Meeting of the Parliament (Hybrid)

Meeting date: Wednesday, June 8, 2022

Official Report 1063KB pdf

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Parliamentary Bureau Motions

The next item of business is consideration of Parliamentary Bureau motion S6M-04842, on approval of a Scottish statutory instrument. I ask George Adam, on behalf of the Parliamentary Bureau, to move the motion.

Motion moved,

That the Parliament agrees that the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 [draft] be approved.—[George Adam]

17:18  

Thank you, Presiding Officer, for affording me the opportunity to speak on this SSI on cross-border placements for children. This morning, members received a representation from the Children and Young People’s Commissioner Scotland that we consider our decision on this issue in the light of our obligations as human rights guarantor for all children in Scotland. The commissioner laid out a set of issues pertaining to the regulations that deserve the attention of the Parliament. Colleagues on the Education, Children and Young People Committee heard evidence on the issue from the office of the commissioner as well as from the minister and her officials.

I know that the minister has reflected this in her work on the issue, but we should be clear that we must not let the perfect be the enemy of the good with regard to the welfare of children in England and Wales, for whom appropriate care placements are unavailable closer to home. The measures are, and must be, temporary. Labour will support the SSI on that basis, but the situation in which the Parliament finds itself is unacceptable. The situation with the incorporation of the United Nations Convention on the Rights of the Child, which could have been done many months ago, denies measures of legal clarity in the area, and that is a situation of the Government’s own making.

First, I ask the minister to assure members that the range of issues pertaining to the welfare of those young people that were raised by the commissioner are being taken on board by the Government. Can she now assure us that those issues will be dealt with to the fullest degree possible in accompanying guidance for the statutory bodies that must deal with the cross-border placements?

Secondly, the placements are required because the situation in England and Wales is one of disarray. We must also be clear that Scottish facilities are reliant on the funding that follows the placements to keep the lights on.

All is not well in our own sector—far from it. On 25 May, I asked the minister for assurances that the making available by the Government of full funding for Scottish placements would be an integral part of the proposed children’s care and justice bill. In response, she said:

“We need to think about how we can assist that service to be economically viable.”—[Official Report, Education, Children and Young People Committee, 25 May 2022; c 55.]

I ask her to elaborate on that assurance to the chamber, as the current situation in Scotland is unsustainable and presents a risk to appropriate provision.

Thirdly, the proposed children’s care and justice bill has been promised as the long-term fix for the temporary measures. We still have no date for the introduction of that bill, and I ask the minister to provide a firm date—

I whole-heartedly agree with what Michael Marra has said. Does he agree that, as a rights guarantor, the Parliament has a duty to make sure that we do not render a second class of looked-after young person, as the children’s commissioner has warned might happen as a result of what is proposed?

Mr Cole-Hamilton makes a very fair point. The SSI before us is a temporary measure. I was convinced by the argument that the minister and her officials made in committee, which was that it was a necessary stopgap before new legislation was introduced. I am looking for assurances to be provided that it is a truly temporary measure. It would provide assurance to the Parliament and to the children’s commissioner if we could be told when the children’s care and justice bill will be introduced, to ensure that the measure is as temporary as it can be.

Labour will support the SSI, but we believe that it is imperative that the minister addresses the issues that I have raised in the chamber today.

17:21  

I am grateful for the opportunity to speak to the draft regulations. The Scottish ministers have committed to keeping the Promise by reducing cross-border placements to a minimum. We all agree that such placements should occur only in exceptional circumstances.

Last year, the United Kingdom Supreme Court ruled the use of a court’s inherent jurisdiction to authorise deprivations of liberty in residential accommodation as lawful and as not incompatible with article 5 of the European convention on human rights.

Where deprivation of liberty—or DOL—orders are made elsewhere in the UK and children are to be placed in Scotland, there needs to be an appropriate legal mechanism to recognise them. Currently, recognition is granted through a Court of Session petition process, which is not designed for such cases. In Scotland, a lawful basis for deprivation of a child’s liberty is an essential requirement under article 5 of the ECHR. Therefore, the essence of the regulations is about ensuring that children’s rights are complied with, and ensuring compatibility with the ECHR.

The Scottish Government is satisfied that the draft regulations are ECHR compliant. We published a suite of impact assessments alongside them, including a children’s rights and wellbeing assessment that detailed our consideration of children’s rights.

The regulations before Parliament provide recognition of DOL orders in Scots law, but with conditions attached. The conditions mean that there will be greater accountability for authorities elsewhere in the UK that place children in Scotland, and greater protections for the children who are placed in that way.

I have always made it clear that the regulations represent an interim step towards better regulation of cross-border placements. Of course, we are exploring longer-term solutions as part of the proposed children’s care and justice bill, on which we are currently consulting. We welcome views from all stakeholders.

I know that the office of the Children and Young People’s Commissioner Scotland raised a number of concerns with the Education, Children and Young People Committee. We have engaged with the commissioner’s office and other key actors throughout the development of the regulations. On 23 May, I wrote to the committee to respond to the concerns that had been raised and, on 25 May, I gave evidence to the committee, in which I focused on the improvements that the regulations will make to the status quo for children who are placed in Scotland.

I also stressed that the scope of the regulations—to provide a route for legal recognition of deprivation of liberty orders and to deliver a better regulated placement process—is in line with the powers that the Parliament has granted to ministers. We are clear that funding models that are based on the acceptance of children on cross-border placements cannot be sustained. That is why we are committed to looking at more fundamental measures in the forthcoming children’s care and justice bill.

Ultimately, the regulations will not and should not be a substitute for proper provision being made available for children in England and Wales.

I have met my UK Government counterpart to express my great concerns about the lack of capacity that is driving cross-border placements into Scotland and will continue to seek assurances that those are being addressed urgently.

In the meantime, we cannot delay in taking action to better protect those children. That is why we introduced the draft regulations, which the Education, Children and Young People Committee voted unanimously to support at its meeting on 1 June.

The question on the motion will be put at decision time.

The next item of business is consideration of three Parliamentary Bureau motions. I ask George Adam, on behalf of the Parliamentary Bureau, to move motions S6M-04840 and S6M-04841, on the approval of Scottish statutory instruments, and motion S6M-04843, on the designation of a lead committee.

Motions moved,

That the Parliament agrees that the Non-Domestic Rates (Valuation Notices) (Scotland) Regulations 2022 [draft] be approved.

That the Parliament agrees that the Companies Act 2006 (Scottish public sector companies to be audited by the Auditor General for Scotland) Order 2022 [draft] be approved.

That the Parliament agrees that the Delegated Powers and Law Reform Committee be designated as the lead committee in consideration of the Moveable Transactions (Scotland) Bill at stage 1.—[George Adam.]

The question on the motions will be put at decision time.