the commissioner was nothing short of an international embarrassment. By pointing to Scotland’s unique children’s hearings system, she sought to lean on a sense of perceived exceptionalism. The commissioner’s reply offered her very short shrift. She said that each national system is unique, but that nobody gets a pass.

In resisting the calls for a further uplift in the age of criminal responsibility that were made at stage 1, the minister also cited a need to carry the people of Scotland with us, but our further call for views at stage 2 revealed that 86 per cent of respondents supported a further uplift to 14 or even 16. To put it simply, if the minister is waiting for the people to come with us on this, they are already there.

On my amendments to increase the ACR to 16, I say this: we simply cannot be the best place in the world to grow up in if we aim for and subsequently miss the bare minimum international standard of expectation in this area. We have spent decades coalescing around the view that 16 is the point at which a person should be credited with the wisdom to choose whom to marry or share a bed with, to decide whether to leave home and to choose who represents them in this Parliament. Either a person has the mental capacity to understand the consequences of their actions or they do not. The Government’s position on the age of majority is wholly incongruous.

The Government has also argued that there is a capacity problem for going further than 12—indeed, the First Minister referred to the “sheer volume” of cases that would move from the courts to the children’s panels. Thanks to clarification from the Lord Advocate, we know that the “sheer volume” of 12 to 14-year-olds being tried in adult courts amounts to a grand total of 11 individuals a year. I accept that additional change to the children’s hearings system might be required to accommodate those cases; that was identified by the Scottish Children’s Reporter Administration, which supports an uplift to 16, and the Lord Advocate.

It has been suggested in several evidence sessions that the proposal would amount to post-18 powers for children’s panels and a shift in the burden of proof from on the balance of probabilities to beyond reasonable doubt for the most egregious cases. That is why my amendments 3, 6, 7 and 8 offer Parliament a sunrise clause that would re-establish the working group and result in commencement of a further uplift in the ACR to 14 or 16—via a vote in Parliament, if needs be—in early 2021. I refuse to accept that that is not enough time. After all, the Parliament passed the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill in three days.

I also refuse to accept that the changes that such an uplift would require are beyond the capabilities of ministers and stakeholders in the 22 months that my amendments seek to afford, if there is the political will to make them. Sadly, I do not believe that such a will exists. Without my amendments, the international community will judge the Scottish Government to have failed on children’s rights; history will judge it likewise. More important, so, too, will the children and young people of this country—and I do not blame them.

I move amendment 1.

Photo of Maree Todd Maree Todd Scottish National Party

Most of Mr Cole-Hamilton’s amendments in this group were previously lodged and debated at stage 2. In response, the Equalities and Human Rights Committee scheduled two additional evidence sessions to hear about the implications of raising the age of criminal responsibility above 12 through the bill from the Lord Advocate, the Solicitor General for Scotland, the Crown Office and the Scottish Children’s Reporter Administration. Those experts were clear about the importance of carefully scoping and analysing the implications of moving to a higher age. It is worth noting that, following that additional evidence taking, the committee’s position on the ACR did not change.

In response to the broadly similar amendments that Mr Cole-Hamilton has lodged for today’s proceedings, I want to make three clear points. First, the measures in part 4 of the bill have been developed to take account of the very small number of recorded incidents of significant harm that involve children under 12. The scale and impact of harmful behaviour involving children aged 12 to 15 is significantly greater. The part 4 measures would require further scrutiny and consideration before we would be in a position to implement such a higher age. As was set out at stage 2, it is also likely that additional primary legislation would be needed. The effect would be that raising the age from eight could be delayed for a number of years. Even with the so-called sunrise clauses envisaged by Mr Cole-Hamilton, significant work would be required before those clauses could safely be commenced. I do not think that anyone in this chamber would welcome that.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

We took no stage 1 evidence to suggest that there should be any delay to the commencement of the age of criminal responsibility of 12 from the date of royal assent. At no point did anybody say that this would set us back. However, I know—because I have had to lodge commencement amendments—that the Government will spring such a delay on us and this implementation may be delayed by a year. Will the minister speak to that now?

Photo of Maree Todd Maree Todd Scottish National Party

No, I will not speak to that now because, as the member well knows, he has lodged amendments that relate to that particular issue so we will discuss it later on. At the moment, I will focus on the amendments in this group.

Mr Cole-Hamilton’s amendments 6 and 7 propose that the ministers increase the age of criminal responsibility by way of regulation—that is, without any additional primary legislation that might be needed in this regard coming before this Parliament. That does not feel like an appropriate procedure for such a significant reform.

Mr Cole-Hamilton’s amendments 9 to 12 seek to raise the age of criminal prosecution. There has been no real debate at any stage of the bill process on that proposal, not least from Mr Cole-Hamilton himself. Again, making such a change requires careful and considered deliberation. That is not to say that we might not, in the future, agree as a Parliament to raise the age of criminal prosecution further. However, the safe way to do so is after proper review, scrutiny and development of detailed proposals and their implications.

I acknowledge that the UNCRC’s general comment 24 will be issued imminently, which is likely to recommend that states set a minimum age of criminal responsibility of at least 14. However, as per its draft comment, it may also encourage states to ensure that there are no exceptions to the minimum age and to provide legal safeguards for equitable treatment of children above and below the minimum age. With this bill, unlike in other countries, we are absolutely fulfilling those latter points. It is also worth noting that Scotland is already doing—and indeed, going beyond—many of the other actions that the UN committee calls for on youth justice.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

Does the minister recognise that in 2012, in “Do the Right Thing”, her predecessor Aileen Campbell committed to such an increase in the lifetime of the last parliamentary session yet failed to do that? How confident can we be in any claims that this Government makes about taking this agenda further?

Photo of Maree Todd Maree Todd Scottish National Party

I have proposed a review and an advisory group for that review, which will report to this Parliament within three years of commencement. I am confident that we are doing the right thing for Scotland today and that we will continue to do the right thing for Scotland in the future.

We are a leading nation on youth justice. We should be proud of that and of what we are achieving for our young people. We have confirmed that we will incorporate the UN Convention on the Rights of the Child into law in the lifetime of this session of Parliament.

At the same time, my amendment 145 allows for consideration of the future age of criminal responsibility as well as review of the operation of the act generally.

Amendment 145 proposes a review period of three years from the commencement of section 1 of the act. That will provide sufficient time to allow proper consideration of the impacts of the current change and the new measures that we hope to introduce through this legislation, which will be debated later today.

As I mentioned, a new advisory group will be established. It will play a key role in the review, should members agree to that today. Amendment 145 also requires that a report of the review findings be laid before Parliament, so that it can play its rightful role in determining the way ahead, alongside Government.

Amendment 155 links with that overall review and more widely to the provisions in the bill. It invests Scottish ministers with the statutory authority to require certain public bodies that hold information about the exercise of functions under part 4 of the bill to provide information that is considered to be appropriate to the review and the monitoring of how the functions in part 4 of the bill are being used.

I assure members that the Scottish ministers intend to use the power only to gather anonymised statistical data showing, for example, the number of applications for a child interview order, the number granted and the types of behaviour that they related to. There will be no requirement to disclose the sensitive personal data of any children in any specific cases.

Fundamentally, the bill is about enhancing children’s rights, but the Scottish Government also has positive obligations under the European convention on human rights to maintain an effective system for the investigation of crime and the rights of victims. We cannot put children, communities and victims at risk by rushing into changes without being certain that the responsible agencies are ready to implement those changes effectively and safely. Therefore, we need to get the balance right, and raising the age beyond 12 in the bill would not achieve that. The responsible approach is to raise the age to 12 now and to allow a statutory review to be undertaken to consider the future age of criminal responsibility.

I have made clear my commitment to making progressive changes that benefit Scotland’s children and to continue the evidence-led and expert-led approach that has been so successful at generating consensus to date. The bill represents a radical, bold and ambitious reform that will create a significant cultural shift. The pace at which we are moving needs to command public confidence. I believe that, by removing all primary-school-age children in Scotland from criminal responsibility, we have got the balance right. I therefore urge members to resist all of Mr Cole-Hamilton’s amendments in the group, to support raising the age to 12 and to vote for my amendments 145 and 155.

