Seòmar agus comataidhean

Amendment 191 is a simple one-line amendment that effectively removes a section for which the Government, in its own amendments, is proposing a different section. I will come to that in a moment. The reason behind amendment 191 follows on from general comment 24 made by the UN Committee on the Rights of the Child:

“there should be lifelong protection from publication regarding crimes committed by children. The rationale for the non-publication rule, and for its continuation after the child reaches the age of 18, is that publication causes ongoing stigmatization, which is likely to have a negative impact on access to education, work, housing or safety. This impedes the child’s reintegration and assumption of a constructive role in society. States parties should thus ensure that the general rule is lifelong privacy protection pertaining to all types of media, including social media.”

I can really go no further than that in respect of amendment 191, but I would like to take the opportunity to explore the Government’s invitation not to move amendment 191 because of amendment 42 and its proposed new section 106BA of the Criminal Justice (Scotland) Act 2016. I have a number of questions for the minister and, if her answers satisfy me, they will lead me to not move amendment 191.

The first question is in relation to proposed new section 106BA(2), regarding the sheriff making an order

“on the application of a person other than the child who wishes to publish information relating to the child”.

Does the Government envisage any boundaries with regard to who that person might be?

Proposed new section 106BA(3) is possibly the start of the most crucial section in my questions. The power rests with the sheriff, and it gives persons an opportunity to make representation—a representation is more than a simple application—and those persons are:

“(i) the person who made the application,

(ii) the child to whom the information relates,

(iii) any other person the sheriff considers to have an interest in the application.”

Given that the public interest test and the best interest test overlie the environment in which the sheriff has to make the decision, are you looking at an objective or a subjective assessment by the sheriff that would need to be justified?

Also, proposed new section 106BA(4) makes reference to “conditions” and 106BA(4)(a)(ii) uses the phrase

“appreciates what the effect of making such an order would be”.

Again, I inquire as to the extent to which the sheriff has the power to investigate and what resources will be made available to the sheriff to investigate the young person’s level of appreciation. Is the Government expecting the current tests of the ability of a child to make a decision to be used in relation to the phrase “appreciates”, or, under the best interest test, does it extend to looking for objective evidence that the young person appreciates the effect of the order?

The minister rightly pointed out the growing media landscape and the fact that once things are out, they are out, and getting them back in is impossible in reality. The minister also spoke about the international effect of the current media baseload that we have. Will the minister confirm that, in relation to the Government’s amendments, full consideration has been given to the fact that so many of those cases will revolve around families, very small communities and extended families? She has spoken at length about the protections, but I ask her to put on record that that has been fully considered, subject to the further amendments that I understand may come at stage 3 with regard to some of the other amendments that we have.

I also put on record that it is very difficult to rest on the basis that we are relying on the court to make a decision and that some of the Government’s amendments would allow people the opportunity to go to court—in particular, the amendments to remove any ministerial or governmental role in decision making—but that other amendments say that there will be a financial cost for doing so. Some of the people whom I envisage seeking an order or to have an order overturned or amended will be those who find themselves in very precarious financial positions; therefore, they might not have open to them the avenue that the Government proposes as a way out of those problems.

I will leave it at that, convener.

That is fine.

Ruth Maguire makes some very powerful points. Does she share my concern that the processes that we have in Parliament for dealing with proposed legislation at stage 3 are perhaps not the best vehicle for enabling young people’s lived experience to be reflected or for them to express their views and input evidence? I say to the minister, with the greatest respect to her and the Scottish Government, that the round-table format is perhaps not the most fortuitous way for young people to be able to express their concerns.

Given the Government’s undertaking to discuss the issue, I will not move amendment 191 at this stage.

Amendment 191 not moved.

Amendment 30 moved—[Natalie Don].

I am concerned, because my amendments are to the Criminal Procedure (Scotland) 1995 Act, which, unless it is expressly brought within it, will not be covered by the UNCRC. Young people will have to rely on the existing vehicles, which, as Michelle Thomson has highlighted, might not be available in the future.

I am quite disappointed by the approach that has been taken with regard to my amendments, because they were lodged in good faith. The Government has sought to rely on the support of the Children and Young People’s Commissioner Scotland as authority to pass its amendments, but my amendments are also supported by the commissioner. With that in mind, I will press amendment 193.

I am very grateful, convener, and I will be brief. Does the member share my concern that we seem to be having a tautological argument over the phrase “victim impact statement” instead of talking about what this should be, which is an understanding of the victim’s experiences when either panels or, indeed, courts are reaching decisions?

