Subordinate Legislation Committee

Meeting date: Tuesday, November 16, 2010

Official Report 364KB pdf

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Children’s Hearings (Scotland) Bill: After Stage 2

It is my great pleasure to welcome Denise Swanson, policy and programme manager for the children’s hearings system reforms division, and Laurence Sullivan, senior principal legal officer with the Government’s bill team. Stage 3 of the bill will take place on Wednesday 24 November—a week tomorrow. Let us move straight to questions.

Thanks very much for coming along to the committee this afternoon. Can you outline for the committee the reasoning behind the Scottish Government’s decision that the provisions in section 170(2)(a) to (m) will remain subject to negative procedure?

The provisions were subject to negative procedure in the bill as introduced and, as you will be aware, this committee asked about that at the time. We reviewed the position, but our view remains as it was, except on new provision 170(2)(za), which we intend to be subject to affirmative procedure. We will lodge an amendment at stage 3 to achieve that. We remain of the view, however, that negative procedure is appropriate for the rest of the provisions, given the fact that they are, in essence, about making procedural and operational rules for children’s hearings.

Around 40,000 children’s hearings are held around the country throughout the year. The problem with affirmative procedure would be that, if anything relating to the procedural rules required to be amended fairly quickly, we would not have the legislative flexibility to do that. With so many children’s hearings being held, it is possible that a particular set of circumstances could show up some flaw in the rules that we make that would require a quicker fix than affirmative procedure would allow.

The appeal rights are clearly signposted throughout the bill. The procedural rules will not touch on those appeal rights but will focus on procedural and administrative matters in the exercise of those appeal rights. They will not affect the appeal rights of those in the children’s hearings system.

At stage 1, we queried why regulations made under section 170 should in all cases be subject to negative procedure. We thought that affirmative procedure would be appropriate in respect of rules applying to substantive rights. Do you agree that the rules relate to substantive rights? In order to establish our respective positions, can you set out for us what you define as substantive rights? Do you agree that some of the powers in section 170(2) could impact on matters relating to European convention on human rights compatibility?

While you are noting all that down, and because there is a danger that you could run into this, I would like to know whether you consider ECHR compatibility to be a paramount consideration. Can you expand on your justification for the provisions that could potentially have a significant impact on ECHR compatibility not being subject to greater parliamentary scrutiny?

That is your starter for 10.

If I miss anything out, please remind me.

Any rules that were made under section 170 would have to be ECHR compliant under the terms of section 54 of the Scotland Act 1998 in the same way that all primary legislation must be ECHR compatible under section 29 of the Scotland Act 1998. The same test applies. During the preparation of all the secondary legislation to implement the bill—as is the case during the preparation of the bill itself—the ECHR is foremost in our minds during the three main stages of policy formulation, legal instruction and legislative drafting. That will continue with the rules.

The power in section 170 is quite a wide power. In a way, it replicates, but in more detail, the existing section 42 of the Children (Scotland) Act 1995, which was also subject to negative procedure. All the rules that could be made under section 170 are in the context of supplementing provision that is in the bill. For example, the bill provides for who has the right and duty to attend a children’s hearing—the child, the parents and other relevant persons are subject to that duty. When section 170(2) says that rules may provide for

“attendance of persons at children’s hearings”,

for example, that is supplementary to what is in the bill, should there be any issues about whether other people might also have the right to attend a hearing. In a way, the significance of ECHR issues is one point removed from provision that is already established in the bill. That perhaps deals with Helen Eadie’s point about substantive rights.

There are matters in this section that are substantive, but that is in the context of procedure. We see provisions about constituting or arranging children’s hearings, notifying persons about children’s hearings or providing documents to the hearings as core procedural matters. Those provisions would allow, for example, specific time limits to be set out for how long in advance of a children’s hearing people must have documents. That would be too detailed and prescriptive for primary legislation. However, that is in the context of the principles having been established in the bill that certain people will have the right and duty to attend a hearing, that other people will be notified of the hearing and that documents will be provided to those people.

I understand why you would not necessarily want those details to be in primary legislation, but some aspects of children’s hearings can be quite controversial and the Parliament would want more detailed scrutiny of the regulations that you are proposing. Nothing is more guaranteed to get the public up in arms than issues to do with children. Would you therefore be willing to agree to affirmative procedure in this instance?

After stage 1, we considered whether to move any of the rules in section 170(2) from negative to affirmative procedure. We came to the view that we ought to be able to have a complete set of rules that would be subject to one procedure. That is in the context of the fact that those rules would be supplementary and operational in relation to important principles that had been established in the bill, and that those procedural and operational rules would not be doing anything to cut across the principles that had been established. They would be a core set of the rules of a tribunal, in the same way as the rules of many other tribunals might be subject to negative procedure. We felt that that was appropriate here, too. Before rules are made under section 170, they would be subject to consultation with the Administrative Justice and Tribunals Council under other statutory provision.