Photo of Rona Mackay Rona Mackay Scottish National Party

I rise to speak against the amendments in the group that Alex Cole-Hamilton proposes. In the stage 1 debate, I stated that I strongly favoured raising the age of criminal responsibility to 14 as a minimum. My view on that has not changed—I still favour that approach—but I will vote against his amendments because, as we have heard, amendment 145 will mean that the legislation that we pass today will be reviewed, with a view to raising the age in future through the introduction of an expert review group. That has given me reassurance.

I hope that that future is not far away, but it is important to have the confidence of the public and of the professionals and agencies that will be required to manage the change, such as the children’s hearings system and the police. I certainly have a greater understanding of what is involved in that now than I did previously,

Alex Cole-Hamilton’s amendments would inevitably have the effect of criminalising children for longer, and I am certain that that is not what he wants. As I said, amendment 145 inserts a statutory requirement for ministers to carry out a review of the act and of the age. That is a good amendment.

I believe that a child or young person who ends up in the criminal justice system is a child who has been failed by adults who should have applied early intervention to stop the child getting into trouble. In my view, the importance of adverse childhood experiences cannot be overstated. Children should not be labelled as offenders, because the harm that is caused by doing so is everlasting and impacts greatly on their future.

The bill is a step in the right direction, but it is only the start of the journey, which I hope is a quick one.

Photo of Mark McDonald Mark McDonald Independent

I am grateful to Alex Cole-Hamilton for the conversations that he had with me in advance of lodging his amendments in this group. I join him in paying tribute to Alison McInnes, who I enjoyed working with when she represented the north-east of Scotland.

Just as the debate on the issue has evolved during the bill process, our thinking should do so, too, which is why I have come to support the position that Alex Cole-Hamilton has advanced. There is a question about the balance in the approach. In the debates on the bill, we have spoken at length about the question of needs versus deeds and the importance of understanding what lies behind the harmful actions that some children commit and how best to address them. Raising the age to 14 would help to ensure that children do not fall into the criminal justice system at an early age and into the cycle of offending behaviour that often results.

If we were to look at the picture across Europe, and take England and Wales, Northern Ireland and Scotland as separate jurisdictions—as we must, given the differing minimum ages of criminal responsibility that they operate—we would find that 10 jurisdictions have minimum ages that are below 14 years, 12 have minimum ages that are over 14 years, and 25 have minimum ages that are set at 14 years. I believe that setting the age at 14 years would therefore place Scotland in the correct position in relation to our European counterparts.

I listened carefully to the arguments that were made by both the minister and Rona Mackay, and it became clear to me that the question is not about the principle of raising the minimum age to 14 years, which is broadly accepted; it is about our having the technical ability to do so. I take the view that we could overcome such technical difficulty; the minister takes a different view in relation to the time that would be required to do that. I recognise that the mathematics of the situation is such that we are not going there yet, but I think it important that we have a debate and discussion on it.

I also consider it important that we have clear understanding and adherence to timescales. I say at the outset that if Alex Cole-Hamilton’s amendments are defeated—as I expect that they will be, given the mathematics that operates in the chamber—I will vote in favour of the minister’s amendments 145 and 155, because I believe that the principle exists and is supported, and therefore that pressure can be exerted to ensure that the timescale is stuck to. I am perhaps slightly more optimistic than Mr Cole-Hamilton in that regard. Nonetheless, I will support his amendments on raising the minimum age of criminal responsibility to 14 years; he has not yet quite convinced me about raising it to 16 years. I will also support the minister’s amendments, should Mr Cole-Hamilton’s amendments fall.

Photo of Daniel Johnson Daniel Johnson Labour

I pay tribute to the arguments that Alex Cole-Hamilton has made. They are principled arguments, with which I agree in many ways. However, there is an issue about the timing that we face and the proposition that has been put before the Parliament up to this point. It is unfortunate that the United Nations’ recommendations have changed during the passage of the bill, because I believe in the importance of international institutions and the international rule of law. However, the proposition that has gone through the Parliament is for the minimum age to be raised to 12 years and not 14. There are serious practical considerations about that. Through the amendments and the debate, we will look at the proposition as it stands. There are causes for concern and issues that we need to get right regarding the practicalities of providing places of safety and the exercise of such powers by the police, other public services and other elements of the criminal justice system

For those reasons, Scottish Labour cannot support the amendments in Alex Cole-Hamilton’s name. I believe that we should support raising the minimum age of criminal responsibility to 12 years rather than to 14. However, we must also support the amendments in the minister’s name, which put in place a review that would examine the precise issues, reasons and principles that Mr Cole-Hamilton laid out so eloquently.

It is important that we review the subject and that we play our part in upholding international standards, but I do not believe that now is the time for such a step. We must support raising the age to 12 years, but not to 14.

Photo of Oliver Mundell Oliver Mundell Conservative

Scottish Conservatives believe that raising the minimum age of criminal responsibility to 12 years strikes the right balance. Nothing that has been said in the debate or in the evidence that was taken at committee has convinced us that that view should change.

However, we are content to support the Government’s amendments for review. When making such a change, which would affect other aspects of our legal system, we must be sure that it would work. We are open to hearing the further evidence on that that might be submitted from those who know our criminal justice system best.

Photo of John Finnie John Finnie Green

The Scottish Government’s direction of travel is very welcome but, quite simply, it has not gone far enough. Greens will support Mr Cole-Hamilton’s amendments.

Many members view the bill as taking a huge step. I accept that that is the case, and that it would lead to a significant culture change. Members have, rightly, identified practical situations that would need to be dealt with. However, with the direction of travel that has been set out by the Government, and given the necessary will, I believe that we could go further. I am a pragmatist, and I think that members know the arithmetic that is involved here.

The minister talked about taking the lead from experts, so I point to what the UN has said. I accept the point about the children’s hearings system, and nothing should imply criticism of that system, which we are right to be proud of, but I note the evidence from the Children and Young People’s Commissioner Scotland, who is charged with informing the Scottish Government about our position on such matters.

Incorporating the UNCRC will be positive. The minister’s amendment 145 comes a poor second. Having a review after three years should mean that there is no delay beyond that. However, on the understanding that we are likely to be defeated on the more progressive approach, Greens will support the minister’s amendments 145 and 155.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

I thank Alex Cole-Hamilton for lodging his amendments, but I will comment on the tone of his opening remarks. He referred to Scottish National Party obstruction but, as a member of the committee that considered the bill, I would say that we had a lot of constructive debate about the issue.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

Not just now—I want to make progress, and then I will perhaps let Alex Cole-Hamilton in.

As my colleague Rona Mackay and many others have said, the minimum age that we want to get to is 14, but I have been convinced by the argument that the minister made in committee that we should move more gradually to that place, to allow our services and our justice system to adapt. I ask Alex Cole-Hamilton not to mix up the debate that we have had, in which people have come to views, with something that is obstructive. I would go so far as to say that he has refused at every point to accept that his amendments might delay the roll-out of the provisions to protect 12-year-olds.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

I have twice been accused of delaying the implementation of an ACR of 12, but my sunrise clause amendment would mean that an ACR of 12 was achieved at royal assent; the age would move forward to 14 or 16 on the committee’s advice.

As for obstruction, a previous children’s minister committed to the UN in 2012 that an ACR of 12 would be achieved in the previous parliamentary session. Alison McInnes, who was a Liberal Democrat MSP, offered the Government two opportunities to make that happen, but they were both rebuffed. That is obstruction.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

I disagree with Alex Cole-Hamilton. He has consistently made the point in committee that his proposals would not obstruct the roll-out, but the minister and the Government have said that they would. I was making the point that he is not even willing to accept that.

I encourage everybody to support the minister’s amendments, which are good and sensible. Amendment 145 will bring back a report in three years, when we can perhaps have the debate again. I have set out my stance; amendment 145 is sensible at this time.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

To put it simply, without increasing the age of criminal responsibility to 14 or higher now, the bill will not only set the face of the Government and the Parliament against children’s rights but fatally undermine any claim that we have to be a human rights leader on the world stage. To aim at the international minimum and miss it will put us on a par with the foremost socially conservative countries in all of Europe and make a mockery of our aspiration to human rights leadership internationally.

Along with everyone else, I welcomed the report of Sir Alan Miller and the First Minister’s advisory group on human rights leadership. However, we have wasted the time of a good man and those around him. We decry human rights abuses in countries such as China and Russia, but both those countries have ages of criminal responsibility that are higher than the bill will achieve. Scotland cannot lead the world on human rights from the back of the pack.

