Yr ystafell yma hwn yn gallu'r ysgol o'r Cyngor Cymru, yn mas sy'r ffordd arill, ac mae All-Mobile Devices ynotennig i'r ddechrau. Yr ystafell yma hwn yn gynnwysbryd eras y gymaint o fazi a'r ystafell yma, yn fawr o gyngor cyfr食べb ynwaith. Eir etim 2 ym Sex. Cymru yn gilydd i'r cyfrwyngau ddaeis fel Cymru naddiddol. I welcome John Finnie, member in charge of the bill. Mary Todd, minister for children and young people. We're also joined by Adam Tompkins and Liam Kerr. You're all very welcome. Everyone should have with them a copy of the bill as introduced. The marshaled list of amendments that was published on Monday and the groupings of amendments which sets out the amendments in the order in which they'll be debated. I lodged two amendments to this bill which, as I understand it, you decided not to select, but the only reason I've been given is that you took the decision that those amendments were inadmissible, but you didn't give reasons as to why you think those amendments are inadmissible. Could you explain why my amendments were voted to be inadmissible? Thanks for that point of clarification. Mr Tompkins, standing order rule 9.10.4 states that it's for the convener of a committee to determine any dispute as to whether an amendment of which the clerk has been given notice is admissible. Standing order 9.10.5 sets out the criteria for admissibility and part 4 of the guidance on public bills. Two of the criteria are that an amendment must be consistent with the general principles of the bill and must be relevant to the bill. After looking carefully at the proposed amendments, I did not consider that they met those criteria. I therefore considered them to be inadmissible. It's a matter for the Presiding Officer to rule on admissibility at stage 3. I'm very grateful for that explanation, which I understand, but I don't understand the reason why those amendments were deemed to be contrary to the general principles of the bill. The general principles of the bill set out in the policy memorandum published when the bill was published say that the purpose of the bill is to help bring an end to the physical punishment of children. That was a view that was endorsed and agreed with by the committee in its stage 1 report, paragraph 4, of which says that the bill's purpose is to discourage the use of physical punishment. The phrase physical punishment appears in paragraph 4 of the policy memorandum and in paragraph 4 of the committee's stage 1 report. My amendments were designed to ensure that assault for the purposes of section 1 of the bill means only physical attack. At the moment, you do not have to physically attack anyone in order to assault them. The bill criminalises the behaviour of parents and carers and guardians of children, which the proponents of the bill and which the committee say are not intended to be criminalised. My amendments were seeking to give clarity to the meaning of the word assault for the purposes of the bill so as to achieve precisely the policy objective set out in paragraph 4 of the policy memorandum. That is the reason why I do not understand with respect, convener, how those amendments could be ruled to be contrary to the general principles of the bill. It is a long-standing convention, Mr Tomkins, at the Presiding Officer or conveners, to not give explanations on their decisions on admissibility. To be helpful, however, I note that there are a number of amendments before us today. Those give the opportunity for members to debate in full the issues raised by the bill and amendments ruled in admissible at stage 2 can of course be submitted at stage 3, where it is for the Presiding Officer to determine admissibility. I consider the matter now closed and we will move on with the meeting. There will be one debate on each group of amendments. I will call the member who lodged the first amendment in that group to speak to and move that amendment and to speak to all other amendments in the group. Members who have not lodged amendments in the group but who wish to speak should indicate that by catching my attention in the usual way. I would ask that anyone doing so be succinct and make sure that their contributions are relevant to the amendment or amendments being debated. I remind members that this stage is not a rehearsal of arguments about the general principles of the bill. Members will be able to comment again on the merits or otherwise of this bill at stage 3 debate in the chamber. Standing orders give both the member in charge of a bill and any Scottish minister the right to speak on any amendment. I will therefore invite the minister and then John Finnie to contribute to the debate just before I move to the winding-up speech. The debate on the group will be concluded by me inviting the member who moved the first amendment in the group to wind up. Following debate on each group, I will check whether the member who moved the first amendment in the group wishes to press it to a vote or withdraw it. If they wish to press ahead, I will put the question on that amendment. If a member wishes to withdraw their amendment after it has been moved, they must seek the committee's agreement to do so. If any committee member objects, the committee immediately moves to vote on the amendment. If any member does not want to move their amendment when called, they should say not moved. Please note that any other MSP may move such an amendment. If no one moves the amendment, I will immediately call the next amendment on the marshaled list. Only committee members are allowed to vote. Voting in any division is by a show of hands. It is important that members keep their hands clearly raised until the clerk has recorded the vote. The committee is required to indicate formally that it is considered and agreed each section and schedule of the bill, so I will put a question on each section at the appropriate point. Amendment 1, in the name of Oliver Mundell in a group on its own, Oliver Mundell to speak to and move amendment 1. Thank you, convener. Amendment 1 is designed to be a simple amendment trying to draw together some of the points of consensus that did emerge during the stage 1 evidence and to try and give some reassurance, both parliamentary and public, to those who have continuing concerns about the bill. I am particularly grateful to Mary Fee and Christine Grahame for their support in the amendment. I have spent a considerable amount of time speaking to other members and to interested stakeholders in trying to bring this amendment together to capture, in part, some of the practice that we have seen in both Ireland and New Zealand, which were both examples that came up frequently through evidence at stage 1. I am aware that, having submitted to the amendment, there was some considerable difficulty in trying to find the form of words that fell within the clerk's view of the scope of the bill, but I am concerned myself with one cii, because I think that there is a legitimate point around whether or not there is an existing parental responsibility to be as explicit as preventing a child from committing a criminal offence. I would certainly want to revisit that in the drafting of the amendment that has come to light since its submission. I think that there are certainly other areas of the language that could potentially be tightened up. At this stage, I am interested to hear other members' thoughts on the amendment. I am not necessarily minded to press it myself at this stage, but I am interested in hearing views and trying to build some consensus at least around the principles that the best interests of the child should be taken into account. There are on-going issues around restraint, and there are recognised parental responsibilities when it comes to maintaining a child's safety and wellbeing. Good morning to everyone. I have a couple of questions. One of them was on the line of preventing the child from committing a criminal offence. I was just really looking for more clarity on what that meant. Most of the evidence that we took said that the removal of the defence would provide clarity in the law. I feel that the amendment is uncertain because I think that it takes that clarity away again. I also want to ask about the restraint element, the physical contact with the child. Does that include forms of physical punishment or is it purely restraint? The parents protecting children, we took a lot of evidence that said that the bill would not affect the ability of parents to protect their children. I am interested in... Yes, of course. I think that, on that particular point, this is for avoidance of doubt clause. It does not change the law as a sort of matter of fact. It does not change what is already in the bill. It just provides some reassurance. It is not designed to supersede what sits above it. Again, I am willing to look at the wording of the amendment and potentially bring it back at stage 3 to make that clearer. Thanks for that. I am interested to hear all of him Mandel say that he might look at the wording, convener, so I am happy with that. Thank you, convener, and good morning, everyone. I just want to say a few brief words in support of this amendment by Oliver Mandel. I think that the amendment reflects the concerns that we heard from a number of witnesses throughout the evidence sessions around the removal of their ability to use parental responsibility to protect their child. As such, the amendment reflects that, and it would go a long way to allaying some of the concerns that were raised throughout the evidence sessions. For that reason, I am happy to support it. Thank you, convener. I start by thanking the member for reaching out to opposition members in discussions of potential amendments around stage 2. I am sorry to say that I cannot support this, and I will begin to unpack why. One of the words that we have heard consistently throughout the stage 1 proceedings is clarity, and the need for clarity. The fact that the landscape around physical punishment in Scotland is not clear. A great deal, a large number of members of the public believe that it is already illegal to physically punish your children, and are surprised when you tell them that it is not. The last time that the Scottish Parliament legislated on this was in 2003, and the only strata or architecture around that was in the prohibition of headshots shaking and use of implements. The bill is elegant because it draws a line under the equation. I think that the amendment reverses that clarity that this bill affords. The member says that the bill brings clarity as it is, because it draws a line under the physical punishment of children. Does the member not accept that assault, which is the word that is used in section 1 of the bill, is not restricted to the physical punishment of children? I am sure that the bill inadvertently does—I mean, it would be interesting to know if it is deliberate, because it is not what the policy memorandum says, but I am sure inadvertently. Nonetheless, what the bill does is it criminalises actions with regard to children that go well beyond physical punishment. If the member is really seeking clarity, and I believe that he is clarity in the law, particularly in the criminal law, it is a good thing—let's all agree on that—that we need to clarify exactly what it is that we are seeking in this legislation to criminalise. If we are seeking to criminalise physical punishment, then the bill needs to be amended to reflect that, because otherwise, and as it stands, it is not clear. I am grateful for the intervention. I don't accept that premise at all. We are talking about the removal of a legal defence that used to apply to the right of a man or a husband to physically punish his wife or his servants. It is about a cultural shift that we are talking about in Scotland. We are not talking about criminalisation of parents. As we heard, through a range of witnesses, the international examples of the 54 countries globally who have already taken this step do not see the mass criminalisation of parents. I fundamentally don't accept that premise. The member has offered parallels in his amendment to the legislation passed in New