Seòmar agus comataidhean

I want to be very clear that I have said that I will consider the matter. We have sought appropriate legal advice and have proceeded on that basis. Mr Kerr made reference to media law experts. It is the role of the Lord Advocate to satisfy herself on legality, not media law experts. I will make no further comment on the matter at the moment other than to say that I have given assurances to the committee and I am happy to come back to the matter at a later stage.

Amendments 218 and 219, as Martin Whitfield alluded to, cover ground similar to that covered in amendments that were lodged previously. I will not talk about every amendment in the group, as I understand that Mr Whitfield does not intend to press or move his amendments. However, I have already confirmed that I will be discussing the issue further.

I turn to amendment 220. I fully appreciate the challenges that are inherent in the scale and operational needs of the children’s hearings system. I have met Children’s Hearings Scotland, and further meetings are being scheduled with the organisation to make sure that the previous assurances that it gave me that appropriate plans are in place to ensure capacity in the current tribunal model are maintained.

Placing a duty on ministers to report to Parliament on whether there are sufficient numbers of panel members would present a couple of problems. We would risk interfering with the absolutely vital independence of the national convener of Children’s Hearings Scotland. It is for the national convener to determine how to resource children’s panels, as enshrined in the Children’s Hearings (Scotland) Act 2011.

Beyond that fundamental principle, amendment 220 would have serious practical implications. It would risk removing flexibility now and in the future, given that identifying a pre-determined figure on which to base commencement of the bill would create a number of limitations. We must recognise, for example, that the number of hearings and the number of panel members are not fixed. The number of hearings that are scheduled each year can and does change, as can the number of volunteers who are required on a month-to-month basis. In addition, any one volunteer might have more or less time to give to the system than another. Therefore, we could have thousands of volunteers but, depending on their availability, that would not necessarily mean system readiness or capacity. I do not feel that reading into the numbers specifically in that way is necessarily helpful.

Absolutely.

Thank you for the intervention. I do not feel that it needs to be as prescriptive as that. As I have said, commencement plans will, in practical terms, rely on a positive Children’s Hearings Scotland report on the numbers. The bill would not be commenced without an assurance that the numbers are in place to cope with the situation.

On Ruth Maguire’s point about discussions, the situation is fluid, which is why those on-going discussions are important. For example, in November, Children’s Hearings Scotland planned to run a February recruitment campaign, but now it does not, because, I believe, the situation has improved. It is fluid, it is fluctuating and it needs to be considered on a continual basis, rather than setting in stone what is required for it to go ahead.

I am trying to set out why I do not feel that the amendment is necessary at this stage, and I hope that I have provided reassurances in that respect. I have said everything that I was planning to say in response to those interventions, so I ask the relevant members not to move the amendments in the group, and if they do, I ask the committee to reject them for the reasons that I have outlined.

Absolutely. As I said, I will make all efforts that I can to encourage take-up of that provision.

On the issue of rurality and distance, there are a number of reasons why uptake might not be as high for our two-year-olds as it is for our three to five-year-olds. I am certainly looking to understand the reasons for that variation.

In relation to our further expansion and announcements in the programme for government, the member will be aware that we have early adopter communities under way. Those communities were limited to four, but we added another two in the programme for government. Discussions and plans as to how we roll out in those areas are now under way.

Those early adopter communities are working with families to look at providing childcare from nine months right up to school age. As I said, it is about understanding what is best for families, what is best for the children and what is best for the local areas, which goes back to Willie Rennie’s point about locality and rurality. Work is under way to extend our current offer to ensure that it works for parents, children and families. I do not have to tell the member that we are operating under extremely difficult financial circumstances. We are trying to go as fast as we can, but more important is that we get it right for families. Single-parent families will obviously be a consideration in our work.

I cannot commit to lodging an amendment, but I can commit to considering the matter further.

To follow on from that, the information-gathering and publication duty in amendment 158 could impose a disproportionate and misplaced burden on local authorities. As I said, I am happy to consider that further.

On amendments 159 to 161, as I said, in addition to their raising technical drafting issues, they could be problematic. I understand that the intention of amendment 159 is to ensure that needs assessments are undertaken for children entering secure accommodation. However, that already happens, and regular reviews are carried out, as required by the legislation.

I feel that it is being reported, and, in fact, I have had conversations with officials this morning about whether improvements can be made in relation to that. However, the amendments that have been lodged raise a couple of problems in terms of overlap. There needs to be either more refinement of them or more work in relation to that issue.

I will comment on the amendments in relation to Mr Kerr’s questions in just a second. I thank him for those.

I assure the committee categorically that legal advice has been sought on all the bill’s provisions and the amendments in the normal way, as is the normal bill process. As members will appreciate, the ministerial code requires that I respect the confidentiality of advice that is given, and I am not able to get into the details of that now. Mr Kerr can be assured that legal advice has been sought, and we have proceeded with that in mind.