Last week, I should have attended a cross-party group event to celebrate the achievements of the year of young people, but I could not stomach it. I could not bear to listen to the minister speaking of her love and the love of her Government for the country’s children and young people and their achievements. The bill says to young people, “This country will govern you with love until you break the law, when that love will end.”

I will remind the minister, her Government and anyone who will listen of this day and this craven piece of legislation every time that the Government claims to stand up for children or human rights, and in relation to every sugar-coated motion that it seeks to bring to this chamber and every saccharine policy announcement that it uses to promote the image of its commitment to the rights and interests of Scotland’s children.

If my amendments fall, I will vote for the bill only because the current ACR over which the SNP has presided this past decade is, frankly, mediaeval. Unamended, the bill is an embarrassment. The Government has no cause to speak of it with pride, and I will not be able to celebrate its passing tonight.

I press amendment 1.

The Presiding Officer:

I highlight that amendment 1 is a direct alternative to amendment 2. I will explain the situation, because a couple of amendments have direct alternatives today. A decision will be taken on both amendments in the order in which they appear on the marshalled list. If both the first and the second amendments were to be agreed to, the second amendment would succeed the former and the first amendment would cease to have effect.

The question is, that amendment 1 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division. As this is the first division of the day, there will be a five-minute suspension while members are called to the chamber.

14:50 Meeting suspended.

14:56 On resuming—

We move to the division on amendment 1.

Division number 1 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 11 MSPs

No: 108 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 11, Against 108, Abstentions 0.

Amendment 1 disagreed to.

Amendment 2 moved—[Alex Cole-Hamilton].

The question is, that amendment 2 be agreed to. Are we agreed?

Members:

No.

Division number 2 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 10 MSPs

No: 110 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 10, Against 110, Abstentions 0.

Amendment 2 disagreed to.

Amendment 3 moved—[Alex Cole-Hamilton].

The question is, that amendment 3 be agreed to. Are we agreed?

Members:

No.

Division number 3 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 11 MSPs

No: 109 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 11, Against 109, Abstentions 0.

Amendment 3 disagreed to.

After section 1:

Amendments 4 to 8 not moved.

Amendment 9 moved—[Alex Cole-Hamilton].

The Presiding Officer:

The question is, that amendment 9 be agreed to. Are we agreed?

Members:

No.

Division number 4 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 11 MSPs

No: 109 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 11, Against 109, Abstentions 0.

Amendment 9 disagreed to.

Amendment 10 moved—[Alex Cole-Hamilton].

The question is, that amendment 10 be agreed to. Are we agreed?

Members:

No.

Division number 5 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 10 MSPs

No: 111 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 10, Against 111, Abstentions 0.

Amendment 10 disagreed to.

Amendments 11 and 12 not moved.

Section 2—Raising the age of criminal responsibility: consequential repeal and saving:

Amendment 13 not moved.

Section 3—No referral of child under 12 to children’s hearing on offence ground:

Amendments 14 and 15 not moved.

The Presiding Officer:

Group 2 is on disclosure of information: pre-12 convictions. Amendment 98, in the name of the minister, is grouped with amendments 99 to 103 and 147.

Photo of Maree Todd Maree Todd Scottish National Party

A number of the amendments in this group clarify existing provisions or make minor or consequential changes. Amendment 98 is needed to reflect a change that is being made to the

Rehabilitation of Offenders Act 1974 by the Management of Offenders (Scotland) Bill, which is currently before the Parliament.

Amendment 101 seeks to leave no doubt about what the word “purpose” refers to in section 4E(4)(a). Amendment 103 seeks to make it clear that the meaning of “other relevant information” in relation to the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 can include information about relevant behaviour as defined in this bill. It is designed to aid understanding and implementation of the bill’s provisions.

Amendment 99 seeks to bring an investigative interview by agreement under section 31A(2) within the scope of the relevant behaviour as defined in section 4B. [

Interruption

.]

The Presiding Officer:

Members should keep conversations down to a minimum, as the minister is quite softly spoken and we would like to hear what she has to say.

Photo of Maree Todd Maree Todd Scottish National Party

Thank you, Presiding Officer.

I will now focus on amendment 102, which follows on from amendments made to part 2 of the bill at stage 2. Those amendments inserted measures to provide certain protections to prevent a person from having to disclose information relating to “pre-12 behaviour” in situations such as job applications or judicial proceedings. They also provided for those protections not to apply in cases where the disclosure of information about pre-12 behaviour, in an enhanced disclosure certificate or PVG scheme record, has been approved by the independent reviewer.

Information about relevant behaviour is not, however, used or disclosed only by Disclosure Scotland or by the individuals to whom it relates. There are a variety of proceedings in which such information may need to be considered and used, such as proceedings under the Children’s Hearings (Scotland) Act 2011 or proceedings that relate to the adoption of children. Subsections (1) and (2) of the section that amendment 102 inserts therefore make provision to allow information about pre-12 behaviour to be used in certain such proceedings. A regulation-making power allows the Scottish ministers to amend the list in the proposed subsection (2) to set out further modifications and exceptions in relation to disclosure of information about relevant behaviour in certain proceedings.

Amendment 147 provides for such regulations to be subject to the affirmative procedure, so that members will be given the appropriate opportunity to scrutinise any changes that are made under those powers.

Amendment 100 is consequential on amendment 102 and is technical in nature.

Part 2 highlights fully the need to get the balance right with this legislation. We need to raise the age of criminal responsibility and allow children and adults to move on from behaviour and circumstances from before they were 12, but also ensure that relevant information can be shared proportionately to help keep people—children and vulnerable adults—and communities safe.

I move amendment 98.

The Presiding Officer:

Members may have noted that we have passed the agreed time limit for the debate on this group to finish. I exercise my power under rule 9.8.4A to allow the debate on this group to continue beyond the limit.

No other member wishes to speak and the minister does not wish to wind up. The question is, that amendment 98 be agreed to.

Amendment 98 agreed to.

Amendments 16 to 25 not moved.

Section 4B—Disclosure of information about convictions etc relating to time when person under 12:

Amendment 99 moved—[Maree Todd]—and agreed to.

Section 4C—Disclosure of information about relevant behaviour: judicial proceedings:

Amendment 100 moved—[Maree Todd]—and agreed to.

Section 4E—Disapplication of sections 4C and 4D:

Amendment 101 moved—[Maree Todd]—and agreed to.

After section 4E:

Amendment 102 moved—[Maree Todd].

The Presiding Officer:

The question is, that

amendment 102 be agreed to. Are we agreed?

Members:

No.

Division number 6 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 90 MSPs

No: 32 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 90, Against 32, Abstentions 0.

Amendment 102 agreed to.

Section 5—Disclosure of information relating to time when person under 12:

Amendments 26 and 27 not moved.

Amendment 103 moved—[Maree Todd]—and agreed to.

Amendments 28 and 29 not moved.

Section 6—Independent reviewer:

Amendments 30 and 31 not moved.

Section 9—Referral of information to independent reviewer:

Amendments 32 to 35 not moved.

Section 22—Provision of information to persons affected by child’s behaviour:

Amendments 36 and 37 not moved.

Section 23—Power to take child under 12 to place of safety:

Amendments 38 and 39 not moved.

The Presiding Officer:

We turn to group 3, on places of safety: use of police stations and police cells within police stations. Amendment 148, in the name of Daniel Johnson, is grouped with amendments

149, 149A, 104, 105, 90 to 94, 157, 106 to 108, 150, 95, 151, 152, 109, 109A, 109B, 153, 139, 141, 96 and 156.

Photo of Daniel Johnson Daniel Johnson Labour

The bill is important in lifting children out of the scope of the criminal law, as is right and proper. However, as we do so, we must consider carefully the way in which the powers—and, indeed, the responsibilities—that the bill sets out will be exercised, particularly by the police, who, in many cases, will be at the forefront of ensuring that the bill’s provisions are implemented as the Parliament intends. In particular, we need to give great consideration to the role that we are asking our police to carry out as guardians in our community, protecting ordinary citizens as they go about their daily lives. That is why the provisions on places of safety are so important and very sensitive indeed, and it is what the amendments to section 23 seek to clarify and provide greater detail on.

