Seòmar agus comataidhean

I am sorry, convener, but I still have a lot to say.

Amendment 177 includes a very broad range of conditions for considering monitoring and review if a child is not in need of compulsory measures. I am conscious that the amendment would likely apply to virtually any child who is referred. However, that does not mean that we need to legislate for further intervention or monitoring when a hearing reaches that conclusion. Local authorities already provide support and guidance to children and their families on a voluntary basis, and amendment 177 would not change or enhance that. Acting as prescribed in the amendment could potentially result in disproportionate and unnecessary interference with the child’s rights.

The principle of minimum intervention—making children subject to compulsory measures only when that is absolutely necessary—is a key aspect of the children’s hearings system. Ensuring that services and supports are available to children, young people and adults who require them has similarly been a long-standing requirement of Scottish statute. Our recent commitments in responding to the Promise and to “Hearings for Children” will go further in this area if necessary, following engagement and consultation with key stakeholders. On that basis, I cannot support amendment 177.

Finally, regarding amendment 182, the committee and members should be aware that significant amounts of data, broken into numerous categories, are already available through the online dashboard that is provided by the Scottish Children’s Reporter Administration. The SCRA also publishes an annual in-depth and detailed analysis of its statistics, which includes data on many of the categories that are referred to in amendment 182.

We do not necessarily believe that additional legislation is required in this area. However, there is merit in further exploration of what additional material could be published as part of the annual reporting. I am therefore happy to discuss that with Willie Rennie and any other members who have an interest in the area ahead of stage 3, and to liaise with the authorities to understand the opportunities and challenges that may be presented. I therefore ask the member not to move amendment 182, to allow those discussions to happen.

In summary, I ask Martin Whitfield not to press amendment 165 and I ask members not to move amendments 167, 166, 170, 171, 119, 120, 121, 172, 177 and 182. If the amendments are pressed or moved, I ask the committee to reject them.

Will the member give way?

As we have already discussed, the panel members are trained in trauma and numerous other areas in order to understand what might be best for a child at the heart of the welfare system. I am sorry, but I do not see how the views of the victim could be relevant to the welfare of the child at the heart of the system. Obviously, the views of the victim are extremely relevant in terms of their own situation, but not in terms of the decisions that are made for the child at the heart of the hearings system. I do not think that I can be any clearer than that.

Changing the ethos of the hearings system in the manner outlined in amendments 168 and 184 would undermine its principles and move it towards a court-type system. In addition, it would be difficult in practice, in the context of a children’s hearing, to seek the views of a victim without causing delay to the progress of the child’s case, as it would take the focus away from decisions being made as quickly as possible in order to safeguard and promote welfare.

On amendments 4, 5, 6, 173, 174 and 176, which relate to measures and CSOs to protect victims, the bill already includes two new prohibitions in section 3. That section, which amends section 83 of the 2011 act, gives children’s hearings greater choice when deciding on which measure—or which combination of measures—is necessary to assist the child in refraining from negative behaviours.

Amendment 6 is not necessary. Hearings are already required to consider whether a direction regulating contact is necessary. In seeking to prevent, on a blanket basis, any contact between a child and a

“person affected by”

their

“offence or behaviour”,

the amendment is not consistent with the child-centred approach of the hearings system and might not be compliant with UNCRC or ECHR in particular cases.

Likewise, amendment 173 is not necessary for the purpose of making the order specific to the circumstances of the offence or to the safety of the person affected. The children’s hearing is already required to consider the consequences of a child’s offences or behaviour, and it must in every case already consider the established facts of the grounds of referral, which, for an offence ground, would include the details of an offence. Given that the disposals that are open to a hearing range from discharging a referral to home supervision and deprivation of liberty, it is evident that hearings’ decision making already takes into account that a measure might be needed to address the safety of others in response to the circumstances of an offence.

Amendments 4 and 5 are not required either, because the section to which they relate has been worded in a general way deliberately to align with section 83 of the 2011 act and would cover victims and the places that they attend. I therefore ask that amendments 4 and 5, in the name of Ms McCall, which seem designed to clarify what is meant by “person”, not be moved, as they do not seem to add anything that is missing. Again, if Ms McCall is minded not to move her amendments, I would be happy to discuss an alternative wording or form for stage 3.

Similarly, I do not consider that similar adjustments to provisions in sections 4 and 5 as a result of amendments 174 and 176, as proposed by Martin Whitfield, are necessary. The tests for an MRC and for secure accommodation authorisation are clear, in so far as they apply where a referred child

“is likely to cause physical or psychological harm to another person”,

and an ordinary reading of the word “person” undoubtedly includes any person harmed by the referred child. Again, I wonder whether Mr Whitfield would be minded to withdraw his amendments, because I am more than happy to explore the matters further in advance of stage 3.

