Education, Lifelong Learning and Culture Committee, 01 Sep 2009

Meeting date: Tuesday, September 1, 2009

Official Report 394KB pdf

---

Subordinate Legislation

---

Looked After Children (Scotland) Regulations 2009 (SSI 2009/210)

Item 2 is consideration of subordinate legislation. We will first consider the Looked After Children (Scotland) Regulations 2009 and then the Children's Hearings (Legal Representation) (Scotland) (Amendment) Rules 2009. The committee will take evidence on the instruments, which are subject to negative procedure, from the Minister for Children and Early Years. Once our questions on the Looked After Children (Scotland) Regulations 2009 have been exhausted, we will move to questions on the Children's Hearings (Legal Representation) (Scotland) (Amendment) Rules 2009. We will then proceed to a separate agenda item to consider the instruments further.

Members will be aware that the Looked After Children (Scotland) (Amendment) Regulations 2009 have now been laid and that we will consider them at a forthcoming meeting. However, members are encouraged to ask questions on the amendment regulations during this evidence session.

I welcome Adam Ingram, the Minister for Children and Early Years. Mr Ingram is joined by Penny Curtis, who is the head of the kinship, fostering and adoption team at the Scottish Government, and by Johanna Irvine, who is the principal legal officer at the Scottish Government. I understand that the minister wishes to make an opening statement.

Thank you for the opportunity to outline why the Scottish Government seeks the committee's support for the regulations.

The Looked After Children (Scotland) Regulations 2009 provide the legislative framework for the planning for and care of children once they have been identified as needing to be looked after. The regulations do not cover what happens before a child is considered as looked after, or the throughcare and aftercare arrangements that are put in place once a child leaves care.

I will take the opportunity to set out some of the rationale behind the regulations.

There are five key themes covering what we want the regulations to achieve. The first is about direction. The Government is clear that all children deserve the chance to fulfil their potential and there should be no difference between the outcomes of young people in care and the outcomes of their peers.

One of the principles of the early years framework is that we want to work with parents, families and communities to develop their own solutions, using accessible, high-quality public services as required. In an ideal world, no child would have to be looked after by a local authority but, where that is necessary, we want to ensure that the child is better off as a result of being in the care system. As well as the necessary changes around adoption and fostering and kinship care, the new regulations tighten up, modernise and consolidate provisions around assessing the needs of children who are looked after at home, planning to meet those needs and monitoring success.

The regulations recognise specifically, for the first time, the role of the wider family who care for looked-after children, by defining them formally as kinship carers. We have set out in legislation the arrangements for local authorities providing allowances to kinship carers of looked-after children. However, our view is that where a child is cared for by the wider family, that family should be supported to provide as normal a home as possible for the child. We believe that the benefits system should be supporting kinship carers through the usual child-related benefits—child benefit and child tax credit. Local authorities would then need only to supplement those benefits to meet any additional costs of bringing the child into the household. As members will be aware, we are actively pursuing that matter with United Kingdom ministers.

We have embedded in the regulations some of the principles identified by the reference group that was set up to consider aspects of kinship and foster care. Once the legislation is in place, I intend to consider with our partners what else needs to be done to improve outcomes for children in foster and kinship care.

The second theme that the committee will want to note is that the commencement of the regulations will remove the bar on same-sex couples fostering children. That was a recommendation of the adoption policy review group and it mirrors the changes that Parliament made to enable same-sex couples to be assessed as adopters in the Adoption and Children (Scotland) Act 2007. The existing bar not only prevents same-sex couples from being assessed as foster carers, but can in turn act as a barrier to their adopting as, under the existing legislation, agencies often approve adopters as foster carers before the child is freed for adoption.

Thirdly, we have aimed to embed in the regulations the crucial role of the corporate parent and the responsibilities that local authorities have, working together with community planning partners, for achieving positive outcomes for all looked-after children, regardless of whether the child is looked after at home or looked after and accommodated by the council. The regulations make it clear that care planning and reviews need to happen for all looked-after children.

Fourthly, one of the key principles behind the new regulations is the importance of ensuring effective and timely decision making for looked-after children. What can seem like a short time in an adult's life can be a very long time indeed in a child's life.

Fifthly, looked-after children tell us how important it is that they are listened to. The regulations strengthen the legislation so that children's views have to be taken into account. That does not mean that the decision taken will always be the one that the child wants—that is not the role of a good parent, corporate or otherwise—but it means that those involved in planning for looked-after children's lives have to listen to children's views and take them seriously.

As members know, legislation in itself will not deliver wholesale changes to the outcomes for looked-after children. As we have developed the regulations, we have been clear that they are not a detailed or restrictive set of instructions. They are intended to provide professionals working with looked-after children with a framework within which they have to exercise their judgment to meet the needs of each individual child. We have commissioned guidance, which will provide more detail and good practice to support practitioners working with the new legislation.

We know that young people leaving the care system do not always get the support that they need. In response to a number of comments made during the consultation on the regulations, I have committed to look at how throughcare and aftercare arrangements are operating and how they can be strengthened.

I have written to the committee while we have been developing the regulations to update you on progress and timescales. It has taken us longer than we originally anticipated to draft the regulations as partners identified significant issues in both consultations reflecting evolving policy and practice that we wanted to ensure were reflected in regulations.

A small number of issues about the regulations have been raised by the British Association of Adoption and Fostering and the Fostering Network, which have been developing the guidance on the new legislation. As a result, we have laid amendments to the regulations. I wrote to the committee in August to explain the purpose of the amendments. The two main changes are the inclusion of civil partnership status in schedule 3 and the extent to which local authorities can delegate their functions with respect to looked-after children and fostering to registered fostering providers.

The regulations and the amendment regulations are set to come into force on 28 September.

Thank you for that clarification. There is now an opportunity for members to ask questions.

I want you to clarify a couple of points for me first. The first is on looked-after and accommodated children and your commitment to carry out a review of throughcare and aftercare. I know that we share a true commitment to improving services for looked-after and accommodated children. As part of that review, will you also consider the pressure that, informally or otherwise, is sometimes placed on children turning 16 to leave care? I know—as I am sure you do, minister—that not all local authorities behave in that way; unfortunately, a small number of local authorities are still leading children to believe that it is all right for them to leave care at 16.

You have put your finger on a very real issue that we want to address: the particular problem of youngsters who, by leaving care before school-leaving age, are disallowed aftercare services. Of course, some children are only too keen to leave the care system, and we need to persuade them that it is in their best interests to stay in it until they are more mature and can cope with tenancies and the like. I completely agree with the thrust of your comments, and our review of throughcare and aftercare arrangements will certainly focus on the issues that you have identified.

Do you intend to keep the committee informed of that work?

I certainly undertake to do so.

That would be very helpful.

I will move on to schedule 5, which relates to kinship carer arrangements. I want first to say that I welcome the fact that, under these regulations, kinship carers will be treated the same as foster carers. However, I am concerned that there is a lack of clarity, particularly about the definition of kinship care. If we do not get this right, are not clear about what constitutes a kinship carer and are therefore not working to the same definition, there is a risk that, when the regulations are implemented, we might simply continue with the current system in Scotland in which some local authorities engage in good practice by recognising the role of and paying kinship carers while others do not. Do you have a view on that? Is there a specific reason why you chose not to define kinship care?

I did not have notice of your question, convener, so I am trying to turn quickly to schedule 5. Do you feel that the schedule is missing anything in particular or are you raising a general point about kinship carers of looked-after children or kinship carers who do not have that status? Is that the essence of your question?