It is important to note that the powers that are set out in the bill do not stand alone. There are existing welfare powers, as there are also existing stipulations regarding places of safety, in the Criminal Justice (Scotland) Act 2016. However, there is a balance to be struck, particularly in deciding what constitutes a place of safety. What practical difference is there if, in the experience of the child, a place of safety looks like and feels no different from a place in which an individual who has been arrested within the scope of the criminal law finds themselves? It is particularly important that we have clarity about what constitutes a place of safety, that a police station is used only as a last resort and that the place-of-safety power is used correctly and in the right circumstances.

We also require to ensure that the police have clarity around the implementation of the power, because the criteria that are set out in section 23 rightly set a very high bar for the use of the power of taking a child to a place of safety. There is concern that there is potentially a gap between the threshold of “significant harm” being caused to another individual and the use of the welfare powers that already exist. Let us consider the circumstances of an 11-year-old having graffiti-ed a wall or keyed a car and committed criminal damage. In those circumstances, it would be hard to construe that the child had caused “significant harm” to another individual. In addition, if the child was not familiar to the police, it would not be considered that there were justifiable welfare concerns. On what grounds would the police therefore be acting if the child was lifted out of the scope of the criminal law? That gap requires clarification.

I will go through my amendments on places of safety in detail. Amendment 149 seeks to ensure that a child can be kept in a police station only if the child behaves in a violent manner and that that power can be used only when a constable of the rank of inspector or above considers that it should be used. That would provide an important threshold and criterion for the police, and it would safeguard the individual police constable by ensuring that the decision was made at the correct level.

Amendment 150 would ensure that further detail is provided in respect of the definition of “a place of safety”.

Amendment 151 is perhaps the most important amendment in the group. Significant concern was voiced about the need to ensure that alternative places of safety are available to the police. The bill contains a number of provisions that relate to the presumption against the use of police stations, but the police may find themselves unavoidably using police stations. The lack of clarity may provide the police with significant challenges in their decision making.

Amendment 151 would require the Government to compile and maintain a list of acceptable places of safety. It is important that there is no assumption that the list be exhaustive. The amendment would require the maintenance of a list compiled by the Government that the police could refer to, so that they could use those places of safety with confidence.

There are practical issues relating to the places of safety. As I have said, the bill rightly sets a high bar, but we require further clarification of how that high bar will be applied and how it is to be used by individual police officers.

Amendments 109A and 109B would amend Government amendment 109 specifically to require the Government to set out in statutory guidance “what constitutes significant harm” and how the provisions should be applied, so that police officers can have the clarity that they require in exercising their rights and responsibilities.

Amendment 148 is an attempt to set out an alternative approach and provide greater clarity and further detail through statutory guidance, which is what the police have called for. However, I recognise the issues that the amendment would create in setting a legal criterion that would be codified in statutory guidance. I accept that that is a flaw, and that is why I will not press the amendment.

The amendments would go some way towards providing clarity and certainty on the use of places of safety, but they would not fully address the potential gap between the welfare powers and the new power relating to places of safety. I call on the Government to clarify what powers police officers will have to simply take a child home to their parents—and to be able to do so without fear of further repercussions—when, to use vernacular language, the child is up to no good. That is the commonsense approach to policing. If a police officer sees a child doing something that they should not be doing, the police officer should simply be able to put their hand on the child’s shoulder and take them back to their parents or guardians.

I ask the Government to point out where, in statute, common law or case law, the police will have the power to do the commonsense thing and return a child to their home if there are no welfare considerations and they are not causing, or are unlikely to cause, significant harm to an individual. I also call on the Government to explain why it did not consider remitting the issue at stage 2, because the point is important and it required further scrutiny. It is regrettable that we have had so little time to consider it.

I move amendment 148.

Photo of Maree Todd Maree Todd Scottish National Party

Part 4 seeks to provide powers to allow the investigation of an incident of significant harm that involves a primary school-aged child. The powers are intended for use in only the most serious circumstances and reflect the recommendations of the advisory group, whose members included Police Scotland, social workers and children’s charities. Those recommendations were consulted on extensively, and conclusions were published in 2016. Those conclusions made it clear that national guidance on child protection should be revised to include guidance on managing the welfare of, and the risks posed by, children’s harmful behaviour. That review is now under way, so it reflects the terms of the bill.

No examples were forthcoming in the consultations—indeed, none have been forthcoming since then—that highlight concerns that children’s behaviour will not be covered under the existing criteria, such as their causing harm to others or being outwith parental control. Powers already exist in statute and in common law to allow police officers—beyond the scope of what is in the bill—to address the need to take a child to a place of safety when an officer considers that there are wider child welfare and protection considerations.

The range of police powers here relates to the most harmful incidents and does not impact on the police’s general duties to, for example, prevent crime and maintain order. Police officers will still be able to intervene in incidents involving lower-level harmful behaviour, engaging with the child in an age-appropriate way; they just will not be able to do so with reference to criminal justice powers such as powers of arrest or holding in custody.

At present, powers under common law allow officers to take a child home with their consent, and that will continue. Child protection powers also enable the police to take a child to a place of safety even when that consent is not forthcoming. My amendment 157 seeks to make it absolutely clear that all those powers will continue.

However, the bill marks a fundamental change in entirely removing under-12s from traditional criminal justice processes, and successful implementation of its measures will require the confidence of professionals and delivery partners including Police Scotland. My amendment 109 therefore provides for statutory guidance on section 23. Its broad scope in subsection (1)(a) will allow a wide range of matters to be covered. Nevertheless, I agree that it would be useful to specify in the guidance what is meant by “significant harm” and the circumstances in which a child may be taken to a place of safety. Accordingly, I support Daniel Johnson’s amendments 109A and 109B.

I am absolutely committed to involving the expertise of Police Scotland, its staff associations and other partner agencies in developing that guidance, and I expect that process to consider whether the existing powers, which I have outlined, are sufficient. If any gaps are identified, we will consider how best to address those, including through additional appropriate primary legislation. That will allow for careful planning ahead of implementation, with all the delivery issues being worked through and the appropriate guidance, training and systems being put in place before commencement.

I hope that that reassures Daniel Johnson and others and that he will agree that there is now no need to press amendment 148. It would not be desirable to, in effect, remove the scope of the place-of-safety power from the bill into guidance. Amendment 148 could inadvertently result in a future expansion or limitation of the scope of the power without reference to Parliament, which—I hope we all agree—would be undesirable.

There are also legitimate rights concerns. Keeping a child in a place of safety deprives them of their liberty, and it needs a clear legal basis in order to comply with our human rights obligations under the ECHR. The UN Committee on the Rights of the Child is also clear that legal safeguards must be in place to ensure that the treatment of children who are below the age of responsibility is as fair and just as the treatment of children who are at or above that age.

At stage 2, I committed to consider what more could be done to restrict the use of police cells as places of safety, and my amendment 104 effectively creates a presumption against the use of police cells. It provides that, when their use cannot be avoided, it must be authorised by an officer of the rank of inspector or above.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

I hear what the minister says about using cells as a tool of last resort, but what does she say to Police Scotland, which says, in the briefing that it has provided to members, that it has maintained that its estate is never a suitable location for a child who is subject to place-of-safety provisions?

Photo of Maree Todd Maree Todd Scottish National Party

I think that everybody who has been involved in the passage of the bill agrees that that would not be the ideal location but that there are circumstances in which they could imagine its being the only suitable location.

Amendment 105 clarifies that the requirement to transfer a child to a place of safety other than a police station as soon as is reasonably practicable applies regardless of whether a cell has been used.

I welcome proposed new section 23(5)(b), which amendment 149 seeks to insert. It would apply a similar safeguard to amendment 104, requiring such authorisation for the use of a police station. However, I have lodged an amendment to remove proposed new section 23(5)(a), which amendment 149 seeks to insert. I appreciate what Daniel Johnson is trying to achieve there, but it would turn the focus on to a child’s behaviour rather than their needs, and it would not allow a police station to be used when it was the only practical option in a remote rural area. I hope that Mr Johnson recognises that and supports my amendment 149A.

For similar reasons, I hope that Alex Cole-Hamilton will not move amendments 90 to 96. We are all broadly trying to achieve the same effect—to strictly limit the use of police stations and cells—but amendments 93 to 95 would, in effect, be highly impractical. Requiring application to a sheriff would lengthen the process, potentially leaving a distressed child at greater risk of trauma. I recognise that that is the opposite of what Mr Cole-Hamilton intends, so I hope that he will not move his amendments.

