更 welwch chi. Hefyd, tynnu i'w eich bodi'r awdraeth gydaedd Cymru yn 2015. Fe oedd unrhyw ddau'r mwylfaethu awdraedd einor hwnnw ychydigau parentaeth, sy'n teimlo i cynnig Explorerachau, ac hefyd, yn rhanumog yn ddechrau bod yn yn credu. Mae oedd ein pethau chi o'r agenda, yr eitem bwysig mai'r bwysig eistedd. Efo'r eitem bwysig ynghyd o'r hefyd yn oed o'r Cyntafwr i Gwyrddol Ysgrifnegol Triforol yn dangos ei gydag bleddedigiau. I welcome our first panel of witnesses, Dr Maria O'Neill, Senior Lecturer of Dundee Business School, Law Division University of Abertau, Dr Paul Rigby, Lecturer Social Work University of Stirling, and can I invite immediately questions from members please? Are you awake? Yes, Gil Paterson, Elaine? Good morning. I know that one or two people have came before us are concerned about the definition, but I have been looking through written evidence and we have evidence from the Edinburgh Bar Association, the Faculty of Advocates, the Crown Office, Fiscal Service and they take a different view on that. Maybe for clarity to put in the rectal, read out a couple of their keynote indicators. The Edinburgh Bar Association says that they welcome the principle and introduction of a single offence to be known as the offence of human trafficking. We know that the offence has drawn sufficiently broadly to criminalise those whose roles may be ancillary to some extent, i.e. the facilitators, but whose participation is nonetheless an essential element in the process of trafficking of human beings. I will not take too long, but I think that it is worth bringing it to your attention. From the Faculty of Advocates, they simply say that we welcome the principle, the introduction of a single offence in the interests of clarity and finally, and it is another short statement. The Crown Office and Fiscal Service support the move to consolidate the existing law in order to provide a single human trafficking offence and a single offence of exploitation, both of which will assist prosecutors in the preparation and presentation of evidence. The people who are in the area of prosecution seem to be supporting that. If you read through it, it is quite substantial. I wonder what that type of evidence that we are presented with, if you could give us your views on it to give us some information that might assist us in the long run. Come on when I call, you do not need to press a button, and if you just indicate if you want to come in, so which person, which one wants to come in first, please? Dr O'Neill. If I may, thank you. I come to this as an EU lawyer rather than a Scots criminal lawyer, so there may be some discrepancies in my approach, but yes, I do welcome the draft of the bill and the single definition of human trafficking. It was pretty complex in previous legislation, it is also very interesting that you put it together with the Slavery for Slaver definitions. Like some of the submissions, I would have some concerns about the word travel, because while the directive is focusing on transnational crime, human trafficking can happen within a jurisdiction and possibly could happen to take an extreme case from one street to the next, so I would have some concerns about the word travel. I think also in the definition, comparing it with the provisions in the EU directive, the Scottish, the current draft doesn't appear to make reference to begging or forced begging, which was an issue down in London. There's been a big cross-border policing operation on that operation golf. The reference to exploitation of criminal activities, illegal adoption or forced marriage, which I know is covered by Scottish law, but perhaps could be referred to in this particular legislation. That would be my point on the definition. Occasionally, I've questioned the words travel as an issue within trafficking. Trafficking isn't just about travel, there's recruitment, harboring, receipt etc. I think the focus on travel does take away the focus from some of the other acts that are involved in the issue. I'm particularly concerned that it doesn't really give much prominence to the issue of children and that the means isn't really necessary for an offence of trafficking against children. So, as long as we have the act and the purpose, which is the recruitment for the purposes of exploitation, that would be trafficking against children and I don't think that's reflected enough in the bill in terms of looking at the specifics of children in that case, but otherwise I would agree with Maureen in terms of the issues that she's raised. Do you think that we'd require something on the just person? Do we need a separate section with reference to children with a definition of a child? If I may, I would also have some views on the position of children. When comparing it with the draft directive, I am aware that there are provisions in Scottish legislation dealing with children. However, the directive does require distinct provisions in its implementation legislation to deal with children, which I think may be a problem. Also, the directive is very clear on defining children as anybody under the age of 18 and the presumption in a lack of certainty is that the individual is under the age of 18 until that is proven and I think it would be helpful if that was in the directive expressly, even though I've no doubt it's intended that that is the case by the Scottish Parliament. There are also requirements in the directive for support and assistance for children. Again, it would be helpful if that was in the implementing provisions that the Scottish bill does provide for support and assistance for adult victims and presumably you intend on relying on the Vulnerable Witnesses Scotland Act 2014. However, an express reference to that would also be useful. There are also provisions in the directive about access to legal guardians and the need presumably which would be automatic in Scotland, the need for special investigation and criminal procedures in the case of a child, but I think some of your submitters have raised concerns about children who are under the age of 18 but perhaps age 16 and 17. I think that issue would need to be expressly addressed for the avoidance of doubt. I would echo most of those points. There needs to be something about the definition of the age of a child and most crucially the presumption of that age where there's any doubt in terms of support and provision. I understand that there's also been recognition that existing legislation in Scotland under the child protection system or children's hearing system is sufficient. I think that the evidence over the few years that we've been looking at this would suggest that that always isn't the case and some of the young people, especially the 16 and 17-year-olds, are falling through the gap in terms of provision under the Children's Scotland Act and perhaps under the newer children's hearing in terms of access to children's hearing. I think that there needs to be something specifically about the age of a child and the presumption that the person is a child until it's proven otherwise. I'm not entirely sure on my first question in regards to the single definition, you know, the principle of a single offence, which I think means that it catches everything. That's my interpretation, so that every eventuality a prosecution can take place. So I'm not quite sure in your answers how you feel about that. You've kind of moved on to other aspects of it, which I definitely have a question with regards to children and maybe I'll pose that at the moment and give you, you can answer the two questions. I had the experience, we adopted a child from abroad and the self support group that we had, many children came from different circumstances and some people are convinced that the child, because of the circumstances where the child in the home country was maybe abandoned, had no clue about the age, but an age was given and people are convinced that the child was not that age. So that if you define a child not knowing the age, would they perhaps, would they in some way be left out of this legislation, because as I understand it, many of the children, you can't tell what age they are. So if you are a plain devil's advocate, if you left it in the way of describing it as youth, as what the intention is, is it not maybe a broader way to capture and assist, rather than if you define an age under 18, then you would need to, in law, I'm not sure, I'm not a lawyer, I'm not sure if you would need to actually prove that the child was that actual age. I think you're the previous evidence week, but you were also perhaps saying this, that there might be a presumption on a reasonable, some kind of reasonableness test, a presumption that the person is 18 or under, given that we know that there are many, as you've just narrated, many countries where there may not be documentation, somebody might not even know the age of a child anecdotally or anything. So I think you, I think, Dr O'Neill, you addressed that, did you not? We'd need something in a test. The EU legislation has made a specific policy decision to assume that an individual is under the age of 18, in the absence of evidence to the contrary. I think the requirement is to protect all children equally, even if they're 16 or 17, which I think in this legislation, even though there would be different ages for different purposes in other parts of society for this legislation, people are still very vulnerable at the ages of 16 and 17. I think the presumption that a person is under 18 is sufficient in terms of the EU directive, if we have that presumption. The reality in practice of assessing that age is extremely complex. At the moment it generally rests with social workers working to the guidance that was published, I think it was two or three years ago, so that the complexities of identifying the age of a young person is immense and that there's no scientific test that can do that. But at the moment I think the presumption that somebody is under 18 until proven otherwise, which at the moment is through an age assessment, is the one that we should work with. I'd just like to pick up on the issue of a single definition. That's extremely welcome as a way forward. In my experience, a single