Official Report 670KB pdf
Agenda item 3 is consideration of new petitions. As I always do before we consider new petitions, I say for the record that, in considering any new petition, we initially invite the Parliament’s independent research body, the Scottish Parliament information centre, and the Scottish Government to give us a preliminary view. That is not in any way to undermine or shortcut our consideration of the petition. It is simply the case that, in considering new petitions in previous sessions of Parliament, that was the first thing that the committee decided that it would do. That allows us to have some informed views before us when we consider a new petition.
Hate Crime and Public Order (Scotland) Act 2021 (PE2097)
The first new petition this week is PE2097, by Giovanni di Stefano, which calls on the Parliament to urge the Scottish Government to immediately repeal the Hate Crime and Public Order (Scotland) Act 2021. It is the petitioner’s view that that act is in violation of the European convention on human rights and the Universal Declaration of Human Rights, while also being, in his words, “impossible for the police to enforce”.
Members will recall that, shortly after the main provisions of the act came into effect in April of this year, Parliament debated a motion to repeal the legislation, which is the objective of the petition, and that that motion was not agreed to. In its response to the petition, the Scottish Government states that the act includes
“rigorous safeguards on free speech and is compatible with the European Convention on Human Rights”.
Notwithstanding the views of individual committee members in relation to the objective of the petition, it is the case that Parliament has recently debated and voted on the very thing that the petition seeks to achieve and, unfortunately for the petitioner and for those who felt similarly, that motion was not agreed to.
In the light of that, I wonder whether the petition is one that we can usefully take forward or whether, in a sense, Parliament has recently spoken on it already. I am inclined to take the latter view and to say from the chair that, on this occasion, because we have recently had a vote on the matter, I think that we should close the petition under rule 15.7 of standing orders, on the basis that Parliament considered the objective that the petition seeks to achieve and, sadly—for those people who agree with the petitioner and others—on 17 April, the majority of members voted not to repeal the legislation.
Do members agree with my proposal?
Members indicated agreement.
I thank the petitioner for lodging the petition, but we had a vote in Parliament on the matter not long before the summer recess, when Parliament once again expressed its view.
Wildlife and Countryside Act 1981 (Ministerial Guidance) (PE2100)
The second of our new petitions is PE2100, by Gary Wall, which calls on the Scottish Parliament to urge the Scottish Government to produce guidance under section 54 of the Nature Conservation (Scotland) Act 2004 to clarify the criteria for consideration of “no other satisfactory solution” in relation to licensing and to include the sustainable cultural use of natural resources under section 16 of the Wildlife and Countryside Act 1981.
In his written submission to the committee, the petitioner notes that
“NatureScot can change their ‘will’ because they have no transparent conservation ‘objective’ to apply when making a licensing decision on sustainable cultural use.”
The petitioner is concerned that NatureScot’s application of the satisfactory solution test is not clear, and that Scottish Government guidance is therefore required.
In its written response to the committee, the Scottish Government highlights the fact that NatureScot’s licensing guidance includes specific guidance on the interpretation of the “no other satisfactory solution” test. It sets out the points that are considered by NatureScot when it applies that test and notes that
“where another solution exists, any argument that it is not ‘satisfactory’ will need to be strong and robust”.
I emphasise the fact that, in its response, the Scottish Government states that it has
“no intention to bring forward legislation to include the sustainable cultural use of natural resources under Section 16 of the Wildlife and Countryside Act 1981.”
The key here appears to be interpretation of the “no other satisfactory solution” test and the petitioner’s assertion of something that I am not sure is actually detailed in the way that the petitioner believes that it is, together with the fact that the Scottish Government has said that it has no intention of bringing forward legislation, which is a pretty clear steer.
In the light of that, do colleagues have any suggestions on how we should proceed?
Given the Scottish Government’s response, it is, as you said, pretty clear that it does not intend to legislate in this area. Therefore, will the committee consider closing the petition under rule 15.7 of standing orders, on the basis that the Scottish Government has no intention of legislating to include the sustainable cultural use of natural resources under section 16 of the Wildlife and Countryside Act 1981, and because NatureScot provides detailed licensing guidance that includes specific guidance on the interpretation of the “no other satisfactory solution” test and which takes into consideration European Court of Justice case law?
Do colleagues agree with that suggestion?
Members indicated agreement.
Defibrillators (Schools) (PE2101)
PE2101, which has been lodged by Peter Earl on behalf of Troqueer primary school, calls on the Scottish Parliament to urge the Scottish Government to provide primary and secondary schools with automated external defibrillators—AEDs. The petition explains that Troqueer primary school pupils discovered that their local defibrillator is, in fact, too far away to have a positive impact if someone were to suffer cardiac arrest at the school.