At stage 2, I accepted Alex Cole-Hamilton’s amendment to restate in law what facilities can be used as places of safety. Amendments 106 to 108 simply tidy up that provision and, in particular, remove the language of the availability of a “place of safety”, so that the focus can rightly be on suitability. As my amendments also achieve a broadly similar effect to Daniel Johnson’s amendment 150, I do not think that it is needed.

Although a national list of places of safety is not strictly necessary, it will allow us to ensure that there is consistent practice across the country, so I will support Daniel Johnson’s amendment 151.

At stage 2, I was keen to acknowledge that the use of the place-of-safety power needs to be monitored and evaluated. Therefore, I welcome Ruth Maguire’s amendments 152, 153 and 156.

We need to get the balance right when the age of criminal responsibility is raised. Police Scotland is committed to keeping children and young people safe, and, along with other partners, it appreciates that engagement with children in their early years will influence their perspective on policing for the rest of their lives. Research also supports that.

Part 4 does not interfere with or impede the thoughtful and child-centred policing that currently goes on every day in communities across Scotland, and implementation will be carefully planned to provide the right guidance to help the police to keep children safe.

I am committed to meaningfully raising the age of criminal responsibility, but we must also continue to respond to the needs of victims and the wider community. With a clear test at section 23(2) and provision for statutory guidance to support operational practice, as well as a strong set of rules around the use of police stations and police cells as places of safety, and mechanisms for reporting on and monitoring their use, I believe that we now have the balance of those provisions right.

I urge members to support my amendments and to support Ruth Maguire’s amendments 152, 153 and 156. I also support Daniel Johnson’s amendments 109A, 109B, 149—if amendment 149A is agreed to—and 151. However, I hope that Daniel Johnson will withdraw amendment 148. If he presses the amendment, I will be unable to support it. Nor will I support amendment 150 or Alex Cole-Hamilton’s amendments 90 to 96.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

My amendments stem from a reaction to very powerful testimony from an extraordinary individual who committee members heard from during a stage 1 evidence session. Lynzy Hanvidge was 13 years old when she was taken into care one night in 2007. She arrived home to find a lot of police officers congregating outside her house and she was informed of the reality that she was about to be taken into care. She was desperately concerned; she did not know what was wrong with her mum and she wanted to find out. She kicked off, which was a normal reaction to an abnormal set of events. In the altercation, she assaulted a police officer. She was then cuffed outside her house, taken to the police station at about 10 or 11 o’clock at night, separated from all her family and spent the night in a cell without communication until 7 o’clock the next morning.

The point is that she was put there under place of safety provisions. The untold harm that was done to her as a result of that experience demonstrates the fact that police cells are never places of safety as far as children are concerned. Put simply, in the middle of one adverse childhood experience, the state handed Lynzy another—that is unconscionable.

Everyone on the committee recognised the humanity of Lynzy’s story and desired to do something about it. My amendments on the prohibition of cell use stem from that. I remind members of my most recent intervention on the minister, when I said that Police Scotland does not ever want to have to use cells for place of safety provision.

Photo of Oliver Mundell Oliver Mundell Conservative

I understand that Police Scotland does not want to use cells—I do not want police cells to be used for children, either. Does the member recognise that, in some circumstances, for example, in my largely rural constituency, it might be preferable on occasion for young people to spend a short period of time in a police cell, rather than be transported a long distance in the back of a police van?

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

We all have to throw our cap over the wall on this. That hypothetical example has been used several times. I recognise that remote and island communities may have only a police station or police cell as the de minimis provision for the place of safety. However, if that police cell already had a sex offender in it, we would not expect it to be used as a place of safety.

We need to box clever and widen our ambition. If that costs money, let us spend that money, because article 37 of the United Nations Convention on the Rights of the Child states:

“Every child deprived of liberty shall be treated ... in a manner which takes into account the needs of persons of his or her age.”

Nothing about spending a night in a cell, without contact with their family or basic comforts, meets what children require to sustain them and to thrive. As such, we are in contravention of article 37 of the UNCRC, which also states that we should never hold children where adults are held. We cannot guarantee that police stations on a Friday or Saturday night, which is when the provisions are most likely to be used, are anywhere like a safe place to take a child, based on what else might be happening in that police station.

I recognise that, once again, the parliamentary arithmetic is not in my favour.

Amendments such as my amendment 95 make it harder for the use of police cells to become the default setting. It would mean that duty constables would have to seek approval from somebody beyond the police station to authorise such cell use as a very last resort. Lynzy Hanvidge’s story suggests that there is no real guidance to Police Scotland about the use of cells as places of safety. I welcome and will vote for the minister’s amendments, but cell use is happening right now on a scale that we do not comprehend. My amendments will either prohibit that use entirely or make it very difficult for it to become the default. Without that, we cannot guarantee the safety of our children. Police cells are simply not safe places.

Photo of Ruth Maguire Ruth Maguire Scottish National Party

The Equalities and Human Rights Committee has extensively debated places of safety throughout stages 1 and 2. We listened to the concerns throughout, and I welcomed the changes that the minister made and those that she accepted to strengthen the provisions.

However, I am very clear about the purpose of part 4 in its entirety. When we raise the age of criminal responsibility, the police and other public agencies will still need powers to act to address the very small number of instances of significant harm that may involve a child under 12. I believe that the powers in part 4 are necessary and proportionate. I also welcome the amendments from Daniel Johnson and the minister to provide further assurance in relation to the police’s power to take a child to a place of safety.

As convener of the committee, I assure everyone in the chamber that every opportunity was given to the police to raise concerns at stages 1 and 2. I have revisited the evidence provided by Police Scotland and I note that the Scottish Police Federation did not provide written evidence at stage 1. I welcome the fact that Police Scotland’s focus in its written evidence was on the need for child-centred policing and it recognised that the powers in part 4 needed to be focused primarily on meeting a child’s needs. On section 23, that evidence raised a concern about the “very narrow” drafting, which only allowed for response to “immediate risk”. It said that the section

“does not appear to confer any power to respond to the immediate aftermath of an incident.”

That is quite different from the issues that Police Scotland has raised publicly before stage 3. I have considered that it now appears to be asking for a much broader, almost unfettered, power to remove any child below the age of 12 to a place of safety for any reason. I cannot accept that.

Photo of Daniel Johnson Daniel Johnson Labour

I do not believe that that is what the police are asking for. I think that they are simply asking for clarification that they can continue to do the commonsense policing—the simple hand on the shoulder. They want that certainty and are concerned about the lack of clarity. Will Ruth Maguire reflect on that as she concludes her remarks?

Photo of Ruth Maguire Ruth Maguire Scottish National Party

I thank Daniel Johnson for that intervention and I will come on to his point.

What the police appear to be asking for would have the effect of raising the age of criminal responsibility but leaving the police with quite far-reaching powers to remove any child to a place of safety. The recent stushie, if we want to call it that, also shows that we have some way still to travel to change practice and culture.

Police in communities in my Cunninghame South constituency do an absolutely fantastic job of keeping children safe. They respond early and effectively to children’s needs and issues, while also giving confidence to the wider community. We have to be sure that work can continue in the future, so the arguments in favour of the minister’s amendment 109 to create statutory guidance become more compelling. So indeed do the arguments in favour of amendments 152, 153 and 156 in my name. They strengthen the bill’s provisions and, I hope, address the points raised by Daniel Johnson at stage 2.

The use of section 23 powers should be monitored and the results reported. Amendment 152, therefore, specifically extends the regulation-making power under section 24 to include the power to impose requirements that information be recorded on why, where and for how long a child under 12 is taken to, and kept in, a place of safety; the reason why a child under 12 is kept in a police station as the place of safety; and the reason why a child under 12 is at any time kept in a cell within a police station.

I suggest that such monitoring is essential, particularly in the early years of implementation, to ensure that the provisions are not more widely applied than the law allows for, and also to highlight whether recently articulated concerns are justified. Amendment 153 requires the Scottish Ministers to prepare a report in relation to the information recorded as a result of amendment 152. So that all that happens timeously, the first report should be laid before the Scottish Parliament as soon as practicable after the first year of section 23 being in force. Amendment 153 then requires subsequent reports to be laid.