Zealand. However, whether his amendment and the New Zealand legislation diverge is that, in New Zealand, the law makes it explicitly clear that physical punishment is not in the child's best interests? I will. The member might be interested to know that I did try and lodge a version of this amendment with similar wording to that, but I was told by the legislative team that they felt that the bill already ruled out the possibility of physical punishment, so there was no need for it to be restated. I don't know what more I could do to satisfy his concerns at this stage. I am grateful for the member's clarification on that point, and that is very helpful. When the member and I discussed potential stage 2 amendments, I am very keen to foster consensus around the bill, so I was welcome to that approach. We talked about the best interest principle. The best interest principle is something that we should all agree on, and it is a creature of Scottish law. It is a creature of international treaties as well, that in anything we do, be that in public policy development or in legal judgment, that we should always act with the best interests of children at heart. To that end, I expected an amendment to be forthcoming, which was more along the lines at the point of referral by a social worker or a police officer. I will in a minute, but let me finish my point. At the point of referral by police or by social work, that a best interest judgment might be offered by Crown Office as whether it was in the best interest of the child to launch formal criminal proceedings against the parents. Perhaps there could have been a constituency or a cross stakeholder consensus billed around that if you needed that clarity within the bill. However, as it is worded, I think that it diminishes that clarity. It even suggests that, if a parent were to argue that the physical punishment of their child was done in the best interests of the child, it might almost represent a quasi new legal defence. I also have an anxiety. I will let you come in, because you did want to to come in there. I just point the member to the fact that I did try that approach. Again, that was a preferred approach of mine in terms of a best interest test, but again, in terms of the scope of the bill, I was told that it was too narrow and that the bill wasn't able to give directions to courts or prosecutors, but given the member's support and interest in the matter, perhaps the Presiding Officer will look at that at a later stage. I think that the final point that I would say on this amendment is my anxiety, as well as in addition to undermining the clarity that the bill affords, to arguably reinstating a nuanced route where a parent might justify their physical punishment of their child by reference to best interests. I was slightly alarmed and perhaps the member can offer clarity here. In 1C, there is in parenthesis the clause whether parental responsibilities or otherwise—sorry, fulfil the person's responsibilities, whether parental responsibilities or otherwise, and then link to CII to prevent the child from committing a criminal offence. Actually, I read that that a law enforcement officer might be swept up in that, and arguably, you might see a situation where accidentally we create a situation where it suddenly becomes okay for police officers to physically punish children in the streets. Had the member considered that as an unintended consequence of this amendment? Just before you, convener, you will have the opportunity to wind up, so I wonder if— I will pick up those points in the winding-up. For all those reasons, convener, I am afraid that I just can't support this amendment. Do you still need to commend Fulton? I think that Gail Ross and Alex Cole-Hamill have kind of covered the main points that I was going to make. I do want to say that I think that the right intention is behind this amendment, and I think that following quite a heated stage 1 debate, I think that I want to commend Oliver Mundell for doing that, and the fact that he's got the backing of Mary Fee, for example, I think demonstrates that. I'm looking at the briefing here from Bernardo's Children's First, the NSPCC, who are the experts in this field, and who have given us evidence throughout the stage 1 process. They've got really grave concerns, like myself, with this amendment. I'm not going to go over the points made by Gail Ross and Alex Cole-Hamill, but I don't think that it brings clarity, and I think that it's really concerning that we could be in a situation where, legally, parents could be arguing that the physical punishment is in their child's best interest. For those reasons, I'm not able to support this amendment. I welcome the opportunity to speak for the Scottish Government in what's a very important debate for all children in Scotland. We can't support amendment 1 for several reasons. First, the amendment proposes to provide that nothing in section 1 of the bill affects the ability of a person having charge or care of a child to act in the best interests of the child. It's not clear from that exactly who would decide whether or not the actions of a parent or a carer are in the best interests of a child. I understand the point that the ministers are trying to make, but, given the bill refers to the removal of a criminal defence, it's pretty clear to me that those would be considerations for the court in the same way that they would be considerations for the court anyway of the evidence that we'd received from the Lord Advocate, and that would simply seek to put the best interests of the child onto the face of the bill. If the amendment is designed to provide that in certain circumstances—certain unspecified circumstances—a parent or carer could say that they used physical punishment because that was in the child's best interests, then that goes against the fundamental purpose of the bill, and that was already agreed at stage 1 by the whole Parliament. The fundamental purpose of the bill is to give children equal protection from assault. In addition, section 1 of the Children's Scotland Act 1995 constitutes the central provision on parental responsibilities in Scots law and provides that parents have such responsibilities only insofar as compliance with this section is practicable and in the interests of the child. On that point, I thank the minister for giving way again. As I said to Alex Cole-Hamilton again, referencing the 1995 act was something that I had sought to do in previous drafts of my amendment, but again the scope of the bill made it difficult for me to refer to that, and it's something that I would consider because I think that particular section is well understood in Scots law, it's well understood by practitioners, by lawyers and other people. Again, for me that might be a way of satisfying the best interests test and parental responsibilities by referencing that bill on the face of this. There's already general provision on parents exercising their responsibilities in the interests of the child. The bill, as introduced, does not create any uncertainty or doubt in its impact on that existing law that needs remedied. In fact, the bill doesn't impact on the existing law beyond making it clear, importantly, I would say, that physical punishment can never be in a child's best interests. Paragraph B of the amendment relates to restraint, and I appreciate that Mary Fee has taken a strong interest in restraint throughout the passage of the bill. The Scottish Government acknowledges the points made when the evidence was taken about the use of restraint in residential care and education settings. However, the stage 1 report carefully considered these issues under the heading of restraint in the home. In paragraph 62, the report concluded that we do not agree physical punishment is required to protect children from harm. We conclude that the bill as drafted will not change a parent or carers ability to restrain a child to keep him or her from harm. The Scottish Government agrees with this comment in the report, which is in line with the evidence received by the committee. We do not consider that the bill stops parents from using restraint to protect children from harm. As the Crown Office made clear, such restraint would lack the criminal intent that is needed to commit the crime of assault in Scots law. As a result, we consider this limb of the amendment to be unnecessary. Paragraph B would also create uncertainty by referring to the parent or carer making physical contact with the child. It is not clear whether that could include forms of physical punishment if it could that again goes completely against what the bill is doing and what the Parliament has agreed. Paragraph C of the amendment refers to fulfilling a person's responsibilities for maintaining a child's safety and wellbeing and for preventing a child from committing a criminal offence. However, a fundamental argument for the bill is that physical punishment has a negative impact on children's welfare. The proposed amendment could be read as meaning that physical punishment could be used to maintain a child's wellbeing, and I reject that approach. With regard to preventing the child from committing a criminal offence, I would reject the idea that physical punishment is the way, for example, to stop a child from stealing. A better approach would be to separate the child from the property and to tell a child that stealing is wrong. The evidence shows that physical punishment is not just harmful, it is ineffective. All in all, far from removing the avoidance of doubt, I believe that amendment introduces ambiguity and creates doubt and removes from the clarity of the law. For all of those reasons, I invite Oliver Mundell not to press amendment 1, but, if it is pressed, I urge the committee to reject it. Any amendment, Mr Mundell, begins with the avoidance of doubt, but I would seriously question and ask committee members to reflect if there is any doubt here. I am not convinced that taking together the evidence that the committee heard can be taken to mean the bill as draught that leaves any doubt, in which case the provision is liable to no more harm than good by adding in additional material that could cause difficulties of interpretation and hamper. Yes, indeed. I thank the member for giving way. Does he recognise that the fact that the Lord Advocate is going to address a number of those points and guidance suggests that there is at least some doubt around how the public interest test would work and that, far from creating new provisions, those would simply—I accept that there are some problems with them, but, in principle, those would simply take the considerations that are going to be made by prosecutors and courts and move them forward in the process by putting them on the face of the bill. No, I do not accept that. I am coming on to talk about the Lord Advocate, but I would say that it is standard practice for the Lord Advocate to give the police guidance in respect of various issues. We know that in relation to emerging legislation that we have had in recent times, so there would be nothing different in that. It is hard to see how you could apply the additional test set out in the amendment in a consistent manner, given how vague and subjective they are. Evidence that the committee heard from the Lord Advocate, Crown Office, Procurator, Fiscal Service, Law Society, Police and Social Work all stated that the bill, as drafted, would simplify the legal position. The amendment therefore is likely to have the reverse effect of that, indeed, to introduce doubt rather than to dispel any doubt. For example, what would constitute the best interests of the child, how would physical strength be judged and assessed, and what would the breadth be of preventing a child from committing a criminal offence? The committee heard plenty of evidence that did not support the inclusion of such things on the face of the bill, and the committee heard that prosecutors will continue to consider the best interests of the child. As part of the public interest test and that relevant matters are already included in the prosecution code as matters that would be taken into