Amendments 12 to 15, 175 and 180 concern the provision of information to victims, which I appreciate is an issue that has been highlighted throughout stage 1. Government amendments 13 and 15 extend the existing powers of the principal reporter to share information under section 179C of the 2011 act. The amendments will mean that, except in limited circumstances, a victim can receive details about relevant measures that a hearing has made in a compulsory order that has the effect of prohibiting contact between them and the referred child, including further details from review hearings when a measure is continued, varied or terminated. That will include movement restriction conditions. Similarly, if a hearing considering a child's case concerning an offence or harmful behaviour decides to make a secure care authorisation, that can be shared, too. I should say that I consider it necessary to develop regulations that will improve support for victims in understanding hearing decisions, and I will mention them shortly when I discuss amendment 17.

Amendments 12 and 14 risk information being shared with a victim that could be detrimental to the referred child or to a child other than the child victim in the case. They would also remove the reporter’s discretion not to share in other circumstances when doing so could be inappropriate—for example, where to do so would adversely affect an adult victim. The bill—and amendments 13 and 15, which I have lodged—extends the provision of information to victims, and there is no intention to restrict the sharing of information, except in the limited circumstances that are already set out in section 179C of the 2011 act and are well understood.

It is a rarely used measure, but I understand from the SCRA that it is sometimes necessary to withhold information in cases where there is a concern about the safety or welfare of any child, including the referred child, if the information is provided, and where there are concerns about how the information will be used by the victim or the victim’s family. There are examples of information being circulated through social media or in local campaigns against some children who have been subject to hearings, so those exceptions are necessary, although I would expect them to be used in extremely isolated cases.

If agreed to, the Government’s amendments 13 and 15—on which I have had very positive engagement with victims organisations—will adequately address the matters raised in Ms Duncan-Glancy's amendments 175, 178 and 180. In effect, amendments 13 and 15 ensure that, if a victim is named in a child’s order, they will be told about it; if the child is on a movement restriction condition and is not to approach them, they will be told; and if the measure is terminated at review or is varied or continued, they will be told. Once the child attains the age of 18 and the order naming them is terminated, they will be informed. That, together with the support services that I will outline shortly, will give them the information that they need to understand what measures are in place and when they will end. I therefore ask Ms Duncan-Glancy not to press her amendments at this time. However, if there are other areas that she still remains concerned about, I am more than happy to discuss them ahead of stage 3.

On Government amendment 17, I am aware that the balance of rights surrounding the children’s hearings system has been a key theme of the debate arising from scrutiny of the bill to date. The committee has heard some very powerful testimony on the effects that a child’s offending behaviour can have on those who are harmed, and the Scottish Government is committed to ensuring that victims are treated with compassion, that their trauma is recognised and that they are supported.

The consultation on the bill’s proposals before it was introduced to Parliament asked whether a single point of contact should offer support for a person who has been harmed, and the proposal was supported by 97 per cent of respondents. I am also aware that recommendation 287 of the committee’s stage 1 report endorsed provision of such a service.

The Scottish Government always intended to support provision of that kind for commencement of the legislation. It does not strictly require a statutory duty to ensure that it is provided—that can be done administratively—but I have listened carefully to the very strong views and the strength of feeling on the matter. As such, amendment 17 places a direct duty on Scottish ministers to provide, via secondary legislation, a support service that is not restricted to a single point of contact. The provision has been drafted deliberately to avoid being overly prescriptive at this point and to build in maximum flexibility for the development of the service in the future.

If the member does not mind, I would just point out that that is covered in what I am about to say. I will get on to that as I speak.

Amendment 17 also contains detail on the persons that such a service would apply to and what might be provided in terms of such support as well as providing a non-exhaustive list of statutory consultees. The Government has had in-depth discussions with victim support organisations, which have helped inform the amendment. At this point, I thank the committee for altering the stage 2 deadline, as it has allowed much more room for discussion of the topic.

I think that we can all agree that qualitative research would be welcome in this area to ensure that we are maximising, within the confines of the law, what would be helpful for persons reporting offences by children whose situations are dealt with by the hearings system. Work has already begun between SCRA and Victim Support Scotland on a research proposal, with interim reports planned for autumn, and it will look at gaining an increased understanding of how and by whom the victim information system in SCRA is used; understanding the experiences and needs of victims; understanding the experiences and needs of the children who have harmed others; understanding models of victim information and support provision; and identifying whether SCRA’s victim information service should move from an opt-in to an opt-out service.

That research has been scoped and will start in February 2024, with an interim report in July to October this year and a full report expected in February 2025. The work merits meaningful research, as the committee will appreciate, and it will take time for it to be done properly.