definition will never address or capture the full complexities of all the different behaviours that we've identified over the years that may constitute trafficking. So there has to be some flexibility within that, so actually naming types of exploitation is useful but we always identify other types of exploitation in practice and it's really difficult to stick with a set definition that can't be changeable as we learn more about trafficking and what's been happening. One of the issues that we probably do need to focus on for adults and children is the definition of what is exploitation as opposed to the acts and the United Nations of a briefing paper around the abuse of position of vulnerabilities. It's quite useful in that in terms of looking at what exploitation is without actually naming the exploitation so that leaves it a bit more wide open for looking at different types of exploitation. So that would be a useful starting point in terms of looking at offences and exploitation or actions and exploitation. But you can be exploitive without being trafficked? Absolutely. That's the problem, yeah. Gil? Similar thoughts to myself. I always worry about when you define everything and you miss something out so that means you're excluding something so if you leave a broad definition that captures all and I think that's what the intention is here so that nothing escapes through the net. That's more a comment than asking a question so I'm grateful for that point that you've raised. Are you suggesting a catch all sub clause somewhere here or such other activities as could be deemed to reasonably something or other trafficking so that you've got that sort of flexibility? Are you suggesting that in subsection 1? That would be useful. I'm not legally trained so I don't know how that would be worded to capture all the different actions that could constitute exploitation. Do you see another acts of Parliament where there's a kind of catch all which so you're not hemmed in by these? Eileen? Yeah, thanks very much. What's it? I asked you when some witnesses last week felt that the presumption of against prosecution of victims of trafficking should be on the face of the bill rather than in the guidance from the Lord Advocate and I just wondered what your views on that would be. I think presumption against prosecution would be useful and I appreciate though with the Lord Advocate has ultimate discretion in these issues so I'm not sure how that works legally in terms of whether that can be a presumption in all cases. What I would say with children, I think the presumption where there's a child involved as a victim should be strengthened probably more so than adult victims in terms of the vulnerabilities of children specifically. Also against the non-prosecution of children, I think it's clear that that needs to be much more to the fore in the bill, on the face of the bill. Yes, I know the directive allows for options which the Scottish Bill has taken but it might be worth noting that the UK or the Westminster Bill has taken the option of non-prosecuting and the relevance of that is that this possibly opens up opportunities for serious and organised crime gangs to exploit the differences between the jurisdictions and certainly when it came to the UK-wide Crime International Cooperation Act 2003, the Scottish Parliament at that time was mindful of the fact that organised crime could exploit jurisdictional issues. Can I go on to ask you about something which isn't in the bill but was raised with us in writing last week, which says that the Northern Ireland legislation criminalises the purchase of sex and decriminalises the sale of sex and that the argument was being made that that would reduce some of the demand that causes human trafficking. Anyone wondered if you had any views on that? Yes, I do have views on that. It's really difficult in terms of a human trafficking bill because the purchase of sex might also be out with human trafficking but I know there's many arguments in that respect in terms of whether all types of prostitution is exploitation. I'm not sure within the human trafficking bill it would be the right forum for that but I think it's something that needs to be looked at more broadly in terms of the exploitation of women or men through prostitution. Unfortunately, prostitution is not my area of expertise so I won't offer a view. In the point that you were making, even if the committee were sympathetic to the arguments presented by some of the other witnesses whether it is appropriate for it to be in this bill, although, having said that, it is actually in the Northern Ireland legislation so it obviously was felt there to be appropriate to be in that bill. I think that you answered from Dr Rigby and Dr O'Neill has advised us that she has no expertise in this area. Margaret, followed by John, followed by Roderick. Good morning. This is specifically for Dr O'Neill. I noticed that in your written submission you've got a comparative overview of human trafficking, looking at the legislation from Northern Ireland, England, Wales and Scotland. Broadly speaking, how do these different jurisdictional approaches measure up to each other? In a general viewpoint, all three jurisdictions are trying to do something similar. I think that the differences come down to the detail of the various provisions. The intention is clearly there. The Westminster Bill is more advanced than the Scottish Bill in going through Parliament, so the Scottish Bill obviously still has opportunity for revision, and the Northern Ireland Act has now been passed. I've already had feedback from the Northern Irish Department of Justice on my comments, and they've raised a few issues that I still need to consider and reflect upon. I'm sure that the Scottish Parliament wishes to take their own particular viewpoint on the legislation. I think that you suggested that perhaps there was a need to revisit the issue of consent in the bill. Yes, there are certainly issues of consent. I'm losing my notes here, but I understand that consent should never be given by children at any point and the lack of reference to children in the current draft is an issue, but there's also an issue of when consent can be given if somebody is under extreme duress, even as an adult. We are talking about vulnerable people, however that vulnerability may have arisen. I know that some of the feedback has raised that while there will be certain groups of people that may be classified as vulnerable, other people may become vulnerable due to their personal situation, which we cannot always anticipate. More generally, do you think that the bill is well drafted? Are there areas that you could focus on specifically? There are a few points. I think that in the version of the bill that I saw, I thought that there was a discrepancy between the human trafficking and modern slavery provisions. I presume that you intended to have the same provisions for both. Are you talking about the bill as lead? Yes, the version. That's the bit, that's the bit. Thank you. Certainly, yes, the consent issue arises there. Also, there's an issue about aiding and abetting, or as it's known in Scotland, art and part, which I'm not an expert in, but you've covered that for human trafficking, but you don't appear to have covered that for slavery, servitude, forced and compulsory labour. I presume that you meant to do that. So, I think that you'd need to assure yourself that that was covered one way or the other. That 141b says under slavery, servitude and forced labour. The person who requires another person to perform forced or compulsory labour and the circumstances of such a person knows or ought to know that the other person is being required to perform such labour. That hasn't covered it? That may well do. Art and part, just one doubt. If you feel that it does cover it, yes. But you've doubted. It's what occurred to me when I was reading the bill, but as I say, I'm not a Scottish lawyer. Also, the establishment of jurisdiction, I did have concern that the establishment of jurisdiction in section 2 might not cover persons temporarily present in the jurisdiction. For example, what about somebody delivering a victim along a transnational human trafficking chain into the country? It's very clear about establishing jurisdiction against Scottish nationals and people resident in Scotland. It's our UK nationals. Dr Rigby, I think that you mentioned viewing human trafficking through a reductionist list. Do you think that the bill as drafted sufficiently captures all the complicated issues that are involved within human trafficking? That's a good question. Yes, it does capture many issues involved in human trafficking, but I don't think any piece of legislation can be sufficiently nuanced to address all of the issues that we've come across. I think the point that was made earlier about keeping it sufficiently wide, that may be the way forward. I mean, I'm not sufficiently legally trained or aware to know how the wording of the bill can cover all those different aspects. I'm particularly interested, though, that the Scottish Bill, with the focus on victims, is very welcomed in terms of providing the support and assistance to victims. Unfortunately, it does focus on adults and not children, but the issue about statutory support for victims is welcome. I think that that's an area that hasn't been covered in the past in many times of legislation. Thank you, that's helpful. I think that we've got the message about the aspects of children being perhaps even a separate section of whatever the drafters can do at the amendment can come into that. It's a couple of questions for yourself, Dr O'Neill, and perhaps less technical, and covered by your introductory statement where you say, and I'll quote here, the issue of human trafficking law is almost as diverse. Issues arise in distinguishing human trafficking from human smuggling. Can you tell me what the difference is and I would? The main difference is volunteering. Human smuggling is wishing to come into the country illegally and paying human smugglers to facilitate that, and that would be an immigration crime, where the individual crossing the border is in fact the criminal. The human