Children and Young People (Scotland) Bill: After Stage 2
Agenda item 5 is consideration of the delegated powers provisions in the bill after stage 2.
Members will have noted that the Scottish Government has provided a supplementary delegated powers memorandum and will have seen the briefing paper. Stage 3 consideration of the bill is due to take place on Wednesday 19 February. The deadline for lodging amendments is 4.30 pm this Thursday 6 February, so the committee may wish to agree its conclusions today.
There are a number of powers to which the committee is invited to give particular consideration. Section 52(2)(b) allows the Scottish ministers to modify section 52(1) by order, to confer, remove or vary a duty on corporate parents. The power also allows ministers to provide that section 52(1) is to be read, in relation to a particular corporate parent or corporate parents of a particular description, with any modification conferring, removing or varying a duty.
At present the bill applies all duties to all corporate parents. A further power will allow ministers to alter this one-size-fits-all model so as to tailor the duties to specific corporate parents or classes of corporate parent. The power is framed in a way that suggests that the duties will become fragmented between primary legislation and its modification by subordinate legislation. The committee may consider that the proposed structure lacks transparency and could lead to confusion in determining which duties are owed by which authorities.
In the light of the way this has been drafted, it might be appropriate for the committee to agree that, where such lists are capable of being modified by secondary legislation, unless there is an overriding reason the complete list should be included in any secondary legislation, even if parts of the list merely re-present what existed already, so that the list is in a single place.
Thank you for that suggestion: I am sure that the Government will give that some thought.
I suggest that the committee agree to report that, while it finds the power in section 52(2)(b) to be acceptable in principle, it is concerned that the proposed structure of the power—a mandatory list of duties in primary legislation, applied as modified by standalone subordinate legislation—could lead to confusion and impede clarity.
Members indicated agreement.
Section 60A inserts new section 26A into the Children (Scotland) Act 1995. New section 26A places a duty on local authorities to provide “continuing care” to “eligible persons” who cease to be looked after by them.
The provision confers several powers on the Scottish ministers within this framework. Ministers may specify the upper age limit of eligible persons and the period for which the duty to provide continuing care subsists. Ministers may also modify the bill to provide when the duty to provide continuing care does not apply or when it ceases. The powers are subject to the affirmative procedure.
The duty to provide continuing care for looked after children is a significant addition to the bill. Within the framework provided by the bill there are a number of powers that are important in structuring the scope and application of the duty over time. As a result of those having been inserted into the bill at stage 2, the committee does not have the opportunity to scrutinise the purpose of the power and its effects as effectively as at stage 1, since time does not permit that.
The powers offer maximum flexibility to ministers to structure the duty and to vary the application of the duty over time in the manner they consider appropriate. While it is understood that ministers intend to roll out the duty to different cohorts over time, the power could be used very differently. Each of the powers is subject to the affirmative procedure, which affords a high level of scrutiny and provides for active involvement by the Parliament, but there is no requirement for consultation with local authorities, Social Care and Social Work Improvement Scotland or persons who may be affected. The committee may consider that the subject matter is of sufficient importance that some prior consultation with such persons should be required when using the delegated powers to alter the scope of the duty. This could also assist the Parliament in its scrutiny of proposals for the roll-out of the duty.
Does the committee agree to express concern in its report that powers of this significance have been added at stage 2, which has reduced the level of scrutiny that the committee has been able to apply?
Does the committee also agree to recommend that there should be a requirement for consultations with local authorities, Social Care and Social Work Improvement Scotland and persons representing the interests of looked after children before the powers are exercised?
Members indicated agreement.
A new power has been inserted into new section 13C(3) of the Adoption and Children (Scotland) Act 2007 by amendment at stage 2. The provision permits ministers to prescribe circumstances in which adoption agencies will not be required to disclose information relating to Scotland’s adoption register, despite the general duty to do so set out in new section 13C(1) of the 2007 act.
That change could be considered significant in terms of ensuring that the disclosure regime is compatible with the European Convention on Human Rights. On introduction, the bill required consent to disclosure to be obtained from the child’s parents and any other prescribed persons. The requirement to obtain consent to disclosure has now been removed from the bill. In its place is a power that permits the Scottish ministers to prescribe the circumstances in which prescribed information is not to be disclosed. This could include provision about the need for consent but need not require it. It should be noted that the bill already confers a power on ministers to require the information to be disclosed to a third party instead of to them.
By removing the consent requirements from the bill, the Parliament has given up its control over them to the Scottish ministers. The committee may consider that to be important.
Does the committee agree to express concern that the requirement for consent to be obtained for disclosure under new section 13C of the Adoption and Children (Scotland) Act 2007 has been removed from the bill and has been replaced with a power that enables ministers to prescribe those circumstances in which disclosure is not permitted but which does not require consent to disclosure to be obtained?
Members indicated agreement.
I endorse those concerns. My concern is that we have moved from a situation that is demonstrably ECHR compliant to a position that is perhaps less obviously ECHR compliant. Given the recent track record on ECHR compliance, it is important that we make every endeavour to make certain that the legislation that we produce is absolutely and self-evidently ECHR compliant.
I acknowledge what John Scott says in relation to article 8 of the European Convention on Human Rights and the right to privacy, but there is a difficulty here. The issue of ECHR compliance or non-compliance will arise by the interaction of the commencement order—if there is a commencement order; it would be a commencement order for section 68 of the bill, which inserts section 13C(3)(d) into the 2007 act—and any subsequent secondary legislation. While it is perfectly proper to put comment on the record today, the risk crystallises when we come to subordinate legislation a later date.
It is suggested that the committee may wish to be content with all other provisions in the bill that have been amended at stage 2 to insert or substantially alter provisions conferring powers to make subordinate legislation. Are we content to report accordingly?
Members indicated agreement.