The SPICe briefing notes that, in January of this year, data that was obtained through freedom of information requests submitted by the Scottish Conservative and Unionist Party showed that approximately four in 10 Scottish schools do not currently have a defibrillator. It is thought that that figure could be an underestimate, because six of Scotland’s 32 local authorities did not respond to the freedom of information requests.
The UK Government provided AEDs to state schools in England that did not already have one on site to ensure that all state schools had a defibrillator by the end of the 2022-23 academic year.
The committee has received a response to the petition from the Minister for Public Health and Women’s Health, which highlights the existence of “Scotland’s Out-of-Hospital Cardiac Arrest Strategy 2021-2026” and points out that one of the strategy’s aims is to increase the percentage of OHCA cases in which a defibrillator is deployed before the arrival of the Ambulance Service to 20 per cent. The response also points out that decisions on the installation and maintenance of defibrillators in schools are matters for local authorities to consider at local level.
Members will know that our colleague Finlay Carson has expressed an interest in the petition. Although he is unable to join us today, he has submitted a written submission.
The provision of defibrillators is an issue that we have come round to before. It seems something of a no-brainer that defibrillators should be in place in schools. Other parts of the country have already moved to ensure that that is the case. The response that we have received is a bit lacking, I think, in that nobody appears to be taking a lead. It is all just being farmed around. Do colleagues have similar thoughts? Does anyone have any suggestions on how we might proceed?
I will break with tradition here: I think that the issue is one that the committee could take forward. It is a very important issue. Defibrillators save lives. I am surprised that not every school in Scotland has them. Therefore, I suggest that the committee considers writing to the Minister for Public Health and Women’s Health to highlight the UK Government’s provision of defibrillators to all schools in England and to ask whether the Scottish Government will provide direct funding for primary and secondary schools to purchase and install defibrillators.
It seems invidious that Scottish schools are now behind the standard that is being set elsewhere around the UK and that four in 10 schools—the figure might be slightly higher—would not, in the event that an emergency occurred, have access to life-saving equipment that has a proven track record. I have seen such equipment being deployed, and I know that other colleagues have heard of instances of its deployment in which lives have been saved as a result.
Are colleagues content to support Mr Torrance’s recommendation?
Members indicated agreement.
We will keep the petition open, and we will seek to pursue the objective of securing a defibrillator for every school in Scotland.
Rape and Sexual Assault (Minimum Sentences) (PE2102)
We come to PE2102, for our consideration of which Fulton MacGregor MSP has expressed an interest in joining us. I understand that he will be with the committee shortly.
The petition, which has been lodged by Anna-Cristina Seaver, calls on the Scottish Parliament to urge the Scottish Government to abolish the option of an absolute discharge in cases where the accused is found guilty of rape or sexual assault and to introduce a statutory minimum sentence for such offences that includes the convicted person being registered as a sex offender.
The Scottish Sentencing Council’s information on absolute discharge states that
“Reasons for an absolute discharge can include, for example, that the crime is very minor, that the offender has been previously of good character, or that the offender is very young or old.”
The Scottish Government’s statistics show that there were two absolute discharges for rape and attempted rape and nine for sexual assault in 2021-22.
The petitioner feels that, even though the numbers are low, there is no circumstance that is exceptional enough to allow a person who is found guilty of a sexual assault to go unpunished. In its response, the Scottish Government notes that, in assessing a case, the court will consider the appropriate sentence for each offender before them,
“taking account of all the relevant facts and circumstances of the particular case.”
That includes consideration of the fact that absolute discharge will remove the requirement for notification—that is, for the person to be registered as a sex offender.
In her recent submission, the petitioner argues that the current framework has a loophole that excuses those with an absolute discharge from being subject to notification requirements. That is because the length of an individual’s notification requirement is set by the length of their sentence. When no sentence is set when an individual receives an absolute discharge, that equals a period of “no duration” in which they are subject to notification requirements.
I will use my discretion to briefly suspend the meeting, because I understand that Mr MacGregor will be with us shortly, and I know that the committee would want to give him an opportunity to comment on the issues raised by the petition.
10:09 Meeting suspended.
Welcome back. Before we suspended, we were considering PE2102, from Anna-Cristina Seaver, which seeks to require that anyone who is found guilty of rape or sexual assault to be registered as a sex offender. I read out and detailed the general principles of the petition.
Fulton MacGregor MSP has now joined us, and I am delighted that he will contribute some thoughts to the committee ahead of our consideration of the actions that we might take. Good morning, Mr MacGregor. The committee would be delighted if you would detail your thoughts to us.
