Age of Criminal Responsibility (Scotland) Bill

– 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 a debate on motion S5M-17169, in the name of Maree Todd, on the Age of Criminal Responsibility (Scotland) Bill.

Photo of Maree Todd Maree Todd Scottish National Party

In the words of Dr Seuss,

“a person’s a person, no matter how small”,

and this bill on the age of criminal responsibility is unashamedly about, and for, Scotland’s small people. It represents a bold and radical shift in our approach. This week, in particular, we should recognise that devolution enables us to forge a different path.

When we raise the age of criminal responsibility to 12, Scotland will be leading the way in the United Kingdom, and, unlike in some of our international neighbours, there will be no exceptions in Scotland. No child under the age of 12 in Scotland will ever again be arrested, charged or treated as an offender, or have any childhood conviction follow them through life.

During the bill’s process, we have heard moving personal accounts from adults of the consequences of convicting young children. They told us of the need to do things differently. As James Docherty of Scotland’s violence reduction unit put it,

“you will never punish a young person into a better way of being; you can only love and nurture them into a better way of being.”—[

Official Report, Equalities and Human Rights Committee

, 27 September 2018; c 33.]

That is what the bill seeks to do. It is a strong statement of intent that, when young children cause harm, we will still treat them as children, protect their interests and support their needs. We will no longer let their life chances be damaged, as they grow into adulthood, by disproportionately disclosing information.

Along with the Management of Offenders (Scotland) Bill and the forthcoming disclosure bill, we are about to see a fundamental shift in how we view the actions of children and young people. As part of that work, we have introduced an entirely novel concept to our care and justice system—the independent reviewer. The reviewer will provide safeguards on future disclosure of information about a person’s behaviour during their childhood.

The bill makes a number of such innovative reforms. It embeds children’s rights throughout its measures, particularly when the child is believed to have been subjected to significant harm. We have provided powers for public agencies to investigate such incidents, but we will ensure that, when they do so, children’s wellbeing is the primary consideration; that they have access to independent, child-centred advice, support and assistance; that they receive information in age-appropriate ways; that they have a right to appeal; and that they can be protected against unnecessary keeping of forensic samples and prints.

I recognise that some people wanted the bill to go further in terms of raising the age, so I hope that the establishment of a statutory review to consider the future age of criminal responsibility shows Parliament’s and this Government’s intent in that regard.

We have already committed to incorporating the United Nations Convention on the Rights of the Child, and will do so through a bill in this session of Parliament. Once finalised, general comment number 24 will be considered in its entirety, as part of that work.

Let me be clear that our approach to the bill is not simply about building popular support; it is about building confidence. We are determined that children will no longer be treated as offenders. That requires a meaningful departure from adversarial criminal investigative techniques and experiences. The police powers in the bill are intended for use only in the most exceptional circumstances—where the seriousness of the conduct under investigation is very grave, and the circumstances of the case mean that the powers are the only way of getting to the truth of the matter.

Photo of Daniel Johnson Daniel Johnson Labour

I thank the minister for her previous clarification. Does she accept that, should the bill be passed, further clarification of the powers that the police have when there are no welfare concerns, and the situation is short of the criterion of harm, will be required? Will the Government commit to providing that clarification prior to commencement?

Photo of Maree Todd Maree Todd Scottish National Party

I do accept that, which is why there are detailed provisions to support public agencies to make the higher age of criminal responsibility work in practice.

We have listened to and responded to the concerns of key partners during the bill’s process. It is not enough to change the law; we need to shift practice and culture, too. It is essential to the success of the reform that it be carefully and responsibly implemented. Delivery groups have already been established on investigations, victims and disclosure, and there is broader work to provide general principles and guidance to support professionals.

The Scottish Government has positive obligations under the European convention on human rights to maintain an effective system for 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.

Photo of Liam Kerr Liam Kerr Conservative

The point about not rushing into anything is important. Does not it lend credence to the idea that we should put the provisions on police powers back to stage 2, just to check them over?

Photo of Maree Todd Maree Todd Scottish National Party

No. We have made very careful assessment of what is required so far and will continue to do so in the future, through working closely with our partners in the police.

In the exceptional and grave circumstance of there having been an incident in which there is significant harm, front-line social workers and police officers must be confident about how they can respond. When something exceptional and grave has happened, the public must have confidence that we can keep them safe. Most of all, when something exceptional and grave has happened, the victim, who is also often a child , needs to know that what happened to them will be taken seriously and that the truth will be established, no matter how old the person who harmed them is.

Part 3 of the bill stands on its own with a single section setting out the circumstances in which victims may request information. That is quite deliberate, in order to make it clear that we recognise that victims’ interests matter and must be considered sensitively and appropriately.