trafficking, which is sometimes very difficult to distinguish and sometimes as part of a continuum you volunteer to be smuggled and then you turn into a human trafficking victim, is where you are now being exploited by people being brought across the border and you're no longer volunteering for what happens next. In that case, the EU law is clear that that individual is then a victim, while the criminals are the people who brought you into the country, perhaps part of an organised crime gang, although it can happen that individuals will be brought in by other individuals. The reality of the situation is that it's sometimes very difficult to distinguish between the two, but the laws should be quite different in their operation and classify who is the target of the legal framework and law enforcement operation. Can you show the level of challenge that there are for the authorities as to whether someone is a victim or an accused? It is very difficult and certainly the argument would be from the law enforcement community is that those who want to be smuggled into the country may claim to be trafficked. The EU directive is aware of that because there are also EU provisions on human smuggling, which we may or may not be involved in in this country being part of the opt-out of Schengen, but individuals may claim to be trafficked. The assumption in the directive is that they should be treated as if they are human trafficking victims until the contrary is proven, and then there may well be criminals involved in crossing the border as illegal immigrants, and that's a completely different area of law. Thank you for that. Is there anything else in your introduction? You make mention of the appointment in 2011 of the Welsh Government's anti-trafficking coordinator. Are you able to comment on the effectiveness of that role? No, I'm not. I see that there is—not in Greek detail, I haven't done a lot of work on the Welsh jurisdiction, although I'm aware that they do have one, and that Westminster Bill will have one as well, operating for the whole of the UK jurisdiction. There is an anti-trafficking coordinator appointed at the EU level as well. I would still refer the question to you, Dr Neil, but the question of illegal inter-country adoption is, again, that there will be complexities around that. Do you believe that this legislation could pick up on that, or is it pertinent to that? I think that the draft directive referred to forced adoption and forced marriages, possibly marriages being of people under the age of 18. There are going to be a lot of complexities in the more difficult areas of human trafficking. I think that all that can be expected is that the best is done, and then it's reviewed later to see if there are other areas. I think that the point about—while having exemplars of how human trafficking might be having a catch-all phrase might be useful, because it's very difficult to anticipate what direction organised crime is going to go in. Other jurisdictions have slightly different approaches, such as forced involvement in medical research, which I know is in another jurisdiction. However, if you had a catch-all situation, that will future-proof the bill. I wonder if I could ask Dr Rigby a question that's about two comments that you've made in the statement. One of them is about child victims of trafficking being treated as many adults, and your comment about the role of an agency whose primary function is border control creates a conflict of interest with regard to the child. Can you expand on the issues around that, Dr Rigby? If we're talking about the national referral mechanism of where we're identifying victims of trafficking, to date the experience from Scotland would suggest that children, when they're subject to this approach, a lot of interviews, a lot of questions from different state actors, and there's no due regard given to the age of that young person in terms of the trauma that they've experienced, and to the lack of movement or their understanding of where they are, so there's an issue there in terms of under 18s are not many adults, they're children, and they have their own specific vulnerabilities and needs, so I think that's important to recognise that that's what's been happening. To the second point in terms of the decision making within the competent authority, the competent authority, as in practice in the UK, is not necessarily that that was envisaged in the original national referral mechanism document of the OSCE, which was a multi-agency grouping or panel that would make decisions on whether somebody's been trafficked, especially with children. There was a recognition that we needed child protection experts who were involved in that, and that doesn't happen at the moment, and the annex that I've put in terms of the model that we proposed in Scotland is recognising that child trafficking has its distinct issues opposed from trafficking in general, and that the child protection system in Scotland, as it stands, albeit with some problems and some issues, is probably the best forum for the identification, protection and ongoing support of all children who have been trafficked or exploited. Not taking away, obviously, the reserved decisions that UKVI make on asylum and immigration, clearly that would stay with UKVI, but any other aspect of exploitation or abuse is clearly within the remit of the statutory authorities in Scotland, and I believe that that's probably the best route to approach working with vulnerable young people, vulnerable children, leaving the decision making and the support in the hands of those who are trained and experts in child protection. Would it be your view that UKVI's involvement or the profile or where they sit in the pecking order of decision making doesn't act in the interests of children, as things stand at the moment? I think that the evidence from the national monitoring that we completed in 2011 suggests that a lot of the local authorities do consider that that is an issue that a referral through the national referral mechanism is not in the best interests of children at times in terms of the decision making focus that is linked too closely to immigration. That's it. Thank you very much indeed. Thank you for giving me a go. I'm going to take others who've waited first, then I'll take you in, because we're going all round the subjects. I'm going to come back to children in a minute. Okay. Roderick followed by Christian followed by a go. Thank you, convener. Dr Neil, if I may, I just wanted to recap slightly on your views as protection of victims. Looking at your written submission, I think it seemed to be fairly clear to me that you were taking the view that the policy provisions wouldn't comply with the directive, but from listening to you this morning, I got the impression you took the view that there was a bit more latitude and it wasn't quite as clear-cut as that. Would you just like to recap here? If you mean in the non-prosecution of victims, the Ministry of Justice of Northern Ireland pointed an error to me in my paper, so I'm happy to take that particular point on board. I did revisit the directive, so the directive does allow for some flexibility, and my point was that at this point then the difference between the jurisdictions. There are some other points on the protection of victims or witnesses that might be worth mentioning like access to witness protection programmes. I don't think there's any reference to that in the bill. I know there is a UK-wide witness protection programme in section 82 of the Serious and Organised Crime and Police Act 2005. I don't know if that expressly includes or after the new UK-wide legislation would include human trafficking or the lit slavery offences victims. There's also a reference in the directive to compensation for victims. Again, I'm aware that there's compensation schemes operating in Scotland, but whether that would include compensation in these two particular crime areas, human trafficking or the slavery offences, I'm not sure about that either. Those might just be covered in schedules or something like that. I would also be concerned that section 8 of the Scottish Bill providing support and assistance to victims whether or not that would be sufficiently robust in ensuring that it does actually happen, although clearly it's the intention of the Parliament that it would do so. Just to back a bit more on to this question of protection of victims, the paragraph 56 of the policy memorandum rejects the idea of a statutory fence because it would place a burden on victims to prove the connection between offending behaviour and their traffic status running contrary to the victim-centred approach. I don't know what your view is on that, but looking at the modern slavery bill, that kind of requirement to prove that connection is fairly clear from section 45 of the modern slavery bill. Any comment on that? I did read the feedback from the Faculty of Advocates and the Edinburgh Bar Association, and I would defer to Scottish lawyers in the interpretation of those particular provisions. It obviously depends on how the courts operate in Scotland. Another possibility, apart from Lord Advocates' guidelines, is that under section 12 of the Criminal Procedure Scotland Act, the Lord Advocate could issue instructions in relation to offences direct to the chief constable, which might provide an additional line of protection. We're at a disadvantage that we don't have a preliminary draft of that, so those provisions may be stronger or weaker than what's anticipated in the directive. There's just a lack of information at this point on those provisions. Perhaps I could just ask an additional question. Independent child trafficking advocates, that's not on the face of the bill. We've heard some evidence that that should be on the face of the bill, whether either you've Dr Rigby or Dr O'Neil. Do you have a specific view on that? Yes, I would have a view on that. I think that with the experience of the guardianship project in Scotland, we've identified that that can be good practice. I think that one of the major issues which is in the Northern Ireland and the Westminster legislation is whether that needs to be a legal guardian or a guardian