As the committee will be aware, the petition before you calls on the Scottish Parliament to urge the Scottish Government to abolish the option of an absolute discharge in cases where the accused is found guilty of rape or sexual assault and to introduce a statutory minimum sentence for those offences that includes the convicted person being registered as a sex offender. The petitioner is a constituent of mine and has met me to discuss the issue on several occasions. It is an issue that she is very passionate about.
It should be noted that I have written to the Cabinet Secretary for Justice and Home Affairs on the issue as a result of the discussions that I have had with my constituent. The cabinet secretary has outlined the narrow scope whereby someone who is convicted of a sexual assault can receive an absolute discharge, as well as some of the reasons that a change to legislation might be difficult to implement here. With permission of the cabinet secretary and my constituent, I could share that correspondence with the committee if it is interested in seeing that.
The petitioner acknowledges that an average of three people each year were granted an absolute discharge as a result of receiving a guilty verdict for sexual assault, which underlines the rare circumstances in which that occurs.
However, at its core, the petition seeks to address an apparent loophole. Being convicted of an offence that is listed under schedule 3 to the Sexual Offences Act 2003 makes the offender automatically subject to notification requirements—that is, they become a registered sex offender. The notification requirements are not dependent on an order of the court. An offender who becomes subject to the requirements does so automatically, because they have been convicted, cautioned, reprimanded or warned for a “relevant offence”. There is no discretion exercised by the courts or the police in imposing the notification requirements on relevant offenders.
However—this is the perceived loophole—absolute discharges do not trigger the notification requirements. In solemn proceedings, even when an offender receives an absolute discharge, a conviction is still recorded. Despite the conviction, an absolute discharge means that no duration is assigned for notification requirements, creating the said loophole that means that the offender is not subject to notification requirements. The petitioner feels that that should be an automatic process as part of the conviction.
The petition has perhaps come at an apt time as the Scottish Sentencing Council is currently at stage 2 of its process to develop sentencing guidelines on sexual assault and at stage 4 of its process to develop sentencing guidelines on rape. As the council must consult Scottish ministers and the Lord Advocate before submitting the guidelines to the High Court, there might be some scope for the committee or the Parliament to impress upon the Scottish Government the nature of the petition and what it is trying to achieve.
Ultimately, the petition is based on the notion that my consituent has asserted to me very clearly that they do not believe there is any circumstance that is exceptional enough to allow a person who is convicted of sexual crimes not to be subject to the notification requirements. Part of the assertion comes from how difficult such convictions are to obtain, through every part of the criminal justice process, which is something that the Criminal Justice Committee is very aware of. There are a small number of people who receive guilty verdicts and whose sentence is absolute discharge. However, where victims later learn that they are not subject to sex offender registration, that could and does have a devastating impact on victims.
I conclude by thanking my constituent for submitting the petition, for getting the number of signatures that she did and for bringing the matter to the Parliament. As I said, she is very passionate about the issue and she wants to see change in that area. I will continue to support her in my role as her local MSP.
Back to you, convener.
Thank you very much, Mr MacGregor. I also thank your constituent for submitting her petition, which raises issues for the committee to consider. Do colleagues have any suggestions as to how we might proceed?
I wonder whether the committee would consider writing to the Scottish Government to ask for its views on the petitioner’s request to abolish absolute discharge in cases of rape or sexual assault and to introduce a statutory minimum sentence for those offences.
If I could just interrupt you on that point, Mr Torrance. In that letter to the Scottish Government, we could draw on some of the additional suggestions that might be made to it from Mr MacGregor’s evidence as well.
Yes. I also wonder whether the committee would consider writing to Victim Support Scotland and Rape Crisis seeking their views on the action called for in the petition. As Mr MacGregor has already highlighted, I would like to inform the petitioner about the Scottish Sentencing Council’s consultation on the draft sentencing guidelines on rape—although I have no doubt that the petitioner is already engaged with that process.
Thank you. Are there any other comments or suggestions from colleagues?
Mr MacGregor put the case very well. I noted that 453 signatures have been obtained, which is a fairly substantial number. I support the recommendations that have been made by Mr Torrance and yourself, convener.
I was curious as to how many instances of absolute discharge there have been in cases in which there has been a conviction for rape or attempted rape or, indeed, for sexual assault. I have been advised that the figures show that there were two absolute discharges for rape and attempted rape and nine for sexual assault in 2021-22.