I believe we have got the balance right. This is landmark, groundbreaking legislation: I look forward to listening to what members have to say in the debate. As we mark 20 years of our Parliament, we should know that today, we have the chance to do something truly historic. In 1932, the Children and Young Persons (Scotland) Act raised the age of criminal responsibility from 7 to 8. That has stood for 87 years. Today, I hope that we will agree to change history and vote unanimously to change that.

I move,

That the Parliament agrees that the Age of Criminal Responsibility (Scotland) Bill be passed.

Photo of Oliver Mundell Oliver Mundell Conservative

This is one of those odd debates in which, at stage 3, most of the debate has already taken place. I think that we will find at decision time that there is consensus across the chamber that we should move the age of criminal responsibility to 12.

I understand that there are parties and members who would like us to go further, but I think that it is a bit of a stretch to talk about this being a bold moment or to connect it to devolution, given Scotland’s separate legal position. That said, the Scottish Conservatives remain content, as we were at stage 1, to support the approach that the Scottish Government has pursued in the bill—albeit for slightly different reasons.

As we have heard, the bill is technically complicated in places so, as a member of the Equalities and Human Rights Committee, I would like the committee to invite the Scottish Police Federation to give evidence once the bill has been passed—if it is passed today—so that we can understand its concerns, when they were raised and how they have been considered. From the point of view of post-legislative scrutiny and the reputation of the committee and the Parliament, it is important that we understand what the confusion has been.

Although the bill is complicated in places, at its heart it represents a simple attempt to tidy up the law on the age of criminal responsibility. We recognise the fact that the age for criminal prosecution in Scotland was raised to 12 some years ago, which means that, in practice, cases involving younger children are already sent to the children’s hearings system instead of to court. Far from being a new approach, the proposed changes reflect a significant policy change that was made some time ago. Most of the rest of the bill is about making those changes a reality and making them work on a day-to-day basis for the many stakeholders.

The evidence that was received through the consultation and during the committee process suggests that there is a good argument for the modest changes that are proposed, and that stakeholders, wider society and victims are ready for them and, in general, accept them and are convinced that they are needed.

As I said in the stage 1 debate, the changes are supported by the Law Society of Scotland, which recognises that the age of 12 already has significance in Scots law. As we have heard, it is possible to miss that point and to think that the setting of the age of criminal responsibility at 12 is entirely arbitrary and has just been magicked up by the minister, but in our legal system, 12 is already an age at which children gain new rights and are understood to have significantly more capacity.

An age of criminal responsibility of 12 also better reflects international standards. In common with other members, I think that it is important to look at what is happening in comparable legal systems in Europe and around the world, but that must never be the only consideration. It is important that our legal system reflects the views and values of people who live in this country.

It is important, too, that we listen to victims of crime, and that they have confidence in changes that we make to the legal system. We must also listen to the people who work in our criminal justice and other agencies, who need to be confident that they can deliver the changes that are proposed. We must remember that it is all well and good for members of the Scottish Parliament to argue for change, but we must also remember that what looks good in legislation or in black and white on a piece of paper can make things worse in practice.

Most people recognise that children under the age of 12 should not be labelled and treated as offenders for the rest of their lives. However, that must be balanced against the need for a robust system that tackles serious harm. We think that the right balance has been struck, which is why there is broad consensus on it. There will always be people who argue that we should go further faster, but we must look at the evidence. I refer any member, or anyone who is watching this afternoon’s proceedings, who is in any doubt to go back and read what the Lord Advocate, in particular, had to say when the committee took additional evidence at stage 2. It was very powerful and compelling evidence. The committee was right to take that additional evidence—I was certainly keen that the committee do so. However, having heard that additional evidence—having indulged members of the committee who wanted to push more on the issues—it seems somewhat odd to ignore what was said.

I am mindful of what victims will think and I am pleased that my colleague Annie Wells will set out some of our thinking in that area in more detail.

Photo of Daniel Johnson Daniel Johnson Labour

In some ways, what Oliver Mundell said at the beginning of his remarks is right; this is a moment when, having dispatched the amendments, much of the debate has already happened.

However, we got to this point only through a great deal of collective effort, which I would like to acknowledge. It has been made by—among others—the Equalities and Human Rights Committee, the independent advisory group on the minimum age of criminal responsibility, the Scottish Children’s Reporter Administration and, most importantly, by all the children and young people who so bravely shared their experience of what it is like to be a person involved in the criminal justice system. We must have those children and young people at the forefront of our minds as we debate the bill.

Scottish Labour welcomes the bill and agrees with its objectives and the balance that it strikes. We will support it this evening. The bill aims to find an appropriate balance between protecting children from the harmful effects of criminalisation and ensuring that incidents of harmful behaviour by those aged under 12 can continue to be effectively investigated and responded to appropriately.