I am slightly concerned that if there is no clear definition of kinship care some local authorities will extend rights to kinship carers and others will not. Getting off on the right foot is fundamental, because if that does not happen we will be storing up problems for the future. I simply think that we have missed an opportunity here.

We have to differentiate between kinship carers of looked-after children and other kinship carers. We have focused on looked-after children because they have particular needs and, given that they are in the care system, we are under an obligation to ensure that those needs are met. That is why the kinship care strategy document "Getting it right for every child in kinship and foster care" focused on the provision of allowances to kinship carers of looked-after children.

That does not mean to say that local authorities cannot exercise their powers to provide for other children who do not fall under that specification but whose families are in need. I know that local authorities throughout the country provide discretionary payments to kinship carers in that situation.

As I indicated, ideally we want a system whereby a child who comes into a family is properly supported, ideally through the benefits system, so that local authorities are there to meet any additional need that is identified. Until we get that sorted out, this problem will remain. In fact, we are probably subsidising the benefits system through the payment of a kinship care allowance as a result of the child's looked-after status. As I indicated, we are heavily engaged with our UK counterparts to try to fix the problem. Unfortunately, we have not made much, if any, progress to date. I want to come back to the issue and will probably come back to the committee on it.

I do not necessarily disagree with you, minister, particularly in relation to the payment of benefits—that is possibly one matter on which we might agree. My slight concern is that by giving local authorities discretion we will always have a postcode lottery for kinship care, and I do not think that that is helpful.

I take that view on board, but we have a commitment in the concordat, which no doubt other members will question me on, whereby every authority has signed up to providing an allowance to kinship carers of looked-after children at an equivalent rate to that of foster carers. I am confident that we will be able to deliver on that. Most, if not all, local authorities are now paying a kinship carers allowance, although I concede that not all those payments are as yet at the level of the foster carers allowance. We will need to see how that pans out over the next couple of years, at which point we will be in a position to judge where we are with this particular policy.

I will shock the minister on our first day back by welcoming some of the provisions that are included in the regulations. I note that there has been a delay along the way, but it is more important to get the regulations as right as we possibly can, rather than worrying too much about the fact that the timetable has slipped by a few months. I greatly appreciate the fact that you have taken on board the comments and concerns that some of us have raised with you along the way.

I will pick up first on the kinship carers allowance. I ask these questions on the basis that, as the convener indicated, there may be a great deal of support on the committee for the suggestion that the matter be addressed within the benefits system—that would make a lot of sense. Nevertheless, we are where we are. A national minimum level of payment would deal with the considerable discrepancies that exist around the country and it would allow local authorities to retain some discretion. Did you consider the possibility of having a national minimum level of payment?

I will answer that question in two parts. The minimum level that we have stipulated is the Fostering Network rate, which is the recommended rate, as it were, for foster carers. We want kinship carers to be treated in an equivalent fashion.

Your second point refers to the fact that a number of local authorities are paying only so much at the moment and are moving towards the fostering rate. We will not be in a position to assess whether we have achieved our objective until the end of the period.

As you probably know—I think that this is in the public domain—there was a phased release in the financial settlement. There was a certain amount allocated to this policy in the first year. That was doubled in the second year and trebled into the third year. There was a phased introduction, so you would perhaps expect that some local authorities are phasing their payments to kinship carers and will get to the level that we are looking for. That maybe explains the variation in practice. I congratulate the local authorities that moved immediately to the fostering rate.

There are issues around changes in timescales. I understand that there are changes in that foster carers will no longer be automatically reviewed every year. I think that there is a review in the first year and then after three years or where necessary. What safeguards and risk assessments will be put in place, given that we would potentially be leaving a child in a situation for a further three years, which is a significant period in a child's life?

I refer you to my colleague Penny Curtis.

The change that we have made, which was in response to comments in the consultation, relates to the approval of the foster carer. The foster carer will get a review after the end of their first year and then on a three-yearly basis, although that can be brought forward by the local authority or the fostering agency if they choose. That is separate from reviews of the child's case; it is to do with the status of the foster carer. It would not be the case that a child would just be left for three years without any intervention from social work services.

That is helpful. Thank you.

You quite rightly raised the issue of essential discussions with the UK Government about the benefits system. Are you expecting those discussions to be difficult in respect of time? Are you expecting to make progress soon, or are there substantial policy differences that will cause difficulty?

I have been disappointed by the lack of progress that we have made so far. I understand that the Cabinet Secretary for Education and Lifelong Learning is meeting Yvette Cooper—I cannot remember her designation—to discuss this specific issue. We have suggested a change to the regulations and have provided appropriate wording to our counterparts in the Treasury, who have so far not been able to accept that position. It would be helpful if we could make cross-party representations—the more we can do that, the better.

There are differences between the system in Scotland and the system in England; for example, we are falling foul of definitional differences in respect of what we mean by kinship and foster care, and the different categories that people come into. We need to iron out that problem.

I want to focus your attention on care planning and assessment. One of the really welcome things in the regulations is the fact that local authorities and corporate parents are compelled to assess specific criteria. I have seen lots of absolutely fantastic practice in this area, but in one or two cases things such as contact arrangements, health and education were not included in the overall care plan and in other cases the care plan was quite flimsy. How will the regulations improve that? Will they run in tandem with co-ordinated support plans? What will be the impact on the regulations that we have just passed via the Education (Additional Support for Learning) (Scotland) Act 2009?

Regulations 4 and 5 are on assessment and the child's plan. We have put into the regulations a lot more detail, or instructions, on assessment of the child's immediate and long-term needs.

In my opening remarks, I emphasised that a large number of children are looked after at home. I am concerned that the outcomes for that group of looked-after children are probably the worst of all. The regulations will help with assessment and with putting together plans for children in that group in order to monitor things more effectively. However, I accept that we need to do a lot more work on children who are looked after at home, so we have in place a programme to get that work under way as a priority.

Do you see the regulations as creating an almost standardised procedure throughout Scotland? At the moment, things are a bit patchy with respect to the evidence that children's workers in units or social workers provide in relation to children who are looked after at home, for example. Do you envisage a more standardised procedure that will remove the problem of what happens when a child moves from one local authority area to another? The new local authority may have a different approach.

Absolutely. We are trying to drive up standards across the piece. That is part of the reason for the regulations.

There is another thing to say about the child's plan: we will ensure that a new consultee list will be drawn up that will include the child, parents and people who have parental responsibilities, which will meet our obligations under the United Nations Convention on the Rights of the Child. I hope that we will see advances in practice, and that we will see systems being developed.

I have a couple of points for clarification. First, I want to follow up on a question that was asked earlier. What financial or other support will be available to looked-after children after the age of 16? What support will local authorities be able, or obliged, to give them?

As I said, the regulations are not to do with children leaving care, in particular. I said that we will produce revisions to throughcare and aftercare arrangements. Obviously, there will be financial implications for the fostering or kinship caring of children over 16. I am not sure where you are coming from.

My point is about families and foster carers receiving an allowance until children reach a certain age and that allowance then being lost. It is about local authorities not being under an obligation. I simply want to clarify what obligations local authorities are under and what is at their discretion.

I will need to clarify that. Local authorities are normally under an obligation to provide support for children up to the age of 16, but I think that they have a power to provide support for people up to the age of 18. I ask my officials whether that is correct.

It is.

That is normal practice. You may recall that we discussed that issue when we discussed transitions in considering legislation on additional support needs.

Could the matter have been addressed in the regulations?

No, I do not think so. Perhaps I should write to you about that.

