Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill: Stage 3

– in the Scottish Parliament on 9th May 2019.

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Photo of Christine Grahame Christine Grahame Scottish National Party

The next item of business is stage 3 proceedings on the Vulnerable Witnesses (Criminal Evidence) (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—

I know that you are taking this all down carefully in handwriting as I say it. The cabinet secretary is! I am so impressed.

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 Deputy Presiding Officer:

Members should now refer to the marshalled list of amendments. Group 1 is on taking evidence by commissioner: presiding over a ground rules hearing. Amendment 2, in the name of the cabinet secretary, is grouped with amendments 3 to 6.

I ask the minister, Ash Denham, to move amendment 2 and to speak to all the amendments in the group.

Photo of Ash Denham Ash Denham Scottish National Party

The amendments in this group are all of a technical nature. Section 5 of the bill makes provision for taking evidence by commissioner. It introduces the requirement for there to be a ground rules hearing before evidence is taken by commissioner. Depending on the circumstances, the ground rules hearing may be presided over by the commissioner, another judge of the High Court or another sheriff.

The amendments in the group do two things. First, they improve the drafting by making it more precise. The references in section 5 to “a judge” are wide enough to include a sheriff, too, so it is not necessary to use the word “sheriff” as well as the word “judge”. Secondly, the amendments ensure that, in a case where a ground rules hearing is not presided over by the commissioner, it is presided over by a judge of the court that appointed the commissioner.

Amendment 2 seeks to remove the reference to a sheriff, because a reference to a judge is sufficient to include a sheriff, and to clarify that the judge who presides over a ground rules hearing is to be a judge

“of the court which appointed the commissioner”.

Amendments 3, 4 and 6 seek to remove references to a sheriff, because the references to a judge are sufficient to include a sheriff. Amendment 5 will make a minor adjustment to improve the precision of the drafting.

I move amendment 2.

Amendment 2 agreed to.

Amendments 3 to 6 moved—[Ash Denham]—and agreed to.

The Deputy Presiding Officer:

Group 2 is on a report on the operation of sections 1 and 5. Amendment 1, in the name of Liam Kerr, is the only amendment in the group.

Photo of Liam Kerr Liam Kerr Conservative

Members might recall that, at stage 2, I lodged an amendment that sought to implement a review of the operation of the bill as enacted. A good and incisive debate took place on my amendment, which included the cabinet secretary not only making persuasive points, but undertaking to work with me and other interested members to create something that would achieve the goals that we all felt were worthy.

I am pleased to report that that engagement took place, and I am grateful to the cabinet secretary and the Government staff for working collaboratively to put together amendment 1, which is a good amendment. Its purpose is to require the Scottish ministers, following consultation with key stakeholders, to conduct a formal reporting review of the operation of the bill as enacted. As amendment 1 is drafted, there will be two elements to the review process. First, there will be a qualitative review of whether the pre-recording reforms in the legislation have helped witnesses to participate effectively in the criminal justice system. Secondly, certain data must be included to show how many child witnesses have benefited from those reforms.

The review period covers the three years from the commencement of pre-recording for child witnesses under the bill as enacted. The draft implementation timetable indicated that pre-recording for child witnesses would start in January 2020. That should mean that the report of the review would be published by the end of 2023. Subsection (2) of the proposed new section sets out the information that the report must include, but it does not prevent the provision of any additional data that might be appropriate, recognising the need to maintain the principles of the independence of our courts and the protection of sensitive details of individual cases.

Amendment 1 will also require ministers to set out the next steps for commencing the pre-recording rule for any purposes or groups for whom it has not yet been commenced by the time the report is prepared, such as adult deemed vulnerable witnesses. It is a good amendment.

I move amendment 1.

Photo of Daniel Johnson Daniel Johnson Labour

I voice my support for amendment 1. It has been clear throughout the passage of the bill that although the bill represents progress, it is not the finished article. We must continue to make progress in protecting vulnerable people as they interact with the criminal justice system.

The review process for which amendment 1 provides is an important step in ensuring that we see the progress that we all hope that the bill will bring. The recording of qualitative evidence on the effect that the measures in the bill will have on vulnerable witnesses in the court system will be particularly useful. For all those reasons, Labour members will support amendment 1.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

I, too, want to express my support for my colleague Liam Kerr’s amendment 1. During the stage 2 proceedings, he continually raised the need for such a report to be prepared, and it is to his credit that he has worked with the Government to produce an amendment that works. I believe that the review process will demonstrate that a lot of children and young people and vulnerable other people will have been helped by the passage of the bill.

Photo of Ash Denham Ash Denham Scottish National Party

I am grateful to Liam Kerr for lodging this important amendment. I know that, had the cabinet secretary been leading the discussion today, he would have placed on record his appreciation for having had the opportunity to work with him and others, as he mentioned, to ensure that amendment 1 appropriately reflects the strong views that were expressed at stage 2 for a mechanism to deliver a more formal review of the legislation.

