Seòmar agus comataidhean

Good morning to the committee and to those attending. Amendment 213 relates specifically to the provision of services that need to be made available to children in secure accommodation. I thank the minister for dealing with the context in her comments, which allows me to address some of the issues that appear to be of concern to the Government.

It is absolutely right that secure accommodation provides an integrated delivery model whereby individual assessments are made for each child, because those are unique individuals who are presenting in the system. Of course, secure accommodation has child protection policies in place. It is also true to say that some of the children who present have some of the most complex needs of any individual who comes into contact with the state.

With respect, however, I disagree with the Government’s assertion that amendment 213 is too open and could require the secure accommodation providers to have an on-going obligation to individual children. The reference in the amendment to “secure accommodation” is drawn from the Children’s Hearings (Scotland) Act 2011, which defines secure accommodation only as far as it extends to those providers accommodating young people. The 2011 act specifically says:

“for the purpose of restricting the liberty of children”.

The secure accommodation provider cannot, therefore, be held responsible beyond that obligation to secure the restriction of children’s liberty.

I respectfully disagree with the minister, therefore, that that would open an on-going obligation. If that was the argument, there would be an on-going obligation on primary schools, nurseries and local authorities, ad infinitum. There is a period of time in which an emanation of the state ceases to be the responsible party for a young person. That is defined and understood in almost all interactions between young people and emanations of the state.

Amendment 213 seeks to provide a baseline to provide an opportunity to achieve the intended outcomes, which we have discussed over the past three weeks and at stage 1. It would allow us to stand a chance of achieving a better outcome, because it would place on the secure accommodation provider a specific obligation in respect of those young people who come within that provider’s area of influence to take responsibility to ensure, where appropriate, the provision of

“advocacy services … education … emotional and mental health support … health care … support to maintain contact with the child’s family”

and

“transition and aftercare support.”

The minister confirmed in her submission that only some of those elements already sit within the secure accommodation provider’s responsibilities. The purpose of amendment 213 is to bring together a holistic overview to ensure that there is a baseline for every young person who comes within secure accommodation that will be looked at by the person who is engaged in the most important of tasks: restricting the liberty of the child. It should surely be for that secure accommodation provider to undertake that responsibility.

This set of amendments, which relate to data collection and reporting the outcome for children, are all intended to ensure, as we have discussed with a number of amendments, that the recognised outcomes that we seek from the bill are achieved and accounted for. I understand that there are challenges with regard to anonymisation and identifying individual young people. However, if we do not collect and analyse the data or have reports on the outcomes for our young people, there is a real risk of unforeseen consequences.

I am grateful to the Scottish Government, which has indicated a willingness to discuss the matter before stage 3. Therefore, unless other committee members have any questions, I do not intend to take this element of the debate much further forward.

I move amendment 218.

Do you want me to sum up on amendment 193 as well?

It is difficult, convener, but I understand. I will leave my comments there. My summing up will be much shorter.

Given the result of the division on amendment 195, I will not move it.

Amendment 196 not moved.

Amendment 197 moved—[Martin Whitfield].

What is the balance between young people who are not in secure accommodation but are identified as needing secure accommodation and those who have reached 18 but might need to stay in secure accommodation? What is the balance between the push to get in and the need to stay in as young people travel past their 18th birthday?

I am conscious of the committee’s time, so I will try to make my comments as short as possible.

Given that the purpose behind the amendments that I have lodged has, in some cases, been addressed already by the minister, I would suggest that, if the minister is open to this, I will just ask questions for her to respond to instead of making a submission. That approach might facilitate my decision on whether to move the amendments.

First of all, I welcome the Government’s amendment 105. On amendment 207, in my name, which relates to alternatives to detention of children, the minister is right to suggest that it sets out a general requirement instead of specifically addressing any individual act, which would be completely inappropriate given the nature of assessment from the individual’s point of view. That said, is the minister confident or certain that the reporting provisions that she has already outlined and the requirements under UNCRC mean that this particular information will be made available annually to the public? I realise that it might not come specifically from the Scottish ministers but will instead be found in a variety of places.

I am very grateful. Let me rephrase the question. Is it the Government’s intention to review and republish what started as the 2017 guidance as soon as possible, given how important restorative justice is not just in relation to the bill but in the wider context across Scotland? Will the Government use its best endeavours to achieve that? Is it happy to do that?

I am very grateful for those assertions.

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.