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As we understand it, amendment 3 seeks to prohibit the principal reporter from referring a child aged 16 or over to a children’s hearing when it is alleged that a child has committed an offence that can only be tried on indictment. Moreover, amendment 19 seeks to compel the Lord Advocate to instruct the prosecution of such a child in relation to such an offence, rather than referring the child to a children’s hearing.

Amendment 18 seeks to compel the Lord Advocate to prosecute any child in respect of an alleged offence where there is a “high” risk of “physical or psychological harm” to the alleged victim of that offence if prosecution is not pursued, rather than referring the child to a children’s hearing. It is not clear what level of risk is “high” in this context, or how prosecuting the child, rather than dealing with the child through the children’s hearings system, would have an impact on that.

In any case, the risk of harm if the Lord Advocate chooses prosecution at that stage can be dealt with through consideration of whether the accused is granted bail or is remanded in custody, as was made clear recently in the Bail and Release from Custody (Scotland) Act 2023, which put public safety, including the safety of victims, at the heart of decisions on bail and remand.

Taken together, those amendments aim to restrict the ability of all children under 18 to have their cases dealt with by the children’s hearings system where that is appropriate. That is a fundamental principle of the bill as endorsed by the Parliament at stage 1. It is interesting that the Conservatives are making their proposals only a week after the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 received royal assent, following cross-party support in the Parliament. I am surprised at their turnaround on children’s rights. As such, amendment 18 goes against the general direction and principles of the bill.

Amendment 189 compels the Lord Advocate to

“inform any person who is or appears to be a victim”

when a child, instead of being prosecuted, is referred to the principal reporter under the decision-making process governing joint referral for offences. However, it is not clear how such a victim is to be determined, given that there has not been any determination of the case, whether by the children’s hearing or a court. There is significant ambiguity in the drafting there.

Amendment 190 allows

“any person who is or appears”—

I am opposing it—for clarity.

Before I come to a close, I will address the issue that Mr Kerr raised in relation to Victim Support Scotland’s position. I have already spoken about the changes that the Government has proposed in that regard, and I have offered to work with members on further changes. I do not think that compelling the Lord Advocate in the way that the Conservatives propose, or preventing 16 and 17-year-olds from being able to have their liberty deprived in a secure care setting rather than in a young offenders institution is the best way to proceed. As I have said, that goes against the general principles of the bill.

The Government cannot support amendments 3, 18, 19, 189 or 190. I urge Ms McCall not to press amendment 3, and I urge her and Mr Kerr not to move the other amendments in the group. If amendment 3 is pressed and the other amendments are moved, I urge the committee to reject them.

A key function of the children’s hearings system is ensuring effective participation from those in the room. That means that the hearing has to be very carefully managed, as reflected in the current rules under sections 76 to 78 of the Children’s Hearings (Scotland) Act 2011.

The chairing member has a duty to minimise the number of people in the room at any one time to create a more child-friendly setting that is conducive to the business of the hearing. Amendment 179 would severely obstruct the chairing member’s ability to manage a hearing. Indeed, it has the potential to create extraordinarily challenging situations in the management and operation of hearings, and it would be extremely detrimental to the rights and wellbeing of children and their families.

To correct the member, I did not say that I did not agree with the premise. I said that I did not agree with the premise in relation to the children’s hearings system, which is not a mini-court.

Sections 12 and 13 already make a range of provisions in respect of reporting restrictions in cases involving children, whether as victims, witnesses or suspects. Such cases often attract high levels of media and public interest, and the implications of breaching reporting restrictions for the children involved can be significant.

This group of Government amendments makes further provision for offences and penalties in response to breaches of reporting restrictions in relation to both the children’s hearings system and the criminal justice system.

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 or a fine not exceeding the statutory maximum or both. On conviction on indictment, the maximum penalty is increased to imprisonment for a term not exceeding two years or a fine or both.

Amendment 16 is for consistency with the changes made by amendments 43 and 84, which cover breaches of reporting restrictions before court or during or after court proceedings respectively. Those amendments make the same increase to maximum penalties for breaches of reporting restrictions in the criminal justice system as amendment 16 does for the hearings system.

Breaching reporting restrictions is an offence. Therefore, increasing the maximum penalties for breaching such restrictions recognises the severity of that. It also reflects stakeholders’ stage 1 evidence that the current level of penalty does not serve as a sufficient deterrent, given the potential gains from doing so, which can be significant.

I am just closing. I will be happy to take one after that.

The “Hearings for Children” redesign report recommended further exploration of the mechanisms for children to access legal aid. That work will be undertaken by the responsible statutory bodies and overseen by the children’s hearings redesign board during the course of 2024. It is anticipated that that will entail significant further work with social work, local authorities, SLAB and the wider legal profession’s representatives, including the Law Society of Scotland.

I urge the member not to press amendments 185 and 186 and, if they are pressed, I urge the committee to reject them, given the reasons that I have outlined.

I do not agree with Mr Kerr, because, as I outlined, children already have the ability to access legal aid. The amendment would create unnecessary duplication of work for those organisations, so I do not think that it is required.

I have been very clear that I would be happy to look into that further and work with members on it. Ms Duncan-Glancy raised a number of points. For the reasons that I have previously given, I do not think that her amendments would provide what the member is looking for. They would create a large duplication of work.

With regard to what you said about minor offences, if the offence is quite minor and there are a lot of grounds relating to welfare, for example, a solicitor could be seen as adversarial at that point.

We want to create a system in which the child is at the centre, and the child currently has the ability to access legal aid. As I said, however, I would be more than happy, although not at this point, to work with members on some of the gaps and the children who may be falling through the gaps in that regard.

Things would be dealt with on a case-by-case basis. Every child’s situation is different. I probably could not give an example in this meeting, but, as we have established, welfare and rights are different things, and welfare is the basis of the children’s hearing. I would be worried about putting anything else above the idea of welfare, just in case that had an impact on children’s hearings. An example could be the right to family relationships. Welfare concerns might suggest that family relationships are not a priority due to a family member’s behaviour. There could be issues with family conflict, for example. I would be willing to discuss that further with Martin Whitfield, but, at the moment, we cannot support the amendment as it is worded. However, we can certainly work on that.

We understand that amendment 167 seeks to ensure that, when decisions are being made about a child under the 2011 act, decision makers do not discriminate against the child on any of the grounds that are mentioned. Although we agree with the principle, we do not think that the amendment is necessarily workable or necessary.

What is meant by discrimination and the referenced characteristics is not set out in the member’s amendment. That would make it impossible in practice to effectively enforce the obligations that it seeks to impose. In addition, there is a range of statutory duties that already apply to public authorities, including the courts, the Scottish Children’s Reporter Administration and Children’s Hearings Scotland, which oblige them to protect children’s rights and not unlawfully discriminate. Those include non-discrimination duties and the public sector equality duty in the Equality Act 2010, the requirement under the Human Rights Act 1998 to act compatibly with ECHR rights, including article 14, on non-discrimination, and duties to act compatibly with requirements under the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, which include duties in relation to non-discrimination and will come into force this summer.

All of those duties have been carefully framed and do not cut across the established law and principles of the children’s hearings system. They preserve the ability of decision makers to recognise that it might be necessary to treat children differently on the basis of characteristics such as age. For example, it would be appropriate to share information only with a child who is old enough to understand it.