with subtle differences. I think that my view on that is that at the moment a guardian would be sufficient and we have provision perhaps under section 11 of the Children's Scotland Act for the appointment of a person with legal responsibilities and that's a possibility to address the legal issue if there's nobody with parental responsibilities, for example to instruct a lawyer. At the moment, the evidence from the guardianship project would suggest that a legal guardian is not required at this moment in time in Scotland because of the systems that are already in place in terms of protecting and working with young people. In terms of the national referral mechanism and the review that was received in November, is there any particular aspects that we should take on board in Scotland in looking at the impact of that review? Well, in my opinion the national referral mechanism is probably not fit for purpose for children. I think there probably needs to be a separate national referral mechanism or equivalent for children in Scotland. There's no requirement to follow the national referral mechanism as it is in the rest of the UK. It's a policy decision to address it through that route rather than a legislative one. I think we have the expertise amongst the professional population in Scotland for children that we could take the national referral mechanism or equivalent through the child protection process so that a multi-agency child protection case conference can make a decision if somebody has been trafficked and then the decision follows in terms of the assistance and the support that is available to the young person. At that point, if somebody has identified, notification could be sent to UKVI or UKHTC that a young person has been identified as a trafficking victim. That leaves all the work, all the support, all the identification within the Scottish system, which is entirely in keeping with our obligations under the EU directive. A short supplementary question, Dr O'Neill, when you said about duty to secure support and assistance, your concerns, whether that be—I'm reading the wording of 8-1—whether a reasonable groundsweave that an adult is a victim of an offence of human trafficking, the Scottish ministers must, during the relevant period, secure the adult provision of such support and assistance. Now, let's part the bit about children just now, so I think that we've accepted that. That's mandatory, is that not enough? I suppose it depends how that works in practice. Yes, everything is how it works in practice, but I wonder if that is mandatory and that could be founded on by anyone who hasn't had the assistance required. Thank you. Thank you, convener. Dr O'Neill, I wanted to know a bit more about section 5 and 6 on sentencing. I think that you told us in your submission that the issue of penalties in all UK jurisdictions seems to be diverging from the provision of the EU directive and from each other. What kind of problem does that cause? What will be the remedy? On the sentencing of the actual offences, the UK jurisdictions—all three of them—are going further than is required by the directive. That doesn't cause me a problem at all. Which particular provision came before that divergence bit? Sorry. I hear that on the issue of penalties when all UK jurisdictions are diverging from the provision of the directive. That's not necessarily a negative thing. You say that from each other, could that become a problem, especially I heard you saying earlier on, the problem of having different sentencing, different areas in the UK, will maybe make part of the UK a soft target compared to others? I think in general the UK will not be regarded as a soft target after the three bills become an act. I think the issue may be in the treatment of the victims and the prosecution or non-prosecution of victims, which we've already covered. In particular, if the England and Wales jurisdiction is not prosecuting at all and the Scottish jurisdiction is prepared to hold victims to account for some crimes, whether that will form part—I suppose the concern is whether that will form part of the inability or lack of enthusiasm for the victims to report their crimes or to give evidence, etc. in the Scottish jurisdiction. It may have an impact. I just wanted to clarify the point about sentencing and you clarified it. Thank you very much. I heard you talking about the national referendum mechanism. You might have been thoughtful about the point that it's not fit for purpose for children. We had a lot in the evidence that we took, but it doesn't seem to be fit for purpose for adults as well, particularly adults with learning difficulties, people with mental health, and people having a traumatic time and the system in place doesn't seem to understand that point. I would like you to know more about that. Do you think that it should be only for children, or do you accept the case that it may not fit for purpose for everybody? It's certainly problematic with the examples that you've provided. The e-directive is quite clear that some of those issues should be given particular attention to. The problem with the national referendum mechanism over the years has been too closely aligned with the immigration system. I think that's the key problem. It comes down to the point that has been mentioned. It's not necessarily unfit for purpose. The devil is in the detail of the implementation of that. At the moment, because the decision-making process is located in England, it's away from the provisions of support and assistance in Scotland that we have. One of the main concerns that I've had over the years with the national referendum mechanism is that it's relying on the victim status to be conferred on somebody by a separate body as opposed to the fact that they are a victim of trafficking. We're waiting for somebody to make a relevant decision on that. It's very rare in this area that you would see that we have to wait for a specific decision from an outside body that somebody is a victim. If somebody is a victim of trafficking, that a victim of trafficking, no matter what any external agency will say. The example was given last week in evidence in terms of victim support. If a rape victim approached somebody and said to support services that I'm a victim of rape, they wouldn't be saying, you have to prove that before we will provide any support. I think the national referendum mechanism is in danger of relying on a single agency to make these decisions about people whether they are victims or not. It values the point that it's as much as for children than for adults. On that particular point, it's the difference between children and adults. If the bill is changed and we have a statutory requirement of inguardianship for children, then the imbalance will maybe be for adults who will not have that kind of protection. I'm talking about people who've been trafficking. English is not the first language. Like mine, they maybe not have that help. But children if you get that statutory guardianship. So maybe the spirit of the bill not focusing on children but trying to keep it as open as possible and particularly in regard to the national referendum mechanism is maybe the best way to go about it or you still think we should have a special a difference made for children. I think it's clear within directive we have to have special provision for children. Articles 13 to 16 are quite clear that there's special vulnerabilities for children. I've actually taken your point about guardianship for adults. That would probably be welcomed as well at the moment. It doesn't seem to be the case that that is an issue. But for children specifically, the guardianship project or a guardian but located in an integrated child protection system is key. The guardians on their own will not be able to protect children. It's the integrated system of child protection that's key. Across the EU at the moment, there's a move towards child sensitive, integrated child protection systems. That's going to be key, not a specialist expertise in trafficking. Trafficking has to be brought into the broader child protection agenda. The point was made earlier that exploitation happens outwith the remit of the trafficking description. We have child abuse, child sexual exploitation and all these are dealt with generally under the child protection system and there's no reason why child victims of trafficking should not be part of that system in terms of the child sensitive approach, the child centered approach. To finish off, Regan is a national referral mechanism. Do you think it should be, it's been reviewed already, but do you think we should have a different one for Wales, Scotland, Northern Ireland and Western England, Northern Ireland and Scotland? Do you think there is a, because this legislation will be different for different jurisdictions, should we have a different national referral mechanism or maybe this bill will be superseding some of the effect of the national referral mechanism? I can speak from my experience in Scotland. I think it's quite possible to have a national referral mechanism in Scotland and especially for children located in the child protection system. I think the evidence is there from the work that's been done in Glasgow over the years that if the child protection system is working around that child, the protection offered is greater than it would be for any one single service or any one single agency making these decisions. I think I can really only speak from the Scottish perspective of my experience. Locating it within child protection is the key, although we have to acknowledge there's been problems with that in the past and there has to be training, development associated with that, but the national referral mechanism, as it stands at the moment, does not really serve Scotland's children. Some of the adults as well as you would recognize them. On adults as well, sorry, yes. Dr Rigby, you mentioned something that you said, many adults that often children are treated the same as adults. In Scotland, particularly in this Parliament, we have spent an awful lot of time providing services for children, peculiar services, different services, if you like. It's in the health service, it's