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Again, although I agree with the sentiments in amendments 155 and 156, they do not seem to be necessary. The secure care workforce is already, as it should be, highly trained to meet the needs of children and to appropriately support children who are in its care. The Care Inspectorate, the Scottish Social Services Council and Scotland Excel set and monitor the training requirements for secure accommodation staff, which include meeting the needs of children who have a wide range of complex and challenging requirements. Those include the need for evidence of implementation of restraint policy and the training of staff in such approaches and in de-escalation practices.

It is also mandatory that each secure accommodation service provider has a clear child protection policy that ensures that safeguards are in place for those using the service. Secure accommodation managers, in consultation with the head of unit, are under a legal obligation to ensure that, when a child is in secure accommodation, their welfare is safeguarded and promoted. Accommodating children together when there are clear welfare or safeguarding risks would run contrary to that.

In summary, as I understand it, the intention behind the convener’s amendment is already achieved through existing law and practice.

There are also technical issues with amendments 155 and 156. In particular, they are not clear about what is meant by “restrictive practice”, “de-escalation techniques” and “learning disabilities”. The amendments are less effective than current requirements, as they would simply require proposed service providers to make a commitment to train staff at an unspecified point in the future.

However, I appreciate where Mr Briggs is coming from with his amendments. I am not sure whether they were intended as probing amendments, but I would be more than happy to meet him ahead of stage 3 to discuss them. I therefore ask him not to move them at this stage.

Government amendments 110 and 111 relate to the definition of a “secure accommodation service” and address the concerns that some stakeholders, including service providers, raised at stage 1. Recognising those legitimate concerns, the Government committed to working with them to ensure that the definition aligns with the Promise recommendation on being clear

“that the underlying principle of Secure Care is the provision of therapeutic, trauma informed support.”

Amendments 110 and 111 do that by emphasising that the care, education and support that are provided to children in secure accommodation take account of the effects of trauma that they might have experienced.

Secure accommodation service providers are well versed in recognising and understanding the impact of trauma that individual children in their care may have experienced, and they work with children in a way that demonstrates that understanding. Amendments 110 and 111 therefore build on existing practice and ensure that trauma is given the prominence that it warrants in the “secure accommodation service” definition and that further context is provided on a service’s overall purpose.

Regarding amendment 213, the definition of a “secure accommodation service” already includes much of what is listed in the amendment as part of the service’s core purpose. All children’s health, education and other needs are individual, therefore they cannot be prescribed in legislation. Although secure accommodation providers must ensure that the welfare of all children is safeguarded and promoted, in practice that will be done in collaboration with other relevant authorities and in accordance with contractual arrangements.

I appreciate that the amendment is well intended, but it could cause confusion as to where responsibilities lie and compel secure accommodation services to ensure that support is provided even when a child is no longer accommodated by them. For example, local authorities already have after-care duties towards looked-after children under the Children (Scotland) Act 1995. It is not clear what a secure accommodation service could add to that, particularly as it will not maintain a relationship with a child once they leave secure care.

On amendments 157 and 158, I again do not consider that they are appropriate.

In relation to amendment 157, secure accommodation is a highly regulated and monitored sector, with a number of existing safeguards in place to ensure the safety of children being cared for and members of staff. Restraint is a very complex issue that applies to various settings. The national “Holding Safely” guidance is already in place and applies to all residential childcare settings, including secure accommodation. Although that guidance is specifically about physical restraint, the Scottish Government is clear that the wellbeing and safety of children is always paramount and that restraint should be used only as a last resort and in exceptional circumstances. The publication “Secure Care Pathway and Standards Scotland” also makes it clear that restraint should be used only “as a last resort” in cases where

“a child’s behaviour is considered to be a significant risk to themselves or others”.

Secure accommodation service providers have their own techniques, methodologies and training for staff on approaches to physical restraint and restrictive practice, based on that guidance. In my view, there is no need to supplement that with further guidance.