Possibly. Many members are aware of the issues; in fact, the previous children's commissioner highlighted some of them, particularly the difficulty that there can be at a certain age. After all, most families continue to support their children for many years, as I am sure the minister knows.

Yes—to my cost.

Exactly. The question is whether that difficulty should be addressed at national level in regulations, or whether there is a specific policy intention to leave it entirely to the discretion of local authorities and therefore to make provision rather hit-and-miss throughout Scotland.

I do not know whether the issue was raised in the consultation. Was it?

People are always very concerned about the age of leaving care. We did not address it in the regulations because we felt that it would not be appropriate to do so in regulations that are concerned with the system. However, it is clearly a current issue, so we could write to the committee with information about how the system operates, if that would be helpful.

Yes. Perhaps you could also tell us about the Government's intentions with regard to addressing the issue.

On a similar note, the regulations do not impose a national scheme of fostering allowances but instead leave that to local authorities' discretion. I wonder whether the minister can cast his mind back to the previous parliamentary session when he was a member of the Education Committee. When that committee considered this very issue, its recommendation—which I believe was unanimous—was that the Government should introduce a national minimum allowance. In other words, even though such a scheme might be at the discretion of local authorities, it should be underpinned by a national minimum. Has the minister changed his mind?

The minister's mind has been influenced by other developments such as the concordat agreements, which mention, for example, the fostering network rate. I think we can agree that that represents the minimum that we would expect every local authority to pay for fostering. However, you will be aware of other developments in the foster care market—if I can call it that. In order to recruit and retain foster carers, local authorities have often had to offer better terms. I do not think that there is a problem of local authorities paying foster carers too little; if they do, the carers simply get snapped up by independent agencies. The context has changed a bit.

Perhaps I can ask the minister to cast his mind back again three and a half years or so to another issue that was raised with the previous session's Education Committee: the idea of a nationally set maximum on the number of children that a foster carer can look after. I have to say that I quite like the individual approach, but did you consider setting a national maximum, as has been set in England? Are you going to issue regulations or guidelines on how many children each foster carer should be allowed to foster?

The Fostering Network and others continue to lobby for a maximum of three children per foster carer. To date, we have resisted such a move because, as you have already pointed out, we prefer to allow individual foster carers to be assessed for the number of children they would be comfortable looking after or, indeed, would be able to look after. I want to stick with that approach because it is a bit more flexible; for example, it allows a largish family to stay together under one roof. On those grounds, I would prefer to stay where we are, but we need to review that constantly. We will undertake work on foster carer recruitment and retention. The matter will come within the scope of that work, about which we will keep the committee informed.

That would be useful. You are right that it is okay to foster large numbers if it suits the needs of the children because there are siblings or for other reasons. However, large numbers have sometimes been imposed on a fosterer purely because they were the only one available.

Yes—we have heard tales of that.

I return to kinship care. The last paragraph of the Executive note that accompanies the regulations concerns

"The financial effect of introducing the kinship care allowance"

It says that

"sufficient resources were included"

and agreed with local authorities

"based on estimates at a national level".

What were those estimates?

I cannot give you the figure off the top of my head, but I undertake to pass it on to the committee. The estimates have been published.

Is that money in the local government settlement at the moment?

Yes.

I have heard some local authorities suggest that although it may be in the settlement at some point in the future, it is not yet. You do not accept that.

No, I do not.

I will be happy if you are able to give the committee figures for how much has been put into the settlement.

I echo the convener's point about the lack of a definition introducing the potential for another element of inequity throughout Scotland. We have seen figures that suggest that some local authorities have a generous interpretation of kinship care and others have a stringent definition. That introduces another element of unfairness for families and children, depending on where they are located.

That concludes our questions to the minister on the Looked After Children (Scotland) Regulations 2009. I thank him for his statement and for answering our questions.

The committee will suspend briefly to allow the minister's officials to leave and other officials to take over.

Meeting suspended.

On resuming—

---

Children's Hearings (Legal Representation) (Scotland) Amendment Rules 2009(SSI 2009/211)

We return to the second item on our agenda, which is consideration of Children's Hearings (Legal Representation) (Scotland) Amendment Rules 2009 (SSI 2009/211). We will consider how the legislation relates to proposed changes to the children's hearings system. The minister, Adam Ingram, has been joined by Denise Swanson, who is the head of the children's hearings team, and Laurence Sullivan, who is a senior principal legal officer in the Scottish Government.

I ask the minister to make an opening statement.

Thank you. I welcome the opportunity to discuss the new arrangements for making available, by way of a Scottish statutory instrument that was made in June, state-funded legal representation for relevant persons in children's hearings.

The amendment rules make provision to ensure that relevant persons may, if necessary, be provided with free legal representation to assist them in a children's hearing. The changes were made because the Scottish Government accepted that the absence of any statutory provision to make available state-funded legal representation for relevant persons who had difficulty participating effectively in a children's hearing risked incompatibility with articles 6, 8, and 14 of the European convention on human rights. The Scottish Government made that acceptance in the context of a particular legal challenge, in which an individual argued that the absence of any provision for state-funded legal representation breached their rights under the ECHR. The judgement in that case has not yet been issued by the Court of Session, so the committee will understand my not going into details about it. The Scottish Government has made a concession in the case, that the absence of any provision whereby the appellant could apply for state-funded legal representation before a children's hearing if the appellant was unable, without such representation, to participate effectively at the hearing, was incompatible with articles, 6, 8 and 14 of the convention.

That case applies only to the particular individual involved, but the underlying rationale could have further application to other relevant persons who would, without legal representation, be unable to participate effectively at children's hearings. Therefore, the Government decided to act quickly—even before the case was concluded—to ensure that relevant persons in similar circumstances to the appellant in the case could have legal representation, if their individual circumstances merited it. It was therefore agreed that we would make provision for access to state-funded legal representation for relevant persons in the future, and that we would put in place arrangements to provide that access without delay.

That is why the Government took the unusual but legitimate—and, I argue, justifiable—step of breaching the 21-day rule by bringing the amendment rules that are before the committee today into force the day after they were laid in Parliament in June. The SSI provides an interim route through which such provision can be made.

A permanent scheme will be put forward in the children's hearings bill that I plan to introduce early in the new year. The SSI has been constructed to ensure that availability is open to those who are most in need, while it strives to maintain the more informal proceedings that are at the heart of the children's hearings system.

The SSI sets out clear criteria that should guide the decision on whether or not to make such provision available. That decision will be made by panel members, who will notify the relevant local authority to appoint a legal representative from a panel of such experts that it maintains. That service is entirely state funded, and local authorities reclaim the cost of it directly from the Scottish Government.

The new arrangements, by the very nature of their link to issues around upholding human rights, and in the context of the on-going litigation, had to be made very quickly, which meant that we were unable to engage with stakeholders before the regulations came into force. However, we held a statutory consultation as required by the Tribunals, Courts and Enforcement Act 2007 with the Administrative Justice and Tribunals Council and its Scottish committee. We also gave the Scottish Children's Reporter Administration prior sight of the draft rules. Since introduction, guidance has been provided by children's hearings training units, and officials are liaising with local authority staff to provide what support they can as we establish the likely demand for assistance.

As I have already mentioned, the provision of legal representation under the rules is wholly state funded and demand driven. Early signs are that the cost of the additional provision is unlikely to exceed the budget that is already available for legal representation in the system. However, we will monitor that continually as the scheme beds in.