I hear what is being said, although I am not sure that I am persuaded.

The rules identify the key processes that need to be put in place to deliver what is in the rights and duties and so on that are in the primary legislation, who has responsibility for carrying out those processes, and the timeframe. They are incredibly procedural. They are administrative. They are about attributing responsibilities in the main between the principal reporter and members of the hearing, and they deal with the expectations of timescales that they would need to follow. The provisions do not touch on the essential rights of those who are involved in the hearings system, which are enshrined in the primary legislation.

14:30

What is the difference between new paragraph (za) and the other paragraphs in section 170(2)? How do you justify using affirmative procedure for paragraph (za) but not for the other paragraphs, which look as significant?

New section 170(2)(za) focuses on pre-hearing panels, on which the bill contains a set of provisions that will be new to the system. Rules under paragraph (za) could provide for the substantive matters that a pre-hearing panel could consider, beyond those that are currently in primary legislation. We thought that, as such matters could extend beyond operation, procedure and the administration of provisions in the bill, it would be best to deal with them through affirmative procedure. Such rules might adjust a pre-hearing panel’s responsibilities.

Given the committee’s previous comments on section 170, when we considered subsection (2)(za) again, we thought that it should be subject to affirmative procedure. As the first two words of the paragraph say, it relates to “specifying matters” that pre-hearing panels can consider. Such panels will be the new version of business meetings under the Children (Scotland) Act 1995.

As “specifying matters” suggests, that means specifying additional matters. Section 170(2)(za) of the bill is substantive, because it will allow pre-hearing panels to consider additional issues to those that they will consider under section 78. The paragraph is qualitatively different from a procedural rule, because it will give pre-hearing panels a competence and a power to consider another matter. The paragraph is substantive and will make new provision, whereas the other paragraphs supplement provision for which the principle is already established in the bill.

I am not sure how matters such as excluding people and representation can be seen as lesser issues.

When we raised the issue at stage 1, one reason that you gave for using negative procedure was that you would introduce one statutory instrument to cover the provisions under subsection (2). Now that you propose to use two types of instrument, will you look again at whether it would be possible to move other paragraphs under subsection (2) to affirmative procedure?

Our view is that, although subsection (2)(za) has been included in section 170, it is not as clearly procedural as are all the other provisions in that subsection. All the other provisions apply to the procedure of children’s hearings whereas, rather than deal with procedure, paragraph (za) separates pre-hearing panels from the children’s hearings that will follow them and could allow pre-hearing panels to be given additional competences to consider other matters.

Making paragraphs (a) to (m) still subject to negative procedure would allow us to have one complete set of tribunal rules that would cover all procedural matters. If rules were made under paragraph (za), they would deal with the different matter of allowing pre-hearing panels to consider issues that the bill does not provide for them to consider, which would mean adding functions to panels. That is different from procedural issues.

But that is all part of the same procedure, basically.

It is all part of the same power to make procedural rules, but we think that whereas rules made under paragraphs 170(2)(a) to (m) would look like the complete set of procedural rules for a tribunal in the same way as the procedural rules for the additional support needs tribunal or employment tribunal, for instance, would look like a complete set of rules, section 170(2)(za) is somewhat different. In a sense, it would not fit coherently into a set of procedural rules because it is about specifying additional matters that could go to a pre-hearing panel rather than to the children’s hearing.

I hear what you are saying about tidiness and the like. I suppose that we are more interested in making sure that the rules come under the right degree of scrutiny. Despite how the rules are drawn up, is it not possible to pull them together into a set and allow for that within the legislation?

We remain of the view that, because we may need to amend the procedural rules that we will make under sections 170(2)(a) to (m) as part of the implementation, we prefer to have flexibility in case anything is required to be done fairly quickly.

For example, in the mid-1990s, a Strasbourg case about access to papers in children’s hearings had to be solved by the administrative fix of the Scottish Children’s Reporter Administration extending the list of who got the papers. We never know what challenges we might face or what judgment a court will issue in response to a challenge. We are concerned that if we use affirmative procedure for some of the provisions in sections 170(2)(a) to (m) we will not be able to respond quickly if a case comes up that is similar to the McMichael case in the 1990s. That case required a quick response; we needed to change the tribunal’s procedural rules in response to something that happened at a children’s hearing and showed up a flaw in the rules. If the procedure is affirmative, we will not be able to do that at all during parliamentary recess, which would mean a delay. We prefer to keep section 170 subject to negative procedure, with the exception of paragraph (za), to give ourselves that bit of flexibility, because we do not know what will crop up and because of the vast array of circumstances that could arise at any of the 40,000 children’s hearings that take place each year.