account when investigating and prosecuting any case of assault on a child. In terms of B and C, attempting to clarify various examples of physical contact and responsibilities, I do not consider it necessary to set those matters out on the face of the bill, as the established common law of assault would apply, bringing with it consideration of the requisite criminal intent, along with the facts and circumstances of any individual case. Those provisions also raise issues relevant to the prosecutorial code, guidance, et cetera, and therefore the defence in which is being abolished would not come into play. Again, that could confuse rather than clarify matters. The Lord Advocate told the committee—it is quite a lengthy quote, but I will summarise it, convener. It was about the prosecution code, the fact that it is a public document. It includes comments about the nature and gravity of the defence, the impact of the defence on the victim, the age, background and personal circumstances that they accused and the victim, and the motive for the crime. The code sets out more detail under each of the public interest factors that are identified. Those factors will apply in relation to any report of any crime. Prosecutors are well used to applying them, and they do so currently when cases involving alleged assaults by parents and children are brought to their attention. Specifically, in response to a question from Mr Mundell, the Lord Advocate said about a quote here. The premise of your question is that the law of assault is unclear, but I would point out that it is applied daily by police officers and prosecutors. There is not a problem with the clarity of the law. At the same time, a case could be made that removing the defence with the qualification that it currently applies would increase that clarity. I will conclude, convener, by reiterating that amendment 1 addresses the issues of permissible physical restraint of a child apparently in connection with their safety and preventing self-arm. That is not the focus of the bill. That is about equal protection. The focus of the bill, which is dealing with the use of force against a child in punishment, is no policy intention to legislate on the circumstances around permissible physical restraint of a child or adults in the bill. I would ask the committee members to reject amendment 1 in the name of Oliver Mundell. Thank you, convener. I think that that has been a helpful discussion at least in part, because I do not accept that the bill is currently drafted. It is free from doubt. I think that there are legitimate and on-going concerns. I am concerned about the suggestion that somehow its prosecution code that sets the law of the land in this country is not what is in statute and then how that is interpreted by the courts. I think that it is difficult to see, notwithstanding the issues around the particular wording of the amendment at the moment, how anybody could object to the best interests of the child being taken into consideration. I do not think that anyone is objecting to that, so I do not see what possible issue that being on the face of the bill raises. Secondly, I am always concerned when ministers and others are suggested to take the intervention. Nobody would disagree with his statement that we would all agree that the best interests of the child are paramount and that we should take them into account. In a way, the amendment twists that slightly to suggest that nothing in this section affects the ability for a person having a child or a caregiver to act in the best interests of the child, almost implying that, occasionally, a level of physical intervention with that child might be in that child's best interests. That flies in the face of any sort of legal definition of what best interests for children might mean. I think that without being offensive the clumsy wording that the member has just used does somewhat my point, because I think that there are occasions when physical intervention can be in the best interests of the child. I think that it is harder, and I am not seeking. Having accepted the decision of the Parliament, I just want to say that physical punishment is in the best interests of the child, but I think that there are situations in which physical intervention is. I am getting a bit confused now. Oliver, can you explain to me the difference between a physical intervention and a physical punishment? Physical intervention might be forceful restraint. For example, holding a child's arm back happens regularly, and what is difficult in the case of the bill and the point that I have been trying to get to right from the start is the law of assault, as the Crown Office and Proculator Fiscal Service confirmed in their written evidence. Is he a broad offence? It is Pamela Ferguson from the University of Dundee, a chair of Scots law, someone who has worked for the Law Commission, who is drafted. We do not consider that the bill stops parents from using restraint to protect children from harm. As I said, as the Crown Office made clear, such restraint lacks criminal intent, which is needed to commit the crime of assault in Scots law. Will the minister be able to clarify for me then when criminal intentions are considered in our legal process? When does that question arise? At what point in the process? The law around assault is absolute. I would just remind you that you are winding up here. The minister has not given a speech so. I will let you intervene again to clarify when, in our legal process in Scotland, the issue of criminal intent comes up. The question around the Scottish Prosecution Code, which is a publicly available document, as John Finnie said, takes into account a number of things—the nature and gravity of the offense, the impact of the offense on the victim, the age and background and personal circumstances of the accused and the motive for the crime. By the time that something gets to prosecutors to decide whether to prosecute, people have already been subject to a criminal investigation and could be subject to criminal allegations. What I would want to be very clear—for the avoidance of doubt—was about and where that comes from, I would want to be very clear that people exercising their parental rights that exist in common law and in other statute would not be confused with assault, because assault can be anything from shouting aggressively at someone, acting in a threatening manner. Those things are quite subjective. I do not deny that there is clarity around the law of assault. I just believe that it is a very wide category of behaviour to be mixing with the concept of physical punishment. I think that the issue for me here is trying to draw those distinctions up front so that it is clear to members of the public, to police officers, to social workers, to people who are not, with due respect, looking at the prosecutorial code what is and is not considered to be behaviour that would be relevant to what the purpose of the bill is. Can I ask you to—I think that we want to have full debate on everything that we are 35 minutes in now, so I think that we have given this quite a good airing if you are able to draw your remarks to close. I will draw my remarks to close, convener. In addition to that point, there is a lot else to say. I do not intend to push the amendment at this stage, because I recognise that there are issues with its wording. I hope that other members of the committee would afford me the opportunity to explore that further and bring a new form of the amendment back at stage 3. Okay, so just to be clear that you wish to withdraw. Do members of the committee agree that that amendment is withdrawn? The question is that section 1 be agreed to. Are we all agreed? Agreed? Yes. Just to ask the point of clarification, is it possible to say no in the sense that you do not—because I still have fundamental problems with section 1, and I just would wish to register that? Can we have a division? Yes, absolutely. Yes. Okay, so there will be a division. The question is that section 1 be agreed to. Can members who agree raise their hands, please, and those who disagree? There were total five votes for and two against section 1 is agreed to. I now call amendment 9, in the name of Liam Kerr, in a group of its own. Liam Kerr, to move and speak to amendment 9, please. Thank you, convener. Good morning, and I'm very grateful to the committee for giving me the opportunity to speak to this amendment. Members of the committee will be well aware of my views on smacking. I do not believe that it's in the interests of the child and I do not resile from that position at all. Convener, I do, however, have serious concerns with the implications of the bill and the possible unintended consequences, particularly having listened to Mr Mundell's comments there, which I thought were well made. I suspect that members of the committee do not want to see good parents criminalised nor subject to the might of the state for inadvertent transgressions. I think that that's a particular risk where there is ignorance of the law. I acknowledge that the bill currently makes provision for raising awareness of the change in the law clause 2, but it's my view that that is not strong enough. It's my view that could be a missed opportunity if left as is. It is my view that we should take this opportunity to raise awareness of those parenting practices and alternatives to smacking that I have no doubt everyone on this committee would wish to see. My amendment reflects that view that it is imperative that people know and understand the limitations placed on their behaviour, not only to promote the culture change that I think was referred to earlier on in the debate today, but also so that they do not inadvertently fall to be criminalised. To that end, my amendment mandates the Government to promote awareness of inter alia, the existing protections that children have from assaults, the rights and responsibilities of a parent and good parenting practices, including alternatives to any form of violence or smacking. My view is that our goal should be to help parents to provide the best environment for their children by furnishing them with the parents, with the knowledge and understanding that they need to do so. That is what my amendment seeks to deliver, and I very much hope that this committee will support me in that. I have some sympathy with what the member is trying to do with this amendment. However, I don't think that it is something for primary legislation, but more for guidance around implementation. We've lent a lot on international examples of the 54 countries that have gone before us in this regard, and I remind members of the powerful testimony of former Irish Senator Gillian Van Turnhout, who told us that, when she got her amendment through the Doyle, which saw the end of physical punishment in Ireland, it was just an amendment to a bill. There was no budget attached to it. It had nothing attached to it. Yet it worked and parents changed. They understood that the legal position was made clear, and they had to adopt different strategies for parenting. I don't think that this is something that we need to legislate for on the face of the bill, not least because I think—I'm sure that this is not the member's intention—that there is some lax definition. I think that there are references to terms in this, for example, good parenting practice. When you make a statement like that on the face of the bill, it demands a corollary of clarification of what is meant by good parenting practice. We run the risk of attaching in primary legislation pages and pages and pages of academic text as to what we mean by good parenting practice. Whilst I understand the intent—and it is a good intent from Liam Kerr—I won't be supporting it, because I just don't think that the face of the bill is the place for it. I think that Liam Kerr comes with the right intention behind us. I think that what he's probably trying to do is allay fears. The biggest fear that folk out there have got and who have raised with us is that there would be unnecessary criminalisation. However, I would say to Liam Kerr that if he'd been on the committee members and we got a lot of evidence and a lot of reassurance on that—in terms of the processes that are already in place through child protection processes—the risk of unnecessary criminalisation is extremely low. I think that the amendment is therefore unnecessary and does not allow the scope that Alex Cole-Hamilton talked about. We did hear from the Irish model that it actually didn't need a lot of publication around it.  