Thank you for those comments and that clarification. Again, there is an opportunity for members to ask questions. I will start, but before I ask my question, I have to say that, in my 10 years of being an MSP—I have been here since day 1—Parliament has considered many subjects, some controversial and some in which there was a great deal of consensus, but I have never received on any subject the amount of correspondence that I have received about the regulations that we are debating. That includes the most controversial subjects that we have considered, such as section 2A and the smoking ban. That tells me that, although people understand the Government's need to recognise ECHR challenges, they believe that the hearings system, which is often described as the jewel in the crown, is at risk.

I felt that it was important to preface my questions with those comments. I have not spoken to any of my committee colleagues about that, but they have probably received similar correspondence. I would be surprised if the minister had not heard some of those concerns while he was out and about during the summer consultations. I expect that people will have taken the opportunity to raise specific concerns about the regulations.

Was I right to pick up that there has been only one challenge to the right to legal representation and state-funded legal aid?

There is one live case before the Court of Session. As I indicated, the Lord Advocate and the Government have acknowledged or conceded the essence of the case that human rights would be breached under articles 6, 8 and 14 of the ECHR.

Okay. The Government has conceded that and has taken steps to address the circumstances surrounding that individual case. Is that correct?

The decision has not yet been provided by the Court of Session, but we obviously stand ready to do that.

Is it possible that you can address those concerns without implementing the regulations?

No, I do not think so. I refer the question to my legal colleague, who can put the matter in the appropriate context.

The minister is correct. It would not be possible to address the issue that has arisen in the case without changing the legal representation rules. There is only one challenge outstanding. The convener might be aware that when, in 2002, children in certain circumstances were given legal representation in children's hearings, that was the result of the S v Miller case, which went to the Court of Session. The then Scottish Executive lost that case and brought in the 2002 rules, which we now seek to amend to address the situation of children in children's hearings. The new challenge was about legal representation for a relevant person—a parent of a child.

The case is on-going, and the Government has conceded on the main point of the appellant's rights in terms of articles 6, 8 and 14 of ECHR. However, the Court of Session is considering the scope of the concession, and it will issue its judgment shortly. The only way to address the issue for the individual concerned, and for other individuals who may be in similar circumstances to the appellant in this case, was to change the 2002 legal representation rules to extend legal representation in certain specified circumstances to parents as well as to children. There would have been no way of doing that without changing the 2002 legal representation rules.

Could it have been done without changing the rules in the way that the Government wants to do? Could you have considered alternatives that would have addressed the concerns?

This is the only way that we could see of doing it by secondary legislation. On other possible solutions, you will be aware that legal representation at children's hearings is not operated through the legal aid system and the Scottish Legal Aid Board; it is done by the hearings assessing whether the child—and, now, the relevant person—needs legal representation to participate effectively in the hearing. The solicitor for the child or relevant person is appointed from a panel that is kept by councils. It has therefore nothing to do with the normal civil legal aid system that SLAB runs. One option would be to move that process to SLAB, but it would not be possible to achieve that without primary legislation. Within the existing enabling powers in sections 42 and 103 of the Children (Scotland) Act 1995, the secondary legislation route is the only way, as far as we can see, that would remedy the situation that has arisen in the Court of Session case.

Are we not going to have primary legislation in relation to children's hearings some time in the new year? The minister commented earlier that he intended to introduce a permanent scheme as part of that. Would it therefore not be more appropriate, as the children's panels chairmen's group and children's panel members have made clear to the committee and to MSPs the length and breadth of the country, to deal with the situation through the forthcoming bill rather than address it in a piecemeal way without full and proper consultation?

Certainly, it would be much more preferable if we were in a position to consult fully on the matter. However, given the situation that we face, whereby individuals' rights are being breached, we think that it was best practice to move as soon as the matter was brought to our attention. We certainly do not want the appellant in the Court of Session case or any other person in similar circumstances to face a situation in which their human rights are being breached. We need to move, as a matter of moral responsibility, as quickly as we humanly can to correct such breaches. That is why we have laid the SSI. Once we have conceded the case—I assume that the Court of Session will provide its ruling on it—we are really duty bound to follow through on it with the new legislation.

I do not think anyone here would want to ignore the human rights of any individual in Scotland. Equally, however, we must ensure that any secondary legislation that the Parliament approves does not ignore the basic human rights of children, which the children's hearing system was set up to look after and represent. It strikes me that the rules that are before us give the reporter the responsibility to consider arranging a business meeting on the appointment of a legal representative, which surely raises its own ECHR issues. Why should the reporter be the decision maker in that way? I do not believe that that sits particularly comfortably with the reporter's role, which is primarily to promote the welfare of the child.

There is potential for real conflict, as the same reporters who deal with the question whether a parent requires legal representation are also required to deal with an appeal following the hearing. I think that that is a real ECHR challenge. If we push the rules through today, we might open the gate to many more ECHR challenges than we have currently.

I am sorry to disagree with the convener, but that is not my understanding of the process. I ask my legal colleague to provide the detail.

Decisions on appointing legal representation for a child or for a relevant person are made not by the principal reporter but by the children's hearings. Rule 5 in the amendment rules, which inserts new rule 3A into the 2002 rules, says that the business meeting is arranged by the principal reporter, who sets the date and sends out the papers, but the decision whether a particular child or parent before the hearing should have state-funded representation is made by the panel—the three lay people who form the tribunal. The reporter has no role whatever in that decision.

Will the reporter not have much of a role at the hearing in future? If the rules are approved, from 14 September, the child, their parents and their carer—if they have a carer—will have the right to legal representation. There will be safeguarders there. All those people will have the right to legal representation, but the panel members, who are volunteers who give up their time to serve their community, will have no legal representation. We will have solicitors arguing points of law in a way that we have never seen before in a hearing. We will be moving away from the real concern and thrust of the children's hearings system, which was always to put children at the heart of the process. The process will become very legalistic and there will be a real move away from the current system.

I think that the convener is reading too much into this measure. We are talking about a specific issue with regard to legal representation for relevant persons in tightly defined situations. The criteria are set out clearly. I totally agree that we do not want to see every player in the children's hearings system being represented by a lawyer or solicitor. That is very far from what we are aiming to do.

Perhaps there is some confusion between what is in the rules and other proposed measures that might appear in the children's hearings bill further down the line. This specific issue had to be addressed here and now; we had to act urgently. We are asking for the committee's approval for what we have done, which we were duty bound to do. As my colleague Laurence Sullivan indicated, the issue of legal representation of children arose during the term of the previous Executive in 2001, which had to concede a case. What we are doing is very much in the same vein as that decision. It is not a precursor to a takeover of the hearings system by lawyers—God forbid.

I do not want there to be any kind of takeover of the children's hearings system. I am sure that you would not want that either. However, unfortunately, some of the rules could lead to that, although that was not their original intention. You suggested in response to my previous question that I am confused and do not understand, because I am getting mixed up between the rules and what might or might not come in a future bill. My clear understanding—perhaps you will confirm whether this is the case—was that you wrote to all children's panel chairs on 25 June advising them of the changes to practice guidance in relation to the operation of children's hearings. In that letter, you clearly stated that, during a hearing, the reporter will no longer act as a legal adviser. Did you or did you not write that letter? Have I misunderstood those clear words?

The context of that was the reporter as a legal adviser to the panel. We must divide, if you like, the responsibilities of the reporter as somebody who brings a case to the panel and at the same time advises the panel on legal matters. We have been advised, and the Scottish Children's Reporter Administration has been advised, that potentially that situation is not compliant with the ECHR. The SCRA has independently moved to address that issue. However, that is a separate issue from the one that we are considering today.