Because they will specify exactly what information is to be included in the reports, the regulations should be the subject of appropriate parliamentary scrutiny. Amendment 156 therefore applies the affirmative procedure.

I urge all members to support my amendments.

Photo of Liam Kerr Liam Kerr Conservative

I support amendment 148 in the name of Daniel Johnson and I will press it if he is not minded to.

It appears at least possible that, far from being a stushie, there could really be a gap in the bill that would prevent the police from carrying out the duties that we expect of them. More accurately, the police feel that, far from giving them an unfettered ability, the test as currently drafted would limit their powers and put them at risk of breaking the law.

I understand from the SPF that it is satisfied that Daniel Johnson’s amendment addresses its worst fears, although it only partially closes the gap that it has identified. For that reason, I feel that we must back it and that Parliament must be given the opportunity to back it.

Photo of Maree Todd Maree Todd Scottish National Party

I reassure the member that the police retain their general duties under section 20 of the Police and Fire Reform (Scotland) Act 2012 to prevent crime, maintain order and protect life and property. As such, police officers can intervene in incidents of low-level harmful behaviour, engaging with the child in an age-appropriate way to prevent or mitigate harm. They can talk to the child. Where there would be grounds to search the child if the child were over the age of criminal responsibility, the police could search them under section 25 of the bill. If appropriate, the police can confiscate what is found. Where it is considered that there is a risk to the child, the police can take the child to a place of safety, under section 56 of the Children’s Hearings (Scotland) Act 2011. With the child’s consent, the police can use common law powers to return the child home. The police can share information about the incident with parents and social workers.

I hope that Mr Kerr will consider that information before pressing amendment 148.

Photo of Liam Kerr Liam Kerr Conservative

I thank the minister for the intervention. I appreciate that the minister says that, but the SPF says not. The SPF contacted us all rather late on a Sunday afternoon, just before the amendments were due in, because it considered that there was a gap and that it was that urgent. In order to allay concerns later in the process, the minister might want to detail what conversations she has had with the SPF and when. It does seem that the point was not picked up at stage 2. I will come back to that shortly.

If the point was missed at stage 2, which, it would appear, it might well have been, has anything else been missed? I would be pleased to hear from the minister when she became aware that that point had been missed, how confident she can therefore be that there is nothing else lurking and whether she considers that it would be prudent to remit the bill to the committee to take further evidence to ensure that absolutely everything has been covered off and we do not inadvertently go forward into a situation where there is a gap.

I support Daniel Johnson’s amendment 148, and I intend to give Parliament the opportunity to agree to it, if he does not press it. For completeness, I point out that we will not support amendment 151 or any other amendments that would restrict the police and fetter their discretion. However, we accept that guidance is necessary.

Photo of Mark McDonald Mark McDonald Independent

Ruth Maguire made a point that is worth bearing in mind when she spoke about small numbers. The number of children who will be captured by the bill and who will require to be removed to a place of safety is small. Within that, the number of children who might find themselves in a position in which the only place of safety that is available is a police cell will be even smaller. Therefore, we are talking about exceptions within exceptions.

I agree that it is important that very clear and robust guidance is provided.

I am not minded to back Alex Cole-Hamilton’s amendments, because I think that a requirement to apply to a sheriff could create difficulties, particularly if a place of safety were required over the course of a weekend, when a sheriff might not be readily available to respond to such a request. Robust guidance needs to be provided. Although the minister will not sum up on this group, when it comes to the debate, perhaps she could clarify how that guidance will be shaped and what opportunities will be available to scrutinise and analyse it to ensure that it gives comfort to those of us who are deeply uncomfortable with the concept of children being put in a police cell for any period of time.

Although I will not back Alex Cole-Hamilton’s amendments, I think that he made a very fair point about adverse childhood experiences and the potential for a police cell—even though it was being used as a place of safety—to create another trauma. A child whose behaviour is informed by a trauma in their life will not necessarily be able to draw the distinction between being in a police cell as a place of safety and being in it as a place of punishment, which could lead to another trauma and give rise to further difficulties. The barnahus model could have a role to play in how we deal with those children who find themselves in need of a place of safety for the wider interventions that might be required, although I appreciate that there will not necessarily be a barnahus available in a remote and rural area.

I will not support Alex Cole-Hamilton’s amendments and will support the minister’s amendments, but I want to put on record that there is a need for clarification on how the guidance will be developed, given the importance of the issue.

The Presiding Officer:

We are nearing the agreed time limit, so I am again prepared to exercise my power under rule 9.8.4A to allow the debate on the group to continue beyond the agreed limit in order to avoid the debate being unreasonably curtailed.

Photo of John Finnie John Finnie Green

Reference has been made to the late intervention of my former colleagues at the Scottish Police Federation and the concerns that they raised at the 11th hour. The minister—if I noted this correctly—said that, in part, the debate is about behaviour versus needs. The needs of the child should be at the forefront of all our considerations.

I do not believe that there is an issue in the most serious cases. The minister has outlined a range of measures that are in place, including the common-law duty to prevent crime and disorder that was included in the Police and Fire Reform (Scotland) Act 2012. Child protection is at the core, so I am surprised by some of the representations that have been made to me and colleagues. I find the idea that a child who is in possession of a paint aerosol is not in need of some form of intervention quite peculiar, to be perfectly honest.

However, we need to be wary of some unintended consequences; we should never say never. Mention has been made of the use of police stations as places of safety for children. It is widely accepted that their use for that purpose should be absolutely minimal, but in the region that I represent, such use might be absolutely vital. Caution needs to be exercised on that issue.

I will not go through all the amendments in the group. I align myself with many of Daniel Johnson’s remarks about where we are. I think that he is entirely right not to press amendment 148. We will support the minister’s amendment 149A and Mr Johnson’s amendment 149, as well as amendments 151 and 152, but we will not support Mr Cole-Hamilton’s amendments, well meaning though, I am sure, they are.

I can tell members, from years of experience, that it is much easier for police officers to deal with a very aggressive large male than it is for them to deal with young children—they always find that to be a challenge.

I find some of the examples that have been given peculiar. We are moving the threshold up, so we need to be wary about the powers; I am not aware that, prior to the bill’s introduction, anyone was saying that there was a deficiency in the powers of police officers to deal with children under the age of eight. We are just moving the threshold up a bit—not far enough for the Greens, but on the way.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

I will speak briefly against Daniel Johnson’s amendment 148. I heard the various points being debated and John Finnie’s good intervention in support of it. However, I feel that the amendment will lower the threshold. As others have commented, there was a lot of discussion on this during the committee sessions, and I think that everybody agreed that nobody wants to see a child in a police cell, if at all possible. We know that the police and social workers work hard to stop that happening. I will therefore be voting against amendment 148 if it is pressed, because I think that it will lower the threshold.

Mark McDonald spoke about the barnahus model. As a member of the Justice Committee, I know that the Scottish Government is looking at that model after the Justice Committee’s trip to see a barnahus. There will be more information on that—I think that it will be discussed during Thursday’s stage 3 proceedings.

I am against amendment 148 and Alex Cole-Hamilton’s amendments.

Photo of Daniel Johnson Daniel Johnson Labour

I will be brief, because I think that the arguments have been well set out.

I welcome the fact that the Government supports the bulk of my amendments. As I have already said, I will not press amendment 148. The crux of the argument is whether a gap exists. I heard the minister set out the powers that exist under the Police and Fire Reform (Scotland) Act 2012. However, the problem is the gap when there are no welfare considerations and when the actions that are being carried out by the child are not serious enough to cause another person harm. What the minister is relying on—if I understood her correctly—is that the child will consent at that point.

The question is this: what if the child does not consent? Indeed, what if the parents do not consent when that child is returned home? That question is at the forefront of the minds of the SPF, the ASPS and Police Scotland. It is the question to which we are yet to hear a definitive answer that refers to statute, common law or case law.

Photo of Liam Kerr Liam Kerr Conservative

The point that Daniel Johnson is making is right. However, the point that I was making is that the police at least seem to think that there is an ambiguity, which could be ironed out—at least in part—by amendment 148. Is that not reason enough at least to press the amendment?