I would rather take interventions at the end.

Amendments 195 to 197 are also an ill fit for the criminal setting, because the courts, unlike the children’s hearings, will not be dealing with the prosecution of children under the age of criminal responsibility. Therefore, it is not necessary for there to be presumptions regarding their capacity to give a view in such situations. Furthermore, under article 12 of the UNCRC, a child has the right to express their view freely and must be provided with the opportunity to provide their view in any judicial proceedings. The court is required to act compatibly with ECHR and UNCRC.

The intention behind amendments 193 to 197 is already realised via existing legislation or the application of internal obligations. On that basis, I am opposed to those amendments.

Amendments 198 to 202 roll back the flexibility afforded to the court in section 14 of the bill to decide, on a case-by-case basis, whether it is appropriate to sit in a different building, to sit on a different day or to put in place closed-court measures. Those amendments would require the court to do those things on a blanket basis.

We have discussed the proposals with criminal justice agencies, and there would appear to be various issues with those. First, the amendments place duties on courts with limited or no flexibility or discretion, so they are unduly prescriptive. There is a risk that the amendments would interfere with the court’s powers to consider each case in an appropriate and rights-compliant way, given potential rights considerations of all parties, including the adult co-accused, thereby potentially interfering with judicial independence.

Secondly, the changes have not been fully consulted on with the Scottish Courts and Tribunals Service or the judiciary—the very agencies that the changes would affect. However, based on contact with SCTS, including its response to the consultation on the bill and that of the Summary Sheriffs Association, it is unlikely to be supportive. We must be careful that we do not encroach on the independence of the judiciary and that we do not constrain its discretion. The courts are best placed to make case-by-case decisions, and the amendments appear to overstep their responsibility and expertise in that domain.

The amendments would have corresponding resource implications. They could result in delays in a child’s case being progressed if, for example, a case could be held only on different days from cases in other courts in that building. That would have implications not just for the accused but for the victims and witnesses.

The amendments would have serious implications for a court’s programming and for capacity more broadly, thereby impacting more widely than just on cases involving a child accused. The changes would be challenging, if not impossible, to implement in each court, particularly in smaller courts that have only one court room available, or where there is only one sheriff who already has criminal business set down for the day. The SCTS clearly expressed those concerns in its consultation response, and it has reiterated them to my officials in respect of those amendments.

Although some of the proposed amendments are already requirements in certain cases, they would present particular challenges in respect of solemn proceedings. Additional considerations in those cases, such as the need for juries and the fact that a limited number of buildings in Scotland are set up to accommodate jury trials, as well as the requirements for police presence, access to cells and holding areas before or after court appearances, would inherently limit where those cases could take place.

There would also be challenges where, for example, a child was in custody and the timescales prescribed in legislation would require the case to call on a particular date or before the expiry of a particular period. If other court business was already scheduled and required to happen on that particular date, and if the child’s case could not take place in the same building or on the same day as other court business and no other appropriate facilities were available, the courts would need to decide which case should take place, in the knowledge that doing so would mean that legislative requirements would not be met. That could be a particular issue in smaller or more remote courts. The amendments would also seem to apply to every court hearing, from the first calling until the case concludes, which would only compound the challenges further.

Amendments 200 and 203 are problematic for a number of reasons. Those include that, in this context, the rights of the co-accused would appear to be given less weight than those of the child. In human rights law, a right does not require “serious” interference in order to be infringed, so the amendments would, arguably, distort existing legal protections. In contrast to section 14 of the bill, the amendments would unduly constrain the court’s discretion to make decisions case by case, in line with its duties under the Human Rights Act 1998 to do all of that in a rights-compliant way. Given those risks, I cannot support those amendments.

Amendment 204 would insert a new subsection into section 305 of the Criminal Procedure (Scotland) Act 1995 to expressly provide that the High Court may, by act of adjournal, also make

“provision ... for the purpose of ensuring that criminal proceedings involving a child are concluded in a way that accords with the needs of the child.”

Again, although I understand the intent behind the amendment, that raises a number of issues. The judiciary has not been consulted on the matter, and the High Court is responsible for making acts of adjournal. Amendments to court conduct, practices and processes in respect of children can already be made, informed by a combination of existing legislation, practice notes, court rules and procedure and guidance. Those considerations and amendments for children at court, by virtue of their age, are in addition to other supports that may be provided owing to a child’s vulnerabilities.

On amendment 205, last week, the committee discussed a similar amendment concerning referrals in the children’s hearings system. In those circumstances, I agreed to discuss further with the member the definitions that are contained in that amendment. I reiterate that I fully agree with the member on the fundamental principle of ensuring appropriate and timely access to support services in cases of domestic abuse. However, I would not support amendment 205. First, I do not think that what it sets out is an appropriate responsibility for the court. It would not seem to be a role of a judge or sheriff, or of the Scottish Courts and Tribunals Service, whose function is to provide administrative support to our courts and tribunals and to the judiciary. The number of children that the amendment would cover could also be significant.