I agree that it is separate but, unfortunately, all the issues must be taken as a whole. That is one reason why the chairs of the children's panels in Scotland wrote to members urging us not to support the changes lightly, because the consequences cannot be seen in isolation. Although the chairs are not saying that access to legal representation for parents is not necessary, they argue that the issue should be considered as part of a wider bill, so there can be full consultation and scrutiny and so we do not risk introducing a short-term fix that in the longer term might lead to the dismantling of the children's hearings system and the introduction of a criminal justice system that is similar to the system in England and Wales.

Minister, will you confirm that, if we approve the SSI, there will be considerable implications for the conduct of children's hearings?

Clearly, the instrument will have a significant impact in that a parent in the circumstances defined by the criteria will have legal representation, which they do not have at present.

Do you acknowledge that there is considerable concern among stakeholders about the forthcoming children's hearings bill?

I acknowledge that we have not yet come to a conclusion in our engagement with stakeholders on that bill. However, I caution the member on that—let us not get arguments about the bill mixed up with the discussion of the present measure, because it is a specific provision that is designed to sort a specific problem with regard to a small group of parents whose human rights are being breached because they cannot participate in the hearings system unless they have legal representation.

I understand that in the context of the particular issue, but the measure has other implications, certainly for the conduct of children's hearings. I agree with the convener. I have had a tremendous number of substantial and interesting letters on the issue. There is genuine concern about the implications of the changes. I am uncomfortable that we might be putting the cart before the horse, which could have ramifications that could be instrumental in changing the ethos that lies behind the children's hearings system.

I assure the member that the rules that we are discussing will not have that impact. I cannot stress more that the rules deal with a particular narrowly defined situation—they do not have ramifications for the whole system. Perhaps—

Sorry to interrupt, minister, but do they not have ramifications in relation to legal representation?

The notion of legal representation was conceded several years ago, as a result of the Miller case, which was referred to earlier. In certain circumstances, children are entitled to legal representation in the hearings system. A situation is now arising in which other relevant persons also require legal representation.

I will pass over to my legal colleague to explain that particular development.

The new rules that the committee is considering can be seen as an extension of the 2002 rules. Lawyers have been involved in children's hearings since 2002. Indeed, if a child or parent was able to get their own lawyer to represent them at the hearing, either for a fee or pro bono, they could do so. Therefore, there have always been lawyers in children's hearings. Since 2002, there have been state-funded lawyers for some children in some circumstances. Research since 2002 has not shown that to have had a deleterious effect on the ethos of the children's hearings system.

With the changes that are introduced in the new rules, more lawyers will be involved in more hearings because there will now be a small category of parents who, because they essentially lack the capacity to participate effectively in a hearing that might affect their rights under article 8 of the ECHR and might interfere with their important relationship with their child and with their child's relationship with them, will have a lawyer to represent them in order to assist the hearing so that their full views can be heard. Generally, most parents are capable of participating effectively in children's hearings without legal representation. That will remain the case. As has been said, the composition of the hearing and its procedures are designed to secure the active participation of all those involved. Allowing parents who cannot represent themselves effectively to have a lawyer to represent them should be of benefit to the hearing in arriving at a decision that is in the best interests of the child because the views of the parent will have been represented to the hearing properly, whereas parents who are incapable of representing their own views would otherwise not be able to present their case to the panel appropriately.

I fully understand and accept that, but there is more to the issue than just the legal process. My argument is that the bill presents very considerable possibilities of change in the system. By definition, that has an implication for the legal aspects, perhaps not for the procedures of how the hearing operates under law—obviously, that is done by statute—but for how the matter is referred.

The new rules that the committee is considering are entirely separate from the children's hearings bill. We would need to make the rules even if no bill was proposed. The rules are completely separate. We would need to introduce these changes irrespective of whether there was an intention to introduce primary legislation on the children's hearings system.

The new rules have been driven by the particular circumstances of a court case—the judgment has not yet been issued, but it will be issued shortly—in which the Government has already conceded that an individual parent's rights were breached because the parent was unable to represent themselves before the children's hearing. The Scottish Government has conceded that the parent needed a lawyer to represent them. The vast majority of parents before children's hearings do not need a lawyer to represent them. There has always been provision—in rule 11 of the Children's Hearings (Scotland) Rules 1996—for a child or parent to make use of a representative, who might be a lay person, a friend or a relative, or a lawyer if the child or parent employed the services of a lawyer. All that the new rules will do is allow a certain number—probably a very small number—of parents who, as a result of issues to do with their own capacity and abilities, are unable to represent themselves even within the informality of a children's hearing, to be represented effectively so that they can participate in the hearing, which might make an extremely important decision that will have an effect on them and their child.

It is an unfortunate set of circumstances that minister brings before us. Committees will always feel uncomfortable about being bounced into decisions—the minister no doubt felt just as uncomfortable in being bounced into making his decision—and we do not like to read paperwork that makes it clear that the Government has breached our rules. The explanation that the minister has given us today did not come out in the paperwork that he laid before us. Further explanation in advance might have been helpful.

I share colleagues' concerns about the ethos. Mr Sullivan has just talked about the informality of the children's hearings system. Those of us who have been present at children's hearings have appreciated the hard work that goes in to keeping that sense of informality and ensuring that the child feels as comfortable as they can—that is important. It is worth preserving the child focus of the operation, but that that ethos is being taken away by stealth.

Minister, although you have indicated that we will consider the issue more widely when we consider the forthcoming bill, you have also said that it is not something that we can revisit—rightly or wrongly, you have conceded that point. If we agree to the SSI, we cannot come back to the issue afresh when we consider the bill. Perhaps you can tell me whether I have got that wrong.

If I understand you correctly, we may have left ourselves open to the possibility of retrospective challenges by parents and others for the period 2002 to 2009. If the fact that there has been a breach is conceded once, presumably the case could be made by other individuals. It opens us up to the possibility of retrospective challenge.

Do you think that there is a need to consider other hearings or tribunals to see whether they have similar problems and whether such problems are inherent in the way in which other tribunals and hearings are set up? Over the past few months, the committee has spent a lot of time talking about the fact that every one of us wanted to take away the creeping legalisation, for example in additional support for learning tribunals. Although some of us felt slightly uncomfortable about it, we all agreed that parents were always up against councils and lawyers and so on—that in a sense the arms available were unequal. Despite that concern, we made a judgment call that it was worth trying to preserve the ethos of what an ASL tribunal aims to do. What we are saying to you today, minister, is that what we believe to be the ethos of the children's hearings system is worth preserving and fighting for, in any way we can. I would welcome it if you were able to address some of those questions.

I can assure Margaret Smith and the other committee members that I want to engage with you, and indeed with colleagues throughout the Parliament, to shape the legislation on the children's hearings system. If nothing else, what we have seen over the summer is the passion for the system throughout the country. There is nothing party political in trying to arrive at the best possible system that we can, and in building on the Kilbrandon ethos of a welfare-based system for looking after children in need of care. I want to engage as widely as possible with colleagues.

Ultimately, as a minister I am not in a position to force a piece of legislation through the Parliament. It has to be scrutinised properly. I would much prefer that that process was based on consensus instead of on a battle over every line and section in the bill, so I am looking for ways of trying to engage with the committee, with the convener, and with individual MSPs who, I know, have been lobbied by children's panel chairs and children's reporters from up and down the country. I want to make improving the system a collective effort.