I believe that we all recognise that we must be able to measure the extent to which the bill’s objectives have been delivered—everyone impacted by the legislation would expect nothing less. Being clear about our intent, and how we are going to monitor and evaluate, are fundamental to that goal.

The Government is committed to a transparent process, and it is right that the Parliament should want to be kept fully updated as the reforms progress. I also acknowledge the fact that the provision has been drafted to ensure that it does not impact on the independence of our courts in relation to individual cases.

Amendment 1 reflects our pragmatism and ability to achieve consensus throughout the passage of the bill. On that positive point, I thank Liam Kerr for his amendment, which I am happy to accept.

Photo of Liam Kerr Liam Kerr Conservative

I have nothing further to add other than to thank colleagues for their comments and to endorse what has been said.

Amendment 1 agreed to.

The Deputy Presiding Officer:

Group 3 is on reporting on the process for taking evidence from child witnesses in criminal proceedings

. Amendment 7, in the name of Margaret Mitchell, is the only amendment in the group.

Photo of Margaret Mitchell Margaret Mitchell Conservative

Amendment 7 focuses on ensuring that Scotland makes progress in moving towards the barnahus model. In particular, it responds to and addresses the cabinet secretary’s comments at stage 2 when I lodged a probing amendment on the same topic.

The amendment provides that, three months after the bill has received royal assent, there must be a review of the Government’s progress towards adopting the barnahus principles and that that must happen

“at 6 monthly intervals thereafter until the Parliament is satisfied that the matters have been sufficiently progressed.”

The review will cover what

“progress has been made toward taking evidence from child witnesses in criminal proceedings—

“(i) in accommodation other than court buildings,

(ii) in accommodation that provides such other support to child witnesses as is considered appropriate,

(iii) in as few interviews as possible”,

which is shorthand for moving towards forensic interviews.

In its stage 1 report, the committee made it crystal clear that it is essential to ensure that that issue, and making progress towards a Scottish barnahus model, remains on the agenda for the Government in this parliamentary session and, crucially, at the start of the next session for the incoming Government in 2021.

The amendment also makes provision for the Parliament to remain informed about the development of the interview process and the progress that is being made towards achieving a “one forensic interview” approach before the end of this session.

As the minister is aware, the Cabinet unanimously agreed on working towards implementing the barnahus principles. The committee’s stage 1 report states:

The Committee recognises that there is no single model of the Barnahus and that its implementation would have to be adapted in the context of Scotland’s adversarial criminal justice system. However, the Committee does not consider that this should prevent the Scottish Government from moving towards full implementation of the Barnahus principles, specifically a ‘one forensic interview’ approach.”

Therefore, I hope that members will support amendment 7, to ensure that progress to achieve that objective is monitored, reviewed and brought back to the Parliament in this session and the next.

I move amendment 7.

Photo of Rona Mackay Rona Mackay Scottish National Party

I rise to speak against amendment 7, which is in the name of Margaret Mitchell, although I believe that it is well intentioned. The committee fully supports the introduction in Scotland of the barnahus model of a child-friendly, “one forensic interview” way of taking evidence from children—personally, I would like to see it happen tomorrow—but amendment 7 is not helpful as part of this bill.

The amendment assumes an obligation to move towards a new model when no such obligation is introduced by the bill. Indeed, no evidence was taken from the stakeholders who would implement it. The Scottish Government is working with stakeholders to consider how the model could operate in Scotland, and the cabinet secretary has written to the committee with a clear timeline of how that work would progress, along with Healthcare Improvement Scotland and the Care Inspectorate. Commenting on the bill, Children 1st said:

“We are pleased that the Cabinet Secretary has set out a clear timetable for the next stages in the delivery of the Barnahus approach in Scotland and the recognition of the need for a fully collaborative approach.

We welcome the commitment made during the stage 2 discussion of the Bill to review the progress that has been made by the Government and Government agencies after the bill has received Royal assent.”

There is also no correlation between the subject of the reporting requirements that are set out in amendment 7 and the objectives that are set out in the bill. The amendment seeks to introduce an onerous six-monthly reporting requirement with no clear end date and to ensure that that duty would continue until Parliament was satisfied that sufficient progress had been made. It sets out no mechanism or threshold that would allow Parliament to identify whether that had been achieved. Meeting such an indefinite reporting requirement would divert Government resource away from work on progressing the barnahus concept in Scotland, which is now well under way.

Amendment 7 specifies that ministers must consult child witnesses in preparing those repeated reports. The most important point to make in that regard is that asking child witnesses to revisit their experiences risks retraumatising them, and they would have no knowledge or experience of the new model that is the subject of the questions. Moreover, such an obligation is likely to be practically difficult and perhaps legally impossible, due to data protection issues associated with accessing and retaining details of child witnesses and contacting them without their consent or the consent of their carers.