I talked earlier about appropriate and timely access to support services in cases of domestic abuse. With that in mind, I refer to the victim information and advice service, which the Crown Office and Procurator Fiscal Service already provides in criminal court cases. When a case is received, the COPFS will consider it and can refer any victims who should receive extra support to victim information and advice services, including any child victim or victim of domestic abuse. It can, in such cases, already put the child in touch with other services that offer practical and emotional support. It would be for the individual to decide whether they wished to access that support.

Of course. I am happy to.

For those children who are detained under section 205, which is punishment for murder, and section 208, which is conviction on indictment, of the Criminal Procedures (Scotland) Act 1995, the Scottish ministers already have powers to direct the place and conditions of detention, although those powers will be subject to new section 208A, as inserted by section 17 of the bill, which provides that children may not be detained in a prison or a young offenders institution.

In respect of amendments 99 and 101, when a child is convicted and sentenced under solemn proceedings, under sections 205 and 208 of the 1995 act, the Scottish ministers direct where the child is to be detained. Under the provisions of the bill, children under the age of 18 will no longer be placed in a young offenders institution in any circumstances. As I have already noted, that change is essential for Scotland to keep the Promise.

Amendments 99 and 101 clarify that, although Scottish ministers cannot direct that a person while a child is detained in a prison or a young offenders institution, on turning 18 a person can be transferred from secure accommodation to a YOI, should they not remain in secure until the maximum age of 19, and, in due course, they can be transferred to a prison.

Amendment 116 clarifies the early release provisions that apply to certain children convicted on indictment and sentenced to detention under section 208 of the 1995 act. It amends section 7 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. The amendment is of a technical nature, rather than substantive. It ensures that children who are detained under section 208 of the 1995 act will be subject to the same early release provisions if they are then sentenced, while so detained, to a determinate term of detention or imprisonment of four or more years and, by virtue of section 27(5) of the 1993 act, such terms of detention or imprisonment are treated as a single term.

Amendment 115 is consequential on paragraph 7(3) of the schedule to the bill, which amends section 245A of the 1995 act to enable a restriction of liberty order—or RLO—to be made in respect of any child aged under 18, rather than under 16, as is currently the case. A local authority must provide supervision of, and advice, guidance and assistance for, a child during the period when a child is subject to an RLO. The amendment means that the relevant local authority must provide such support to any child aged under 18 who is subject to an RLO, as currently that duty applies only to children aged under 16.

Amendment 117 is consequential and removes from the schedule to the bill paragraph 12, which is no longer required because the change that is made by amendment 116 removes the reference to remand centres, which paragraph 12 seeks to repeal. There are no such facilities in Scotland and no plans to reintroduce them, as doing so would be inconsistent with the Promise.

Amendment 118 makes minor consequential amendments to local authorities’ duties in relation to children who have been detained under the Criminal Procedure (Scotland) Act 1995. The amendment is in consequence of part 2 of the bill and is important in ensuring that there is effective oversight of the discharge of local authorities’ duties to children who are detained by the different criminal justice routes. Such oversight is important, given the particular needs, risks and vulnerabilities that those children are likely to have experienced and the significant impact that being detained has for those children and their rights.

Local authorities have key duties towards those children. The amendment to section 5 of the Social Work (Scotland) Act 1968 ensures that Scottish ministers have the powers to issue directions to local authorities, not just for the children and young people who have been detained under section 51 of the 1995 act while awaiting trial or sentence, but for those children and young people who have been detained in summary proceedings under section 44 or detained for default on a fine under section 216 of the 1995 act. That important change ensures that such directions can be provided consistently in order to cover all the criminal justice routes through which a child may be detained.

The amendment to the Public Services Reform (Scotland) Act 2010 removes the existing definition of social work services, which is unnecessary due to other changes in the bill. The number of children who are subject to an RLO is relatively low at any one time, but, from April 2022 to March 2023, there were 43 new RLOs for under-18s. None of those were for children who were under the age of 16, and 83 per cent of the orders that were made were for those who were 17 years old at the order start date. Only 17 per cent were aged 16 on the order start date. Although that may have some financial implications for local authorities, that is likely to be minimal, given the small number of children who are being made subject to those orders. I note that, owing to other changes in the bill, the demand that is placed by children on justice social work is likely to reduce. However, owing to the funding structures of justice social work, no transfer of those savings is possible at this time.

I invite members to support amendment 99 and all the other amendments in the group.

I move amendment 99.

Amendment 99 agreed to.

Amendment 100 not moved.

Amendment 101 moved—[Natalie Don]—and agreed to.

Amendments 102 to 104 not moved.

Section 17, as amended, agreed to.

After section 17