Section 170(2)(za) is about additional matters for pre-hearings. The matters that a pre-hearing will follow are based in primary legislation, and those matters are less likely to be changed than the adjustments that might be needed to procedural rules as we go through the bill.

To quote Helen Eadie, I hear what you say about 40,000 cases but I am uneasy, because weight of numbers should not necessarily lead to circumventing parliamentary scrutiny. I suspect, however, that we will have to let that point stand.

Bob Doris will change the subject slightly.

Obviously there is a balance to be struck, and we are having a debate about the essential rights that are or are not being changed by negative instruments and procedural matters. There has been dialogue and debate with the committee on that.

It has been drawn to our attention that there was a motion to annul the Children’s Hearings (Legal Representation) (Scotland) Amendment Rules 2009 (SSI 2009/211), which was successful at committee but was narrowly defeated by the Parliament. Irrespective of the rights or wrongs of the Parliament’s significant interest in the situation, and the on-going debate about what are rights and what are procedural matters, the Parliament’s significant interest alone might be persuasive enough to require a move from negative to affirmative procedure. What are your views on that?

In September 2009, the Education, Lifelong Learning and Culture Committee voted to recommend annulment of the rules that you referred to, but on the following day the full Parliament voted not to annul them. Those rules were not the procedural rules for children’s hearings, but a different set of rules that made provision for who was entitled to state-funded legal representation in children’s hearings.

The bill will change entirely the system of legal representation in children’s hearings. Rather than our having the existing bespoke system that was set up in 2002 after the S v Miller case, which the then Scottish Executive lost—and which was always intended to be an interim scheme, although it has been with us since 2002—section 178 onwards of the bill will move the entire state funding of legal representation in children’s hearings to the Scottish Legal Aid Board.

A number of changes to secondary legislation powers will, through those new provisions, be made to the Legal Aid (Scotland) Act 1986. We do not envisage any changes being made to section 170 of the bill or to the procedural rules of children’s hearings that would impinge in any way on the entitlement, criteria or eligibility for legal representation in children’s hearings. We do not see the issues as being on all fours with each other.

The legal representatives issue was about rights. Although paragraphs (a) to (m) of section 170(2) deal with issues around notifying children’s hearings, attendance and excusal, they are there to illustrate how the rights in the bill should be adhered to within the hearings system’s processes. It is about the process of identifying whether someone should or can be excused, and who should be notified of all papers. The paragraphs are about processes rather than rights, which are clearly signposted in the primary legislation. I suggest, therefore, that negative procedure is right.

The second half of that answer was a restatement of your position; in the first half, you were saying that you do not see parallels with the 2009 attempt to annul the Children’s Hearings (Legal Representation) (Scotland) Amendment Rules 2009. Perhaps the committee at a later date can pick that over to see whether there are any parallels.

I thank the witnesses for their answers. I also apologise because I have, unfortunately, to leave the committee early.

My question is fairly short and simple. Will the Scottish Government consider lodging amendments to make the rules in paragraphs (d), (e), (f), (h) and (k) of section 170(2) subject to affirmative procedure?

Some of that will possibly have been covered by our previous responses. The Government does not intend to lodge amendments at stage 3 to make those paragraphs subject to affirmative procedure. In order to maintain what we see as the useful cohesiveness and flexibility in having paragraphs (a) to (m) of section 170(2) together in the one set of rules, they will be subject to negative procedure.

As you will understand, it is our duty to probe such decisions.

None of the paragraphs that we are talking about affects people’s rights. They identify the processes that should be in place to protect the rights that are in the bill. There is no question of any of those procedural rules affecting the rights of those who are in the hearings system.

All the paragraphs in section 170(2) have to be read within the context of section 170(1). Although some of those paragraphs might look quite wide, the provisions are about ministers being able to make rules about the procedures of children’s hearings, and that will be done within the context of section 170(1). None of those paragraphs will be able to make provisions that go wider than rules about the procedure for children’s hearings.

14:45

From the chair, I say, “Hmm.”

From what you say, it appears that any procedural aspect of the core rules that you talk about would be subject to mandatory consultation of the Administrative Justice and Tribunals Council, whose input would be significant. Will you expand on that? That is a little reassuring, but I would like to understand better precisely what impact such consultation has had in the past. How do you justify the statement that the council’s input would be significant?