What if the risk of criminalisation isn't in fact low? Surely we must take this opportunity to make sure that we reduce that risk as far as possible and not leave it open to chance? I don't think that the amendment would have that effect. I think that the amendment would have that effect. Naturally, we've got to base legislation on what we're hearing and the evidence that we heard was overwhelming in that regard. I think that I'm satisfied, as a committee member, that the risk of criminalisation unnecessarily is very low. I'll take Alex Cole-Hamilton. Sorry, it rather impetures me. I'm grateful for the member taking the intervention. Does the member agree that there's no risk that people will not understand that physically punishing your child is now an offence because it is written in 80-foot technicolor neon sign letters by every group that opposes this bill every time it is brought up in the public domain? It also comes back to the point that we've talked about a lot in this committee, that it is already an offence. The bill is a removal of it. It's a relatively friendly one. I would ask the member from his experience before coming into this place whether he recognises the challenges that many parents face and that sharing best practice and advice might be helpful for some people. I think that there are very few people who set out to deliberately cause harm to their own children, but there are people. We've heard it in evidence. I've certainly heard it in the interactions that I've had around the bill that there are people who have, for want of a better word, resorted to smacking because they've struggled to cope. Does he recognise that there might be a role for further guidance around good parenting practices? I do recognise that, but as I've consistently said through stage 1, as have many other members and agencies that we've heard from, this bill doesn't change that. I've got great faith in the agencies and the child protection process that we've got in place. Actually, this bill has allowed for a conversation around how we support families who are struggling, and I don't think that anything in this changes that, but I do accept all from Mindale's point. I can't support them. I can't support the amendment. Convener, this amendment relates to the duty in section 2 on the Scottish ministers to raise awareness. The amendment would lay down a list of areas to be covered by this duty. I have to say to Liam Kerr that the list of areas is slightly illogical. It includes the rule of law, the defence of reasonable trustisement, which would be repealed by this bill. It also refers to section 51 of the Criminal Justice Scotland Act 2003 on physical punishment of children, which would also be repealed by this bill. Why would ministers promote the old law that is being repealed? In addition, I'm uncertain why there's a reference in the amendment to parental responsibilities under the Children and Scotland Act 1995. The 1995 act does make detailed provision on parental responsibilities, but, as I mentioned in the previous debate on the previous grouping, those are not being changed by this bill. I'm also concerned about the proposal that the Scottish Government is to be required to produce formal statutory guidance on good parenting practice. Our message has always been that we want to support mothers and fathers, not dictate to them how to be good parents, but I do agree that providing support for parents includes raising awareness on positive parenting practices, which do not include physical punishment. We already provide this kind of information through public resources, and we'll work with key partners and stakeholders to build on that as required by the bill. Part of the aim has to be to support families to try to prevent or to reduce flash points so that interventions are not needed at all. That might not always be possible, but it's a reasonable objective. The Scottish Government recognises the need for public awareness and will comply with section 2 of the bill. When doing this, we'll consult with our implementation group and take account points made by the committee in the stage 1 report. However, amendment 9 seems to lay down requirements that, given the fundamental purpose of the bill, would hinder, rather than help, awareness-raising. If Mr Kerr has concerns about what the public information in this area might focus on, I'm more than happy to meet him. He's welcome to contact my office to make arrangements for this. I would therefore invite Liam Kerr not to press amendment 9, but if it is pressed, I urge the committee to reject it. John Finnie, do you wish to comment? Yes, thank you, convener. First, I appreciate what I believe is Mr Kerr's intention in moving amendment 9. I'm afraid it's not clear how amendment 9 would affect section 2 exactly. Section 2, as drafted, requires the Scottish ministers to take steps that they consider appropriate to raise awareness and understanding about the effect of section 1 of the bill. This is drafted so as to allow the Government to determine what awareness-raising steps would be appropriate. The same would apply to the list added by the amendment if passed. The amendment would only require the Scottish Government to promote public awareness and understanding of those things to the extent that it considers appropriate, which, of course, could be not at all. The inclusion of two of the points is unnecessary. Since the rule of law is being abolished and the relevant provisions of the 2003 act being repealed, what is the point in either promoting those things or in promoting public awareness or understanding of them? The extent that those two points need to be explained—for the purpose of promoting what the bill does—is already covered by section 2. Section 1 of the bill abolishes the rule of law, common law provisions, and explains what the rule of law is. Further explanation can be found in paragraph 6 of the explanatory notes, section 51 of the 2003 act. Therefore, do not consider it to be necessary to require the Government to promote awareness and understanding of those things or to promote them in any other way, as ministers already have a requirement to explain section 1 of the bill, which abolishes and repeals them. The other factors that amendment requires the Government to promote awareness and understanding of cover areas that the Government already provides information to parents about, including the 1995 act, which informs Scottish Government policy on relevant matters and will alter to reflect the new legislation. Therefore, again, I do not consider it necessary to have it in the face of the bill. More over concepts, as has been said previously, concepts such as good parenting practice, disproportionate violence or assault. Does the member have an example of proportionate assault or alternative parenting practices, like definition? I ask committee members to vote against amendment 9 in the name of Liam Kerr. Liam Kerr to wind up and press or withdraw amendment 9, please. Thank you, convener. I am grateful to the members and the minister for comments. Just to respond to a few of the comments, just taking it from the top, Alex Cole-Hamilton talks about that this is not for primary legislation. It rather strikes me that if a weak mandate at clause 2 is suitable, why wouldn't you go further? John Finnie made the exact point. This could be not at all, which is exactly the problem here. The Government could decide to do nothing that would concern me, because, as we have seen, you would have a level of ignorance of what has changed and people inadvertently being criminalised in the way that Oliver Mundell brought out. It feeds into a wider concern that we leave too much to ambiguity. If Alex Cole-Hamilton is right that good parenting practice is ambiguous, what are such steps as appropriate to promote awareness? That does not mean anything. If good parenting practice does not mean anything, neither does what is in the bill currently. Go ahead. I am grateful for Liam Kerr taking an intervention. The legislation that is drafted allows the flexibility for ministers to respond and reflect the absolute cutting edge of good parenting practice. It does not limit them in any way. I think that we should welcome that. I would have had more sympathy with an amendment that perhaps had a duty on ministers to report to Parliament as to what steps they have taken, so that this could not just be left and we would revisit it. However, as it is, I just think that this is trying to write statutory guidance in primary legislation, which is never a good thing. I thank the member for the clarification. I wonder whether he might vote for the amendment with a view to further amending it at stage 3, which would be an opportunity open to him. I would like to turn to something that I heard Mr MacGregor say. It is quite concerning on a wider level, not only in relation to my amendment. Full MacGregor accepted that there is a risk of unnecessary criminalisation—there is some risk of unnecessary criminalisation. Surely the job of Parliament, Mr MacGregor, is to reduce the risk of unnecessary criminalisation to zero. We, as MSPs, must take all steps that we can to achieve that. This amendment is one part of that. It seems to me that if Mr MacGregor accepts that we must reduce the risk of unnecessary criminalisation to zero, if that is our job, then he must support my amendment. I am grateful for Mr Kerr's intervention. I know that Mr Kerr was not present at the session, but is he aware of the evidence that the committee heard from Police Scotland and Social Work Scotland about how present arrangements work at the moment, and nothing would substantially change? I am aware of the evidence. I am grateful to Mr Finnie for coming in. It does not detract from my main point—we cannot. I cannot accept that if there is some risk, if people are watching this out there right now and saying, hang on, these MSPs are about to pass a bill that leaves me with some risk of, quote, unnecessary criminalisation. That is terrifying, Mr MacGregor. I will take the intervention. The reason why I am intervening, Mr Kerr, is that I think that you have deliberately misquoted—or you have not misquoted me, but you are not quoting me in the context. I have said that there is perceived risk of unnecessary criminalisation, and that is why I think that you have brought forward the amendment. We heard overwhelming evidence that that is unlikely to be the case. We heard overwhelming evidence that the procedures and the systems that we have got in place, particularly around child protection, are robust and strong and already deal with those situations every single day, so I do not accept the premise of your remarks towards me. I think that this bill does not lead to a risk of unnecessary criminalisation. In fact, it strengthens the law around protecting children. I think that the official record will be revealing in this regard. I understand why he came back. I understand that I am quoting his words back to him, but Mr MacGregor, I will move on. In summary, convener, failing to vote for this amendment will be a massive missed opportunity to reduce risk, to reassure parents—because I do not think that parents are going to look at the explanatory notes, Mr Finnie—to reassure the public and make this a better bill. I urge the committee to take that opportunity. The question is that amendment 9 be agreed to. Are we all agreed? No. There will be a division, those in favour of amendment 9, those against amendment 9. There are two votes for the amendment 5 against amendment 9. The question is that section 2 be agreed to. Are we all agreed? I call amendment 2, in the name of Annie Wells, grouped with amendment 3. Annie Wells, to move