However, let us be clear—I heard much of what Alex Cole-Hamilton said in the debate on the amendments and I understand his frustration—it is 12 years since the United Nations Committee on the Rights of the Child recommended that 12 should be the minimum internationally acceptable age of criminal responsibility. The Parliament finds itself in an invidious position, that recommendation having been updated while this process has been under way. It is a position that, in some ways, I wish we were not in. Change needs to be handled carefully, which is why we need to stick to the age of 12, but we must be mindful that it has taken Scotland over a decade to comply with that UNCRC recommendation. We should have that at the forefront of our minds.

Although Scottish Labour welcomes this overdue change to the age of criminal responsibility from eight to 12, we believe that the legislation requires clarification. That is why we are pleased that the Scottish Government supported the majority of our stage 3 amendments. Again, I would like to place on the record my thanks for the Scottish Government’s constructive engagement through that process.

In particular, the bill has now been significantly clarified regarding places of safety and police powers. The changes will ensure that a police station is only ever used as a place of safety when absolutely necessary and when adequate checks have been carried out.

The changes improve clarity and provide reassurance to our hard-working police officers, who could quite easily have been put in a difficult and invidious position because of the bill. The changes will enable them to discharge their duties to not just young people but the wider community more confidently.

I must also deal with that wider issue of confidence. The minister pointed to the requirement for confidence in the bill. However, when it comes to Police Scotland, the Scottish Police Federation and the Association of Scottish Police Superintendents, there is still a gap in that confidence. That gap needs to be filled and the Government must provide written clarification after detailed consultation.

As I detailed in the debate on the amendments, there are situations in which young people cause damage or commit other acts such as graffiti, vandalism or theft from shops and if they have not had prior contact with the authorities, there is no reason to believe that they will continue with that behaviour. I am still not clear what powers the police will have to take the commonsense approach of putting a hand on such a young person’s shoulder and returning them home. There is a doubt in my mind—it may be possible for those parents to complain.

Photo of Daniel Johnson Daniel Johnson Labour

I will give way in a moment, if there is time.

Photo of Daniel Johnson Daniel Johnson Labour

Okay.

I urge the Government to extinguish that ambiguity, because it is a dangerous uncertainty. Even if the grey area pertains only for a period, those complaints could take a great deal of time to wash through the system. The Government must also consider the interactions with other elements of the law. Failure to provide that clarification will place our police officers in a very difficult position. It is a shame that the Government has not exercised its right under rule 9.8.6 of the Parliament’s standing orders to send the bill back for further consideration at stage 2.

After the debate, I will follow up by writing to the Lord Advocate to ask for his views on the status of the powers in the bill in conjunction with other elements of the law and whether police officers could be charged with abduction if they return a child home against that child’s will, where there are no further concerns. Scottish Labour is committed to preventing our most vulnerable children and young people from being exposed to the harmful effects of the criminal justice system, but the bill has shortcomings and the Government must provide clarifications prior to its commencement.

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

The minister has used words such as “radical”, “historic” and “bold”, but the bill is none of those things. In fact, this is a dismal day for us all: for the Scottish Parliament and for Scotland’s children and young people. I find it hard to put into words the anger and disappointment that I feel at the missed opportunity in the bill and at the realisation that we are living in a far more socially conservative country than I had hoped—the scales have fallen from my eyes.

If members will permit me, in the first part of my speech I will lean on the words of Lynzy Hanvidge, whom I referenced in the debate on the group of amendments on place of safety. She told the Equalities and Human Rights Committee:

“The first night I went into care was in May 2007.”

She said:

“there were loads of police outside the flat that we lived in, and social work was there. When I went up the stairs, they told me that I, my brother and my sister were getting taken away from my mum.”

She went on:

“I kicked off a little bit and I told them I did not want to leave my mum. My mum was going to be left by herself. They took my behaviour as harmful behaviour, as if I was just kicking off. That is how it felt to me—as if I was just kicking off for the sake of it.

They put me in handcuffs in my mum’s house in front of her and my brother and my sister. I was 13, my sister was six and my brother was 15. They took me out of the house. I was not even dressed properly. I remember ... having jammies on that had a hole in the back of them. I did not realise that they were the ones I had put on, but they still had me cuffed at the front and they forcibly removed me from my mum’s house.

I got my first charge that night. When I got to the bottom of the close, they were pulling me about the place—I was quite a wee girl when I was 13—and I hit him. It was just that I wanted him away. I wanted to get back up the stairs and make sure my mum was okay. I got taken to the police station that night. This happened at about 10 or 11 o’clock at night. I was not picked up until about half 7 the next morning. I was taken to a children’s home where my brother and my sister were. They had spent their first night in a children’s home. I spent my first night in care in a prison cell, locked up. I had not done anything wrong, but I felt like I had done something wrong.

That was my first experience of being charged or being involved with the police, and that was them taking me to a place of safety. It did not work out that way for me.”—[

Official Report, Equalities and Human Rights Committee,

6 September 2018; c 26.]

We have failed Lynzy Hanvidge. There is nothing in the bill that would change her story—it would not change the age at which she was charged or the incarceration in a cell, used as a place of safety. It is an outrage and a stain on this Parliament’s reputation that we have gone against the better judgment of the international community, which has intervened twice in the course of the legislative process and was rebuked and rebuffed by the minister, who said that we have some sort of moral exceptionalism when, frankly, that does not exist. We have been found wanting in terms of the de minimis expectations of international provision.