I am conscious that there are similarities between my amendment 17 and amendments 122 and 181, which have been lodged by Willie Rennie and Pam Duncan-Glancy respectively. I will first highlight some aspects in relation to amendment 122 and why my preference is to pursue the Scottish Government’s amendment 17.

First, amendment 122 is restricted to information sharing. It does not extend to other support services for victims, and it is less flexible than amendment 17.

Secondly, some of the specifics of amendment 122 go beyond what would be appropriate to share with victims. For example, I am concerned that they could enable the sharing of information to the detriment of a child’s welfare and privacy.

Thirdly, amendment 122 could result in the sharing of information in a situation where a child moves from secure care to prison, which is not a disposal that can happen in the hearings system.

Finally, amendment 122 would also have the effect of imposing an opt-out service on victims, meaning that they would receive information about decisions made about a referred child unless they took action to stop it.

As I have highlighted, SCRA and Victim Support Scotland are working together on a research project that will consider the current opt-in service and whether there is any need for change and on which they will engage with those with lived experience of the current service. It would be prudent to await the results of that study before effecting any change.

I am happy to engage further with Willie Rennie on the detail of my amendment, if that would be helpful, particularly to reassure him that what amendment 17 will achieve will be more beneficial to victims. I should highlight that the regulation-making duty in amendment 17 will also require prior consultation and engagement, including with victim support organisations.

The aims of amendment 181, in the name of Ms Duncan-Glancy, are similar to those of amendment 17, but it is restricted to a simple single point of contact provision. Amendment 181 does, however, prescribe regulations that are subject to affirmative procedure rather than the negative procedure outlined in amendment 17. If Pam Duncan-Glancy is amenable, should the Government amendments be supported, I will be open to discussion on that point, as the member has suggested, ahead of stage 3. With that said, I must ask members with amendments in this area to consider whether they still wish to move them.

Finally, I wish to address amendments 123 and 183, which concern reporting duties in relation to victims and movement restriction conditions. Amendment 123 potentially creates significant demands relating to victims’ experiences of the hearings system on a range of agencies. Some of that information is already published; for example, SCRA publishes offence referral data annually, which is broken down by offence type. However, the additional information stipulated in the amendment could lead to an incomplete and misleading representation of victims in the hearings system, and it is not clear to what end. How agencies collect and retain information in relation to victims varies according to their role and functions.

The SCRA victim information service does a huge amount of work to identify victims through the referrals received from police and, for a wide range of reasons, a victim is not always identified in the information provided. The age profile of the victim is also not always identifiable from the information that the SCRA has available. Any work in that area must be attentive to the considerations around sensitive data, how that data is shared, what is published and for what purpose. It would perhaps be more appropriate to deal with that through qualitative research in conjunction with appropriate victim support organisations.

Any information and support that a victim receives must be given sensitively and in confidence. Detailed reporting on the information and support given to victims is likely to be incomplete, and it is not clear what value it adds. In any case, general information on the kind of things that agencies can do for victims is otherwise available.

Likewise, in relation to amendment 183, as I mentioned earlier, significant amounts of data are already broken into numerous categories and are available through the online dashboard provided by the Scottish Children’s Reporter Administration. The SCRA also publishes an annual, in-depth and detailed analysis of its statistics and details of MRCs, and that will be available from next year onwards in its annual report.

The amendment, as framed, extends further than the information that can be provided by the SCRA, and it is difficult to know at this stage the extent to which the use of MRCs will change. If the numbers stay low, the victim experience, for example, will not be capable of meaningful analysis. However, there is merit in having further discussions on how to enhance the transparency of MRCs and other relevant measures for victims of cases referred to the children’s hearings system in future, without the need for legislation. If Willie Rennie is in agreement, I ask him not to move his amendment in order to have those further discussions.

I will move amendments 13, 15 and 17. As I cannot support the other amendments in the group, I ask members not to press them and, if they are pressed, ask that the committee reject them.

I have set out how far the Government amendments go and I have agreed that there is scope for us to go further. It would be prudent for the member and I to discuss any areas of concern that he still has, such as those that he has just mentioned, ahead of stage 3. As I said, we can certainly look at that instead of pressing on with the amendments in their current form.

I say at the outset that I appreciate the intentions behind the amendments that have been lodged by Mr Whitfield and Ms Duncan-Glancy.

On the training of panel members, which is addressed in amendment 187 and is clearly an important area, measures have already been put in place by the national convener to ensure necessary and proportionate training. However, it is not clear why the particular subjects in this amendment would need to be legislated for above others in this way.

