Chamber
Plenary, 17 Mar 2005
17 Mar 2005 · S2 · Plenary
Item of business
Protection of Children and Prevention of Sexual Offences (Scotland) Bill: Stage 1
As my colleague Jamie Stone said, the Liberal Democrats will support the general principles of the bill. In my view, the sober nature of this afternoon's debate reflects the seriousness of the issue.
I commend the Executive, the Justice 1 Committee and members from all parties for their hard work, but I wish to raise some issues about the bill that cause me general unease. I feel that my unease is also reflected in some of the evidence that was provided to the Justice 1 Committee during its consideration of the bill's general principles. The committee seeks solutions during later stages to problems that it foresees for when the legislation is implemented. The committee has sought to ensure that the bill provides legislative protection for those whom it seeks to protect without inadvertently casting the net wider. That is the scope within which I will address my brief remarks this afternoon.
In its submission to MSPs, the Law Society of Scotland asserts:
"there are a range of common law and statutory offences, which may currently be used to prosecute … those … who seek to groom children … with the … intention of committing a sexual offence".
However, as we have heard, the common law may not offer sufficient protection in a small number of incidents. The number of such incidents is small as, thankfully, sexual offences are rare. However, the Law Society's submission states:
"It is important that those adults who seek to groom children and meet or travel to meet them with the clear intention of committing a sexual offence can be prosecuted, before any sexual offence takes place."
I emphasise the need for clarity on two elements in that statement: adults and clear intention.
During its detailed consideration of the bill, the committee rightly gave thought to how the bill's complexity could impact on the number of prosecutions, and to the concern that some people might be inadvertently criminalised or, rather, stigmatised by being the subject of a risk of sexual harm order. I will deal with those points in turn but, before doing so, I stress that I believe that criminal law should always be measured, considered and commensurate with the problem that it seeks to solve. The bill should not be rushed. We have to live with the negative consequences of bad law, so we should take our time to get it right.
On the age definition that should apply both to offenders and to victims, the evidence that Children in Scotland provided to the committee is valuable. I know that the Executive and the committee will consider the issue in more detail, but I am concerned that, unless we get a resolution, we might end up with legislation that is inconsistent with the approach in England and Wales—which, in itself, would be an unwelcome development—and, more important, which lacks clarity in how it applies to 16 and 17-year-olds. The bill also lacks clarity about the role of the hearings system.
The age definition is a complex issue. Barnardo's and others indicated that offenders can be young. The committee considered an age differential as a possible criterion but—wisely, I believe—rejected that. However, the committee's recommendation that the bill specify no age limit for offenders leaves some uncertainty. I stress that I am not suggesting that the committee and the Executive will not return to the issue, but the evidence that the committee received was important. I am still concerned that the bill might inadvertently criminalise absolutely normal behaviour among some teenagers. If we get this wrong, Parliament will send out an unwelcome signal that we do not understand young people.
Children in Scotland highlighted examples of a 16-year-old boy having a consensual relationship with a 15-year-old girl, which could be criminalised, as well as legitimate boyfriend-girlfriend meetings and contacts by phone, text, internet or some other means. It is important to ensure that there is a clear distinction within the law, so that even if there is behaviour of which some members would disapprove, it is not criminal.
There is one other issue that needs further attention—the teaching of sexual health or sex education. Concerns have been raised that civil, not criminal, orders can use hearsay evidence without corroboration and that, as such, there is arguably an insufficiently high threshold of evidence to safeguard the rights of the accused. I appreciate the Executive's reluctance to have block exemptions with regard to the teaching of sex education and instead its desire to provide robust guidance to ensure that those who are doing good work are not inadvertently affected by the orders. However, rather than exclude teachers or those who work within the formal curriculum for sex education, the guidance should be extended to include voluntary sector and peer-to-peer education.
The proposed offences are complex. The bill stands, but there is a requirement to prove four separate elements in order to secure a conviction, and the committee found that it might be particularly resource intensive for the police to investigate and obtain the evidence that would be necessary to bring a charge, and that it might also present difficulties for the Crown to prove a charge in court.
Although we support the general principles of the bill, the committee has much work to do. I wish committee members well in their scrutiny at stage 2.