within the court system and it's within social work. But most of the people coming forward are saying that, in this case, that you would like to see children embedded in this bill with the sound of it, which goes against what we've been trying to achieve and yet we have a very, very robust system under all circumstances for children. I was going to leave this question for Kozla because they have brought some evidence in this regard. So I wondered if you had an opinion on that. Are we not by incorporating children in the way that some people are suggesting, do the very thing, by treating them like many adults? Is there a danger in that happening? In all due respect, I think that we've required under the e-directive to include children in any bill. I fully take your point. Within Scotland we have an excellent system that identifies children. If you look at the policy around GERFEC, et cetera, across health, education and social work, I wouldn't disagree that we do have a very good system. I don't think mentioning children on the face of this bill will negate that in any way whatsoever. What it will do is strengthen our obligations or our commitment to the EU directive and it will identify children as specific victims with their own specific vulnerabilities and needs but different to adults that then can locate it within the child protection system. I would fully agree that we do have a system in Scotland that identifies children as different, but at the moment what we're experiencing across the UK, but especially in Scotland, is that children through the present system for the national referral mechanism are often treated as many adults and their specific vulnerabilities are not being met by services. It needs to be a link on the face of the bill, I believe, to the existing legislation, which is strong, but at the moment we know from experience that local authorities, statutory bodies are always fulfilling their duties towards children once they've been identified. I think that's the key part to recognise child victims of trafficking within the broader remit of a trafficking offence or a trafficking definition, but then locating them in terms of support and assistance within the child protection system that largely is the best place to protect the children in Scotland. Just one more point on children before we leave that point. The directive does have provisions that domestic laws should ensure that it's possible for a prosecution to be taken for a sufficient period of time after the victim reaches the age of majority and I think that that's also missing from the draft bill. Thank you. That's this session concluded and I'm going to suspend for five minutes. Thank you very much for your evidence, both written and oral, this morning. Five minutes, 11.25, we kick in again. Thank you. I'm about to start our next session. I welcome Jenny Marra to the committee and I welcome our second panel of witnesses, Lorraine Cooke, migration population and a diversity team of COSLA and Katie Cosgrove, gender-based violence programme, NHS Health Scotland and I thank everyone for their submissions and I invite questions from members. Margaret Christian Helene. Thank you. Alison. Good morning. This is a question first for COSLA. I noticed you raised the issue of training awareness for trafficking. Could you tell me what's in place just now in local authorities and what you would propose to improve their awareness raising? I think that there's a range of different practice across all local authorities and it's very diverse. For example, there was a lot of raising awareness in Falkirk around human trafficking where they set up a stall in the shopping centre, so there has been different aspects of awareness raising. Glasgow, of course, as an example of good practice in terms of TARA, is based there and also in terms of the child protection system and their models around trafficking, the work that they've done with the way back pilot in the London safeguarding children project as well and how they've built on that. There is a diversity of different areas that the work has been going on with. How do you see the bill helping this? In terms of COSLA, we have taken papers to leaders. Our first paper went in 2006 and it was really garnering support from leaders of all 32 local authorities in terms of making Scotland a hostile environment for human traffickers and promoting that agenda of anti-human trafficking. Sorry, could you repeat the question? Yes. How would the bill improve its arrangements? What would help you from the bill's provisions? There is a real support in terms of the training and awareness raising. We see different areas of local government that are crucial in that. In terms of awareness raising, many front-line services and officers are looking at regulatory officers in terms of environmental health, housing as well as trading standards and licensing. That awareness raising and training would be crucial. In terms of child protection systems, we are getting that good practice that is parnas in Glasgow across Scotland. I think that the strategy that we are looking at is the basis of looking at how that training and awareness raising would be crucial and how we can develop it within the strategy. You are focused on raising awareness and highlighting it. It flags it up if you would like to raise various departments. Can you also ask the golf group, not just local government, I would imagine that the health service in its various forms may also come across victims of trafficking. Is there awareness raising training within the NHS? Clearly the NHS is a pivotal organisation in the identification of human trafficking and it is one that is a fairly new issue for the health service in recent years primarily because the focus has been predominantly on law enforcement and immigration in the past, so it is relatively recent that we have taken a victim-centred approach to this issue. The health director issued a chief executives letter in 2012 when we produced guidance for all health staff on identifying and responding sensitively to potential victims of trafficking, including guidance on how to record and report information on that. Since then, we have developed a suite of resources for staff, including an e-learning module on human trafficking, that each health board has made available to staff and we have so far in the year or so that it has been available, had more than 1,000 members of staff using that. The issue of human trafficking has been aligned with the wide agenda-based violence programme in the health directorate. That means that we can use the infrastructure that we have in place for the agenda-based violence programme across health boards to support the dissemination of materials and to support the uptake of training. One of the difficulties for an issue like this in common with other issues such as forced marriage, FGM and so on, is that we cannot release thousands and thousands of staff to go to bespoke training on one particular issue, so what we have looked at doing is incorporating it in the existing body of training. There is training in gender-based violence across all health board areas in Scotland, and a number of health boards have looked quite proactively at how they ensure that staff are aware of the issue and whom to contact should they need to make a referral. Are staff quite comfortable with the distinction that Tara has said is often blurred between immigration, smuggling and trafficking? It is difficult to say at the extent to which people appreciate the difference, certainly that has been highlighted in the guidance. What I think is more of an issue for staff is what they do when they uncover a case of potential trafficking. The health directorate has made it quite clear that potential victims of trafficking have access to free healthcare, so we do not have a resource issue in that respect. I think that the difficulty for staff is understanding the measures that they can take that would not jeopardise the potential safety and protection of victims. I think that that is probably the area where there is less comfort and confidence, rather than distinctions between smuggling and immigration and trafficking. However, the thing that you did raise was section 8. If you are a victim of trafficking, then section 8 does not apply because you have not been subject to the national referral mechanism process. One of the concerns that we have in the way that the language in which section 8 is couched is that it does very much evoke the national referral mechanism. From the health point of view, what we have tried to encourage staff to do is to see potential victims of trafficking as people who need immediate care and assistance and assessment. What we would like that to do is to remove some of the potential ambiguity in that section so that it is clear for staff that anyone who is a potential victim of trafficking has access to immediate support and assistance. I would support the previous submissions about strengthening the requirement for psychological assistance and supporting that, because I think that the existing provisions around counselling are fairly weak. Do you include GPs in that, because they are not really NHS staff? No, the part of the healthcare system, I suppose, is the healthcare professionals across the NHS, whether or not they are independent or not. From the convener's point, I am co-convener of the cross-party group on human trafficking here in the Parliament. Just a few months ago, a GP from Newcastle travelled up to attend our cross-party group. She came because she had had victims of human trafficking attend her surgery, her doctor's surgery. I just wanted to ask—I think that this fits in with the first part of the bill convener about strategy, because the way that the bill is constructed is that the Scottish Government will be able to present a three-year strategy that will then give it a programme of work to help with awareness-raising and training. Is the NHS training available to all staff? I understand that you cannot release staff willy nilly because they have jobs to do. However, is it targeted at areas of the health service that are most likely, not exclusively but most likely to see