On amendment 158, data on specific uses of restraint in secure accommodation is not publicly available, as is appropriate to protect the rights and privacy of children in that setting. However, clear regulatory frameworks are in place to ensure that secure accommodation services report incidents of restraint to the Care Inspectorate. Therefore, the information-gathering and publication duty in the amendment appears to be unnecessary and would impose a disproportionate and misplaced burden on local authorities, which would not have ready access to the information specified. Local authorities are not subject to such duties in relation to any other care setting. In addition, as with some other amendments that I will come to, I have concerns about the data protection and rights implications of what amendment 158 proposes.

Lastly, in relation to amendments 159, 160 and 161, I completely understand the reasoning behind them. However, in addition to the fact that they raise some technical drafting issues in relation to definitions and data protection, I feel that the obligations that they propose could be problematic in practice.

I do not believe that I referred specifically to a preference to have all children as close to their local authority as possible. I re-emphasise my words about doing what is best for the child and taking that into account in every circumstance. We might prefer children to be placed outside their local authority only in exceptional circumstances, if that is best for the child, but that will be considered. The circumstances must be considered case by case. All children’s cases are individual. There could be reasons why a child would have to be placed away from their local authority. I really re-emphasise that the decision would come down to what was best for the child. However, in the Promise, there was a move towards fewer children moving outwith their local authority.

Our issue is about the definition of the offence. Behaviour is not necessarily negative. The amendment would not be workable in law, essentially. I am happy to have further meetings with the member on the wording. Discussions would need to take place on whether it could be workable, but that is the situation at the moment.

As I said, it would need to be clearer in terms of—

I thank Ross Greer and Miles Briggs for lodging their amendments. Secure transport of children is a very important matter, and a range of work is on-going in that area. As Ross Greer mentioned, the Government has worked with him on amendment 212, which has been carefully framed to take account of wider matters.

It is envisaged that the standards that ministers would be obliged to publish and report on would draw heavily on the service specification that the Scottish Government and the Convention of Scottish Local Authorities have produced. The committee heard about that at stage 1; however, it is not mandatory. Amendment 212 would therefore allow for a set of national standards to which all those who commission secure transport must adhere.

The service specification prohibits use of mechanical restraint, handcuffs or pain-inducing techniques. Careful consideration will be given to the issue before ministers produce the standards. We are aware that, as has been discussed this morning, restraint might be required as an option in a very small number of cases, as a last resort, either to protect a child or to protect those who transport them. The alternative might be the police being called, which would bring a criminal justice response.

On the subject of a national regulator, we have noted the concerns that were raised by the Care Inspectorate in its evidence, regarding its role and remit. However, I assure the committee that discussions on that are on-going. I cannot pre-empt them, but I reassure the committee and other members that existing legislative provision enables the functions of registering, regulating and inspecting secure transport services to be conferred on the Care Inspectorate. Although I am not saying that that is the direction in which things will certainly go, it is useful information in the context of the window of opportunity that is presented by the bill.

In addition, my officials continue to work with relevant agencies on a national contract that would standardise matters related to providers and provide an approach for across Scotland. I commend Miles Briggs for raising those matters in his amendment 162. He has said that he will not move the amendment, so I will not go into detail.

Mr Briggs also referred to data collection. I would be happy to have a discussion with him on any gaps that he feels there are in relation to production of the standards.

In summary, I support amendment 212 and I ask the committee to do likewise.

I have not personally discussed the issue with the Care Inspectorate, but those conversations have taken place at official level. In the light of committee concerns about gaps in what is being considered, I would certainly be happy to take that idea away. However, I will go through some assurances about providing those safeguards.

The Care Inspectorate guidance considers the impact of the proposed placement on other children who are living in the secure accommodation and any reasons why that placement should not be approved. The particular circumstances or needs of other children in that setting will all be considered.

The wording does not necessarily describe the behaviour.

Good morning, everyone.

Sections 12 and 13 of the bill as introduced place restrictions on the reporting of certain information that could identify a person in relation to an offence or suspected offence that occurred while they were children, whether they were a suspect, a victim or a witness in relation to that offence. The restrictions apply respectively before, during or after any court proceedings in respect of the offence.

On introduction, the bill did not make provision to allow such persons to self-identify by publishing information that was covered by the reporting restrictions without committing an offence, unless a court had dispensed with those restrictions or they had otherwise come to an end. Therefore, it could potentially have criminalised a person for publishing their own information.