Photo of Daniel Johnson Daniel Johnson Labour

I thank Liam Kerr for rising in support of amendment 148. The reality is that there are two significant problems. One is that the amendment would not fully iron out the ambiguity that has been highlighted by those three organisations. Critically, it would set in statute a legal criterion on the exercise of the powers. I think that that approach is flawed.

It is a result of amendment 148 having been drafted in extreme haste. I regret that: if I had had more time, I would have taken greater care in order to draft the amendment better.

Unfortunately, I believe that amendment 148 is flawed, and that is not a good way of making law. I do not believe that legal tests and criteria should be at the discretion of ministers; there should instead be the parliamentary oversight that they require.

The crux is this—I think that John Finnie summarised the matter very well in some ways, but unfortunately, in the end, I disagree with him. He believes that the most serious instances would be covered and that welfare concerns would be covered. However, it is about the things in between—the things that are at a relatively low level of misbehaviour, and in respect of which there are no further concerns, but in which there is wrongdoing. John Finnie made a point about aerosol cans for graffiti, but there may be no other options. What happens in those situations?

Most important is that John Finnie suggests that all that we are doing is raising the threshold. I contend that, with 11-year-olds, there is much more likely to be a cohort of individuals about whom there are concerns and in relation to whom we need police to exercise the powers.

Photo of John Finnie John Finnie Green

I fear that the member misheard me. I said that the most serious instances invariably take care of themselves and that the challenge is in dealing with the other matters. I hope that that clarifies what I said.

Photo of Daniel Johnson Daniel Johnson Labour

I thank John Finnie for that clarification. I will go to my general practitioner for syringing of my ears.

Another point is about the interactions with other statutes—the Police and Fire Reform (Scotland) Act 2012, the Criminal Justice (Scotland) Act 2016 or other acts that have increasingly codified the common-law powers that the police had. We have not had a full examination of whether there will be unintended consequences or inadvertent negative interactions between the bill and the legislation that has, increasingly, codified powers that were historically common-law powers. The police must enjoy those powers and we expect them to exercise those powers in carrying out their duty of protecting our communities.

The Presiding Officer:

Am I right in thinking that you wish to withdraw amendment 148?

The Presiding Officer:

Does any member object to amendment 148 being withdrawn?

Members:

Yes.

The Presiding Officer:

The Parliament does not consent to amendment 148 being withdrawn. The question is, therefore, that amendment 148 be agreed to. Are we agreed?

Members:

No.

Division number 7 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 34 MSPs

No: 87 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 34, Against 87, Abstentions 0.

Amendment 148 disagreed to.

Amendment 149 moved—[Daniel Johnson].

Amendment 149A moved—[Maree Todd].

The question is, that amendment 149A be agreed to. Are we agreed?

Members:

No.

Division number 8 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 100 MSPs

No: 22 MSPs

Ayes: A-Z by last name

The Presiding Officer:

The result of the division is: For 100, Against 22, Abstentions 0.

Amendment 149A agreed to.

Amendment 149, as amended, agreed to.

Amendment 104 moved—[Maree Todd].

The question is, that amendment 104 be agreed to. Are we agreed?

Members:

No.

Division number 9 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 87 MSPs

No: 35 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 87, Against 35, Abstentions 0.

Amendment 104 agreed to.

Amendment 105 moved—[Maree Todd].

The question is, that amendment 105 be agreed to. Are we agreed?

Members:

No.

Division number 10 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 117 MSPs

No: 5 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 117, Against 5, Abstentions 0.

Amendment 105 agreed to.

Amendment 90 moved—[Alex Cole-Hamilton].

The question is, that amendment 90 be agreed to. Are we agreed?

Members:

No.

Division number 11 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 27 MSPs

No: 95 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 27, Against 95, Abstentions 0.

Amendment 90 disagreed to.

Amendment 91 moved—[Alex Cole-Hamilton].

The question is, that amendment 91 be agreed to. Are we agreed?

Members:

No.

Division number 12 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 27 MSPs

No: 94 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 27, Against 94, Abstentions 0.

Amendment 91 disagreed to.

Amendment 92 moved—[Alex Cole-Hamilton].

The question is, that amendment 92 be agreed to. Are we agreed?

Members:

No.

Division number 13 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 27 MSPs

No: 93 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 27, Against 93, Abstentions 0.

Amendment 92 disagreed to.

Amendment 93 moved—[Alex Cole-Hamilton].

The question is, that amendment 93 be agreed to. Are we agreed?

Members:

No.

Division number 14 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 27 MSPs

No: 94 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 27, Against 94, Abstentions 0.

Amendment 93 disagreed to.

Amendment 94 moved—[Alex Cole-Hamilton].

The question is, that amendment 94 be agreed to. Are we agreed?

Members:

No.

Division number 15 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 27 MSPs

No: 94 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 27, Against 94, Abstentions 0.

Amendment 94 disagreed to.

Amendments 157 and 106 to 108 moved—[Maree Todd]—and agreed to.

Amendment 150 moved—[Daniel Johnson].

The question is, that amendment 150 be agreed to. Are we agreed?

Members:

No.

Division number 16 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 27 MSPs

No: 94 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 27, Against 94, Abstentions 0.

Amendment 150 disagreed to.

After section 23:

Amendment 95 not moved.

Amendment 151 moved—[Daniel Johnson].

The Presiding Officer:

The question is, that amendment 151 be agreed to. Are we agreed?

Members:

No.

Division number 17 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 92 MSPs

No: 30 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 92, Against 30, Abstentions 0.

Amendment 151 agreed to.

Section 24—Section 23: regulations:

Amendment 152 moved—[Ruth Maguire].

The Presiding Officer:

The question is, that amendment 152 be agreed to. Are we agreed?

Members:

No.

Division number 18 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 92 MSPs

No: 30 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 92, Against 30, Abstentions 0.

Amendment 152 agreed to.

After section 24:

Amendment 109 moved—[Maree Todd].

Amendments 109A and 109B moved—[Daniel Johnson]—and agreed to.

The Presiding Officer:

I ask the minister to indicate whether she wishes to press or withdraw amendment 109, as amended.

Photo of Maree Todd Maree Todd Scottish National Party

I will press the amended amendment.

Amendment 109, as amended, agreed to.

Amendment 153 moved—[Ruth Maguire]—and agreed to.

Section 25—Search of child under 12 without warrant under existing enactment:

Amendments 40 to 45 not moved.

Section 26—Application for order authorising search in relation to child under 12:

Amendments 46 and 47 not moved.

The Presiding Officer:

We are running behind our schedule. I am minded to accept a motion without notice to propose that the next time limit be extended by 20 minutes.

Motion moved,

That, under Rule 9.8.5A, the debate be extended by up to 20 minutes.—[

Graeme Dey

]

Motion agreed to.

Group 4 is on appeal processes. Amendment 110, the name of Maree Todd, is grouped with amendments 111, 112, 114, 116 to 118, 134 to 136 and 142.

Photo of Maree Todd Maree Todd Scottish National Party

My amendments in group 4 relate to the timescales for implementing orders under part 4 and the handling of appeals relating to those orders. I want to ensure that the system can work in practice and that children have the opportunity to properly utilise their rights of appeal. In reviewing the provisions, I decided that the timescales for making appeals were too constricted and that the periods for implementing orders did not take proper account of the possibility of an appeal.

Amendments 110, 116 and 134 allow permission to appeal to be granted only where it has been applied for, and not by a sheriff on their own initiative, to avoid the possible situation of a person being unaware of permission being granted and then being unable to lodge such an appeal.

Amendments 111, 117 and 135 replace the current appeal time limit, which provides only three days in which to obtain permission from a sheriff and lodge an appeal, and the three days are not required to be working days. In addition, the time limit does not take account of the possibility that the child might not have been present or represented at the hearing, and so might not find out that an order has been made until the police have been able to provide them with a copy.

The amendments alter the time limits so that the child will have three working days to seek permission to appeal, beginning with the day after the day on which a copy of the order is provided. Where the police want to appeal a refused order, they will have three working days beginning with the day after the day of the decision.

If permission to appeal is granted, the appeal will have to be lodged within three working days of the decision giving permission. Amendment 142 defines “working day” for that purpose.

The provisions that amendments 112, 118 and 136 seek to insert in the bill will apply where there is an appeal and the decision of the sheriff appeal court is to uphold an order made by a sheriff or to vary it. The amendments will allow the appeal court to set out an implementation period. That will be necessary where there are actions authorised by the order that have not been carried out. The provisions are needed to make sure the appeal procedure works properly.