trafficking victims such as GPs or in our genital urinary clinics or in places such as that? We have, as part of the gender-based violence programme, taken exactly that approach. We target areas of primary care such as GPs and health visitors. We also look at maternity, mental health and sexual health services, and those are the same areas that we have identified as being of primary importance in ensuring that there is awareness-raising and training around human trafficking. We would do that. There are a number of measures, for example, attempts to improve the situation of women involved in indoor prostitution that is on-going at the moment that would obviously dovetail with some of the measures that we are taking around human trafficking. Part of the training for staff in that would also encompass awareness of human trafficking. Can I ask Lorraine Cooke a similar question, convener? Is that okay? Or do you want to come back to me? I want to jump in first to come back to you. Can I just clarify? Gender-based is only women and girls. What happens to young men in the circumstances? What has the NHS got there for young men who are being... Gender-based violence does not only encompass provision for women and girls. The use of that descriptor across the NHS is used to identify the very gendered nature of the different forms of abuse, but provision is also made available for boys and men who experience those different forms. That is very helpful, because you talked about women. I was just concerned that we were missing out a little bit about Christian, followed by Elaine, Alison and then back to Jenny. No, Roddy comes in after Alison, then Roddy, need you to wave your hand higher for me? Thank you very much, convener. Yes, reading your submission, Kozla, I just wanted to know a little bit more about the services that you provide for child-making in terms of trafficking, and particularly your views. You agree with the Scottish Government that existing services for children are sufficient and do not need to be enhanced through the bill. So can you talk us more about that? For us, there is a whole plethora of legislation in terms of child protection. I think that it is crucial that it is embedded in the child protection system. I think that our fear is that if there is such a clarity, there is somehow a separate system, if you like, for our children that have been trafficked, that is not embedded into the child protection system. There is a separate system with separate needs when there is so much entwined, if you like, so it is not just that a child has been trafficked, it could be child exploitation. There is a whole need surrounding the child that is best placed in the child protection system and the legislation that builds on that system. Do you think that the legislation is strong enough already and you think that putting anything in the bill could maybe weaken a little bit what we have already? I think that for us there is strong legislation. In terms of child protection system, it is around training and awareness raising of all these elements of the legislation, how it fits in with children that have been trafficked, that needs to be rolled out. I think that that is a place for the strategy. If you talk about the services that you have for our children who have been trafficked, trafficking only comes second or third in the list of what services you provide. It is not the most important point. I think that it would depend on the cases. It is looking at the child in a holistic view rather than staggering what is the most important. I am trying to say that I did not express myself properly. If we put it in the act, in the bill, it could end up being at the top of the agenda when it should not be on the way that you deliver your services. It is only part of it. If you like, it takes away from it not being embedded into the child protection system, so that it is somehow separate. What is your view on the proposal for guardianship and the statutory requirement in the bill? I think that the guardianship model that is going on is doing incredibly good work. The service should be put into the strategy, as it is not covering all the children that have been trafficked. You are talking about unaccompanied. It is one aspect of the group of victims of trafficking, so if we are looking at children that have been internally trafficked and suffered child sexual exploitation, the guardianship model is more for unaccompanied, whereas the named person and the Children and Young People Act do cover all potential child victims of trafficking. Do you think that we have already got a kind of guardianship system? No, I think that the guardianship model does play an important role for particular child victims of trafficking. I would say that it is more a matter to be defined, if you like, in the strategy. I know that there is a difference between the cause line and the other chest, maybe Ms Cosco wants to say something about that? No, I think that we have not made particular reference to children in their submission. We focus very much on adult services in relation to human trafficking, and at a local level have engaged very much within the local child protection systems to support the identification and assistance for children. You stated that the bill would benefit from providing guardianship with legal powers in line with commons of legislation in Northern Ireland. Yes, I think that the evidence would support that provision, yes. You would not be against the proposal of COSLAW to have it in guidance or in strategy? I think probably we would need to look more at the evidence in terms of whether the benefits would outweigh the difficulties in doing that. I think that we certainly need to strengthen the provisions around child guardianship to support child victims of trafficking, yes. Do you say that the jury is out knowing if it should be in the middle of the night? Well, I think that there are certainly merits in the inclusion of that, and certainly the evidence would support it. I think that perhaps COSLAW is focusing much more on the local implementation. Can you remind me the age limit for a named person? I have to go back. I get a feeling you see that it won't be the age range 16 to 18. It may be wrong, and we were looking at 18 and under presumptions of being a child. So I don't think—can you help me out there? I just wonder, convener, is it not that it's a child someone up to 16, or between 16 and 18 of a person? That's what I think, yes. I think we've got that gap. When you refer to the name to person, we'd fulfil it. A bigger pardon? Yes, no. I'm getting evidence here from John. No, my understanding is that it certainly used to be up to 16, or between 16 and 18 of the subject of compulsory measures. Yes, but the use of the term named person maybe just check that, because we were using the role of named person, as in Guardian, at some extent. I don't know if that covers that group, particularly when we've got difficulties over age, people perhaps can't speak English, can't communicate in English and so on, and have no documentation. I move on to Elaine Allison, then— Who's this? Roderick and then Jenny. Sorry, I'm not picking on Roderick, it's my handwriting. It's Elaine Allison, Roderick and then Jenny. Elaine. Just to expand a little bit more on those particular issues, because there does seem to be a divergence in terms of your written evidence to us. NHS Scotland, you said in your written submission that it might be useful, at least, to signpost the legislation, which provides support to children, not necessarily in saying that you have to define it in great detail on the face of the bill, but the legislation that covers children should be signposted. I think that what we feel in reading the draft of the bill is that, although we ostensibly cover children and adults, there's very little mention of children in it. I think that those provisions could be strengthened to ensure that that cross-reference is made, if there isn't the will to include stronger provisions within the actual bill itself. Signposting, rather than, I mean, would that cause you problems if it was— No, no. No, no, I mean, it's all in the legislation that was mentioned, the policy memorandum anyway, so— No, I mean, I suppose that the Government may argue that it's not necessary, because it's already ready there in law, on the balance, do you think that it would be helpful to have that cross-referencing action on the bill? I think that, for us, it's really the strategy that would pick that part and look at each piece of legislation and the relevance in terms of this subject. Can I also ask about the non-prosecution of victims, certainly NHS Scotland was suggesting that section 7 ought to be strengthened and, in fact, made reference to Jenny Marr's proposed bill on some of the wording of that, which is if you feel would strengthen it. I wonder if you want to say anything more around your reasons to why you think that that should be expressed on the bill, rather than being in the guidance from Lord Advocate. I think that some of it was around clarifying some of the means by which people are trafficked, and the sense was that identifying those specific areas that had been outlined before would give a clearer indication of the circumstances in which they would have been on prosecution. Okay, and finally, just with the independent guardians, I think that you felt that the bill could benefit from the Northern Ireland example of its legislation with regard to the independent guardians, particularly for separated children. In a sense, it's not quite the same as the named person, but it's the requirements of children who have no support in this country. Yes, again, we thought that the wording of the bill could be strengthened by inclusion of that provision, yes. Can I always quite see how the named person concept would actually cover those children who come into the country with nobody else who can assist them? We do need to be more specific about what sort of support they require. I want to return to how adequate the provisions in the draft bill are around about support and recovery services. You touched on the issue of counselling and the fact that that was maybe not the