I believe that the minister and the Government will come to regret the timidity that she has shown. The good will that she and her party have built through laudable policy change in areas such as the age of leaving care and other aspects of child protection will evaporate after today. The minister did not heed the call of witness after witness and organisation after organisation that we have an international imperative to get to 14. It will take five years at the very least before we get the opportunity to change the age again, as we will have to wait three years for the review and then wait for the resultant legislation to pass. How can we stand in judgment over human rights abuses in countries such as Russia and China when they have higher ages of criminal responsibility than we do?

I do not believe that we should celebrate the passing of the bill, because that would involve applauding a deficient piece of legislation and failed ambition. More children will suffer because of our inaction. I hope that another 80 years will not pass before we will be able to remedy that.

I will vote for the bill because, as I said earlier, during its decade in office the Government has presided over an age of criminal responsibility that is, frankly, medieval. However, I will not do so with any joy.

The Deputy Presiding Officer:

We move to the open debate. I warn members that we are really tight for time. Speeches must come in at under four minutes, and I might have to shave off time for closing speakers.

Photo of Ruth Maguire Ruth Maguire Scottish National Party

I strongly believe that raising the age of criminal responsibility to 12 years is the right choice for Scotland at this time. Raising that age from eight years to 12 is a milestone on the road to making Scotland the best place for children and young people to grow up. Minister Maree Todd’s recent announcement of the setting up of an expert advisory group to consider the further challenges to change in the future is to be welcomed.

I acknowledge the passion, drive and expertise of people outside the Parliament who wish us to raise the age higher than 12. Although I accept that one of the Parliament’s jobs is to show leadership, particularly around equalities and human rights, I say that children, communities and, crucially, victims should not be put at risk through our rushing into changes without being certain that the responsible agencies are ready. Sometimes, leadership is also about acknowledging challenge and practical considerations for people who are on the front line. We must be able to have confidence that victims, communities and professionals share an understanding of what works when a child causes significant harm.

Although we know that many children who are involved in harmful behaviour have often been subjected to trauma, we must not forget that the victims of such behaviour will often be vulnerable children themselves. When we call for trauma-informed approaches to addressing those who engage in harmful acts, we must ensure that the same is true for victims. I have recently written to the Cabinet Secretary for Justice regarding a five-year-old child in my constituency who was the victim of a very serious sexual assault that was perpetrated by a 13-year-old. The response given to him and his family has not been trauma informed; indeed, the actions of the authorities have added stress and additional trauma to an already intolerable situation. I understand why that family feels as though justice has not been done and that our current system has failed them. Victims must receive appropriate support that does not re-traumatise them. Just as importantly, they need to have confidence that what happened will not happen again—to them or to anyone else.

Criminalising children does not work and does not guarantee a stop to harmful or offending behaviours; in fact, it is much more likely to lead to further harm. We must do more to hear the voices of victims and their families. Doing so will contribute positively to the power of work that is necessary if we are to take with us on that journey the communities that we represent. I ask the minister to say in her closing remarks a little more about how we can do just that, and ensure that child victims receive their rights. Their right to an effective remedy to the harm that has been done to them should include the ability to have confidence that the systems that we have in place will ensure that what happened to them will not happen to others.

Increasing the age of criminal responsibility will benefit not only children and young people, but Scotland as a whole. It is a significant milestone on the way to making Scotland the best place for children and young people to grow up. I will be proud to vote for the bill.

Photo of Mark McDonald Mark McDonald Independent

So far in the debate, a number of members have mentioned the idea of this legislation being overdue. It is perhaps worth pausing to reflect on the minister’s comment about the length of time that has passed since the age of criminal responsibility was increased from seven years to eight. During that span of 80-plus years, each of the parties in the chamber—with the exception of the Greens—has, at some stage, held the wheel of Government and been in a position to effect the change that we now see. Therefore, while such change might be overdue or ought to have happened before today, the minister has been the one to progress it and see it through, for which she deserves credit and congratulation. We should reflect on the journey that has taken us to this point.

I had hoped that we might have gone further with our amendments, but we did not. I believe that the minister’s amendment 145 shines a chink of light on the possibility of future change. However, the pressure—from within or outside the chamber—will need to continue in order to see that through.

I hope that the minister accepts that work to begin to overcome the technicalities that have stood in the way of raising the age to 14 could be ironed out before the legislation is reviewed. Those processes can be decoupled; for the review to be positive and useful, the bill needs to be given time to take effect, but the work to establish how to overcome the technicalities does not need to wait for the review.