On your question about retrospective challenges, they are an argument for closing the loophole as soon as we can—immediately if possible. The breach was not obvious before the challenge was made, and I cannot guarantee that there will not be future challenges to which we will also have to respond. We have had to concede on this particular challenge on all legal advice, including that of the Lord Advocate, so I argue that I was not in any other position than to introduce this particular statutory instrument. The situation is not unique; it happened under the previous Administration when we faced a challenge over legal representation for a child.

Could you pick up on the other question that I asked, which was about other tribunals and inquiries? Does the regulation give us any cause for concern there?

You mentioned the additional support needs tribunal. Although that obviously makes important decisions for the children and families concerned, the children's hearing is in a different league in terms of ECHR rights. For all that there is an informality about it, the children's hearings system can make an authorisation to place a child in a secure unit, which means that that child is deprived of their liberty. Very few other tribunals—in fact, I do not think that there are any—have the ability to make such a decision, important though the decisions of the ASNT are for children with additional support needs. Even short of the biggest authorisation that a children's hearing can make, lesser decisions, such as putting a child into a children's home, infringe on the article 8 rights of the parent and child.

The Strasbourg jurisprudence is extremely clear about the absolute importance of the parent-child relationship from the perspective of both the parent and the child, and that any state interference in that relationship should happen only if it is absolutely necessary. In that sense, the children's hearings system is unique. For all its trying to be informal and use an inclusive process that is not threatening to children, when it comes down to it, it can make really big decisions about the lives of a child and its parents. If a child or parent needs legal representation to present their case before the children's hearing makes such a decision, the ECHR states that it is appropriate for them to get it.

A number of members want to ask questions but, on that point, why has this Government chosen to go down the road as proposed in the statutory instrument and not just said that any legal representative who is at a children's hearing would be eligible for legal aid? Surely that would address the problem without having to introduce a new system of legal representatives.

That would have been an option, but it would have required amendments to the Legal Profession and Legal Aid (Scotland) Act 2007, which would have required primary legislation—a bill would have had to go through Parliament, which would have meant it took longer to fix the problem.

When we looked at the enabling powers, the secondary legislation power was in the Children (Scotland) Act 1995. After the Scottish Executive lost the S v Miller case in 2001, the fix was to use sections 42 and 103 of the 1995 act, which is what we are using now. The fix of legal aid was an option, but it would have required primary legislation as the Legal Profession and Legal Aid (Scotland) Act 2007 does not have the secondary legislation powers to achieve what we want in the way that can be achieved under the powers in the Children (Scotland) Act 1995.

It strikes me that we might be doing something through secondary legislation that we should be doing through primary legislation, and that going down that route risks other things.

We will introduce a bill to reform the children's hearings system, which will provide a permanent solution to the issue. However, as we are not yet in a position to introduce primary legislation, we need to find a solution here and now to the case that we are considering and other cases involving people who are in the same circumstances. That is why the issue is important and why we have breached the 21-day rule. It is not without precedent that that has been done.

No, but if we do not get things right, we might not have a children's hearings system to reform.

First, I commend the minister for accepting the Lord Advocate's advice and acting so swiftly.

I want to put the issue in perspective. I have not been contacted by anyone about the proposed regulations, although I have received two or three communications about the children's hearings bill. Last Friday, we had a session with members of the panel system and children's reporters, who advised us that 50,800 cases were brought before them last year, not all of which were referred to the panel. In any given year, how many of those 50,800 cases are likely to be covered by the regulations?

I do not know that we can make that estimate, but I imagine that we are not talking about more than a handful of cases.

Are we talking about half a dozen, a dozen or twenty cases?

It is only a guess on my part, but that is the scale that we are talking about.

So in that case, there is no threat whatever to the hearings system. Am I right to say that?

I do not believe that there is any such threat.

So the ethos whereby the best interests of the child are considered first will remain the Government's priority. There is a general understanding that that is the case because, as the committee knows, no motion to annul the regulations has been laid as yet.

Can you confirm that you believe that there was no other action that you could have taken in this case?

Absolutely not. I asked that question, as you might imagine. I also asked why it was necessary for us to breach the 21-day rule, and I was assured that it was best practice to ensure that people in the case that we are talking about and other similar cases are not exposed to breaches of their human rights for one day longer than is necessary.

Like many members, I want to express my concern. I can tell from what the minister has said that he has no wish to change the nature or the ethos of the children's panel system, but my concern is that, regardless of the minister's intentions, the proposed regulations will do exactly that. The minister's inability to say exactly how many people they would affect does not reassure me. The Executive note says:

"A full regulatory impact assessment has not been produced … Additional costs … are anticipated, as yet undetermined."

Basically, we do not know. That is the problem. If we had primary legislation that Parliament was able to scrutinise with the full participation of stakeholders, that would offer some reassurance that what is proposed is the only way to address a clear problem.

I note that the minister said that consultation was extremely limited. What did the few people whom he consulted say? Were they supportive? Were they worried?

No. They recognised the need for the proposed action.

The SCRA had prior sight of the regulations. Did it just see them or did it comment on them?

It commented on them.

Did it approve of the regulations?

It had concerns about the capacity of the legal representatives in the system to respond to additional needs. Since that point was raised, I have gauged its importance with local authorities, and so far it does not seem to be an issue.

Unusually, there was an obligation for a statutory consultation, which only covered the Administrative Justice and Tribunals Council, which was formerly called the Council on Tribunals. That consultation was carried out, and the council was content with the rules. We were not under a statutory obligation to consult anyone else. We consulted the SCRA, but the statutory consultation covered just the AJTC.

It does not sound as if even the SCRA's endorsement was ringing.

The SCRA was concerned about whether there was the capacity of legal representation to call on; it was not concerned about the principle of the matter.

I am concerned about the principle of the matter. Having heard from constituents and others who are concerned about the matter—as the convener has—I think that there is a real worry about changing the nature of the hearings.

Earlier, Mr Sullivan suggested that the principle of legal representation had already been conceded in 2001, but that is not quite the case. That was the principle of legal representation for children at children's panels; now, we are talking about the principle of legal representation for adults—for parents, in fact. Some parents might be relevant persons—in cases of abuse or neglect, they might be the perpetrator. It is a strange step to take to—

You should be careful about how you interpret the limited circumstances that we are talking about. We are talking about parents who might have even more limited capacity than children.

That brings me to a further point. The Court of Session judgment—we have not even seen the ruling yet—seems to be about the capacity of the adult in question. Why do we not approach the matter from a different angle altogether? Why not approach it from the adults with incapacity angle, or from any number of angles other than the children's hearings one? Why are we reforming the whole of the children's hearings system so as potentially—I admit that it is just potentially—to overlegalise it and make it more adversarial? We could do it a different way. We could approach the issue by using the Adults with Incapacity (Scotland) Act 2000 to provide an incapable adult with support at a hearing.

The minister mentioned earlier that there is a system for providing representation to children that does not involve the Scottish Legal Aid Board. I am not saying that this is definitely the way we should go, but another approach would be to make reforms to the current legal representation facilities within the children's hearings system. To my mind—despite not knowing much about the subject until relatively recently—a number of alternative options could have been explored. I have great reservations about rushing into using the proposed route, which could change the nature of hearings.

We are dealing with an emergency situation with a limited on-going impact on the system. We have already heard about the changes that have been made to legal representation in the system down the years. Those changes have not undermined the ethos of the system, and the proposed change will not do so either, because it refers to a very small number of people.

We are all duty bound to ensure that the legislation that comes through and is the responsibility of this place is ECHR compliant. Therefore, the Government is duty bound to bring the situation to the Parliament's attention in the form of an appropriate Scottish statutory instrument to correct the situation. That is what we have done.