most appropriate thing. I wondered if you could elaborate a bit more around the needs for psychological assessment and treatment of victims. I think that we have quite considerable about growing body of evidence about the adverse health consequences of human trafficking, but not just at the point of destination throughout the entire process, the different cycles of trafficking. We have a number of individuals who are coming to the country who have experienced adversity and hardship in their country of origin. A recent study in Europe, for example, showed that around 60 per cent of women trafficked for sexual exploitation had some experience of physical or sexual harm in their own country before coming. We have people who are arriving who may have pre-existing health conditions or who have experienced trauma already and are exposed to further harm in the process of being trafficked. We felt that in the provisions that were available in the bill that that hadn't actually been reflected adequately and that counselling for people in those circumstances who may have complex PTSD, who have extremely high levels of depression and anxiety and high levels of somatic difficulties and are adequately covered by counselling and, in terms of best practice advice, we would look for a much more thoroughgoing psychological assessment of that. That's very helpful, thank you very much. Is it also important that support and recovery services are not time limited? Oh, absolutely. I'm sure that you've had evidence in this already in relation to the NRM, but one of the difficulties for that process and one of the impediments for people going through that are going to enter into that process is the extreme levels of psychological distress and harm that they already have experienced that makes the provision of informed consent very difficult to give. It's very difficult when you look at the litany of abuse that people have suffered, the exposure to hazardous working conditions, living conditions, the exposure to infectious diseases, the potential for the existence of chronic or acute medical conditions with the aim to enter freely into a process which is time limited. From the point of view of their health and social welfare, we would support the provisions that were outlined in the memorandum for the bill that it should be needs less process. That's right, thank you very much. Thank you. Rodriq, followed by Jenny Rodriq. Thank you, convener. Morning. In the COSLA submission paragraph nine, there's a reference to the question of vulnerability, which I've talked to me in a reference to the way the bill describes vulnerability in section four in fairly limited terms. You then, I think, refer to article two of the directive which says a position of vulnerability means a situation which the person concerned has no real or acceptable alternative but to submit to the abuse involved and for the need for work to be undertaken to ensure all services are fully aware of this additional definition. Can you just perhaps elaborate on what that work is and perhaps a view about whether or not a clearer definition of vulnerability should be on the bill? We sent that out to all our local authorities and it came back from Dundee. I know that Dundee has done a huge amount of work, particularly the violence against women partnership. I think that this was there, particularly a concern about an understanding of vulnerability and a wider meaning of vulnerability, in terms of front-line services understanding. Am I taking it that the bill should have a definition of vulnerability on it? I'm assuming that that's what you believe. I can come back to you because I know who sent us the response from Dundee and I could get much more detail from them. That's no problem, because we did get a wide... That was my point. Gil? Some of the points that I was going to raise with you have already been covered, so I'm not going to go through that again. I've been adequately covered, but one point that Corsula raised was with regards to the commissioner, who is a reserve matter commissioner. I know that you've got concerns and you're asking that the Scottish Government take action to ensure that this jurisdiction is covered. Since we've got different laws in Scotland, I wonder if there was a different approach to that. Maybe a Scottish commissioner might be the answer to this, because we've heard in evidence people are concerned with the commissioner. It might be too concentrated in England to be quite frank with it. We've not argued for a specific Scottish commissioner. I know in the bill that I can see the benefits of information sharing, best practice sharing and, in terms of cost, to be fair. It has to be crucial that there's a Scottish perspective within that commissioner's remit and a clear Scottish perspective that reflects our concerns, our issues. So, maybe it's a sea once it's rolled out. Might there actually be a benefit in having one commissioner, but maybe an office in Scotland? It's well connected, because I think the one thing we do know is that the people that are involved in this are well kitted out. They've got more resources than we have collectively in the world. It would seem to control someone like that. So, maybe the good idea would be to have one commissioner and maybe an office in Scotland that would look at us in particular. I don't think that we would argue against that at all, no? I'm just to say that the name person is up to age 18. The elves have told me so. Thanks, convener. I wanted to ask Lorraine from COSLA on—I wasn't absolutely clear on the guardianship stuff earlier—why wouldn't COSLA want—you talked about the excellent work that the Scottish guardianship service does. Why wouldn't COSLA want that to be available in law to victims of trafficking, child victims of trafficking? Our concern is if we're talking about a guardianship, are we talking about all child victims of trafficking? Is there a need for guardians, for example, of internal trafficking that's occurring? We don't have a strong—I'm not saying—it's more in place for the strategy in terms of explaining and defining what children would come under that particular system. We thought that it would be preferable for it to be in the strategy in terms of it's friend, not in a particular group of vulnerable, unaccompanied children. I think that if a child has been identified as having been trafficked and without someone to look after them and they're on Scottish soil, then absolutely our local authorities should give them the legal protection of our Scottish guardianship service. That's why I'm a wee bit confused as to why COSLA seems resistant to put that into law. It's not a resistance and local authorities do work very well with the guardianship model that's going on right now. No, it's not a resistance. We just thought it should be placed in the strategy in terms of because it's for a very particular or are we looking at it as for all? Would COSLA be warmer to the proposal of putting it into law if we were specific in that law about which groups of children it would apply to? It becomes a lot more complex if we're talking about a guardian and a guardianship model for all children that have been trafficked. So if we're talking about children that you can identify as having no one to represent them, I think that's the point you're making. Is it possible that COSLA would change the position on this if there was more clarity in the bill as to who that guardianship would apply to? I can take that back to our child protection network and get feedback on that as well. That ends that session. Thank you very much. I'm going to suspend and I think the minister's not available yet is to come in a few minutes so I'm going to clear the public area please and so I can have a little chat to the committee. We're now back in business and item two, legislation consideration. First of all, an affirmative instrument. The draft courts reform Scotland act 2014 consequential provisions order 2015. Welcome meeting Paul Healhouse, minister for community safety and legal affairs and Scottish Government officials afternoon. Hazel Dalgaard and Allister Smith director of legal services and this is of course an evidence session and the wonderful words I understand that the minister does not need an opening statement. Very welcome. You've made friends immediately. I go straight to questions from members but they're still rattling through their papers. I will ask the question then. I think this follows interestingly on the counter-terrorism and security act 2015. Oh, that's the next one. Oh, I'm on the wrong one. I'm too fast, yes. Courts reform, sorry, consequential provisions. Are we any questions? It seems to me there aren't any questions. I move to item three. I invite the minister to move motion S4M-12522 that Justice Committee recommends the draft courts reform Scotland act 2014 consequential provisions order 2015 be approved. No members wish to speak. I take it and the question is that this motion S4M-12522 be agreed to. Are we all agreed? Thank you very much and I think that sees officials now stay. I need to suspend. A good job. I have my prompt and cue to my left. Yes, yes. It's unsettled you, convener. Sorry. Don't make that as any kind of inducement to do it on other occasions just to fill the gap. Right. Now we move on to item four. It's consideration of the draft advice assistance by way of representation Scotland amendment number two regulations 2015. I've got the minister still and I've got Alistair Smith. Oh, with the same Katrina McKenzie here. Katrina McKenzie, where's she? Oh, there. You've got Hazel Dullgard in front of you. This is unfair. I can confuse myself without the assistance of labels. Right. I want to take evidence of this now. This is an evidence session. This is quickly falling apart, but I now know I'm on to the one that was interesting, which I can ask about minister, which is this counterterrorism and security act 2015 just received royal assent last month. I mean it's quite draconian in respects. I'm not saying that's a bad thing or a good thing, but it's quite draconian to stop people travelling overseas to fight for terrorism organisations, to engage in terrorism related activity, and