I commend the Executive, the Justice 1 Committee and members from all parties for their hard work, but I wish to raise some issues about the bill that cause me general unease. I feel that my unease is also reflected in some of the evidence that was provided to the Justice 1 Committee during its consideration of the bill's general principles. The committee seeks solutions during later stages to problems that it foresees for when the legislation is implemented. The committee has sought to ensure that the bill provides legislative protection for those whom it seeks to protect without inadvertently casting the net wider. That is the scope within which I will address my brief remarks this afternoon.
In its submission to MSPs, the Law Society of Scotland asserts:
"there are a range of common law and statutory offences, which may currently be used to prosecute … those … who seek to groom children … with the … intention of committing a sexual offence".
However, as we have heard, the common law may not offer sufficient protection in a small number of incidents. The number of such incidents is small as, thankfully, sexual offences are rare. However, the Law Society's submission states:
"It is important that those adults who seek to groom children and meet or travel to meet them with the clear intention of committing a sexual offence can be prosecuted, before any sexual offence takes place."
I emphasise the need for clarity on two elements in that statement: adults and clear intention.
During its detailed consideration of the bill, the committee rightly gave thought to how the bill's complexity could impact on the number of prosecutions, and to the concern that some people might be inadvertently criminalised or, rather, stigmatised by being the subject of a risk of sexual harm order. I will deal with those points in turn but, before doing so, I stress that I believe that criminal law should always be measured, considered and commensurate with the problem that it seeks to solve. The bill should not be rushed. We have to live with the negative consequences of bad law, so we should take our time to get it right.
On the age definition that should apply both to offenders and to victims, the evidence that Children in Scotland provided to the committee is valuable. I know that the Executive and the committee will consider the issue in more detail, but I am concerned that, unless we get a resolution, we might end up with legislation that is inconsistent with the approach in England and Wales—which, in itself, would be an unwelcome development—and, more important, which lacks clarity in how it applies to 16 and 17-year-olds. The bill also lacks clarity about the role of the hearings system.
The age definition is a complex issue. Barnardo's and others indicated that offenders can be young. The committee considered an age differential as a possible criterion but—wisely, I believe—rejected that. However, the committee's recommendation that the bill specify no age limit for offenders leaves some uncertainty. I stress that I am not suggesting that the committee and the Executive will not return to the issue, but the evidence that the committee received was important. I am still concerned that the bill might inadvertently criminalise absolutely normal behaviour among some teenagers. If we get this wrong, Parliament will send out an unwelcome signal that we do not understand young people.
Children in Scotland highlighted examples of a 16-year-old boy having a consensual relationship with a 15-year-old girl, which could be criminalised, as well as legitimate boyfriend-girlfriend meetings and contacts by phone, text, internet or some other means. It is important to ensure that there is a clear distinction within the law, so that even if there is behaviour of which some members would disapprove, it is not criminal.
There is one other issue that needs further attention—the teaching of sexual health or sex education. Concerns have been raised that civil, not criminal, orders can use hearsay evidence without corroboration and that, as such, there is arguably an insufficiently high threshold of evidence to safeguard the rights of the accused. I appreciate the Executive's reluctance to have block exemptions with regard to the teaching of sex education and instead its desire to provide robust guidance to ensure that those who are doing good work are not inadvertently affected by the orders. However, rather than exclude teachers or those who work within the formal curriculum for sex education, the guidance should be extended to include voluntary sector and peer-to-peer education.
The proposed offences are complex. The bill stands, but there is a requirement to prove four separate elements in order to secure a conviction, and the committee found that it might be particularly resource intensive for the police to investigate and obtain the evidence that would be necessary to bring a charge, and that it might also present difficulties for the Crown to prove a charge in court.
Although we support the general principles of the bill, the committee has much work to do. I wish committee members well in their scrutiny at stage 2.
In the same item of business
The Deputy Presiding Officer (Murray Tosh):
Con
The next item of business is a debate on motion S2M-2353, in the name of Cathy Jamieson, on the Protection of Children and Prevention of Sexual Offences (Sco...
The Minister for Justice (Cathy Jamieson):
Lab
There is no doubt that any offence that involves harm being done to a child is despicable, but it is hard to imagine anything more despicable than sexual off...
Christine Grahame (South of Scotland) (SNP):
SNP
Evidence from the Association of Scottish Police Superintendents, or possibly it was from the Association of Chief Police Officers in Scotland, raised the co...
Cathy Jamieson:
Lab
A number of issues are involved, including the definitions of a child and an adult. We will come to those issues during the debate and when we examine the bi...