That approach was criticised by stakeholders, including the campaign for complainer anonymity and the Children and Young People’s Commissioner Scotland, at stage 1. We accept that it did not necessarily strike the correct balance between children’s rights to freedom of expression, autonomy and control over their own information and experiences and their rights to privacy and protection of other rights in the context of their evolving capabilities and development.

Therefore, the amendments in this group make provision to enable a person to self-identify by publishing information that would otherwise be subject to a reporting restriction, without committing a criminal offence.

Amendment 24 will enable a child victim or witness to self-identify prior to any court proceedings for the alleged offence when a court has not already dispensed with reporting restrictions.

Once court proceedings have been raised, amendment 48, which seeks to insert new subsection (1BB) into section 47 of the Criminal Procedure (Scotland) Act 1995, will enable a child victim or witness to self-publish information that can identify them at any stage of proceedings without seeking the prior authority of the court to do so. That echoes the provisions that are made in the Victims, Witnesses, and Justice Reform (Scotland) Bill in relation to victims of certain offences that are listed in that bill.

For those persons who are suspected, accused or convicted of committing an offence in childhood, because the considerations are particularly nuanced, that has resulted in provisions that are slightly different in scope. Before any court proceedings, those persons will therefore be able to self-identify only with the consent of the court, as provided for in section 12 of the bill. That is in recognition of the different risks involved for child suspects, which include the risk of self-incrimination during an on-going police investigation.

Moreover, once court proceedings have been raised, as is provided for in amendment 48, which seeks to insert new subsection (1BA) into section 47 of the 1995 act, those persons will be able to self-identify only on the disposal of proceedings, in line with other provisions in the bill. The intention is to prevent other risks from arising, including to the right to a fair trial, whether of the accused or of other persons.

Amendments 49 and 50 are consequential to amendment 48.

We consider that the provisions that are proposed by the amendments in this group strike a more appropriate balance, and I ask the committee to support them.

I move amendment 20.

The group contains a large number of amendments that cover a wide range of important areas. Some of the amendments are quite technical, so I require to speak to each of them in turn.

First, there are a number of Government amendments that concern dispensing with reporting restrictions. Those follow on from the amendments that we have just debated, concerning a person’s right to self-identify through publishing information that is otherwise subject to a reporting restriction, without committing a criminal offence.

Amendment 42 is my main amendment on the topic. It would insert new section 106BA into the Criminal Justice (Scotland) Act 2016 to enable an application dispensing with reporting restrictions to be made in relation to the publication of information relating to a child victim or witness to a suspected offence when no court proceedings are already under way in respect of the offence. That reflects provisions in the Victims, Witnesses, and Justice Reform (Scotland) Bill in relation to victims of the offences to which that bill applies. It would essentially enable a person other than a child victim or witness to whom information subject to a reporting restriction relates to apply to the court for an order to dispense with the restriction in order to be able to publish that information. The granting of any dispensation order would, however, be subject to important safeguards. It would require the court to have regard to the best interests of the child as a primary consideration and to consider any relevant representations made by or on behalf of the child or by anyone who is considered to have an interest in the application.

Moreover, the court would also require to be satisfied that the child has understood and appreciates the effect of any dispensation and has given consent to the publication of the information, and that there is no good reason why such an order should not be made. Subject to those safeguards, it would enable a child victim or witness to consent to a third party publishing the information rather than the child self-identifying through publishing their own information.

Amendments 32 and 41 make changes to new section 106B of the 2016 act in consequence of new section 106BA, so that section 106B will now apply only to dispensing with reporting restrictions in relation to child suspects. The new section 106B power remains different in scope from the new section 106BA power. Just as with the provisions on self-identification, there are different considerations in play in relation to child suspects, given the potential adverse impact on future police investigations and, beyond that, fair trial rights.

It would remain possible for a suspect, constable, prosecutor or a media representative to apply for a dispensation from reporting restrictions and for the court to grant that if it was satisfied that it was in the interests of justice. However, Mr Whitfield’s amendment 191 proposes the wholesale removal of new section 106B, which would mean that there would be no scope at all for reporting restrictions to be dispensed with prior to any court proceedings, whether in relation to a child victim, witness or suspect.