I recognise that there has been a breach of the 21-day rule. As the member will know, that occasionally happens, and it is nobody's fault. I give members my categorical assurance that the rules are not a Trojan horse to undermine the ethos of the children's hearings system; they are a fix for a particular problem. We can return to the issue of legal representation or any other form of representation in the children's hearings system when we introduce the proposed primary legislation early next year, and I want you all to be engaged in putting that primary legislation together, so that there are no surprises.

I began my remarks by saying that I did not doubt the genuineness of the minister's approach. Clearly, he does not wish to undermine the ethos of the children's hearings system, but we are left with a doubt about whether that is happening. The minister has not been able to assure us with figures or facts about the impact of the proposals.

The minister talked about the situation being an emergency. Why should we not wait until we have had the Court of Session's ruling? I cannot for the life of me understand why we are rushing into the matter this week when we could wait for the Court of Session's ruling and take a more reasoned approach once we have heard it. There are Court of Session rulings all the time. As Margaret Smith said earlier, there were a number of Court of Session rulings that led to our reforming the Education (Additional Support for Learning) (Scotland) Act 2004, but we did not amend the act before we heard those rulings. We took the judgments on board, lived with the legislation for more than a year and then acted, as a Parliament, to amend the act. I believe that there are Court of Session rulings at the moment about placing requests—there are Court of Session rulings all the time, so I do not see why this one represents an emergency.

How long did the Executive take to act in 2001? I think that the minister suggested that the Court of Session made a ruling in 2001 but the Executive acted in 2002. I do not remember an emergency SSI going through to amend the children's hearings legislation, although I might be wrong. I would welcome the minister's thoughts on what makes this situation an emergency and why we cannot take a little more time to get ensure that we get it right.

We have identified that people's human rights are being breached and we are under an obligation to move as fast as we possibly can to ensure that that does not continue or affect any other individual. That answers your question.

That does not answer my question. Court of Session rulings happen all the time and you do not always take the action that you are proposing today.

Court of Session rulings on human rights do not happen regularly. We have to deal with this specific case here and now, and it is in our power to do so.

If I may say so, there has not even been a ruling.

Okay, we have identified—

That there might be a ruling.

No. We have identified and accepted that a breach of human rights has happened in these circumstances, so we are duty bound to correct that here and now—as quickly as we possibly can.

I must express my concern. I understand the minister's approach, but I think that, in addressing one set of rights, we might be breaching another set of rights.

We have heard a lot of filibuster this afternoon about the changed nature of the panel system. Can you confirm that it has always been the case that parents who could afford a lawyer could take a lawyer to the panel?

My colleague has acknowledged that that is the case.

So that has always been the case. Therefore, we are talking about a handful of people who need support to get through the panel system, especially when an important decision is being taken about the liberty of their child.

That is correct. We are talking about people who cannot participate in the hearings other than through a legal representative, which is a specific and not large group of parents.

In all the children's hearings that I have attended over the years, I have seen only one or two cases in which a parent has been in the position that we are discussing. Each time, however, it was heartbreaking to see, because decisions were taken out of their hands, and they did not have the proper support to deal with those decisions or help them through the system. I welcome the immediate action that you have taken. If immediate action had been taken on slopping out, for instance, we would not be paying out huge compensation claims to people whose human rights were breached. I commend you for addressing the issue as quickly as possible.

I have had letters from children's reporters and members of children's panels who have concerns about the bill, but I can see both sides of the issue, and, as I said, I have seen situations in which parents needed the kind of support that we are discussing but could not afford it and situations in which parents who could afford that support were able to make a very good case. It is unacceptable that, in a democratic country in which we are supposed to support vulnerable people to engage with our systems of government, we should not provide them with that service.

I thank the member for her comments.

I do not think that there was a question in there, but the member is entitled to express her views on the matter.

I want to tease out with you the issue of the numbers. I take Ken Macintosh's point that, although we might well hazard a guess that a handful of people are involved, we cannot really know the exact number. However, as far as I can see, there is nothing in the regulations that would allow us to pinpoint the kind of individual we are talking about. Ken Macintosh has alluded to the Adults with Incapacity (Scotland) Act 2000, with which I was involved many years ago. Why is there nothing in the regulations that limits or, at least, gives guidance to people on the types of situation that are likely to be covered?

Earlier, I mentioned the covering letter to the SSI. I point out to the minister that we have received a letter from the children's panel chairmen's group, asking us not to approve this SSI because its

"provisions, if implemented, may have a profound effect on the way Children's Hearings are conducted".

Opposition members of the committee are not just making this up. At no point in your covering letter, which indicates some of the thinking behind these regulations in relation to human rights legislation, do you say that the matter is subject to an on-going challenge. We as parliamentarians are consultees on legislation and SSIs as much as the Scottish committee of the Administrative Justice and Tribunals Council or anyone else, but our rights to proper scrutiny are being breached by what you have done. I accept that you feel that you had to do it, but I find it difficult to accept why a covering letter from a Government department should not give us the full facts behind the course of action that has been taken.

We are talking about people whose service to our country is held in the highest possible regard by every single person around this table, and I am simply concerned that you have not involved the committee enough in all of this. I appreciate that we have been in recess, but there are ways of handling these matters. You have not really given us the full facts and I am concerned that we have missed the opportunity to tighten up the regulations and to ensure that they are much more specific about the types of situation involved. Surely that might have given us some comfort on issues such as the numbers and the guidance.

Is there any chance, minister, that you might be happy to go away and think again about the contents of the regulations and perhaps take what we have suggested on board? No one around this table is trying to obstruct you in your attempts to deal with a particular issue, but we are all trying to do the right thing.

As far as the covering letter is concerned, I am constrained in the detail that I can include about on-going cases. Perhaps Laurence Sullivan could respond on that matter.

I believe that the member is referring to the letter that accompanied the instrument, explaining why we had breached the 21-day rule.

The letter is dated 3 June.

Yes. At that point, the case in question was at an earlier stage. Although the letter makes it clear that in presenting the amended rules we were breaching the 21-day rule—which, as long as we provide an explanation, is allowed for under statutory instrument procedures and, indeed, the Parliament's procedures—it points out that by not doing so we were risking incompatibility with articles 6, 8 and 14. Because, as I have said, the case was at an earlier stage at that time, we were constrained in what we could say publicly in what was essentially a public letter to the committee. Today, however, we have been able to say more about it.

And perhaps the Scottish Government has not paid its phone bill in the past two months, which is why there was no phone call to the convener or committee members telling us what was likely to be on our desks when we came back after recess.

Well—

I am simply talking about courtesy, minister, and about trying to find the right solution. We are not playing games; we just want to know the full facts.

I point out to members that communication is a two-way exercise.

There was another issue that you wanted to pick up.

It was about detailing the individual.

No, it was something else.

I asked whether there was some way in which the regulations could be more tightly drawn either through guidance or by indicating some of the circumstances that we might be talking about. Such a move might give people more of a sense that the regulations will affect literally the handful of people that you have told us about today.

I do not think that there is any way of amending these regulations in that respect. I also point out that the letter that you say was sent to committee members by the children's panel chairmen's group was not passed to me.

I have to disagree with you, minister. The letter was passed to you today in the same e-mail that I and the rest of the committee received. If your officials did not flag it up to you, that is to be regretted.

In any case, during the summer recess, I wrote to you in great detail on this subject—not, I must stress, as the committee convener, because the committee had not formally considered the matter, but as an individual MSP—to reflect panel members' concerns. To date, I have received no response. As a result, it should have come as no great surprise to you and your officials that this matter was raised today.