It will be important for the guidance on police cell use and places of safety to be analysed robustly and worked on carefully. Good intentions have been expressed in the chamber, but it will be important for them to be translated firmly into the guidance. Those who are expected to administer the legislation will follow not the intentions that were expressed in the chamber but the guidance that is produced to back up those intentions.

The process of considering the bill and the debate have given us an opportunity to reflect on the wider understanding of the nature of justice. All too often, in debates in the chamber and in wider society, justice is seen by some as a means by which to slake the thirst of vengeance. Delivering justice for victims is important but, all too often, we lose sight of the fact that delivering justice for those who are affected by trauma and who as a result offend at a young age is also important—the justice that such people require to enable them to realise a positive future, as a result of interventions, is just as important.

That is why I think that the Government has taken the correct approach and why having the future review is correct. I will be happy to support the bill at stage 3.

Photo of Annie Wells Annie Wells Conservative

As a member of the Equalities and Human Rights Committee, I have followed the bill closely from its inception. The evidence is persuasive that offending behaviour in children can have its roots in emotional trauma and that to criminalise children who are under 12 causes more problems than it solves. We will therefore support the bill, which will also make the law easier to understand. However, we stress that we will always put the victims of crime first.

The Scottish Conservatives recognise that adverse childhood experiences can lead to offending behaviour. Given that Scotland has the lowest age of criminal responsibility—eight—in Europe, we agree that the ACR should be raised.

The committee heard evidence that many of those under 12 who have offended have faced prior disadvantages and adversity in their earlier childhood. It is only right to take that into due consideration. However, consideration of the rights of the child should always be balanced with consideration of the rights of the victim. That is why the Scottish Conservatives have been clear that the ACR should not be raised higher than 12.

As we have heard, the age of 12 is not a random figure. Given that the age of criminal prosecution was raised to 12 in 2010, the bill is in many ways an attempt to align the two aspects, as children who are aged between eight and 12 are already prevented from being prosecuted in the criminal courts.

I have been clear about the need to have the public’s backing, and I believe that an increase of four years is a significant step. The public need to retain confidence that serious incidents will be dealt with appropriately, so that victims feel supported. That is particularly important given Police Scotland’s caution against raising the ACR higher than 12, which was given on the basis that children’s actions and the prevalence of behaviour change as the age group increases to 12 and above. That is why the Scottish Conservatives lodged stage 2 amendments to make information more readily available to victims—particularly in cases that involve a death—and to allow the Lord Advocate to play a continued role in cases in which behaviour gives rise to wider public safety concerns.

We continue to hold the belief that the Government needs to address the identified gaps in victim support. At the moment, the information that is available to victims is limited; Community Justice Scotland has expressed concern about how quickly the information becomes available. It is vital for victims to know what action has been taken, so that they know that harmful behaviour by a child has been taken seriously.

The bill raises emotional issues. Throughout every step of the process, I have tried to put myself in the shoes of families who are affected by serious and harmful behaviour.

The debate has been extremely interesting over the past few months; it has been great to be part of it and compelling to hear from all sides their views on raising the ACR.

I thank the committee clerks, witnesses and members who have worked so hard and been so passionate about the issue.

Whichever way we look at the bill, we need to have a wider discussion on prevention, so that children do not find themselves in unfortunate positions in the first place. Ultimately, I believe that the Scottish Conservatives have taken a balanced approach—we recognise that the roots of crime are based in emotional trauma and the need to balance that with the rights of victims.

Photo of Iain Gray Iain Gray Labour

Presiding Officer, earlier today you, I and a couple of other colleagues spent time reflecting on the 20 years of the Parliament for a BBC documentary. We spoke about it being a new and modern Parliament and the ways in which it was different. One way in which our Parliament is new and modern, although we did not talk about it, is that from the very beginning our work has incorporated the European convention on human rights.

Indeed, over 20 years, we have gone beyond that to actively promoting rights in Scotland; most notably, we have developed a system of rights-based education. I think that most of us have seen schools in our constituencies being presented with awards as rights-respecting schools. In my constituency, two of those human rights defenders, Hannah Richardson and Cameron Butchart, from Windygoul primary school, found themselves—through their work with the Scottish Children’s Parliament and the StreetsAhead Tranent project—in Geneva presenting to a United Nations workshop on the rights of the child day. I know that, similarly, two young human rights defenders from elsewhere in Scotland are—this week or next week—giving evidence to the UN Committee against Torture.

In the past 20 years, another initiative of this Parliament that we can be proud of is the creation of a children commissioner’s post, which did not exist in 1999. Indeed, one of the campaigns that the current Children and Young People’s Commissioner Scotland has prioritised is the incorporation of the United Nations Convention on the Rights of the Child. I think that it is a collective failure that we have not incorporated the UNCRC, given that the Parliament began with the idea of the incorporation of rights. In truth, I guess that the most egregious example of that is the fact that, for so many years, the age of criminal responsibility has been so low compared with the ACR internationally.