The significance or otherwise of the AJTC’s input would be for it to decide in its response to the statutory consultation. The Scottish ministers have a statutory duty to consult the AJTC before making rules on children’s hearings, as with many other tribunals. That happened with the legal representation rules, which have been referred to, and would happen with any rules that were made under section 170.

Given that we would be making the complete set of procedural rules for children’s hearings, we would expect to consult the AJTC extensively and to consult other bodies and stakeholders that are involved in the system, although such consultation would be non-statutory. It would be for the AJTC to make whatever comments it had on draft rules on which we consulted.

The AJTC has a statutory right of attendance at children’s hearings. It regularly observes hearings and monitors procedures and whether the procedural rules are being applied in hearings. It reports on its observations of hearings, so it is familiar with the processes that should be in place. It plays a role in observing and monitoring the processes.

Who are the other stakeholders who would be consulted, as Laurence Sullivan mentioned? If consultees highlighted major concerns and input them to your processes but their views were not acted on, what redress or appeal would they have?

The most obvious stakeholders are the Scottish Children’s Reporter Administration and the new body that the bill will establish—children’s hearings Scotland. They would not be statutory consultees, but they would be consulted when the rules were formulated. The AJTC could pick up any concerns that they had. As a matter of course, when drawing up procedural rules, we listen carefully to the knowledge of people who are in the system, because procedural rules involve getting the detail of procedures correct in the context of the general rights and principles that the bill sets out.

We have an implementation working group that has worked with us throughout the bill’s development. It is a representative group that has support from the SCRA, children’s panel members, the children’s panel advisory committee, the Convention of Scottish Local Authorities, the Association of Directors of Social Work and safeguarders. That group has committed itself to working with the Scottish Government in the development of the procedural rules. It is a representative stakeholder reference group that will be fully involved in the development of regulations as we move beyond this stage of the bill’s progress.

I am grateful for that explanation. Thank you.

Let us turn to section 128, which relates to the right of a child or a relevant person to require a review of a compulsory supervision order. Under subsection (4), there is a requirement for a minimum period of three months to elapse before a review can be carried out. However, subsection (5) enables the Scottish ministers, through regulations, to provide for an order to be reviewed during a different period when the order includes a secure accommodation authorisation. At stage 1, the Scottish Government indicated that the provision was intended to shorten the minimum period. The committee sought greater reassurance that that was the case through having a limit to that effect included in the bill; however, no such reassurance has been given by the Government. In your response to our questions on the delegated powers memorandum at stage 1, you stated that your policy intention is that it should be possible to set a review period that is shorter than three months. Is that still the case?

Section 128 allows a child or relevant person—who will usually be the parent of the child—to require a review of the compulsory supervision order that is enforced in respect of that child no earlier than three months from the day on which the order is made, continued or varied. However, regulations made under subsection (5) can provide that reviews of compulsory supervision orders that contain a secure accommodation authorisation can take place during a specified part of the three-month period.

The regulations would, in effect, reduce the three-month review period for such orders, but they could not be used to increase it. In our view, a proper reading of the vires of subsection (5) is that a period longer than three months could not be specified and that that power could be used only to specify a period shorter than three months. That is, in our view, the best legal reading of the vires of subsection (5). Therefore, it would not be necessary to state that explicitly in section 128.

So, are you saying that the provisions as they stand would not allow the period to be extended?

Yes; that is our reading of subsection (5). That would not be an appropriate use of the regulation-making power. It would be somewhat incongruous to have a longer review period for secure accommodation authorisation—which is possibly the most frequently used disposal of children’s hearings—but shorter review periods for all the lesser disposals of children’s hearings. That is not the ministerial intention and we do not think that it would be a proper legal reading of subsection (5), especially given the fact that the phrase “during a period specified” refers to a specified part of the three months. The bill sets a maximum review period of three months, and the review period for secure accommodation authorisation would be less than three months.

You undertook to examine the provisions to see whether their effect could be clarified further, but that was not included in our stage 1 report. If a shorter period is contemplated, could appropriate provision be included in the bill even if the actual period is not specified?

We would not want to specify what the shorter period would be. As is stated in the delegated powers memorandum, we want to ensure a degree of flexibility and do not want the bill to be unnecessarily restrictive in specifying the period. Nevertheless, it is our view that we could not use subsection (5) to do anything other than prescribe a period of less than three months. The review period must be less than three months.

There is no Government intention to extend the period.

No.

There being no further questions, it falls to me to say a big thank you to Laurence Sullivan and Denise Swanson for joining us today. It is appreciated that you have taken the time to come and answer the committee’s questions. Thank you for your time and trouble.

As previously agreed, we now move into private session.

14:55 Meeting continued in private until 15:11.