Although I appreciate that Mr Whitfield might not believe that a media representative should be able to apply to the court to have such reporting restrictions lifted, the removal of that entire section would mean that a constable or prosecutor would be breaking the law by publishing any identifiable information in relation to a child suspect. Police Scotland and the Crown Office and Procurator Fiscal Service have been clear that they require the ability to do so in some form. Publication of such information could be crucial for the protection of that child or other people and could seriously interfere with the ability of those organisations to investigate crimes and prosecute. That would be to the detriment of everyone involved and could interfere with the ability to protect the public and children. Moreover, even in the case of a media representative making the application, it can be legitimate for the court to consider whether reporting restrictions should be lifted where it is satisfied that doing so is in the interests of justice.

I therefore urge Mr Whitfield not to press the amendment, and, if he does, I urge the committee not to support it.

I will turn back to my amendments. Amendment 60 would insert new sections 47ZA and 47ZB into the 1995 act to make provision enabling applications to the court to dispense with reporting restrictions in relation to the publication of information, respectively, in relation to a child accused after the disposal of any court proceedings and in relation to a child victim or witness during or after the completion of court proceedings. Amendments 44 and 45 are consequential to amendment 60. The amendment broadly ensures parity in terms of the provisions on dispensing with reporting restrictions, whether prior to, during or after any court proceedings.

Ruth Maguire’s amendments 137 and 138 concern the court’s powers to remove or reinstate reporting restrictions. Before I come on to those amendments, I want to state that I recognise that the intention behind those amendments and her other amendments, to be debated in a later group, is to seek to reduce the trauma that is experienced by those who lose a child as a result of crime. I understand Ms Maguire’s motivation for lodging the amendments and I acknowledge the letter that was sent to me and a number of other ministers from families who have been bereaved by a crime, calling for change in this area. That letter was followed by a similar letter from a number of organisations.

The Government is absolutely committed to considering the issue in more detail and in discussion with those with lived experience, victim support organisations, academics, legal professionals and media representatives. To that end, the Cabinet Secretary for Justice and Home Affairs provided further international evidence to this committee and the Criminal Justice Committee in a paper of 23 January, which I think it is important that we reflect on. The Scottish Government is also hosting a round-table event with victims organisations and a range of partners in February to discuss experiences and options. The cabinet secretary and I are committed to working with Ms Maguire and other members on the matter, but we need to take the necessary time to do so.

In respect of amendments 137 and 138, at this stage and as drafted, I have significant concerns about how they could work in practice. I note that officials in the criminal justice agencies have raised concerns with my officials about whether the amendments would be enforceable in their current form. In the case of amendment 137 and an order made under its proposed new section 106C, vast resources would be required to identify all publications breaching the order and ensure that they were removed or withdrawn from public availability. Such is the media landscape that publications, publishers and broadcasters may well be located outwith the United Kingdom, and so publications might have reached an international audience. There are also questions about the value of such provisions, given that once there is widespread knowledge of an individual’s identity it is impossible to completely retract that information.

Today’s media landscape is almost unrecognisable from when legislation on reporting restrictions was first introduced. It is no longer limited to the traditional print and broadcast channels but ranges from international news agencies to individuals posting on public forums, with an exceptional growth in the number of self-published authors, bloggers and influencers. That has been reflected in the updated definition of “publication” in the bill. Many people who are outwith the larger media organisations do not have ready access to legal teams to advise them on what can and cannot be published. It is therefore essential that, as far as possible, provisions on anonymity are unambiguous and offer legal certainty—a sentiment that has been echoed by academics from the campaign for complainer anonymity at Glasgow Caledonian University.

The ability for the restrictions to be applied retrospectively; to be varied or revoked in relation to particular information, people or publications; and to be reinstated at any time following expiry could lead to considerable confusion and the risk of criminalising those who are unaware of or unable to follow repeated court orders on varying, revoking or reinstating restrictions.