The programme for government that was announced at the start of this parliamentary year included a commitment from the First Minister to incorporate the principles of the UNCRC and, at her party’s conference last week, she committed to incorporating the convention completely. That is all welcome, but I think it unfortunate that the international minimum age of criminal responsibility has shifted from 12 to 14 in the course of our legislating. We really should have been fleeter of foot. Our own lateness to the issue has meant that, in practical terms, a jump from eight to 14 was too much in one go, although 12 alone would not have been enough. In the end, agreeing to increase the age to 12, with a review that will look at raising that, is probably the best solution in practical terms.

This truly is not our finest hour—the issue needs to be addressed seriously and not allowed to slip any further. I do not think that today is as dismal as Alex Cole-Hamilton said, but I think that the minister overeggs it if she thinks that this is a day of historic triumph. We should be careful about claiming to meet the gold standard in children’s rights. The bill will take us in the right direction, but we should have moved further long ago.

Photo of Gail Ross Gail Ross Scottish National Party

Like other members, I thank the many groups and individuals who contributed to the process of developing the bill.

The opportunity that is presented to us today will see work begin to raise the age of criminal responsibility in Scotland to 12. That is a step in the right direction, and it recognises our progressive direction of travel. Although many have argued that we should immediately be looking to increase the current age of eight to 14 or even higher, the bill sets in place the necessary legislation that will enable future increases when the time is right. I welcome the minister’s announcement that a group has been set up to monitor how that can be done with everyone’s safety, security and wellbeing to the fore. There will be plenty of people and organisations watching, and I know that the Scottish Government will bring forward proposals as soon as is practicable.

During the stage 1 debate, I highlighted the different speeds at which children develop and the need for us all to recognise how damaging it could be for a child to be held criminally responsible. I believe that many of us have gone on a journey when we have been considering the bill—a journey that has made us reconsider the purpose of how we treat children within our judicial system and realise that young children who offend should be treated with a welfare-based approach. Do we simply wish to punish some of the youngest members of our society, or do we want to adopt the approach that is required to protect our young people in some particularly challenging situations? We are not saying that every act that is committed by a child should be ignored, but we can certainly do much better on minimising societal harm and improving the life chances of all the young people involved, including victims of crime.

The bill makes significant steps towards achieving those aims, by increasing the age of criminal responsibility to 12. However, we need to consider raising it to at least 14, which would bring us into line with the minimum internationally recognised age, as outlined by the United Nations Committee on the Rights of the Child. I made my opinion on the matter clear during all the stages of the process, and that view has not changed.

I warmly welcome the commitment of the First Minister, who last week announced her intention to make sure that Scotland meets the UN’s gold standard on children’s rights. I look forward to the launch of the consultation that will outline how we will achieve that, and I ultimately look forward to the day when we incorporate the UNCRC into Scots law.

We all want Scotland to be the best place in the world for our young people to grow up in. The bill will help us to realise that goal.

The Deputy Presiding Officer:

We move to the closing speeches. I remind members that, if they take part in a debate, they should be here for the entirety of the opening and closing speeches.

Photo of Daniel Johnson Daniel Johnson Labour

When you make that comment, Presiding Officer, I always feel like saying that those members who are not here are about to miss out. I will give it a good go.

I will begin by highlighting the words of Ruth Maguire, who was right to point out that we must be mindful of the benefits of this legislation not only for the young people involved but for wider society. As Annie Wells noted, the issue that is at the heart of what we are talking about is that young people’s experiences of the criminal justice system can, in themselves, be the traumatic events that lead to the adverse childhood experiences that put those young people into a cycle of unavoidable consequences that fundamentally alter the course of their life.

I sit on the Justice Committee, through which, in the past year or so, I have had a great deal of contact with the criminal justice system, visiting prisons and talking to people from third sector organisations that work with people who have experience of prison. The reality of that cycle is clear to me, and I think that the bill is a positive step towards preventing some people from entering it. Therefore, it is an important and welcome bill that is beneficial to those people and to wider society.

Nevertheless, Iain Gray is absolutely correct in his analysis. He is right to say that we must not trumpet the bill as some great triumph. Yes, the Parliament has done a great deal to recognise rights and put them at the heart of policy making, but, as Iain Gray pointed out, the UNCRC is clear about the minimum age of criminal responsibility, and the bill falls short in that regard. We need to think with great care about how we go forward from here, and we need to bring people with us with a considered approach that works.

Alex Cole-Hamilton was absolutely right to read out the words of Lynzy Hanvidge. If taking someone to a place of safety makes them feel that they have done something wrong—if there is no difference between their experience and that of someone who has done something wrong—whatever the law says, our approach will not have worked.

