Hansard

Good morning. I have rather a lot to say, but members will recognise that the amendments in the group represent the fault line in the bill, so I hope that they will forgive me for taking the time to unpack and deploy my arguments. Before I address the more technical amendments, I will speak to the overall proposition of lifting the age of criminal responsibility to 14 or to 16, as set out in amendments 2 and 1 and in the interconnected amendments in the group. The evidence that we took throughout stage 1—and in the foothills of stage 2—has been characterised by some very public and unprecedented interventions by the international community, expressing the imperative for us to go further than the age of 12, at least to the age of 14 and, arguably, further still to 16. That view is shared by the clear majority of witnesses who gave evidence to the committee. The day after our stage 1 debate, the Children and Young People’s Commissioner Scotland, Bruce Adamson, shared with our committee the intent of the United Nations Committee on the Rights of the Child to revise its “General Comment No 10: Children’s rights in juvenile justice”, which was issued in 2007, benchmarking the absolute minimum ACR at 12. It was confirmed to member states yesterday that the UN will uplift the baseline ACR to 14 in the coming days. That was reinforced by Professor Ann Skelton, who gave evidence to the committee from the United Nations a fortnight ago, when she said: “the committee proposes in the new revision that 14 should be considered the minimum age”. She went on to say: “To complete its well-respected system, Scotland should ensure that it conforms with international standards.”—Official Report, Equalities and Human Rights Committee, 17 January 2019; c 42, 44. That was not the only intervention in our deliberations. The Commissioner for Human Rights of the Council of Europe, Dunja Mijatovic, wrote to the minister, expressing in the strongest terms the view of the European Council that Scotland should seize the legislative opportunity to meet the minimum standards of international expectation and set, at the very least, a minimum age of 14. Minister, your response to the commissioner was nothing short of a national embarrassment. You sought to lean on a sense of perceived exceptionalism. Your response to the commissioner implied that the unique and welfarist approach to youth justice offered by our children’s hearings system should absolve us of the need to meet the de minimis standards of international expectation. I do not denigrate the children’s hearings system; there is much in the system of which we can be justifiably proud, and it is held up as a world exemplar. However, when it comes to international minimum standards, we do not get a pass. I am also proud of the fact that, since the Kilbrandon report was first published in 1971, we have adopted a welfare-based approach to children’s harmful behaviour. However, I say again, when it comes to international minimums, we do not get a pass. Although this Government is, at last, using the word “love” in the narrative arc of the policy that it has created for children and young people, when it comes to international minimums—again—we do not get a pass. That was summed up starkly in the commissioner’s reply, in which she said: “I appreciate the Minister’s comprehensive explanation of those differences, and the positive elements of the Scottish approach. Many of these are considered good examples in Europe. However, I also note that many different approaches are applied across the 47 member states of the Council of Europe, making each national system unique, with specific advantages and challenges. It is important to underscore that international human rights standards, such as those referred to in my letter to the Minister, are developed precisely to provide minimum safeguards regardless of the diversity of states’ laws, policies and practices.” I ask the minister to dispense with any further attempt to justify sticking at the age of 12 in the bill, as such lines of argument serve only to compound the Government’s embarrassment further. At First Minister’s question time last week, my party’s leader, Willie Rennie, asked for movement on the issue in order to meet the new international minimum. In response, the First Minister argued—as the minister might also—that there is a need to carry the population with us. She rightly pointed out that, in the consultation that took place prior to stage 1, 88 per cent of respondents supported an uplift in the age to 12. However, if you ask a binary question, you get a binary answer, and an uplift to 12 was all that the respondents—and, for that matter, the working group that preceded the consultation—were asked to offer a view on. In the light of that and in the light of the international interventions, I am therefore grateful for the forbearance of the clerks and my fellow committee members in agreeing to reopen our consideration of evidence and consider an uplift to the age of 14 or 16, as in my respective amendments in this grouping. As members know, the written responses to the call for evidence showed the desire of 86 per cent of respondents to go to the age of 14, at least, and most wanted to go to 16. Of particular interest was the response of Children’s Hearings Scotland, which said that it stood ready to “implement whatever age” the Parliament arrives at, but that we should endeavour to go further. Minister, if your Government wishes to carry those who are interested in the issue on a journey to a further increase, you should know that they are already there. The point that the First Minister used to justify sticking at the age of 12 was about capacity. She said: “there are not just issues of principle but practical issues in terms of the sheer volume of cases that would be affected by the decision.”