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.

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.

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.