That brings me neatly to a point that Mark McDonald made well. The bill will succeed or fail on how the good intentions that are clearly behind it are translated into guidance, systems, training and what is practised in wider society. How the bill is implemented will be key to preventing adverse childhood experiences and ensuring that such experiences are not just relabelled or rebadged. We must take great care in that regard, and the bill strikes the right balance. It is correct to review the age of criminal responsibility, and the provisions on the independent reviewer are a strength of the bill.

Some members suggested that the great store and weight that we place by the children’s reporter system are potentially exceptionalism, but I do not think that that is the case. Scotland took a brave and bold step when it implemented the Kilbrandon principles, many years ago, and we must protect the sensible and robust structures that are in place. I am concerned that the children’s reporter system should continue to deliver on the intent with which it was created all those years ago.

As is the case for a great deal of what we do in the Parliament, it all comes down to confidence in the criminal justice system and beyond. This is about the confidence of our people and communities that the justice system will act proportionately and keep them safe, and it is about the confidence of the people who are in the system that the system will serve their interests, treat them fairly and give them opportunities to avoid the experiences that might have brought them into contact with it.

Photo of Liam Kerr Liam Kerr Conservative

I am pleased to close for the Scottish Conservatives. I confirm that, at decision time tonight, we will support the passing of the bill.

The key issue that the bill addresses is the minimum age at which a child can be held criminally responsible. The minimum age is currently eight. As many members pointed out, it was set in 1932 and is the lowest in Europe.

If the age of criminal responsibility is not to be eight, what should it be? The bill says that it should be 12. The Scottish Conservatives are persuaded that that is the correct cut-off point. As Annie Wells pointed out, the age for criminal prosecution was raised to 12 in 2010, so children aged between eight and 12 are already prevented from being prosecuted in the criminal courts.

Further, Police Scotland cautioned against setting the age higher. As the Equalities and Human Rights Committee noted in its stage 1 report, Police Scotland said:

“the nature of children’s actions and the prevalence of that behaviour changes as the age group increases to 12 and above.”

I also find it persuasive that, as Margaret Mitchell flagged up at stage 1, the number of incidents that are reported to involve under-12s offending is small and is reducing.

As we have heard, the Law Society of Scotland pointed out that children aged 12 and over already have a different status: they can make a will, they can consent to or veto adoption, they have sufficient capacity to express views on future arrangements for their care or instruct a solicitor, and 12 is the basic age at which children start secondary school.

As Oliver Mundell said, 12 appears to be the publicly acceptable age of criminal responsibility, as it has both professional and public confidence, and it is imperative that any change commands the public’s backing. Daniel Johnson and Ruth Maguire were clear in saying that we must take the public with us on this.

As Annie Wells said, the public needs to retain confidence that serious incidents will still be dealt with appropriately, so that victims feel supported. During the earlier debate on amendments, the minister said that victims need reassurance that harm will still be meaningfully addressed, and she said that we must take people and communities with us—she is absolutely right. It is vital that, when this change is made, the Scottish Government reassures the public that harmful behaviour by under 12s will still be dealt with in a manner that is proportionate to the harm caused.

At the outset of the debate, Oliver Mundell alluded to the fact that we must monitor the act’s implementation for unintended consequences. That is particularly important because of the impact that it will have on police powers. Earlier today, we debated amendments that were raised as issues last week by the Scottish Police Federation. The implication is that officers who deal with children aged under 12 years who are causing risk or significant harm to others but who are not an immediate risk may be deterred from looking after them properly. Daniel Johnson decided not to press his amendment 148, and Parliament chose to reject it when I did. Even had it passed, it would still have left a potential gap. This issue remains a concern and possibly leaves outstanding issues in relation to places of safety and a financial memorandum that may understate police implementation costs by more than £6 million.

I heard the minister’s reassurances, but I also hear that the SPS and Police Scotland remain dissatisfied with the answers. I do not like having to make that call at stage 3, when I am trying to decide whether to pass what is, in its core principles, an important and necessary piece of legislation. It looks at least possible that the Government may have missed something and that the committee may have failed to garner all the information that it needed to decide on the best drafting. My view remains that, if there is the remotest possibility that something has been missed that could restrict the police in the execution of their responsibilities, the precautionary principle mandates that the issue be sent back for further examination and evidence taking by the committee. I was very pleased to hear Oliver Mundell’s suggestion that the committee might be able to hear more evidence, and Daniel Johnson offered a good legal route for resolving that issue. I strongly hope that the minister takes that counsel, and I will be grateful for her remarks on the matter later.

Nevertheless, l accept that it is vital that we implement these reforms, because we have heard compelling evidence throughout the bill’s progress that the current age of criminal responsibility—eight—is no longer sustainable and that 12 is an appropriate age at which to set it, including on the basis of agency, legal precedent and public acceptance. For that reason, I again confirm that Scottish Conservatives will support the Age of Criminal Responsibility (Scotland) Bill at decision time tonight.

