Seòmar agus comataidhean

My amendment would serve as a belt and braces. You say that its provisions are already in place. If that were the case, the amendment would not necessarily be needed. However, as solicitors, social workers and others will have experienced, not every case goes smoothly. History tells us that kids miss out on that information. The amendment would therefore be an appropriate backstop to ensure that every child gets the advocacy that they might require, even if it is at the last moment.

We have had a long debate on this and I do not want to rehearse all the comments that have been made. However, we need to look at some kind of backstop; I appreciate that it is already there, but it needs to be looked at.

Going in the other direction, Barnardo’s is very clear that advocacy should be there at the point of referral. I appreciate that that will be the situation in many cases, but I am concerned that, for different reasons, a number of children will fall through that system. I will not press amendment 80 this morning, but I would like to discuss both the backstop and referral at the earliest opportunity.

I make the following point as much to myself as to anyone else who has not been through care experience—I have on one side, but not on the other side. Often, as they get older, children do not have very positive role models and they do not have people who are advocating for them. As Mr Mason pointed out, they often have very poor experience of what adults have done to them and, allegedly, for them. We need as many opportunities as possible, and as many doors as possible, to allow advocacy to take place. Even if we have things that might happen only one in 100 or one in 1,000 times, it is nonetheless important that they are there and that they are being used as often as possible, because we are talking about some of the most vulnerable people in our society.

I will not press my amendment this morning, but I would welcome further discussions about a backstop and the earliest possible time to refer.

Amendment 25 simply seeks to ensure, by way of regulation, that the chair’s role will not be altered, enhanced or materially changed by the fact that it will now be a paid position. There is consensus among committee members and stakeholders that it is the right time for chairs to be paid. However, from my discussions with groups and charities, particularly the Scottish Children’s Reporter Administration, it is clear that remuneration is not about enhancing the chair’s role but about improving the quality of the chair.

By paying the chair, we would be able to recruit people with sufficient skills and experience to improve the quality and consistency of the chair. Again, that is in no way a reflection on those who have been carrying out that role for many years, but we live in a changing world where things have become more complex and difficult. I do not think that we want to go down the route of making make the chair’s role more onerous and more complex, and the danger is that we are going to. The chairing members need to remain independent and impartial.

Ensuring that remuneration is put into regulation would allow for changes to happen quicker once we have seen how it works in practice. Children’s Hearings Scotland, which is devising the new paid chair changes, needs to be mindful of the organisations that are concerned about the possible change in nature and focus of the role of the chair. That is what I am trying to do with amendment 25. I recognise what the minister has said and I will reflect on her comments today.

Finally, I would like to pick up on the exchange between Martin Whitfield and the minister on what the Scottish Government sees as the role of one-member panels if they are only to sit on hearings for uncontroversial things. What the minister has said today seems to be quite a big move. If that is where the Scottish Government is minded to be and to go, I would be interested to hear in the minister’s summing up whether she would be open to some kind of amendment at stage 3 to crystallise that in the bill. At the moment, that is not how I read the system. My reading is that it would be up to the chair to make the decision on any case that it is appropriate for them to look at. If the minister is saying that that would only be for a fairly basic docket that everyone is happy with, that is different from where we are at the moment. I would suggest that that would require a change at stage 3. It would reassure me and others that there was not potential for an overreach of the role of chairs.

Amendment 50 seeks to ensure that clear regulations are drafted on what can and, perhaps more importantly, what cannot be said in a pre-hearing discussion with the principal reporter. That would ensure consistency in how those meetings are conducted, so that any issues of substance are not swept under the carpet and that they are documented or recorded appropriately. The amendment deals with children’s hearings and pre-hearing meeting provisions as set out in proposed new section 69A of the Children’s Hearings (Scotland) Act 2011, which sets out that the principal reporter must

“offer the child and each relevant person in relation to the child an opportunity”

to meet with the principal reporter ahead of the hearing.

I think that that meeting should follow a meet-and-greet format to help the child to understand what is going on, to deal with any anxiety and confusion, and allow them to have a real-life experience of such a setting before the hearing goes ahead. That type of meeting should not discuss details or the grounds for the hearings. As currently drafted, the bill indicates that the “statement of grounds” can be discussed at those meetings. My question is about what would happen if the child has questions: should those be noted or dealt with, or should that wait until everyone is in the room together? At present, there is no stipulation that the meeting will be noted or recorded. Therefore, what evidence would there be of what has gone on? It is really important that everyone understands what those meetings are about and that, across the country, there is a consistency, whether someone is in the Borders, the Highlands or anywhere in between.

Amendment 53 seeks to ensure all regulations laid in respect of changes to the grounds hearing system—namely changes to the role of the principal reporter and changes to the process of putting grounds to a child—are subject to the affirmative procedure, to ensure that the appropriate level of scrutiny is applied to these fundamental rights of a child. The amendment would ensure that any regulations that are drafted under section 14 of the bill would be subject to the affirmative procedure, which would allow for proper parliamentary scrutiny. I ask the committee and the minister to support my amendments and look forward to hearing the remarks.