There is also a technical flaw in the definition of child witnesses, in that the amendment refers to “the 1995 Act”, a term that is defined in neither the amendment nor the bill.

I thank Margaret Mitchell as convener of the Justice Committee for her enthusiastic support of the barnahus model, but I ask her not to move amendment 7 for the reasons that I have outlined.

The Deputy Presiding Officer:

Well, she has already moved it, so you cannot ask her not to.

Photo of Daniel Johnson Daniel Johnson Labour

I am somewhat conflicted, because I agree with everything that Margaret Mitchell has said. She is absolutely correct to state that we need to maintain our focus on the development of the barnahus model and to ensure that it is delivered as quickly as possible.

However, I disagree with how she has set out to do that in her amendment.

As Rona Mackay made clear, the six-monthly reporting periods are unduly onerous and, given the effort that would be required, might well be counterproductive. I understand why Margaret Mitchell has applied the threshold of the Parliament being satisfied with progress, but I am not entirely clear what that satisfaction would mean in practical terms. It might lead to future disputes, which I do not think would be helpful.

For those reasons, we will vote against amendment 7, should the member choose to press it. However, I ask the Government to reaffirm its commitment to the barnahus model and perhaps provide further detail on how that work is progressing at the earliest available opportunity, either in response to this amendment or in the course of the stage 3 debate.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

In speaking against amendment 7, I want to back up what Rona Mackay and, to a certain extent, Daniel Johnson have said. The barnahus concept was perhaps the most defining feature of the passage of the bill, and in that respect, the committee’s trip to Oslo was very valuable. We all want to get to the position where we can introduce barnahus, but the amendment puts undue pressure on the Government. The cabinet secretary has already written to the committee, outlining plans for how we will get there, including tackling the various legal challenges that we heard about. I know that the convener understands that—indeed, she has already mentioned it.

Finally—I will not overdo this point—I want to mention the issue that Rona Mackay highlighted about the retraumatisation of children. Given that that could be an outcome, I just do not think that voting for the amendment is acceptable. As a result, I, too, encourage colleagues to reject the amendment, but in doing so, I make it clear that that should not be mistaken as our not being supportive of the barnahus concept, which is something that we all want to be introduced.

Photo of Ash Denham Ash Denham Scottish National Party

I am grateful to Margaret Mitchell for her continued commitment to achieving progress in ensuring that children’s evidence is taken in an appropriate setting, where the right support is available.

As the cabinet secretary has said to the Parliament throughout the passage of the bill, a Scottish version of the barnahus concept is the Scottish Government’s intended destination and the bill is an important initial step towards that destination. We are committed to making progress towards a truly trauma-informed, recovery-focused response to child victims.

However, although I understand the positive sentiments behind amendment 7, I do not believe that the overarching reporting requirement as set out by the amendment is the right way to deliver that progress. In order to meet the requirement as drafted in the amendment, resource would be focused on indefinite, repeated, short-term reporting to Parliament on where and how often children’s evidence is being taken. We believe that that resource would be better directed towards delivering such improvements holistically, in the context of the expertise of those interviewing children and the quality of the wraparound care and support that are provided to them and their families.

The amendment as drafted would also introduce a statutory requirement for ministers to consult child witnesses in the preparation of reports. Clearly, the voices of children and young people are crucial in shaping how barnahus should operate in Scotland. However, I am concerned that introducing a statutory obligation to consult highly vulnerable child witnesses in the preparation of frequent, repeated reports could have some troubling consequences. We heard clear evidence during the passage of the bill about the retraumatising impact that repeated retelling of their experiences can have on vulnerable child witnesses. It is important that, wherever possible, we try to remove—not add to—that burden.

In addition, it is highly likely that data protection issues would pose a barrier to accessing details of child witnesses whose evidence has been pre-recorded. Even if it was possible, the amendment would require ministers to consult those vulnerable children who are currently going through the process of giving evidence in our criminal courts about what they think about progress towards a different system. At such a difficult time in their lives, that does not seem at all appropriate. I am sure that that was not the intention behind Margaret Mitchell’s amendment, but we believe that that would be its effect.

I understand and commend the intention to ensure that children’s voices are heard, but particular care is required in how we achieve that. I believe that the answer is to develop our approach on barnahus in partnership with organisations that support children and their families every day, such as Children 1st. I want to let them tell us how best to engage with and include children’s views. For that reason, we are providing funding to Children 1st to support work on participation and children’s rights, which will help to shape our approach to barnahus.