As Children’s Hearings Scotland is a listed public authority under section 15 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, it is required not only to comply with the UNCRC but to report on action that it has taken, or which it intends to take, to ensure compliance and

“secure better or further effect of the rights of children.”

Given that children’s rights training for panel members is already offered and will form an integral part of the reporting requirement, that aspect appears to have already been covered appropriately by other legislation.

Establishing a good understanding of child development is part of panel members’ existing training and can be a key consideration in how a child effectively participates in their hearing. However, the Children’s Hearings Scotland guidance that is issued to panel members states that

“Panel Members are not, and should not attempt to be seen as, child development specialists.”

Similarly, all panel members receive training on domestic abuse as part of their wider training on trauma. Panel members must know how to approach cases in which domestic abuse is one of the grounds of the referral but also those in which domestic abuse is intertwined with other issues that need to be addressed by a hearing. However, domestic abuse is one of many child welfare concerns that might come before a panel and will not be a relevant consideration in all cases.

Therefore, I am not clear why domestic abuse and child development would need to be specifically elevated in status under schedule 2 to the 2011 act. I am comfortable that they form a proportionate part of the comprehensive training that is already offered to panel members and that children’s rights training is appropriately covered by other legislative requirements. On that basis, I do not support amendment 187.

I probably will not be able to go into specifics on every amendment on which I give such a commitment today.

I have had extensive engagement with committee members between stages 1 and 2, and a lot of what they have raised with me has been formulated into the Government amendments that we have lodged. I hope that that emphasises my willingness to work with members and my willingness to listen to them, because, as I have said before, my priority is to get this right for Scotland’s children and young people. Although I cannot tell Pam Duncan-Glancy exactly what will be detailed in the discussions, I am willing to have them, and I am willing to have as many of them as needed until we get to a point at which it is workable.

Fundamentally, at the root of our position is the fact that the Conservatives’ amendments in this group would interfere with the constitutional independence of the Lord Advocate in relation to prosecutorial decision making. Just as the Parliament cannot undermine that, I, as a minister, cannot undermine that.

Members will be aware that, following the committee’s stage 1 report, in which a recommendation was made concerning the Lord Advocate’s prosecution guidelines, the Lord Advocate wrote to the committee, stating:

“It is a fundamental principle of Scots constitutional law that, as the independent head of the systems of criminal prosecution and investigation of deaths in Scotland, the Lord Advocate takes decisions independently of any other person.”

That same principle is being breached by the amendments in this group. Should the committee be minded to agree to them, it would seem very likely that similar representation would be made, and action needed by the Parliament, at stage 3.

I will come on to some of the difficulties around this, but I agree with a lot of what the member says about social media. There are gaps across a range of issues to do with social media. The issue that the member raises might need to be monitored and looked at in the future, as would other difficulties with social media.

I will move on. Amendment 16 increases the maximum penalties for a breach of a reporting restriction in relation to a children’s hearings case. It increases the maximum penalty on summary conviction to imprisonment for a term not exceeding 12 months—

Oh, I am sorry—I am repeating myself. I lost my place. Apologies for that.

Breaching reporting restrictions is an offence. Therefore, increasing the maximum penalties for breaching such restrictions recognises the severity of that and reflects stakeholders’ stage 1 evidence.

Amendments 43 and 84 also provide appropriate statutory defences for breaches of reporting restrictions. That is to avoid unfairly criminalising individuals or publishers for the sharing of already published information when they had no reason to know or suspect that the original publication was done unlawfully or did not know that it included relevant information.

Again, those concerns were raised by stakeholders at stage 1. The amendments reflect the realities of social media and bring greater consistency with existing children’s hearings legislation and provisions in other United Kingdom jurisdictions in respect of court proceedings. However, as I have already stated, Mr Whitfield, I think that we need to continue to monitor that.

Amendments 43 and 84 also clarify individual culpability where an organisation commits an offence for breaches of reporting restrictions pre-court and during and after court proceedings respectively. The provisions provide a further disincentive to committing the offence of breaching reporting restrictions.

Amendment 43 also has the effect that the Crown cannot be found criminally liable for the offence created by section 106BB(1). However, through the mechanism in subsection (2), any unlawful conduct on the part of Crown bodies can be declared unlawful by the Court of Session. That is consistent with existing legal provision and usual practice.

The changes also seek to bring greater consistency and reflect the proposals in the Victims, Witnesses, and Justice Reform (Scotland) Bill that is progressing through Parliament, noting the committee’s comments in the stage 1 report regarding alignment between provisions in the two bills as well as with penalties under contempt of court legislation. The changes are also important because the bill provisions will also apply to a broader range of potential publishers, including publishers that operate outside frameworks of professional regulation such as the editors’ code or Ofcom regulations.

Amendments 25 and 52 are consequential amendments.