amendment 2 and speak to both amendments in the group, please. Thank you, convener, and I move both amendments in my name. My comments will be relatively short. Amendment 2 is a clarifying amendment intended to make clear the rights of parents. Section 3 of the bill states that Scottish ministers have made by regulations make such further transitional, transitory or saving provision as they consider necessary in connection to section 1. For the avoidance of doubt, it should be made clear that anything introduced above and beyond the bill will not inhabit parents' existing rights in accordance with Children's Scotland Act 1995. For example, the rights of a parent to prevent harm to their child, whether that is preventing a child running across a road or the need to administer life-saving medicine to a distressed child. Amendment 3 is also straightforward. The amendment is set to ensure that any changes should be subject to proper parliamentary procedure. Gil Ross, you wish to go in. Thank you, convener. I just have a couple of questions on this. I'm sorry, Annie, but I was uncertain as to what amendment 2 did when I read it. I'm even more uncertain now after your explanation about children running out into the road and administering medicine. Again, we've got this for the avoidance of doubt. In all the evidence—and I think that we've said this more than once now—there is no doubt that the bill brings a clarification in law. I want to also ask about the bit that says, unduly limit the ability of parents to carry out their responsibilities to their children. Does that mean that, if they so wished, they could bring a judicial review and argue that it was unlawful in some way? I think that I just need a lot more explanation of what that is intended to do. As for amendment 3, it is usual for the ancillary provision powers such as those in section 3 to be subject to the affirmative procedure when there is a power to amend primary legislation, but there is no such power here. Indeed, the powers are actually quite limited, so I will be rejecting this, even though at first glance it seems quite straightforward, but it's actually not applicable to the bill, so I won't be supporting that. I'm grateful for the opportunity to speak on amendments 2 and 3. Scottish Government does not consider amendment 2 to be necessary. The powers contained in section 3 of the bill relate to making regulations on transitional transitory or saving provision and connection with the coming into force of section 1. So far, we've not identified any need to use those powers. More fundamentally, though, the powers at section 3 are quite limited and technical in nature. They just relate to the removal of the defence contained in section 1 of the bill. They're not about substantive parental responsibilities and rights, as contained in part 1 of the Children, Scotland Act 1995. As a result, there is no doubt to be avoided here, because regulations could not make substantive provision on the rights and responsibilities of parents, so amendment 2 is unnecessary. On that basis, I urge the committee to reject it. Amendment 3 relates to the parliamentary process to be followed when making regulations under section 3 3. The regulation making power under section 3 3 doesn't include power to amend primary legislation, which is when the affirmative procedure is typically appropriate. I note as well that the Delegated Powers and Law Reform Committee was content with the Delegated Powers provision in the bill. I again invite the committee to reject this amendment. I measure a duplication with the minister here. The explanatory notes and the delegated powers memorandum both clarify that the regulation making power in section 3 subsection 3 is technical and limited, and therefore that the negative procedure is considered to be the most appropriate. The Delegated Powers and Law Reform Committee considered the DPM and had no comments to make. The Delegated Powers is limited to, quote, what is expedient or necessary in connection with coming into force of section 1. It's included in the bill to give Scottish ministers flexibility should they identify any further transitional transitory or savings provisions that could not be anticipated when the bill was drafted. As such, I don't consider that there is any doubt, as referred to in amendment 2, that the regulation making power could in any way limit the ability of parents to carry out the responsibilities to their children. Perhaps the member could give an example in our summing up. Also, the new test set out is vague and subjective, particularly in relation to the inclusion of unduly, which we covered earlier, which implies that some limitation is legitimate, not least because primary such responsibility is to protect children from a solve. The minister now has told the committee that she doesn't think that the power would be used. Regarding amendment 3, a stated above negative procedure is considered appropriate, which is for such transitional transitory and savings provisions, which is largely technical in nature and in any case is limited to what it could be considered necessary and is expedient in connection with coming into force of section 1 of the ball. I ask members to reject amendments 2 and 3 in the name of Annie Wells. Annie Wells, to wind up and press her with draw amendment 2. I thank members for their input. The point of amendment 2 that I was trying to make is that it is not yet clear what transitional regulations could be of concern, because at the moment there isn't a lot of detail in these transitional regulations. That's why I was putting the amendment forward. Amendment 3 is not always to be the negative, it is the normal way, but given the sensitivity of the bill, it is the reason why I put forward the amendment so that Parliament could scrutinise further any future transitional regulations. On that basis, I am still going to move the amendment and my name, press amendment. The question is that amendment 2 be agreed to. Are we all agreed? No. No. There will be a division, those in favour of amendment 2. Those against amendment 2. Two members for amendment 2 and five against the amendment is not agreed. I call amendment 3 in the name of Annie Wells, already debated with amendment 2. Annie Wells to move or not move. The question is that amendment 3 be agreed to. Are we all agreed? No. No. There will be a division. Can I ask those in favour of the amendment and those against the amendment? There are two members for the amendment, five against the amendment is not agreed to. The question is that section 3 be agreed to. Are we all agreed? Yes. I call amendment 4 in the name of Oliver Mundell, grouped with amendments 5 and 6. Oliver Mundell to move amendment 4 and speak to all amendments in the group. Thank you, convener. Those are a set of simple consensus building amendments trying to capture in guidance the points that have come up in the stage 1 evidence. I think that it is important that not necessarily on the face of the bill but that some of the points that my colleague Liam Kerr raised in his amendment could be captured in some aspects of the guidance. It is important that we ask the Scottish Government to provide guidance and information that would be useful to—yes? I am grateful to Mr Mundell for taking the intervention. If I were a member of the committee, I would support this amendment. I think that it is not really essential to give clarity to the reasonable points of doubt that do exist with regard to this bill, notwithstanding the protestations to the contrary from some quarters. I note that the member's amendment in subsection 1C talks about guidance having to include guidance on the limits of physical force in 1C paragraph B. Does the member accept that the intention of the bill is not matched by the bill that is currently drafted in that the clear intention of the bill, as we heard repeatedly this morning throughout the stage 1 debate a couple of weeks ago and as Mr Finnie makes clear in his policy memorandum, is to outlaw the physical punishment of children. That phrase physical punishment comes up over and again I think both Mr Finnie and the minister have used it repeatedly this morning and that is not what the bill does. The bill goes further and potentially much further than that to criminalise the actions of parents, carers and guardians of children that are not physical punishment but are other ways in which, as Scott Storre has defined at the moment, it may constitute an assault because the fatal flaw in this bill is to assume— I will pause you to remind you that we are not debating the bill in its entirety just now and just ask you to speak to the amendments. I am happy to take that advice. I am speaking directly for clarification to the words of Mr Mundell's amendment that say and I quote, guidance must include guidance on the use of physical force. I am asking Mr Mundell to clarify what he understands by that in the context of this bill and speaking directly to those provisions. The mistake is to assume that physical punishment and assault mean the same things when they don't. For that reason it is essential that guidance is provided in advance of this bill coming into force to make it clear whether or not it is intended to criminalise assaults against children that do not constitute physical punishment. I thank Adam Tomkins for that intervention and I agree up to a point. I think that it would be better to make that point on the face of the bill as part of the legislation itself. I think that guidance is second best to that. For the record, Mr Mundell, I did seek to bring amendments to this bill that would have allowed a debate on this very issue so that the issues could have been clarified on the face of the bill, but those amendments were ruled in admissible and we heard the convener this morning explain that she was not able to give reasons as to why those amendments were ruled in admissible. That is for the record. I thank Professor Tomkins for that explanation. There are other important points in the guidance as well. Throughout the bill we have heard from the minister, the member-in-charge and I think in fairness from every member of the committee at some point or another that the bill was not seeking to prosecute parents and not seeking to criminalise them. Again, I think that there is a duty to make it clear to parents, to social workers, to charities, to organisations that work with children, to individuals who are involved in the day-to-day aspects of children's life, what the alternatives are to picking up the phone and going straight down the process of contacting the police. I think that we should make that available. I am particularly exercised about 4D, which also forms its own amendment at 6, which is around the legal support and advice that is available to children. Under the 1995 act, there is a parental expectation and responsibility that parents have as acting in a legal capacity for their children. I think that where children's parents are subject to an offence that involves them as either victim or a witness, they should be able to access legal advice and support. I am grateful that the member is giving way. I understand what he says and I have some sympathy with the interests of children who have witnessed a crime. Why did he not bring that forward as an amendment to the vulnerable witnesses bill? I have to say that that is an oversight on my part. I have heard this argument earlier this week from children's charities, but I never think that something was not done in previous legislations and that it is not a good reason for doing it now. I think that what has drawn my attention in the case of this is that there is something slightly different here. That is the nature of removing the defence, which means that a category of behaviour that I think would not meet the public interest test in every case or that whether the Crown itself says that there is written submission to us that there is an area of behaviour with this very mild force used where difficult questions arise. In those cases, having access to legal advice or the child of air chance to understand what the likelihood