Finally, amendment 114 places a requirement on the police to explain an interview order to the child in an age-appropriate way, bringing the wording into line with related provisions. It is a technical amendment; nonetheless, it will have important practical effect for children.

In summary, the amendments seek to provide further clarity on the operation of the new system and ensure that children can make appropriate use of the safeguards that are afforded to them. I encourage members to support them.

I move amendment 110.

The Presiding Officer:

The motion without notice that we agreed to before I called the minister to speak is likely to have the effect of moving decision time back by 20 minutes. However, I also have to alter an internal group time to allow this group to continue beyond the limit.

I call Oliver Mundell.

Photo of Oliver Mundell Oliver Mundell Conservative

I will speak briefly in support of the amendments. We support the approach that the minister has taken and welcome the clarity that the amendments bring to the bill.

Amendment 110 agreed to.

Amendments 111 and 112 moved —[Maree Todd]—and agreed to.

Section 31—Limitation on police questioning of certain children:

Amendments 48 and 49 not moved.

Section 31A—Investigative interview by agreement:

Amendments 50 and 51 not moved.

The Presiding Officer:

Group 5 is on questioning of certain children: child interview rights practitioner. Amendment 113, in the name of the minister, is grouped with amendments 115, 119 to 133, 137, 138, 140 and 146.

Photo of Maree Todd Maree Todd Scottish National Party

At stage 1, a number of respondents raised concerns about the proposal to have an advocacy worker present when a child under 12 is expected to take part in an investigative interview. Since stage 1, I have carefully considered those concerns. We also conducted a discrete engagement exercise with key partners on alternatives. Those responses, and our analysis, have been published and shared with the Equalities and Human Rights Committee. I also alerted the committee to my intention to lodge amendments at stage 3 to address those concerns.

My intention is not just to raise the age of criminal responsibility, but to do so meaningfully. That means lifting children under the age of 12 out of the criminal justice system altogether. However, the police and other agencies will still have to investigate incidents of significant harm. If a child is to be interviewed, they must have their rights and interests protected. Investigative interviews are non-criminal, which is why amendment 120 will remove a reference to the Criminal Justice (Scotland) Act 2016 that was brought in at stage 2. I see that as a technical, but also meaningful, amendment, and I hope that members will support it.

Such interviews could have serious consequences for the child, therefore the law should provide for legally qualified individuals to provide advice, support and assistance. Further, we must provide a name that makes clear the purpose of that role and, in my view, “child interview rights practitioner” will achieve that. We need such practitioners to have appropriate skills and knowledge of working sensitively with children, and of the children’s hearings system. Amendment 132 will require Scottish ministers to set up a register for child interview rights practitioners. Members of the register will be drawn from the children’s legal assistance scheme, which means that they may continue to represent the child at any subsequent hearing. That recognises and respects the fundamental importance of relationships for young children who are navigating those processes.

The child interview rights practitioners’ authorisation to act will derive from their registration with the scheme. That will allow them to provide the necessary advice, support and assistance, even where the child is not in a position to instruct them.

I am mindful that the process must be child centred, so the authorities must consider the views of the child. Children should have a choice about who supports them, and practitioners must have regard to the views of the child in relation to the extent of the advice, support and assistance that the child wants and how they want to receive it. Ministers will make regulations in connection with the register and how child interview rights practitioners are appointed, supported, paid and monitored.

Partners have expressed a clear desire that individual solicitors on the new register be trained in child-centred and trauma-informed approaches. I agree, and I intend to make provision for that once the register is up and running. We are also exploring what further accreditation in the area might be appropriate. The regulation-making powers in relation to the register are therefore deliberately broad.

Clearly, I will expect the review of the operation of the act to include consideration of how the new measure operates in practice. It is worth noting that, as with some other provisions in the bill, this is an entirely novel and innovative measure, which has been designed to further children’s rights when the age of criminal responsibility is raised.

I therefore hope that members will support the amendments in this group, and ask them to do so. The fundamental purpose of the role remains the same, but the changes make clear that protecting rights, following age-appropriate practice and building trusting relationships are at the core of our approach.

I move amendment 113.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

I will speak against the minister’s amendments on the creation of the child interview rights practitioner.

I do so because the principle of independent advocacy has been hard won, not just in this bill but in legislation throughout the history of this Parliament.

Before I was elected to the Parliament, I was very much involved in the development of section 122 of the Children’s Hearings (Scotland) Act 2011, which created the right to independent advocacy for any child who comes before the children’s panel. It seemed a happy synergy that that approach was replicated in the bill, without the need for third parties to lobby the Parliament to include it. I am therefore dismayed to see the Government row back on the approach.

Why am I dismayed? The issue is important, because advocacy is defined in law. The Scottish Independent Advocacy Alliance has referenced the various places where independent advocacy is defined and describes it as

“a way to help people have a stronger voice and to have as much control as possible over” a situation.

Advocates will not make decisions for the person whom they support; they will help them to obtain information and communicate their views and wishes.

Photo of Oliver Mundell Oliver Mundell Conservative

I recognise the points that the member is making, but does he recognise the importance of children having access to legal advice, particularly when their rights and liberty might be affected?

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

I absolutely do, but the two things are not mutually exclusive. The importance of the provision of advocacy in protecting children is recognised in other legislation and the approach should be continued in the bill.

It is important that children’s views are represented. The minister’s amendment 125 says that a child interview rights practitioner must “have regard to” the views of the child. An advocate does not just have regard to the views of the child; they must represent those views and act for the child.

There is a really important distinction between working towards a child’s best interests and actually hearing their voice—those two things might not always be the same, but the child still has the right, under article 12 of the UNCRC, to be heard in their own voice. That is what an advocate seeks to ensure, and that is why we cannot support the amendments in this group.

Photo of Gail Ross Gail Ross Scottish National Party

I thank the minister for her work on the matter and welcome the amendments in this group, which will replace the term “advocacy worker” with “child interview rights practitioner”.

The Law Society of Scotland’s briefing for stage 3 of the bill said:

“The introduction of such provisions should help to secure the consistency of practice regarding provision of advocacy services.”

The fundamental purpose of the role is not changed by the amendments, but changes to the operation of the role make clear that protecting rights and building trusting relationships and wider professional confidence are at the core of the approach.

The amendments seek to make clear the qualifications that are expected by setting out that the child interview rights practitioners will require to be registered solicitors, and allow Scottish ministers to establish a register of those persons who are authorised to carry out the role. That will make sure that the solicitors on the new register are trained in child-centred and trauma-informed approaches, which will emphasise the importance of protecting children’s rights and interests when an interview takes place.

As convener of the cross-party group on the prevention and healing of adverse childhood experiences, I have heard a lot—as we all have—about the evidence of the benefits for our services, especially those that deal with children, of being trauma informed. I welcome the decision-making powers that will be given to the children. The amendments are welcome and essential, and I urge members to support them.

Photo of Maree Todd Maree Todd Scottish National Party

I reassure the chamber that the provisions are used only in very exceptional circumstances, in which serious harm has occurred. In such a situation, as Oliver Mundell said, it is entirely right that a child should have legally qualified support in the room at the time when they are being interviewed.

The person who is giving them legal advice should also have a child-centred approach.

The change of name simply reflects that dual role—the person will be both child centred and legally qualified—and it was requested by the children’s hearings advocacy, who asked for the change to preserve their identity in children’s hearings advocacy as separate from this role.

The Presiding Officer:

The question is, that amendment 113 be agreed to. Are we agreed?

Members:

No.

Division number 19 Age of Criminal Responsibility (Scotland) Bill: Stage 3

Aye: 113 MSPs

No: 4 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 113, Against 4, Abstentions 0.

Amendment 113 agreed to.

Section 34—Child interview order:

Amendments 52 and 53 not moved.

Section 35—Notification of child interview order:

Amendments 114 and 115 moved—[Maree Todd]—and agreed to.

Section 43—Appeal against decision under section 34:

Amendments 116 to 118 moved—[Maree Todd]—and agreed to.

Section 36—Planning of investigative interview:

Amendment 119 moved—[Maree Todd]—and agreed to.

Section 38—Right not to answer questions:

Amendment 120 moved—[Maree Todd]—and agreed to.