Photo of Maree Todd Maree Todd Scottish National Party

If we were debating a bill today to create a minimum age of criminal responsibility, I doubt very much if we would choose for that age to be eight. However, I do not think that we would be agreeing unanimously to make it 14 or 16, either. That tells me that this bill to raise the age of criminal responsibility to 12 gets it right.

I agree with Oliver Mundell, who said that the Lord Advocate’s evidence was absolutely “compelling” in the extra evidence sessions at stage 2. I have to say—although I am saddened to say it—that Alex Cole-Hamilton weakens his arguments by ignoring that evidence and by comparing Scotland to countries with a human rights record like China’s.

Photo of Maree Todd Maree Todd Scottish National Party

No. I think that I have heard enough this afternoon. [

Interruption

.]

We have achieved a consensus in this Parliament on this issue—

The Deputy Presiding Officer:

Excuse me, minister.

Can we stop with the rudeness, please? It is inappropriate to shout from behind from a sedentary position. [

Interruption

.] Mr Swinney, I am dealing with this matter. Mr Cole-Hamilton, I would appreciate it if you would not talk back to the Presiding Officer.

Photo of Maree Todd Maree Todd Scottish National Party

We have achieved a consensus in this Parliament on this issue that was unimaginable to most people a few years ago.

We have clearly been on a long journey to do the right thing. Along the way, the Government has reformed policy, law and practice: in 2011, we raised the age of criminal prosecution to 12; in 2015, we published our first youth justice strategy; and we continue to advance the whole-system approach to preventing and addressing offending by young people.

We have seen a remarkable reduction in proceedings against young people, including a reduction of 81 per cent in the number of children who are being referred to the children’s reporter on offence grounds.

We have therefore spent the past 10 years doing the right thing for Scotland’s children and young people, and I pay tribute to all the ministers who have helped to do that, including Adam Ingram, Kenny MacAskill, Angela Constance, Michael Matheson, Aileen Campbell and Mark McDonald. I also thank the members of the Equalities and Human Rights Committee for their detailed scrutiny of the bill, and everyone who provided written and oral evidence. [

Interruption

.]

The Deputy Presiding Officer:

Excuse me, minister.

Excuse me, members. I am finding it quite difficult to hear the minister. Be a bit quieter, please.

Photo of Maree Todd Maree Todd Scottish National Party

I express my gratitude to the members of the 2015 advisory group, which set out strong and clear recommendations on raising the age and on the measures that would be needed to sit alongside that reform. Those recommendations gave us a robust route map to follow, and they are closely reflected in the bill that we seek to pass into law today. I express my particular thanks to the bill team and other Government officials for their dedication and diligence. This has been a truly cross-Government initiative and I thank everyone for their thoughtful input and expertise throughout.

Most of all, however, I thank all of you in this chamber. The way in which we have conducted our discussions on the bill and reached consensus on crucial matters demonstrates to me—and, importantly, to our constituents—that we have all been determined to do the right thing. That is a strong message to send to our children and young people.

Although we have made significant progress in recent years, the bill represents a vital missing bit of the jigsaw. I do not think that the jigsaw is yet complete—if it was, Parliament would not have agreed to undertake a review of the operation of the act generally, or to consider again the age of criminal responsibility in the future. I have already announced that I will establish an advisory group to begin that work this summer.

I refer Mr Cole-Hamilton to the evidence that was given by Professor Ann Skelton—again, in an extra evidence session—in which she said that it would be an option to at least make clear in the legislation an intention to raise the minimum age in the future. That is what we have done.

Photo of Maree Todd Maree Todd Scottish National Party

No, thank you.

I know that some people are concerned that, because we have not locked down the minimum age of 12, we could go back to eight. So let me be absolutely clear: as long as the Scottish National Party is in government, there will be no going back. The age of criminal responsibility in Scotland will never be below 12 again.

I have sought to achieve the right balance with this bill. The legislation, the plan to implement it and the plan to review it all strike the right balance. That is the right approach for Scotland at this time. However, there is momentum behind this reform and ambition for Scotland’s children.

In preparing for today, I revisited what children and young people told us at various stages of the bill process, including in Inverness, where I took part in one of the consultation events that were held on our behalf by the Children’s Parliament. A nine-year-old said:

“Just be thoughtful. Imagine if you stole a sweet and you couldn’t get a job because of it”.

A 14-year-old said:

“At the age of 8 some kids don’t understand right from wrong and the police should understand the background of the child as I believe that every action is caused by a situation in their life.”

On what happens in childhood, another child reminded us:

“People change over the years, so it shouldn’t follow them forever.”

Finally, a 12-year-old told us:

“We are all human. Treat us the same as you would treat others.”

It was Nelson Mandela who said:

“There can be no keener revelation of a society’s soul than the way in which it treats its children”.

Today, I hope that Parliament will support this bill and show our children and young people that we are committed to treating them with dignity, respect, fairness, compassion and humanity. I am very proud, as the Minister for Children and Young People, to move that the bill be passed. [

Applause

.]