of success of any action would be and the opportunity to speak to family members to understand what the impacts on the family would be of going through a legal process. I think that it would be extra helpful in this case to ensure that that advice was available. I do not see what harm it could do. It would be something that would be easily available to me as an adult. I could go out and pay to access legal advice. Most adults could do that. Children do not always have that right and particularly where they are not being supported by their immediate parents. There are many children in families with a single parent as well. I think that it can be difficult. I do not see what possible harm it could do to make many of the good advocacy services and lots of the things that we did discuss during the Age of Criminal Responsibility Bill around advocacy and legal support, why we could not make that explicit in guidance. I would struggle to see how people would find that hard to disagree with. I also tried to capture what I was looking for in terms of Lord Advocate's guidance. I recognise that that might be more difficult and that it potentially creates some questions. Have you consulted Lord Advocate about putting his guidance on the face of the bill? Or has he given an opinion on that? He has not given an opinion on it and I did not seek one because I do not feel as a parliamentarian that that is my role. I think that he operates separately to Parliament, which is what I was coming on to, which I think creates some challenges as to whether it is appropriate to direct him in that way. I wanted to bring forward this particular amendment to emphasise and at least have a discussion around what I felt was important and with particular reference to one EA. I think that I want to see his guidance cover a person's responsibility to protect a child who they are in charge of and how that interacts with the removal of the defence, particularly in those cases where there is a use of physical force that there is not physical punishment that is something different, but it could, to outside parties, appear to look the same. I think that having some very clear guidance from the ministers around force for 1CB on common situations, because I think that we all accept—and there have been a number of examples that have come up in other countries—that the legislation is designed to capture. It is the same point at 1 EA, but I accept that members would take an individual judgment on whether it is appropriate, given the commitments that we had from the Lord Advocate, to put that on the face of the bill. There are a couple of committee members who wish to speak to Alex Cole-Hamilton and then Mary Fee. Thank you, convener. I will try to be brief. I am going to speak against all of the amendments in this group, particularly 4 and 5. With amendment 4, I strongly disagree with the premise in the amendment that suggests an existence of parental rights in relation to the use of physical force. We rehearsed in every evidence session at stage 1 that there is no such right enshrined in international convention or treaty. I accept that you say the same thing, but in Scots law, there are clear cases where members set out some of those themselves, picking up a child, holding a child back, pulling a child's hand away. There are uses of physical force. I do not disagree that there is a right to restraint, but we are perhaps getting into some anti-argument here, which is better suited to stage 3 chamber debate. However, physical force, for me, suggests a punitive element, whereas restraint does not. I think that there is a very important distinction there. I think that, as such, this lends further confusion to an otherwise very clear bill. I also go back to my point about the aspects of this amendment about those children who witness criminal proceedings involving parent or guardian. I feel that that strays beyond the scope of the bill and feels an aberration when it is used on the face of the bill in isolation and makes no reference to other bills that deal very specifically. He might note that, at 1b of 4, any guidance would only be on the operation of the act, so that might clarify that point. I still think that it takes it beyond the scope of this bill. Secondly, on amendment 5, the Lord Advocate, when he gave oral evidence, very helpful oral evidence to this committee a couple of weeks ago, could not have been clearer that it is intention to produce statutory guidance. I think that it is frankly extraordinary that we as parliamentarians should seek to compel a Lord Advocate towards the production of prosecutorial guidance when it is his job to do that. He has already said that he is going to do that. He knows that this is one of the most sensitive bills that this Parliament will pass in this session. As such, I would expect it to be at the very top of his entry. I think that it is wholly unnecessary for us to start directing his work through primary legislation. For that reason, convener, I am not going to support any new amendments in this group. Thank you, convener. I want you to speak in particular with relation to amendment 6. On the face of it, there is no reason in first reading why I would not have sympathy for this amendment. Given that it is asking for support for children and support for children in instances of arrest or criminal proceedings or prosecution is something that I have a great deal of sympathy with.  I have often said in this chamber that children are the forgotten victims of crime because they are so often forgotten when an adult or a carer is arrested and removed from the home. What has slightly pulled me back from support for this amendment? I have a deal of sympathy with the comments from Alex Cole-Hamilton that I think that this goes beyond the scope of this bill. Support for children should be there regardless of whether it is specifically in relation to this bill. It should be in any matters of prosecution. I wonder if, perhaps in winding up if the member could, if all of them, give some clarification. I was slightly confused when he spoke about independent legal advice because I come from a view of more emotional support on the way through prosecution. If we are limiting it only to legal advice, only in the instances of this bill, we are missing an opportunity and it goes away beyond the scope of this bill. The Government does not support amendment 4, 5 and 6. First, it is proposed that the Scottish Minister provide guidance on the rights of parents to use restraint. Physical punishment is not needed to keep children from harm. The bill will not affect the ability of parents or carers to use restraint to stop a child from coming to harm. Information about the limits on the use of physical force could undercut the key aim of the bill to remove the reasonable chastisement defence. Any such information could simply be a guide to the use of force. To respond to the comments and the exchange between Oliver Mandell and Adam Tomkins, the bill is intended to give children equal protection from assault. The law on assault is clear. We heard evidence at stage 1 that police officers apply and prosecutors apply it day and daily. There is no problem with the clarity of the law. In fact, that will increase the clarity of the law, certainly. I am grateful to the minister for taking an intervention. At stage 1, the minister said that at the heart of the defence, and these are words that I am quoting from the official report, at the heart of the defence of reasonable chastisement, is the concept that it can sometimes be reasonable to strike a child. You said that the removal of the defence reflects the growing body of international evidence that shows that physical punishment of children is harmful and ineffective. That is all fine, but do you accept that this bill goes further than that and criminalises not merely striking a child, not merely the physical punishment of the child, but all assaults against children, whether they involve a physical attack or not? Do you accept that the rule of assault is broader than that, and that, therefore, the bill as drafted brings into the ambit of the criminal law by removing that defence more than simply striking or physically punishing a child? I do accept that the law of assault is broader. I do accept that the law of assault includes an attack that puts the victim into a state of fear of immediate physical injury. Is the member saying and suggesting that it should be permissible for a parent to do that? If the minister will take another intervention, I will respond to that. What I am saying is that the bill should reflect its policy objectives. The policy objective of this bill could not be clearer. The policy objective of this bill is to outlaw the physical punishment of children. Rightly or wrongly, inadvertently or deliberately, as drafted, the bill does that and then some. It does more than that. What I am seeking in the interests of clarity, which I think is a cardinal value in criminal law, is to amend the bill or to urge that the bill be amended so that it accurately reflects what its policy memorandum, its stated ambition, is. As I said already, the intention of this bill is to give equal protection from assault and the law of assault is perfectly clear in Scotland. It is prosecuted day in, day out. I think you are casting doubt where none exists. The amendment is not clear in what it refers means by the term common situations. For example, some children with autism can be oversensitive to touch and they experience pain differently. Rather than this amendment, our plan is to raise awareness in line with section 2, to take an account of children with special needs and other vulnerable children. That is consistent with what the committee said at stage 1. Amendment 4 also proposes that the Government issue guidance on best practice and alternative to prosecutions. That cuts across the constitutional independence of the Lord Advocate in the courts and it would not be appropriate for the Scottish Government to issue guidance that infringes on that independence, nor would it be appropriate for the Scottish Government to issue guidance that establishing limits of force restricts the courts ability to take into account the particular facts and circumstances of each case. On issuing guidance for families, universal and targeted services and voluntary organisations already offer extensive support in this area. On amendment 5, I am concerned about the implications of this for the Lord Advocate's independence. Generally speaking, it is for him to independently determine prosecution policy and any guidelines that he issues to Police Scotland. It is also generally a matter for the Lord Advocate to decide whether such guidance should or should not be published in making that decision. I understand that he considers whether publication would be liable to prejudice the prevention or detection of crime. There is a clear risk that this guidance, if published, could be used as a guide to avoiding prosecution. It could also undermine the clarity the bill seeks to provide, certainly. Can I ask the minister why the Lord Advocate then committed to issuing similar guidance when he appeared before the committee? I cannot speak for the Lord Advocate. I think that it is perfectly a problem in the back. Lord Advocate generally does issue guidance. I do not think that that is an unusual thing for him to do. It does not go into the statute on the face of the bill, though. That would be unusual. A statutory duty in this term simply is not needed. The committee has heard from the Lord Advocate that he intends to issue guidance and that the approach to prosecutions will be informed by the state's responsibility to protect children from harm and by consideration of the best interests of the child. The committee also heard from the Lord Advocate about the two things that a prosecutor will consider when assessing the report of an alleged crime, whether there is credible evidence that a crime has been committed and if there is sufficient evidence what action will be in the public interest. The Scottish prosecution code already sets out factors