We must balance our desire for appropriate safeguards and protection with the principles of open justice and freedom of expression. Although the powers of removal rest with the courts, which would need to take decisions in a way that was compliant with the European convention on human rights, it might be difficult, if not impossible, for a court to exercise those powers in a rights-compatible way in order to identify relevant published information that should be removed or reinstated or to identify who was responsible for that.

Once information has been published in breach of any restrictions, the person who was originally responsible would have no control over how that information might then be used or disseminated by others.

In summary, a host of legal complexities require further consideration and consultation in order to establish how measures would realistically work in practice.

Ruth Maguire’s amendment 138 provides a further power to reinstate reporting restrictions following their removal and raises similar concerns to amendment 137 with regard to its workability, enforceability and potential to undermine legal certainty.

For the reasons that I have outlined, I am unable to support amendments 137 and 138, and urge Ruth Maguire not to move them. However, I am fully committed to further discussion and engagement on how we better protect the privacy of those bereaved by crime, which the committee will discuss shortly.

The next amendments concern the removal of the power of the Scottish ministers to dispense with reporting restrictions. The Government’s amendment 51 would mean that the Scottish ministers would no longer have the power to dispense with reporting restrictions after the completion of court proceedings. Consequently, only a court would have such a power, under section 47(3) of the Criminal Procedure (Scotland) Act 1995, to dispense with reporting restrictions on disposal of the proceedings. That change will locate such decision making solely with the courts.

Amendment 51 follows the compelling stakeholder evidence, including from the campaign for complainer anonymity, which stated:

“We believe the courts are the only appropriate forum for making decisions on whether reporting restrictions in cases involving children continue to apply or are set aside.”

In practice, as it stands, the ministerial power is partial in that ministers can dispense with reporting restrictions only after the completion of court proceedings, and that would only be before the child turned 18, when reporting restrictions automatically lapse.

In the future, it is likely that decisions about dispensing with reporting restrictions and/or extending restrictions beyond the child turning 18 will be made at the completion or disposal of proceedings. If the restrictions are extended beyond a child turning 18, there are provisions to enable the order to be reviewed or revoked.

Leaving decision making with the court brings a number of advantages. Judicial decision making can benefit from hearing the full evidence in a case, with in-built appeal provisions, in a way that the ministerial power could not. That is particularly important given the huge implications and potential risk for the child involved if reporting restrictions are dispensed with, including in respect of children’s rights. The change would also afford consistency with the Victims, Witnesses, and Justice Reform (Scotland) Bill, which was introduced in April 2023, under which ministers have no powers to dispense with reporting restrictions for cases covered by that bill. Amendments 61, 68, 69, 72, 76 and 81 are consequential to amendment 51.

Government amendment 62 concerns the right of appeal under section 47A of the 1995 act. The bill as introduced makes provision for a child accused, a child victim, a child witness or a prosecutor to appeal the court’s decision to dispense with reporting restrictions. Amendment 62 provides greater clarity on the ability of victims and witnesses to appeal that decision. That is an important change to ensure that the ability of victims and witnesses to exercise that right is as well understood as possible.

I move on to the amendments that concern the extension of reporting restrictions. On introduction, the bill did not allow reporting restrictions for victims and witnesses to extend beyond the age of 18 or the conclusion of proceedings, if that comes later. That was to enable victims and witnesses in adulthood to self-identify, should they wish to do so. However, as we debated in the previous group of amendments, the proposed amendments would enable child victims and witnesses to self-identify at any point without breaching reporting restrictions.

Various stakeholders, including the campaign for complainer anonymity, Together Scotland and the Children and Young People’s Commissioner for Scotland, criticised the fact that, while the bill as introduced enabled a child accused to seek an extension of reporting restrictions, no similar provision was made in respect of child victims and witnesses.

That is addressed by Government amendment 65, which amends the power in new section 47B of the 1995 act to extend reporting restrictions in relation to child victims and witnesses. Amendments 66 and 67 are consequential to that. Moreover, Government amendments 54 and 55 would also enable child victims or witnesses to appeal any decision to extend or not extend reporting restrictions in the same way as a child accused. Those amendments now ensure parity between a child accused and a child victim or witness in relation to decision making around extensions of reporting restrictions.