I mention that as I am curious to know whether it is possible to get any explanation, without breaking any rule about confidentiality, as to why an absolute discharge was granted in those cases. To any onlooker, it must seem pretty inexplicable that an absolute discharge would be granted, especially for a crime of rape. It is very difficult to understand what circumstances could be so exceptional as to justify such an outcome when someone is convicted of something as serious as rape. I find it very hard to imagine any circumstances in which that would be fair. However, on the other hand, the whole point of discretion of the court is that, if there are truly exceptional circumstances, it has that discretion. That would be the argument.
I am labouring the point a little bit, but I am curious as to what the justification was for that outcome in those cases. I do not know whether it is possible to find that out, convener, but I think that we should certainly try to do so.
Would that be for the Scottish Sentencing Council to respond to? Should we invite it, insofar as it is able, to identify circumstances in which absolute discharge would have been granted, without prejudicing the particular circumstance of any individual case?
Yes, I think that it would be. There is an additional point here: if the council is unable to explain what the circumstances were that merited that surprising outcome, how can it make a judgment on dealing with those matters in future? In other words, this is a sine qua non in relation to its work on sentencing guidelines.
Given that we know that the Scottish Sentencing Council is undertaking a consultation—and we respect the fact that it is—it would be helpful to the committee, in trying to understand on behalf of both the petitioner and others who might be looking at the issues that are identified in the petition, if the council was able to give us some understanding as to how an absolute discharge might arise as an appropriate sentence. We are not asking for any breach of confidentiality in a specific circumstance, but we would like to understand in a more general sense how that could happen. On the face of it, it seems unpardonable.
We will keep the petition open. Thank you, Mr MacGregor, for your contribution.
Are colleagues content that, in addition to Mr Torrance’s and Mr Ewing’s suggestions, we proceed on the basis that we have identified?
Members indicated agreement.
Puberty Blockers (PE2104)
PE2104 was lodged by Sophie Molly. I notice that Maggie Chapman, who I think has an interest in the petition, is in the gallery. The petition calls on the Scottish Parliament to urge the Scottish Government to ask the relevant health boards to reassess the decision to pause the prescription of puberty hormone suppressants and gender-affirming hormones for children and young people with gender dysphoria in Scotland, and to ensure that it is still possible to provide new prescriptions while a review of the decision takes place.
The petitioner tells us that the health and wellbeing of trans and gender non-conforming children will be adversely affected by the decision to pause new prescriptions of puberty hormone suppressants and gender-affirming hormones to young people. The decision to pause that treatment option is linked to the outcomes of the Cass review of gender identity services for young people in England. As members might be aware, the Scottish Government has confirmed that it accepts in full the Cass recommendations, with work under way to implement them.
In its response to the petition, the Scottish Government has stated its commitment to the improvement of gender identity healthcare in NHS Scotland for all who need it, and draws our attention to a grant that has been awarded to the University of Glasgow to administer a programme of research into the long-term health outcomes of people accessing gender identity healthcare. The response also highlights the engagement with NHS England on its planned study into the use of puberty blockers in young people’s gender identity healthcare.
We have also received a submission from the petitioner highlighting concerns about the quality of data and evidence that was used to inform the recommendations of the Cass review, which, in their view, suggests that the resulting decision to halt prescriptions of puberty blockers was ideologically rather than clinically driven.
Members might also be aware—this is an important consideration for this committee—that our colleagues on the Health, Social Care and Sport Committee have been hearing evidence on the independent review of gender identity services for children and young people. The fact that another committee of Parliament is considering the issues that are raised in the petition might dictate what options we feel are open to us.
Do colleagues have any thoughts or comments?
As a member of the Health, Social Care and Sport Committee, I can confirm that we are already looking into and reviewing gender identity services for children and young people. I wonder whether the committee would consider closing the petition under rule 15.7 of standing orders on the basis that the Health, Social Care and Sport Committee is currently taking evidence on the independent review of gender identity services for children and young people, including hearing evidence from the chief medical officer at the end of October.
We might also write to the Health, Social Care and Sport Committee detailing the petition that we have received. If it is taking evidence from the chief medical officer at the end of October, would it be possible to write to the committee asking it to make reference to the petition that we have received when putting questions to him, with a view to trying to seek an update on the research that is being undertaken specifically on the issue?
I am conscious that, although the chief medical officer is coming to give evidence, it does not necessarily follow that the specific issue that is raised in the petition will feature in the committee’s questions. In closing the petition, I wonder whether it would be possible for us to invite the committee to consider whether it might give consideration to asking the chief medical officer about the issue that the petitioner raises.
Do colleagues have views? Given that another committee is considering the issue, I am not sure that there is much more that we can actively do. Generally speaking, we do not consider things in parallel with other committees.