I move amendment 50.

I welcome that the minister accepts amendment 115. I will not press amendment 77 today or move my other amendments, and I will take the opportunity to consult with the minister and others before stage 3.

I am not absolutely sure that I agree with everything that the minister has said today about legal representation. There are still gaps in the system and many young people are not getting the appropriate representation that they deserve, but we can have those discussions in private and at stage 3.

Amendment 77, by agreement, withdrawn.

I do not like to show disrespect to my former legal colleagues, but lawyers make mistakes—they are not infallible. Before coming to this place, I sat on another form of tribunal; we did not always get it right, and there were three of us.

To pick up on Mr Mason’s point, there is no right of appeal for the child or for anyone else if that change is made. My concern is that there could be occasions where the chair gets it wrong. In such cases, what right would the child, social work staff or anyone else have with regard to reversing that decision?

I still have concerns about the flexibility that the minister seems to want. At the moment, the principal reporter must prepare a report, but that does not necessarily have to include the results of the pre-hearing discussion, so there may be no record of what took place. That means that others are not privy to that information—they are not made aware of it.

I will press amendment 50, and I will move amendment 53. I appreciate that the amendments might not be agreed to this morning. However, we must look at what is in the best interests of the child, and of others, and at whether new regulations could be introduced that would guarantee that the principal reporter does not overstep their mark.

I press amendment 50.

If the minister is asking the committee to reject all the amendments in this group today, is it the Government’s intention not to lodge amendments at stage 3 about increasing the amount of legal advice and help that a young person can get at a children’s hearing? Is it the Government’s view that everything is fine in the garden and no changes need to be made?

I apologise to you, convener, and to the committee, because this will take me a wee bit of time, but these issues are important.

In its stage 1 report, the committee asked for

“clarity on whether the Bill will offer further opportunities”

for legal representation. With my amendments in this group, I seek to strengthen a child’s legal rights as they go through children’s hearings.

Children’s hearings, particularly those that relate to offence grounds, can play a pivotal role in a child’s outcomes and future. Legal representation is essential to ensure that children and their families are fully aware of their rights under the law. However, concerns have been raised that children are not currently aware of their rights and often use advocates or other advisers at hearings, which can diminish their understanding and representation. That is why it is important, as we discuss and debate these amendments, to make a distinction between advocates and advisers and those who are legally trained and qualified.

The Promise Scotland said that one of its key asks for the bill was for there to be an automatic right to legal representation for children who are referred on justice grounds.That right is what I seek to ensure with amendment 77.

The introduction of rights of audience to children’s hearings, linked to specific child-centred and trauma-informed training and training on the ethos and practice of children’s hearings, would go a long way to ensuring that standards are set and maintained in the system. That is what amendment 112 seeks to ensure. There is precedent for introducing rights of audience in a specific forum—for example, the rights of audience that will be introduced for the sexual offences court.

It would take time to build capacity in the sector, although the Law Society of Scotland already offers accreditation for child-centred practice. To allow such capacity to be built, amendment 112 could have a delayed commencement before its provisions are formally introduced into Scots law.

Amendment 113 would introduce a legal aid duty. Amendments 113 and 114 seek to introduce the concept of duty solicitors in the children’s hearings system so that children’s rights are adequately protected throughout the system. The process of introducing duty solicitors is started by amendment 115, which would amend section 18 of the bill to provide information about rights to access legal advice.

I believe that it is really important that the child is offered a lawyer and that, if they want a lawyer, one is provided at the earliest opportunity. If we do not provide for that, the child will always be put on the back foot. We could not imagine that that would be fair to an adult in a criminal or other procedure. We also need a definition of child-centred legal advice, which is linked to rights of audience and training, as I talked about before.

12:45

I lodged my amendments in the group because, back in 2020, “The Promise” said:

“Children and their families must have a right to legal advice and representation if required. Scotland must be clear that the provision of advocacy does not replace rights to legal representation but the two roles (advocacy and legal representation) have a separate, distinct purpose.”

However, there is no reference to the right to seek legal advice anywhere in the bill. That is problematic, particularly given the proposed landscape of complexity being added to grounds hearings, meetings with the reporter after the grounds have been decided, and single-member panel hearings.

My amendment 115 seeks to make the distinct roles of advocacy and legal representation clear and to ensure that the child is provided with information about their right to access legal advice and how to do that at an early stage. It has to come under legal aid, because no child would be able to afford that legal representation. I appreciate that the Government is working on legal aid and that a bill on it has been promised in the next session of Parliament. However, as Ross Greer pointed out, this is our last opportunity to deal with the matter in the current session, and if we do not at least move in the right direction with regard to giving young people independent legal advice, we will miss an opportunity.

I look forward to hearing what members and the minister have to say about my amendments.

I move amendment 77.

Will the minister take an intervention?