—Official Report, 24 January 2019; c 19. That was in direct response to Willie Rennie’s question on an uplift to the age of 14. Last week, every member of the committee received the helpful correspondence from the Lord Advocate, which broke down the statistics that make up the “sheer volume of cases” to which the First Minister referred. Of offences reported for those aged 12 or 13 last year, 27 cases were referred to the procurator fiscal for criminal proceedings. Of those, only 11 cases went to court. Understanding those numbers is important in gauging the magnitude of the task before us in seeking a further uplift in the age of criminality responsibility, and I put it to the committee that the term “sheer volume” cannot be used to describe 11 cases, when that is barely a handful. Nevertheless, moving to the age of 14 would require careful consideration of how cases could be dealt with in the children’s hearings system. I accept that—work needs to be done. The Scottish Children’s Reporter Administration, which, incidentally, supports an uplift to 16, has explained in granular detail the consideration that would be required if the children’s hearings system were to take on such cases. We might need to consider extending the panel’s powers to deal with over-18s, or, for the most egregious cases, introducing a higher burden of proof that goes beyond the balance of probabilities. That view was reflected by the Lord Advocate. He said that he would not set his face against a further uplift, but that further careful consideration would need to be given in respect of the handful of cases that would go to court. The Scottish Government has suggested that the work described by the Lord Advocate is too vast to contemplate in the context of any further progress in the bill. I cannot accept that. This is the Parliament that passed the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill in three days, readying this Parliament for the impact of Brexit on every aspect of its powers. Does the Government expect the committee, relevant stakeholders and the general public to believe that we cannot work out what to do with 11 kids in two years? After ascertaining from stakeholders just how long we might need, I lodged amendments 65 to 69 and 77 to 81, to offer Parliament a sunrise clause in order to attain a new age of criminal responsibility of 12 on royal assent, but with a further uplift 18 months later, either automatically or following a vote in Parliament, to the age of 14 or 16. 09:30 Amendment 72, which is also in my name, would make provision for the re-establishment of a working group to undertake that task, with ministers being duty bound to bring any recommendation for a further uplift to a vote in Parliament “no later than 31 January 2021.” Where there is a will, there is a way. Aside from the international embarrassment of trying to argue for an exemption from the new international minimum, there is scope for domestic embarrassment as well. Before I came to the Parliament, I was proud to serve under Professor Alan Miller on the leadership panel for Scotland’s national action plan for human rights, and I was heartened when he was appointed to head up the First Minister’s advisory group on human rights leadership. He and his colleagues put in great effort to equip Scotland to act as a human rights leader on the global stage. Now, by refusing to move with the international community to embrace the new international minimum in this vital area of human rights, at a stroke, we have holed below the waterline any credibility that we might have had as an international human rights champion. Put simply, we have wasted the time of a good man and those around him. For example, we often sit in judgment on human rights issues in China and Russia, but both those countries already have, or look set to have, higher ages of criminal responsibility than we do. As Willie Rennie said last week, when it comes to human rights, “we cannot lead the world from the back of the pack.”—Official Report, 24 January 2019; c 20. If we do not achieve movement in the bill, I will no longer be able to stomach the Government’s self-congratulatory posturing on human rights. It will not wash any more. I do not have a great deal more to say, but I will say a word about my amendments to lift the age of prosecution and my amendment to lift the age of criminal responsibility to 16. Action on the age of criminal prosecution was a bellwether for the moves to lift the age of criminal responsibility in the bill. When the United Nations called on us to lift the age of criminal responsibility to 12, we raised the age of criminal prosecution, which acted as a kind of leader clause and eventually brought us here. If none of my other amendments passes, at least let us look to increase the age of criminal prosecution, as a signal of intent to the international community and so that nobody under the age of 16 should be criminalised. With regard to my amendment to lift the age of criminal responsibility to 16, I set great store by the argument as to why we need to get to the age of 14, but it is important to state why I have lodged an amendment to get to the age of 16. I want to move the Overton window of debate to that subject. During our stage 1 debate, Liam Kerr stated that, at 12, children have full capacity to make value judgments and understand the consequences of their actions. In an intervention, I asked him whether he agreed that we should therefore reduce the voting age to 12—and he looked horrified. That is it: this country has accepted 16 as an age of majority, at which adult responsibilities are conferred. At that age, we credit young people with the maturity to decide whether to leave home, whether to marry, whether to have sex and who they want to run the country. There is widespread opposition to lowering the age of 16 for any of those things because many people feel that children who are under 16 lack maturity. However, people still believe that criminal capacity develops far earlier. That is incongruous. I cannot reconcile that disparity. In the eyes of the law, either people have maturity and judgment, or they do not. All my amendments were drafted with Lynzy Hanvidge in mind. Every member in this room was moved by and has cited Lynzy’s testimony. At the age of 13, she was arrested for kicking off on the night that she was to be taken into care. She spent a night in the cells, with all the trauma that that brings. Put simply, in the middle of one adverse childhood experience, the state handed her another. As it stands, nothing about the Government’s bill would change anything about Lynzy’s story. If we do not change the bill, we will have failed her and those like her. I move amendment 2.