Margaret Mitchell (Central Scotland) (Con):
Con
Will the minister give way?
Cathy Jamieson:
Lab
I am sorry, but I must move on.The order will require the offender to stay away from the people or places that are associated with previous offending or, for...
Stewart Stevenson (Banff and Buchan) (SNP):
SNP
The Scottish National Party will support the general principles of the bill at decision time. A reading of the introduction to the bill leads me to say that ...
Margaret Mitchell (Central Scotland) (Con):
Con
A number of times when a bill has been introduced, I have questioned its value or opposed it outright on the grounds that it is unnecessary or counterproduct...
Mr Jamie Stone (Caithness, Sutherland and Easter Ross) (LD):
LD
As I joined the Justice 1 Committee only recently, my comments will be largely from my viewpoint.It is, first and foremost, in the interests of society to ca...
Mrs Mary Mulligan (Linlithgow) (Lab):
Lab
I welcome the Protection of Children and Prevention of Sexual Offences (Scotland) Bill. Unfortunately, there are people who are using the opportunities that ...
Christine Grahame (South of Scotland) (SNP):
SNP
This is tricky legislation to get right. The definition in section 1 uses the phrase "having met or communicated", but it seems to me that the debate is circ...
The Deputy Presiding Officer (Trish Godman):
Lab
I call Pauline McNeill, who will be followed by Jeremy Purvis. I apologise. I call Annabel Goldie, who will be followed by Pauline McNeill.
Miss Annabel Goldie (West of Scotland) (Con):
Con
Pauline McNeill's fright was nothing compared to mine.It has been said that the Conservative party welcomes the general principles of the bill. In an increas...
Pauline McNeill (Glasgow Kelvin) (Lab):
Lab
I begin by thanking the Justice 1 Committee, the clerks, the bill team and the Deputy Minister for Justice for the work that they have all done in putting to...
The Deputy Presiding Officer:
Lab
You have one minute.
Pauline McNeill:
Lab
The age question was a very difficult issue for the committee. As it stands, the bill will apply to persons aged 18 and over. The committee recommended that ...
The Deputy Presiding Officer:
Lab
You must wind up now, Ms McNeill.
Pauline McNeill:
Lab
As Mary Mulligan said, it is not helpful to compare an RSHO with an ASBO, given the massive stigma that will be attached to the former. We must get right the...
Jeremy Purvis (Tweeddale, Ettrick and Lauderdale) (LD):
LD
As my colleague Jamie Stone said, the Liberal Democrats will support the general principles of the bill. In my view, the sober nature of this afternoon's deb...
Mr Stewart Maxwell (West of Scotland) (SNP):
SNP
I welcome the bill. The legislation is overdue and the SNP will certainly support the bill's general principles this evening. Although other members have cov...
Helen Eadie (Dunfermline East) (Lab):
Lab
I welcome the debate on the general principles of the Protection of Children and Prevention of Sexual Offences (Scotland) Bill. Like members who have spoken ...
Patrick Harvie (Glasgow) (Green):
Green
All of us in the chamber recognise the importance of getting child protection right. The minister used the word "despicable" earlier in the debate to describ...
The Deputy Presiding Officer:
Lab
We move to winding-up speeches and I call Jamie Stone. Mr Stone, you have a tight four minutes.
Mr Stone:
LD
I rise to speak for the second time this afternoon. The minister rightly pointed to the emotional damage that is done to children and, correctly, flagged up ...
Members:
Cheese!
Mr Stone:
LD
I remember, as a wee boy, sitting in our knackered—is that parliamentary language? Perhaps not. I remember sitting in our battered old van when, suddenly and...
Bill Aitken (Glasgow) (Con):
Con
The debate is predicated—as, indeed, is the legislation—on the basic concept that the abuse and exploitation of children for sexual purposes are abhorrent to...
Mr Bruce McFee (West of Scotland) (SNP):
SNP
The debate has shown that, although the bill is relatively short, it impacts on a wide and complex range of issues. As the stage 1 report points out, the com...
The Deputy Minister for Justice (Hugh Henry):
Lab
The encouraging part of today's debate was the will that exists across Parliament for further measures to be taken to give added protection to young people, ...
The Presiding Officer (Mr George Reid):
NPA
Briefly, please. You have about another minute, minister.