that may, depending on the circumstances, be relevant in assessing the public interest. Police Scotland has confirmed an intention to issue national training on the removal of the defence. Again, that clearly shows that amendment 5 is not needed. On amendment 6, the Victims and Witnesses Scotland Act 2014 makes extensive provision for the rights of vulnerable witnesses, including children and the support that they are entitled to access. Similarly, provisions in the recent Vulnerable Witnesses Criminal Evidence Scotland 2019 act provide for reforms relating to special measures for vulnerable witnesses such as children in criminal cases, including the greater use of pre-recorded evidence at trial. There is no need for amendment 6 and in potentially delaying the abolition of the defence, it makes the picture for children's rights worse, not better. Finally, those amendments state that section 1 cannot come into force until the publication duties have been complied with. Who is to say when this happens so that section 1 comes into force? For all of those reasons, I invite the committee to reject amendments 4, 5 and 6. John Finnie Those amendments are seeking to make the act's commencement conditional on the issuing of ministerial and prosecutorial guidance. The amendments are technically flawed, but it would not work as intended. The bill's substantive positions come into force automatically 12 months after a royal assent, and none of those amendments as drafted would prevent that from happening. You can only meaningfully set preconditions on commencement if you have some timing flexibility in the first place, most obviously by having commencement by regulations, and so by saying that the ministers may not bring into the act until they've done X, Y or Z. In any of those amendments, if any were agreed to and some of the additional things listed hadn't been done by the 12-month deadline, there would be genuine uncertainty as to whether section 1 was or was not in force, which would simply cause confusion in the law to no one's benefit, and this distracts from the clarity that the bill aims to deliver. Turning to amendment 4, it's not clear who the guidance referred to was directed at, and what status is expected to have is the guidance meant for parents, the police, social workers, prosecutors. In all of those examples, the committee has been told that the current guidance and or information, etc., will be provided or updated. The Scottish Government provides guidance and support to parents via a number of agencies, social work, health boards, etc. Police and prosecutorial guidance are a matter for the police, Lord Advocate and Crown Office Procurator Fiscal Service, and information is already publicly available in the prosecution code, including the public interest test. There has been lots of evidence to the committee on that. Amendment 6 appears to be a stripped-down alternative to amendment 4, omitting paragraph A to C. Therefore, the same questions are by as those that were given under amendment 4 that I have referred to previously. Again, it's not clear who the guidance referred to was directed at and what status it's expected to have. Amendment 5 constaens an inherent contradiction between issuing guidance and policy, which must be in general terms, while at the same time ensuring that it's appropriate to quote individual circumstances of individual cases. The committee heard clearly from Lord Advocate that the guidance will be prepared and issued to Chief Constable. Indeed, he said, and I quote, If the bill is passed, I intend to issue Lord Advocate's guidelines to the Chief Constable of Police Scotland on the investigation and reporting of allegations of assault by parents on children. He went on to say, I issue guidelines to the Chief Constable, and it is then his responsibility to disseminate instructions to his officers on the ground. The Lord Advocate could also set out details of the current publicly available prosecution code, which contains comment on the public interest test and how the best interests of the child are central to decision making. He told the committee that those guidelines and prosecutorial policy will support a proportionate and appropriate response to the individual circumstances of particular cases. When appropriate, that response may include the use of informal response by the police, recorded police warnings, diversion and other alternatives to prosecution. At the same time, prosecution will be enabled when that is properly justified by reference to all the circumstances of the individual case. The approach will be informed by our responsibility to protect children from harm and by, my insertion of the word importantly, consideration of the best interests of the child. The amendment therefore seems to add no value to the work that the Lord Advocate has already confirmed as under way. I would ask members to reject all the amendments in the group. Oliver Mundell, to wind up and press or withdraw amendment 4, please. From my point of view, that has been an interesting discussion. I am happy to, in relation to guidance, clarify its status and its intended audience in revised amendments at stage 3. To add additional clarity to some of the terms on the issue around commencement, I am aware of that. I am not, I was not in a condition that I was usually looking for. Again, it was an issue in terms of how to get those particular issues discussed and to look at the possibility of guidance, because there was nowhere else where it easily fitted into the bill, and I was advised that this was the best way to do that. Again, I will look at the possibility of removing that wording at a later stage. In terms of Mary Fee's points, I would say that, again, as I said to Alex Cole-Hamilton, that does refer to the operation of the act. Secondly, it is not limited to independent legal advice or contact with a needless relative or trusted adult. There are just two things I feel strongly about. The reason I feel independent legal advice is important in this case is because, for those very marginal cases or difficult cases, children should be able to understand the probability of success of the court action and how they wish to interact with that and to understand what their rights are. I think that the nature of the relationship between a child and their parent is a special one. It is recognised as being legally different from other relationships in law. Given the sensitivities around charges that are likely to come forward as a result of the defence going on, I think that it is really, really important. I cannot say anything other than that I am sorry that I have not pursued this in relation to other offences. However, it is an important point to full stop in relation to amendment 5. I accept the consensus view and I will not seek to push it. However, I would at this stage like to move four and six and I think that they could be tidied up in drafting or maybe moved to another section of the bill at stage 3. Are other members content that amendment 5 will not be pressed? The question is that amendment 4 be agreed to. Are we all agreed? There will be a division, those for the amendment and those against the amendment. Two members for the amendment 5 against the amendment falls. To confirm, you are not pressing amendment 5, and committee members are content for that to be withdrawn. The question is that amendment 6 be agreed to. Are we all agreed? There will be a division, those for amendment 6 and those against amendment 6. Two for amendment 6, five against the amendment falls. I call amendment 7 in the name of Oliver Mundell in a group on its own. Oliver Mundell, to move and speak to amendment 7, please. Thank you, convener. I do not intend to speak for a long time to this amendment, as I do not imagine off the previous debates that it is likely to get any support. The simple intention was to ensure that bodies were properly resourced. I felt that off the minister's letter there was still some on-going uncertainty on that point. I think it is important that Parliament at least has a thought to this issue, and I know that there are other members who may take an interest in this matter at stage 3. The amendment seems quite simply to be an attempt to delay this bill. Outside of the ordinary budget process, it would be very unusual for the Scottish Government to have to provide a statement on the resources that are being provided to various bodies and for the Parliament to specifically approve it. In response to the stage 1 report issued by the committee, the Scottish Government wrote to members of the implementation group to seek information about costs. We provided the committee with a letter outlining the results of our discussions with the implementation group, and we will have further discussions with members of the group. Resources that are required in relation to the bill will be one-off implementation costs and ongoing costs. It is not clear if the resources referred to in the amendment are intended to cover implementation costs or running costs or both. It is not clear for what time period resource implications should be reported to the Parliament. The various bodies affected by the bill can be expected to seek additional funding as a result. That will be considered as part of the usual Government budget procedures, including the budget bill that the Parliament scrutinises each year. Therefore, the best approach to this area is to rely on the usual budget bill process rather than to invent a new and certain bespoke procedure that, frankly, just seems an attempt to delay this bill. The same concerns that I raised on amendment 4, 5 and 6 apply to this amendment 2 in the uncertainty that it would create over how we would actually know whether the bill is in force or not. For those reasons, I invite the committee to reject the amendment. The financial resolution procedure in the Parliament is designed to ensure that Parliament approval of expenditure associated with a particular bill should that amount be considered significant. In this case, no resolution was considered to be required. There is, of course, also the opportunity for the Parliament to scrutinise the Scottish Government's budget. No other examples come to mind of a bill being passed by Parliament, but then being unable to be brought into force until a financial statement has been published and subject to Parliament approval. It would be interesting to know if the member who brought forward the member has any examples or does the member believe that there should be a new stage four for all bills, perhaps just those that he does not agree with? The financial resolution procedure sets out an estimated cost of the bill, and the Scottish Government has made comments about the work that it is currently undertaking to prepare for the implementation of the bill. The committee heard from relevant agencies as well as from the Scottish Government that the costs associated with the bill as drafted would not be prohibitive, and it is also difficult to estimate with any certainty at the moment. The amendment also seems to presuppose that additional resources will be required if the ministers consulted the specific people and they said that the commencement of section 1 won't, in itself, require any additional resources, and ministers publish a statement on that effect in the Parliament. Passes a resolution saying that it agrees with its views. Does that count? It would not appear to meet, as it would, a resolution that the resources set out in the statement are sufficient, since the statement would not set out any additional resources. I hope that you followed that, because it is about as straightforward as the proposal itself. Finally, during stage 1, there seemed to be no strong view that the resourcing funding was a major issue with the bill. Indeed, the Parliament's Finance and Constitution Committee only received one submission in response to its consultation on the financial memorandum to the bill. I ask committee members to vote against amendment 7 in Oliver Mundell's name. Oliver Mundell, to wind up and press or withdraw amendment 7, please. Thank you, convener. I'm