The petitioner raises an important issue. The committee is reluctantly minded to close it, but we will seek to ensure that the Health, Social Care and Sport Committee is made aware that the petition has been raised and try to have the issue raised directly with the chief medical officer when he gives evidence. Are we agreed?
Members indicated agreement.
Mobile Phones in Schools (PE2106)
PE2106, which was lodged by Adam Csenki, calls on the Scottish Parliament to urge the Scottish Government to update guidance on mobile phones in schools to require all schools to prohibit the use of mobile phones during the school day, including at interval and lunch time.
The SPICe briefing highlights that decisions on the use of mobile phones in schools are a matter for local authorities or schools themselves. Indeed, I know from examples in my constituency that practice is variable. In August, the Scottish Government published new guidance on the use of mobile phones in schools aimed at empowering headteachers
“to take the steps they see fit to limit the use of mobile phones in schools, up to and including a full ban on the school estate during the school day, if that is their judgement.”
Responding to the petition, the Cabinet Secretary for Education and Skills tells us that she shares the petitioner’s concerns about the impact of mobile phone use on children and young people’s learning but states that the Scottish Government cannot unilaterally ban mobile phones in schools. The cabinet secretary added during her statement to Parliament earlier this month that
“the updated national guidance goes as far towards a national ban as I am currently able to go”.—[Official Report, 3 September 2024; c 70.]
We have received a submission from the petitioner that welcomes the updated guidance but raises concerns that leaving the decision up to individual headteachers risks creating an unequal experience for pupils and their teachers across Scotland.
Do members have any comments or suggestions?
Considering that the Scottish Government has recently published new guidelines setting out what schools may wish to consider when developing policy on mobile phone usage and engaging with parents, carers and the wider school community, and the Cabinet Secretary for Education and Skills has stated that the Scottish Government cannot unilaterally ban mobile phones in schools as that is a policy decision resting with headteachers and local authorities, I wonder whether the committee would consider closing the petition under rule 15.7 of standing orders.
I wonder whether there is just a little bit more in this. I appreciate that the guidance has been updated but, given that this is a new petition, is it worth giving this issue a bit more of an airing to find out more evidence? The petition calls for the most extreme form of a ban, but there may be other variations that produce results. There is probably a gap when it comes to how confident the Scottish Government is that schools are collecting data on mobile phone misuse and understanding the scale of the problem. It would be useful to hear from the Convention of Scottish Local Authorities, the Association of Directors of Education in Scotland, the Association of Headteachers and Deputes in Scotland and School Leaders Scotland, in addition to any individual schools that have applied some form of a ban, which may be state schools or independent schools, and the educational attainment results arising from that.
I bow to Mr Golden’s suggestion but, in that case, I wonder whether we could also write to the teaching unions to get their views on the matter. It is their members who will be engaging with it.
Anecdotally—and it is only anecdotal, although first-hand anecdotal—I have been told by recent school leavers that, in fact, pupils are being encouraged to use their mobile phone as a working tool in the classroom to support the digital learning of the class. If that is an evolving practice in learning, I am not quite sure how that is consistent with banning the use of the mobile phone. There was talk at one time of every child being provided with an iPad or a laptop or something, but in the absence of that, how would digital learning proceed in the event of a total ban? That was the response of someone who had recently been at school and thought that there was a contradiction in that, albeit that they had been at a school where there were restrictions on when a phone could be used. The restrictions applied variably in different situations within the school.
I am interested in writing to the Cabinet Secretary for Education and Skills to understand whether, in a digital learning era, consideration has been given to the phone being a necessary piece of equipment in the same way that a calculator used to be. Can you just say, “Don’t use them,” or will that prejudice certain individuals’ ability to participate in the learning of the class? I do not know, but I would like to be reassured on that point.
I agree. Lots of homework is done via mobile phone on Google Classrooms and that is commonly used in classes as well—pupils use it to find out what the homework is and then work off that. It might be interesting to find out how individual schools have implemented restrictions on the wi-fi to limit the apps that pupils can access. As a parallel issue, there seems to be a growing increase in panic attacks among pupils in schools, and one of the ways in which those are mitigated and helped is by calling the parent. Without a phone, that will be difficult to do.
Again, that is anecdotal, but it would be useful to hear more about those issues.
I am slightly concerned that this is a minefield and we should perhaps try to get a little bit more understanding and information in relation to the issues raised. Are colleagues content to proceed on the basis of Mr Golden’s suggestion and others that followed to ensure that we understand what is happening?
Members indicated agreement.
Thank you. That brings us to the end of the open session this morning. We will take item 4 in private. The committee will meet again on Wednesday 9 October.
10:37 Meeting continued in private until 10:58.Previous
Continued Petitions