I am very grateful.

That brings me to amendment 209, which deals with the rehabilitation and reintegration of children who have been guilty of offences. That is a very important matter, and I am grateful for the contributions that the minister has made. It is right that rehabilitation and reintegration are paramount in relation to how our young people can reintegrate into communities. During our discussions today and, indeed, during those that we had last week, we have heard about how that sits at the heart of what we are trying to achieve.

Regarding the reporting principles, is the minister absolutely confident that sources of reporting will be available to the public—albeit not necessarily through the Government—that can measure the success of the rehabilitation and reintegration of young people at the end of their period of involvement?

I am grateful, convener. Is the minister prepared to share the response that her officials have received from, in essence, the judiciary? The minister raised a number of matters that fundamentally boil down to the Scottish Government’s apparent disagreement to adding “and rights” after the word “welfare” throughout the bill. When we are talking about legislation, we are talking about the rights that are given or, indeed, taken away in response to the coming together of a young person and the criminal justice system, the welfare system and most aspects of a young person’s life.

The rights of a child sit above that. We debated the UNCRC long and hard in this Parliament over a long period of time, and, across the chamber, there was very strong agreement about the hierarchy of protections that young people have. Sitting at the top are rights, but there has always been the question of a challenge between one individual’s rights and another individual’s rights. The entire process of the court system and the environment of that decision making is about balancing those rights, but we heard across the chamber during the enactment that, across Scotland, we put children’s rights at the top of that. That does not mean that those rights will be applied every time, but it means that those rights will have to give way to other individuals’ rights only in exceptional circumstances and for exceptional reasons. Even with the amendments that I have proposed, there are facilities whereby that can happen.

With regard to comments about the court and resources, I say with respect that, again, the minister appears to be saying, “We can’t do this because of resource.” Of course there are challenges, but there are always challenges. There were challenges when a number of courts across Scotland were closed, with people making representations in that respect, but it is a very dangerous position to take if we are saying to our young people, “The resources aren’t there for the particulars of your case, so it’s not important.”

That issue arises particularly with regard to amendment 204, which relates to the co-accused and the acts of adjournal in the courts. Even with my amendment, there would still be exceptional circumstances in which the court could act according to what is right, but the presumption would be that the procedure adopted by a court should accord with the child’s needs, which I would suggest in a co-accused case must always take priority over the needs of an adult co-accused. I have thought and struggled long and hard to find a situation in which the rights of an individual child who has been co-accused with an adult would give way to the rights of an adult, simply from the point of view of competency, understanding and age.

In this space for questions—I am sorry, convener; I am adjourning—

Will the minister take an intervention in relation to this section?

Section 14 of the bill deals with the steps to safeguard the welfare and safety of children in criminal proceedings. My amendments include provisions to take better account of young people, and to insert in various parts of the bill the obligation to consider not just the welfare and the safety of young people but the rights of young people.

A number of the amendments are short, but amendment 196 would add a provision to section 14 of the bill—which, in turn, adds a section to the 1995 act—to allow

“the child an opportunity to express the child’s views in”

a way that the young person prefers.

As we have already heard in relation to a number of amendments this morning—and this is the position of the Scottish Government—the young person, including their role, maturity and ability, needs to be taken into account. As a consequence, we must also take into account the manner in which the young person can express their preferences and understanding. That would extend to having regard to the child’s views, taking into account their “age and maturity” in particular. I have already pressed the Government in respect of the test that would be applied to that and it has offered to discuss that.

All of my amendments refer to the importance of a young person being able to understand what is happening to them and being in a position in which they can, as far as is practicable, be comfortable with those around them so that they can express their views. It is important that they are able to understand the consequences of decisions that they might be asked to make in circumstances in which they would, understandably, be concerned, stressed and emotional. Given the purpose of the bill, it is important to have a requirement to make their journey not only as comfortable as possible but as understandable as possible to the young person in a way that is appropriate to their age and their levels of understanding.

I could go into some detail with regard to specific amendments, but, having detailed amendment 196, I will just mention that amendment 198 and subsequent amendments would remove “may” to insert “must” so that the requirement is that the adults—not just those immediately around the young person but those who are involved in the administrative processes—must take account of the young person.

I have nothing further to add, but I will respond to any questions that members might have, and I will respond to any comments that the minister might make subsequently. I will move all of my amendments in this group when required.

I move amendment 193.