As the cabinet secretary set out in his letter to Margaret Mitchell last week, work is now under way by Healthcare Improvement Scotland and the Care Inspectorate to develop Scotland-specific standards that will set out the road map to barnahus. That work is now at the scoping stage. A stakeholder event will take place this summer and we will share draft standards for wide consultation at the end of this year.

At stage 2, the cabinet secretary committed to keeping Parliament up to date on progress with this work, as requested by Daniel Johnson just a moment ago. I repeat that commitment today—we will come back to Parliament on progress before the end of this parliamentary session. That will be in addition to the regular updates that we will provide on the progress of the victims task force, which will give Parliament a full picture of all the work that is under way to improve victims’ journeys through the justice system.

We have listened to the Justice Committee’s strong views on the benefits of the barnahus concept and I am grateful for our consensus on the need to transform how we respond to child victims and witnesses. I do not believe that amendment 7 would achieve that transformation. Instead, it would mean that, rather than progress being made towards that important objective, resources would be focused on a constant cycle of consultation to prepare a report every six months, with the unintended consequence that that would take up the majority of time and greatly reduce the real progress that could be made.

What is needed now is careful work across the justice, child protection and health systems and the wider legal community, and we are beginning that work as we move towards a Scottish version of barnahus, which will start with the improvements under the bill.

I hope that what I have said makes my commitment clear. On that basis, I ask Margaret Mitchell to withdraw her amendment 7.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I thank all the members who have spoken for their comments. I was somewhat puzzled by Rona Mackay’s remarks, which Fulton MacGregor supported, about stakeholders not having been consulted on the barnahus model and on having one forensic interview. The committee took so much evidence on that, and I cannot think of any witness who was not in favour of having one forensic interview and of moving to a Scottish barnahus as soon as we can.

The minister referred to the timetable that the cabinet secretary set out but, unfortunately, that runs only until summer next year and falls well short of ensuring that the end of the year means the very end of 2001. Crucially, the timetable does not keep the matter on the agenda to ensure that it will be there for any incoming Government after the 2001 parliamentary elections.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

As everybody has said, everybody supports the barnahus concept, which stakeholders support, too. However, is Margaret Mitchell saying that all the stakeholders who gave evidence to the committee agree with her amendment 7?

The Deputy Presiding Officer:

I want to check whether I heard something correctly. Did Margaret Mitchell refer to 2001 or 2021?

Photo of Margaret Mitchell Margaret Mitchell Conservative

I should have said 2021; if I said 2001, we would be going back in time.

My amendment would support introducing one forensic interview as the best way to ensure that children and other vulnerable witnesses are not traumatised time and again through having to give evidence, and it would move us towards the barnahus model. All the stakeholders who gave evidence were in favour of that so, by extension, I contend—

Photo of Margaret Mitchell Margaret Mitchell Conservative

If the member will excuse me, I would like to make progress.

It is really important for the committee to follow through on its commitment to ensure that such an approach is introduced as soon as possible.

Daniel Johnson expressed concern about the consultation process. Reporting twice a year would not be unduly onerous, given that consultation can take many forms. Those involved would be the Crown Office and Procurator Fiscal Service, where people are engaged in the process daily; Police Scotland; the Scottish Courts and Tribunals Service; and vulnerable witnesses. Members have said that such an approach would retraumatise vulnerable witnesses, but I think that the people who were to consult them would have the wit to ensure that they talked not about their traumatic experience but about how they found the evidence-taking process.

Such issues are not insurmountable, but a far bigger risk is that the proposals would be resource intensive, as with much legislation that the Parliament passes. Legislation has been passed for which resourcing has not been provided, and the danger is that we will make a provision and do an excellent report but the issue will gradually slip off the agenda and be forgotten. For that reason and to do the best for vulnerable witnesses—including children and others who might be phased into the process—I will press my amendment.

The Deputy Presiding Officer:

The question is, that amendment 7 be agreed to. Are we agreed?

Members:

No.

The Deputy Presiding Officer:

There will be a division. As this is the first division of the afternoon, I suspend proceedings for five minutes.

15:49 Meeting suspended.

15:54 On resuming—

We move to the division on amendment 7.

Division number 1 Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill: Stage 3

Aye: 29 MSPs

No: 82 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Deputy Presiding Officer:

The result of the vote is: For 29, Against 82, Abstentions 0.

Amendment 7 disagreed to.

That ends consideration of amendments.

I ask members who are leaving the chamber to do so quietly, please.

As members will be aware, at this point in the proceedings the Presiding Officer is required under standing orders to decide whether, in his view, any provision of the bill relates to a protected subject matter, that is, whether it modifies the electoral system and franchise for Scottish parliamentary elections. [

Interruption

.] Members have a funny idea of leaving quietly.

In this case, the Presiding Officer’s view is that no provision of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill relates to a protected subject matter. Therefore, the bill does not require a supermajority to be passed at stage 3.