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Education, Children and Young People Committee 31 January 2024

31 Jan 2024 · S6 · Education, Children and Young People Committee

Item of business

Children (Care and Justice) (Scotland) Bill: Stage 2

Whitfield, Martin Lab South Scotland Watch on SPTV

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.

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Education, Children and Young People Committee 31 January 2024

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