it takes away their travel documents and has temporary exclusion orders. So if I could just ask you minister why we require a bore in these circumstances. It's a very quick question. We know from UK Government sources that there's 550 citizens of the UK abroad in Syria or have travelled to Syria to potentially participate in the activities there. The war that's going on in Syria, of whom about half have returned up to now, there's not been a provision to prevent the travel of those individuals either returning into the UK or indeed to take their passports off them on a temporary basis, whether it's a suspicion that they'd be involved in such activity to avoid them travelling again. It's important to say that this provision that we're discussing today is to ensure that in the circumstances where someone is presented with the removal of their passport or travel documents, they have access to legal support more quickly than perhaps would be possible if they had to wait to apply through the normal legal aid process. So by taking this step, we enable them through their solicitor to have relatively quick support to be able to address the issue. Is it a kind of appeal procedure? Is it to allow a situation where, obviously, if there was potential for retention of travel documents for an initial period of maybe 14 days, it's possible to extend the 30 days or a temporary exclusion order, which might prevent the individual from returning to UK. They would be able to access legal support far more quickly than would be the case if they had to. They could apply for legal aid, of course. Certainly, the provisions of the bill itself would entitle people to, if they were taking forward either a criminal case or indeed in a civil process, would be entitled to legal aid, but it would take some time to get that into place and therefore this allows them to access it through the provisions far more quickly. Minister, I think that the UK Government's guilty of rank hypocrisy in relation to this particular issue, having initially probably commended some of the people who did go to fight. I, for one, would not want anyone to go abroad to fight for anyone. So, whilst, as the convener says, this is seen as draconian, I certainly welcome the fact that draconian legislation has the right mechanism put in place to assist someone. My concern is that, once again, in relation to the issue of consultation, we're told that the turnaround and the speed of this doesn't facilitate that. Whatever the issue, and I think that the UK Government's got itself confused as to who the goodies and baddies are. They've switched their minds a few times in relation to issues in the Middle East. It's never good to have legislation made with such speed that there can't be due consideration. Would you agree with that? There's always a risk associated with a speedy process and clearly we recognise that the UK Government and the Ministry of Justice have seen the need for urgent legislation and we are trying to do our best to support that process and make sure that it is done as smoothly as possible. In an ideal world, we would have liked to have had more time to consult with stakeholders. Clearly we made the legal aid board aware of what we were doing and the law society were made aware of the draft provisions being laid before Parliament today. We had the ability to bring anything that they were concerned about to the attention of the committee. We've done the best we can in the circumstances, but ideally I appreciate that we want to have time to allow Parliament to have proper scrutiny and to go through the normal process, but unfortunately in this occasion it wasn't possible. For the ones who doubt it, I wasn't critical of you or your officials, but once again we're being reactive rather than having any say on what we would ultimately react to. Well, in an ideal world, as I say, we would like to have had more time ourselves, but we feel we've done the best we can in the circumstances and I appreciate the point that Mr Finlay has made that it's not addressed to the Scottish Government. I appreciate that the UK Government equally is in a difficult position wanting to put measures in place quickly to deal with what they see as a very risky situation, and we're just doing our best in terms of making it sure that it happens as smoothly as possible. Well, it's a welcome response from the Scottish Government. Thank you, thank you. Rodri Cymru. Thank you. Was that wishing to be too difficult? Minister, good afternoon. The financial effect of this bill, the estimate of less than 10,000 per annum, is there any magic to that, or is this something that's just been considered in the given the time constraints? Well, the issue is perhaps to see if a colleague wishes to come in just briefly on this issue, but it's certainly something that I looked at as well, because the numbers are relatively modest, so I wanted to be sure that I understood where they came from. We believe, obviously, of the 550, as I say, about half the people that have left the country to go to Syria have, we believe, returned to the UK already. The UK Government Ministry of Justice have taken to account a number of factors in building their estimate, which they have informed us of, that they believe that the proportion of cases that would actually be in Scotland works out at around 4 per cent of the total there where there might be civil proceedings involved, so that's 4 per cent of 100, and therefore we've based our costing on that. We have looked at the consequences if we were the higher figure, and we believe that even if we were to double it, the proportion of the UK population in Scotland perhaps to match the 8.5 per cent or thereabouts that we have, we'd be looking at an estimate cost of around £12,000 to £16,000 to the league-laid fund, so it's not a huge expense we anticipate, but clearly we'll keep these matters under observation, and if there were to be an issue, we'd raise that with colleagues in Parliament. Come in just to clarify the figures that are given with the instrument or in relation to the cost of the changes that we are making specifically, so the figures are specifically in relation to the two types of proceedings that are specified. So there is some magic too? Not sure if I've described it. There is magic, but there's certainly some thinking behind it. Elaine, just for information really in terms of, and it does relate to the cost, I just wondered which court you would imagine these proceedings would be heard in. If I could maybe pass my colleague in that one. In fact, it would be helpful if you just tell us how the application is made to prevent, to take away travel documents, say if people are trying to leave or they're coming back in to have exclusion, just where that would take place in the process and time of it, timescale. Yes, I don't have the relevant papers in front of me on the detail of the process, but from what I recall it is a question of travel documents being retained at the port of exit by an official, and I think it's a senior police officer who can authorise that for up to 14 days, and there is then the possibility of the authorities applying for an extension of the period during which the documents are retained, and it's that application that there might be proceedings in connection with which would attract abwar underneath under this instrument, and that would be an application, in Scotland that would be an application to the sheriff. Yeah, because I just, apart from that, I was looking at the 10,000, because some of these could be quite challenging, and one thinks of the cost of a QC, you know, a couple of QCs in there arguing, you know, and these are serious issues. These are serious issues about not letting people back into the country or taking their travel documents from them. It isn't just about Syria, it's about terrorist organisations, and this is not for just tomorrow and this year but for a long time. I'm sorry I've upset somebody from the faculty. Well, I'm not really, but you know there could be serious challenges under human rights here. It's certainly a serious matter. I might say that the board expects the cost of a hearing itself to be between £750,000 to £1,000, however, as you quite rightly say, can be known whether it's a more complicated case. Each applicant may have a number of hearings, and occasion council may be required, of course. So, assuming that each case might require two hearings, annual costs to legal aid fund would be between £6,000 and £8,000, based on the 4 per cent figure that the Minister of Justice have assumed in their costings for us. Obviously, we've allowed for, in looking at it ourselves, that if it was a higher figure that matched our population share, the UK share of those cases in it would be maybe up to £16,000, so it's in that sort of ballpark, but we'll obviously keep the matter under review and if it presents any particular difficulties, we can raise that with Parliament. Any other questions on this? Having upset the faculty, I better not need their help at any time. Right, that's it. We move on to item 5 and the formal debate in the motion to prove the instrument. I invite the Minister to move motion S4M-12524. The Justice Committee recommends the advice and assistance by way of representation Scotland amendment 2. Regulations be approved. I take it no one wishes to speak in relation to the motion having had a debate. The question is that motion S4M-12524 be agreed to. Are we all agreed? That's it. Thank you very much. I thank you, Minister and your officials. As members are aware, we're required to report to Parliament on all affirmative instruments. A member is content to delegate authority for me to sign off this week's report. Thank you very much. Next meeting is 17 March. We'll take further evidence on stage 1. The Human Trafficking and Exploitation Scotland Bill consider a draft stage 1 report on the prisoner's control of release Scotland Bill. That's fine. Thank you very much. Evidence next week will be before you leave your seats and pack your school banks. Do you see gangmasters licensing authority, immigration enforcement and the UK Human Trafficking Centre? Thank you very much. Dismissed. End of the meeting.