Chamber and committees

I cannot commit to lodging an amendment, but I can commit to considering the matter further.

To follow on from that, the information-gathering and publication duty in amendment 158 could impose a disproportionate and misplaced burden on local authorities. As I said, I am happy to consider that further.

On amendments 159 to 161, as I said, in addition to their raising technical drafting issues, they could be problematic. I understand that the intention of amendment 159 is to ensure that needs assessments are undertaken for children entering secure accommodation. However, that already happens, and regular reviews are carried out, as required by the legislation.

I feel that it is being reported, and, in fact, I have had conversations with officials this morning about whether improvements can be made in relation to that. However, the amendments that have been lodged raise a couple of problems in terms of overlap. There needs to be either more refinement of them or more work in relation to that issue.

I will comment on the amendments in relation to Mr Kerr’s questions in just a second. I thank him for those.

I assure the committee categorically that legal advice has been sought on all the bill’s provisions and the amendments in the normal way, as is the normal bill process. As members will appreciate, the ministerial code requires that I respect the confidentiality of advice that is given, and I am not able to get into the details of that now. Mr Kerr can be assured that legal advice has been sought, and we have proceeded with that in mind.

I will try to get through all Mr. Whitfield’s points. In relation to his first point about allowing people to apply for the order, as I outlined in my opening comments, that provision is extremely important to allow the police and the prosecutor to publish the information when that is required. New section 106BA(2) is left open so that others can apply—it is not restricted.

The sheriff would look at matters objectively and weigh up all the factors. Obviously, that would be done on a case-by-case basis, and it would be for the sheriff to make decisions based on each case individually. It would be for the sheriff to consider how best to consider the views of the child, depending on the circumstances of the specific case and the age of the child.

The opportunity to make representation is, again, wide, and it will be for the court to decide who has an interest, based on the specifics of the case. The court involvement should minimise any risks of the child being, or being perceived to be, coerced into consenting to a third party publishing identifiable information about the child. It is about safeguarding the child in that respect.

As I said, I am more than happy to have further discussion with Mr Whitfield about some of his more specific points, but I believe that the Government amendments provide what is required as well as the appropriate protections for children and young people. I urge Mr Whitfield to support the Government amendments.

I will begin, as I did in group 13, by reiterating that I absolutely recognise the intention behind the amendments in this group, which is to reduce the trauma that is experienced by those who lose a child as a result of crime, and I understand Ms Maguire’s motivation for lodging them. I reiterate that the Government is committed to considering the issue in more detail and in discussion with those with lived experience, but—

Yes.

It is absolutely a challenge, and I have committed to further discussion on that, because we must overcome those challenges. It is not about placing more importance on one member of a family over another; it is about considering how we get this right.

It is essential that we learn from the experience of other comparable jurisdictions that have had to actively amend or repeal legislation on anonymity for deceased victims following changes made in haste and without proper consultation with all those affected. Bereaved families in such jurisdictions—for example, in Ireland and in Victoria in Australia—have likened such laws to gag clauses and have expressed anger at not being able to speak freely about their loved ones.

Another concern is the potential for anonymity for deceased child victims to operate as a shield to protect the identity of those who commit offences. As I said in relation to the previous group of amendments, there might well be times when it would be hard to understand how you could identify one without that leading to the identification of the other. That, again, is something that needs to be considered further.

It is also unclear what would happen if there were no consensus among family members as to whether an application should be made to the court that sought to dispense with reporting restrictions in respect of a deceased child victim. Amendment 131 would enable a broad range of family members to apply for such a dispensation, including a parent, sibling, child, spouse or civil partner of the deceased child victim. Not all bereaved families will have a unified view on whether they wish the identity of their bereaved child to be made public. One family member might wish the child’s identity to remain anonymous, while another might wish to speak publicly about the child, whether to remember and celebrate their life or to raise awareness and campaign. It is hard to envisage a non-traumatising process by which family members would have to apply to court and argue either for or against the waiving of anonymity.

Amendments 139 to 146 are in a similar vein in seeking to extend reporting restrictions in relation to the publication of information that could identify deceased child victims of a crime and their families once court proceedings are under way. The issues that I have already outlined apply equally to those amendments.

On amendments 152 to 154, which concern the court’s powers in respect of the retrospective removal or reinstatement of published information that was not subject to reporting restrictions at the time that it was published, I have concerns about how such provisions could work in practice. I will not reiterate what I have already said about amendments 137 and 138 in group 13, but I will say that I have the same concerns about how amendments 152 to 154 would work in practice and their enforceability, which would impact on the benefits that they could bring to those whom they sought to aid.

I will, however, reiterate what I said in relation to group 13. The Government is keen to seek a solution to the issues that bereaved families and victim support organisations have raised and to engage on them in an open-minded way, but it is essential that we fully explore the complexities involved in order to avoid the unintended consequences to which I have alluded.

I would also note that the issue has potential implications, too, for the Victims, Witnesses, and Justice Reform (Scotland) Bill, which also includes provisions on reporting restrictions with regard to the protection of other victims of offences under the legislation. That bill is currently at stage 1. As I mentioned, the round-table event with a range of partners in February will provide the crucial forum for discussing experiences and options, and the cabinet secretary and I are absolutely committed to working with Ms Maguire and any other members on the matter.

For the reasons that I have outlined, I am unable to support the member’s amendments, and I again urge her not to press or move them in return for the Government’s commitment to having discussions and engaging on this extremely important issue. That would allow time for us to have the level of detailed consultation and consideration that such an important and complex matter warrants beyond the bill itself.

This is not a case of the issue being kicked into the long grass. I hope that I have made clear how seriously I take the issue and that I appreciate the difficulties that it causes for many families. I have highlighted numerous times that, because of the importance and potential unintended consequences, it needs further consideration. My discussions with the cabinet secretary are on-going, and there absolutely are other vehicles for it.

The Cabinet Secretary for Justice, Angela Constance, is arranging the round table. She has, I believe, had a series of engagements with numerous stakeholders on the matter. I cannot speak for her on the date for the round table; I know that a lot of different organisations and stakeholders have been involved in the process, and I cannot comment on why the date is when it is. Nevertheless, I assume that every effort has been made to get that done in a timely manner so that those discussions can take place as quickly as possible. There could be a number of reasons why it is taking place when it is.

The round table is a very important step in the process, but it might not be the be-all and end-all. Other things may come out of the round table that require further discussion. I do not want to rush the process to fit in with a timeline for stage 3. As I said, the most important thing is to get it right—