I understand Ruth Maguire’s intention behind and motivation for lodging amendments 147 to 150 and 192 and the associated amendments. They, too, make provision for the extension of reporting restrictions with associated rights of appeal. The amendments appear to have a similar intent to the Government amendments that I have just described.

However, the Government’s amendments go further in some respects, as they extend to child witnesses as well as child victims. I am concerned that Ms Maguire’s amendments would not extend to child witnesses. I strongly believe that child victims and child witnesses should have the option to apply to have reporting restrictions extended, in keeping with our person-centred and trauma-informed approach. To limit that to child victims would mean that child witnesses could miss out on those important protections and benefits into adulthood.

Although I acknowledge that Ms Maguire’s amendment 148 would also enable extensions of reporting restrictions in relation to deceased victims, I have concerns about the extension through the bill of provisions in relation to deceased victims and the potential adverse consequences of that. I will address my concerns when we come to debate the issue shortly.

If an extension has been granted at the request of one family member but another family member wants to identify the deceased child publicly, they would have to apply to the court to have the order varied or revoked, with the emotional and financial costs involved. Failure to do so could result in that individual, and anyone else who subsequently published that information, being criminalised, adding to the trauma for that individual and their loved ones. There could be different views between family members and it is unclear what would happen in such situations.

Another concern is that extending the protection to deceased victims could inevitably extend the protection to those who commit offences. We must keep it in mind that, tragically, the majority of child homicide victims are killed by a parent. It is hard to understand how you could identify one without leading to the identification of the other.

I am therefore unable to support Ruth Maguire’s amendments, for the reasons outlined. Again, I urge her not to move them in return for a commitment from the Government for further discussion and engagement on this deeply important issue, allowing time for the level of detailed consultation and consideration that we have committed to, in which I know that Ruth Maguire is keen to participate. As I said previously, the Government is keen to seek a solution to the issues raised by bereaved families and victim support organisations and to engage on those issues in an open-minded way, but it is essential that we fully explore the complexities involved to avoid any unintended consequences from making such a significant and expedited change to the law. I note that the issue has potential implications for the Victims, Witnesses, and Justice Reform (Scotland) Bill, which also includes provisions about reporting restrictions for the protection of other victims of offences under that bill.

Instead, I ask members to support the Government’s amendments concerning the extension of reporting restrictions. I firmly believe that the Government’s amendments are more consistent with our trauma-informed approach, provide equality for child victims, witnesses and accused, and bring greater consistency with the provisions under the Victims, Witnesses, and Justice Reform (Scotland) Bill.

Finally, I will address the Government’s amendments concerning the application of the public interest test, which should inform decision making by the courts in relation to dispensing with reporting restrictions or not. In further support of Scotland’s incorporation of the United Nations Convention on the Rights of the Child, the amendments vary the tests to be considered in making decisions regarding reporting restrictions.

Amendments 70, 71, 73 to 75, 77 to 79 and 82 make further amendments to new section 47D of the 1995 act, as inserted by section 13 of the bill, which makes provisions for the court’s application of the public interest test in relation to decision-making around dispensing with or extending reporting restrictions.

In relation to decisions concerning a child accused, amendment 73 ensures that their best interests must be regarded as a primary consideration.

Amendments 75 and 79 concern decisions in relation to a child victim or witness. Amendment 79, in particular, would mean that, when a child victim or witness is under 18, the court should regard the best interests of the child as a primary consideration and should have no regard to the length of time until the person will reach the age of 18. That is because reporting restrictions might not cease when a child turns 18, as debated elsewhere in this grouping. That will bring consistency with provisions for a child accused and it should address the concern raised by stakeholders about differential provisions in relation to consideration of those matters depending on whether they relate to a child accused or a child victim or witness.

Moreover, the amendments reflect the call made by stakeholders during stage 1 that the best interests test should be more consistent with the language in the UNCRC.

Members will be pleased to know that that concludes my discussion of the amendments in the group. I urge Martin Whitfield not to move amendment 191. I likewise urge Ruth Maguire not to move her amendments pending further exploration of the important matters that they and her other amendments raise.

I move amendment 21.