not surprised that the member in charge of the bill didn't pay very much attention to the minority statement, but, certainly, within that, myself and Annie Wells drew attention to the fact that we had concerns about drawing existing resources away from children who need support most. That's specific. I'm grateful for the member taking intervention on that point. I didn't comment on that. I was commenting on the response that the Parliament's Finance and Constitution Committee received. With all due respect, I'm not a member of that committee. My amendment is moved with a view to satisfying the concerns that I had in relation to stage 1, because I'm certainly aware of my constituency work and the wider work that I do in the Parliament in relation to children and young people. There are big pressures on resources within many of the organisations listed. Given the fact that I don't support the general principles of the bill because of the vagaries of it and the difficulties that it will pose, I therefore do question whether, given my view, the bill isn't necessary, that those organisations should be absolutely satisfied that those organisations have the resource and that that doesn't force them to change their practices. That's what the amendments intended to do, and I would like to push it. The question is that amendment 7 be agreed to. Are we all agreed? It would be a division. Those four amendments 7, please. And those against amendments 7? Two for the amendment and five against the amendment falls. I call amendment 8 in the name of Annie Wells in a group on its own. Annie Wells, to move and speak to amendment 8, please. Thank you, convener. During stage 1 of the evidence that we heard from the Crown Office and the Procurator Fiscal, and we heard from them that there were limitations of data available, that amendment would ensure better established evidence before the bill came into force. It has been clear throughout stage 1 and the progression of this bill that we need more data in relation to the number of cases in which the defence of reasonable chastisement is considered and has been a relevant factor. I think that amendment 8 is because the fact that we have been told that there is a very limited amount of data available, I think that that and itself only serves to prove the point that we need to understand more data before section 11 passes. Okay. Alex Cole-Hamilton wants to come in there. Thank you, convener. I partly understand why the member has brought this to the table, but I would actually turn her own argument against her in the sense that the scarcity of data around the use of the legal defence of reasonable punishment is because it is barely ever used. That is because—and this should give the member confidence—that the best interest principle, the public interest test, is always applied effectively by Crown in terms of taking cases through the courts. We have had, I think, comfort offered to us by the Lord Advocate. Through his guidance, he is going to reassert that the best interest and public interest test will be applied before any case is taken to court. As such, we will not see legions of parents marched through the courts as a result of this bill. It will just lead to that cultural shift that I believe the supporters of this bill around the table would like to see. Convener, this amendment seems fundamentally to be an attempt to delay the bill. The Scottish Government has already indicated that we do not have statistics on the use of the defence in court cases. The reason for that is that the Scottish Government criminal proceedings database does not hold information relating to defences lodged in criminal trials. Our statistics are derived from data held on criminal history system, or CHS, a central hub used for the electronic recording of information on people accused and or convicted of perpetrating a criminal act. Information relating to defences lodged is not recorded in an electronically extractable format and therefore not on the CHS. Does the minister agree that if that data is not available and unable to be extracted, should that amendment pass, it would mean that the whole bill would be delayed forever and therefore it would never go ahead? Absolutely. I think that this amendment is fundamentally an attempt to delay the bill. People will make a plea if guilty or not guilty at the start of a criminal case. There is no plea of justifiable assault or reasonable chastisement. More generally, the amendment refers to data on the effect of the defence and analysis of that data. Of course, that is not just about the number of times that the defence is used in court. It is also about the negative effect of the current defence of reasonable chastisement. There is, as the committee heard, a wealth of evidence. I know the minister saying that the Government does not have the stats on how often defences are used, but would she accept that some of the evidence that we heard in committee and what Alex Cole-Hamill said earlier that it is likely that it has been used very little and practitioners such as social workers, teachers, police officers, etc., who are dealing with children day in, day out rarely think about the defence when they are assessing situations. I think that what is clear is that we cannot get that data without interrogating manually all of the evidence around those cases of prosecution. It is undoubtedly an attempt to delay the introduction of the bill by putting the amendments past. I want to talk about the negative effect of the current defence of reasonable chastisement. Now we received a wealth of evidence. The committee has heard a wealth of evidence about the negative impact of physical punishment on children. There are many written reports on this. I am loath to cut you short, but I am conscious that I asked people to focus on the amendments. I know that we will all have an opportunity at stage 3 to make those points. I was focusing on the amendment because the data on the effect of defence and the analysis of that data does talk about the evidence around whether the defence has a negative impact on children or not. I do not think that we need any more data on the effect of the defence, reasonable chastisement. We have well established that it has a negative effect. Let us remove it and let us not delay it. For those reasons, I urge Annie Wells not to press the amendment, but if it is pressed, I would invite the committee to reject it. He has already heard from Crown Office Procurator Fiscal Service and the Lord Advocate that such data is not available. Therefore, it would not seem wise to legislate to require publication of that data, which the relevant bodies have already confirmed is not available. The amendment is also vague in its references to cases in which that rule is considered to have been a relevant factor. Considered by whom, what factors are relevant are cases to include incidents that were investigated—only those that were prosecuted, only those that were heard in court—over what timescale? As an example, if the police did not record something as a crime because the PCU attended saw the smacking as an exercise of reasonable chastisement, that might count as such a case, but there would not be any data about it precisely for that reason. There is also the issue of what value data would add in advance of section 1 coming in to force if it were available. Also, in what way it would be analysed and what value would that add? What is surely more relevant are the number of cases of assault against children that have been brought, the nature of those cases and the outcomes that the Lord Advocate and Mary Hicks, the National Procurator Fiscal for Domestic Abuse at the Crown Office and Procurator Fiscal Service, spoke to the committee about. I ask committee members to vote against amendment 8 in the name of Annie Wells. Annie Wells, to wind up and press or withdraw amendment 8. I would like to clarify that amendment 8 was not ever meant to be a delaying tactic amendment. It was an amendment that I thought was relevant. Having heard the Lord Advocate himself say that there might be more people or there might be more increased reporting, I did think that we should see some evidence of that. That was about the practical effects on the children. For that reason, I am not going to press for amendment 8. The question is that amendment 8 be agreed to. Are we all agreed? The division can ask those in favour of amendment 8 to raise their hand. Are those against amendment 8? There are two for amendment 8 and five against amendment falls. The question is that section 4 be agreed to. Are we all agreed? The question is that section 5 be agreed to. Are we all agreed? The question is that the long title be agreed to. Are we all agreed? No. Members should note that there will not be a division on this, but that their dissent to the agreement will be noted. That concludes stage 2 consideration of the bill. The bill will now be reprinted as amended at stage 2. The Parliament has not determined when stage 3 will be held. Members will be informed of that in due course, along with the deadline for lodging stage 3 amendments. In the meantime, stage 3 amendments can be lodged with the clerks in the legislation team. I thank John Finnie and officials and Minister Mary Todd and officials for attending. The next meeting of the committee will be on Thursday 27 June, when the committee will discuss its approach to phenomial genital mutilation, protection and guidance Scotland bill. We will now move into private session and ask the public gallery to clear please.


I just went to Saigon, Ho Chi Minh City, and I'd like to show the progression of the city since 1815 until today, 2013. So that's 1815, you see there's a big fortress in the middle of Saigon. Well I guess the city was there before the fortress, regardless, so you see the city is really following the natural shape of the river and so on. In 1920, so the fortress has disappeared, you can see the garden. This is 1947. So it's much more detailed. This is 1975. This is 1975 with less detail. 2013, I'm interested especially in the south of the city, and the same year, and this is the satellite imagery. So the satellite imagery shows you a part of the city I'm specifically interested in. If we go back in time, so let's go back in time. So back in 1815, I'm talking about this specific stream of water. You can see it's depicted as a big river stream. In 1920, we don't have the map, but in 1847, it shows a network of rivers that seems to be quite developed here. Maybe I'm going to zoom in so you can see better what I'm talking about. This part here is supposed to be this network of streams. You can see that it's surrounded by rice paddies or floatable area. This is 1975. You can see that it still does exist. You can see it's a network of ponds, and you can see 1975 with less detail. So let's keep the more detailed version. In 2013, you can see that actually it has shrinks to be just one single stream, and you can see that some of the streams are now small streets. So what happened there? So let's have a look with more transparency. So here, so what were streams of river have now become streets. If I look at another more detailed picture, and this is another 2013 more detailed picture, what we can see is that the river has, I mean, the network of ponds have completely disappeared. And this is a more precise satellite imagery. So this is the big river, and that's the stream we are looking at. And all the network and subnetworks of ponds have entirely disappeared. So we've been on site and observed, and what we've heard from the residents was that 30 years ago, this network of ponds was clean enough to go and fish and wash your own body and drink the water of this stream, actually. And what we have seen today is a really dying pond that's extremely polluted, and basically the streams or the networks of rivers that have been transformed into a pile of garbage and oftentimes in tiny roads between very narrow passes between houses. So, yeah, so that's the observation we've made from the field in Saigon, in Ho Chi Minh, Vietnam, in 2013. Thank you very much for watching.