I am sure that your letter is in the system. If, as you said, you have written to me as an individual MSP, you will have to accept the normal timetable for responses to letters. If the committee had written to me, seeking information for this meeting, I would have obliged members with it.

I had no ability to write to you on behalf of the committee. After all, this is the first day that the committee has had the opportunity to consider the issue.

That concludes the committee's questions. I thank the minister and his officials for attending.

Meeting suspended.

On resuming—

The final item on our agenda is further consideration of the subordinate legislation that was discussed with the minister in evidence taking. I will take each instrument in turn and ask members to comment on them.

No motion to annul the Looked After Children (Scotland) Regulations 2009 has been lodged and the Subordinate Legislation Committee has determined that it does not need to report on them to the Parliament. If members have no comments, do they agree to make no recommendation on the regulations?

Members indicated agreement.

Does any member want to comment on the Children's Hearings (Legal Representation) (Scotland) Amendment Rules 2009?

Yes. Notwithstanding the minister's argument today and the fact that he began to reassure me that the policy intent is not to open up the hearings system to an army of lawyers or make it overly adversarial, I am left with the worry that that is exactly what the rules will do. The explanatory note to the rules says:

"In addition rule 5 specifies a non exhaustive list of factors which may affect a person's ability to effectively participate in the hearing."

Therefore, even the list, which includes the complexity of the law, is reason for impairing somebody's ability to participate in a hearing—sorry, I am having difficulty participating in this hearing; it is 10 past 6.

I have a number of outstanding worries, so I ask permission to move a motion without notice.

You have permission to move it. It is up to me whether I take it after you have moved it.

In that case, I would like to move a motion to annul the rules.

Does anyone wish to comment?

I find it astonishing that we spent an hour and a half discussing the matter when the minister repeatedly made it clear that he had no option other than to take the current course of action following advice from the Lord Advocate that human rights were being breached.

Common sense should prevail. Although we did not get specific numbers, it is clear that we are talking about significantly less than 0.1 per cent of cases that are brought before children's panels. Alarmist comments that the hearings system is somehow at risk are clearly nonsensical, as the previous Administration used the same sections of the Children (Scotland) Act 1995 to introduce statutory instruments on the same emergency basis in 2001.

It is astonishing that we are discussing the matter at this late stage. I will not support any motion to annul, given the clear comments that the minister repeatedly made.

There will be no opportunity to support or oppose the motion to annul today. If, as convener, I choose to accept the motion, the committee will have to consider it at a later meeting and the minister will have the opportunity to speak to us again.

Given the minister's evidence, the level of concern that many members of the committee have expressed and the concerns expressed directly to the committee by members and chairs of children's panels from throughout Scotland, I am minded to accept the motion to annul, which means that the committee will have to consider the matter further. Normally, we would do so at our next meeting. Unfortunately, because of the timescale, we will need to meet again briefly on Tuesday morning to consider the motion. I hope that members will be able to attend the meeting.

I am sorry, but I have other arrangements for next Tuesday. To call a committee meeting on such an issue at such short notice, without any consultation whatever, is an absolute outrage. If we have to go through this rigmarole again, we should at least have a discussion about when the meeting will be held. Not all committee members are present, and we should at least discuss the matter with them. If we are going to meet next Wednesday anyway, the obvious solution would be to meet earlier on Wednesday—we will all have to be here from 10.00 am on that day—rather than have us come in specifically to discuss the issue. Some of us have other arrangements in our constituencies that cannot be broken.

I appreciate that, Mr Gibson. My preference is to meet on Wednesday morning, but that is not possible. The time constraints that are placed on our consideration of the rules require that it be completed by Tuesday. Those are not my time constraints; they are the time constraints of the Government, which chose to breach its own rules when it laid the instrument.

The options are that we meet on Monday or on Tuesday. I thought that members would prefer to meet on Tuesday morning, but some might be minded to meet on Monday or on Tuesday afternoon. Maybe you could tell me what your preferences are. Sorry—I am advised that Tuesday afternoon would be too late for the Parliamentary Bureau. It would have to be Monday or Tuesday morning. Tuesday morning would appear to be the best time.

I am sorry, convener, but Tuesday morning does not suit me. I am really annoyed that more courtesy is not being shown to members. I was involved with an inquiry by the Standards, Procedures and Public Appointments Committee last year, and we were courteous to everybody in ensuring that, when we held additional meetings—two or three in one week—we co-ordinated them with each member of the committee. You are saying that we will meet on Tuesday morning just because that suits your diary or other members' diaries, but it does not suit my diary. I am sorry, but it would need to be Monday afternoon for me.

Why not Thursday or Friday?

Christina McKelvie fails to understand that this is not about suiting my diary. It is not about suiting anybody's diary. It is about the time constraints that are placed on the committee in complying with the standing orders of the Parliament. None of us could have known that we would have to consider a motion to annul because none of us came here today wanting to force the minister into this position. We came wanting to hear him give evidence to us, to reassure us and address the concerns of many people in Scotland.

He did.

Mr Gibson may, from a sedentary position, suggest that he did.

We are all sedentary.

However, the minister clearly did not address everyone's concerns. It is entirely up to the convener of the committee to decide whether it is appropriate to consider the motion to annul. I think that that is appropriate, given the concerns that have been expressed by several members. That means that we must consider it no later than Tuesday lunch time. I suggest that Tuesday morning will be slightly more convenient for the majority of members. I assure you that it is not convenient for me—I will have to cancel appointments. Most members will have to cancel appointments. However, that is the obligation that is placed on us and we all have a duty to fulfil our parliamentary obligations. I am not going to discuss the matter further.

Why can it not be Thursday? Why do we have to meet on Monday or Tuesday? Is it possible to meet on Thursday or Friday?

Committees of the Parliament cannot meet when the Parliament is in plenary session. That rules out Thursday. Is Friday an option?

We could meet at 6 o'clock on Wednesday or Thursday, or at lunch time on Thursday.

Can we leave it with you, convener, to try to find some options in terms of members' diaries that will also allow the minister a fair amount of time to consider people's concerns? My concern about pulling the meeting back to Thursday, for example, is that, given that it is already Tuesday, we would not give the minister much time to do that.

We have already heard the minister's decision.

Mr Gibson can keep barracking me—

I am not barracking you.

Mr Gibson, one speaker at a time.

I am attempting to find a way for us to find a time that suits as many members as possible. Rather than try to do that around the table, could we leave it to you, convener, to try to find a suitable time through discussion with colleagues via e-mail or whatever? It could be any time up to Tuesday morning but no later than Tuesday lunch time, on the basis of what we have been told.

That is a very good idea. I point out that there is still another item on our agenda.

Yes. We will come to that very shortly, I hope.

I will do my best to identify an alternative time, given the constraints that the Parliament's standing orders place on the committee's consideration of the rules. I appreciate the fact that a meeting on Tuesday morning may cause members great inconvenience and concern—that inconvenience will probably be felt by all of us. Nevertheless, we have an obligation to consider fully all the matters that are laid before the committee. The clerks and I will correspond with committee members by e-mail, suggesting as many alternatives as we can identify. I hope that we will reach a limited, if not universal, consensus on the matter.

---

Police Act 1997 (Criminal Records) (Scotland) Amendment (No 2) Regulations 2009 (SSI 2009/216)

No motion to annul the regulations has been lodged and the Subordinate Legislation Committee has determined that it does not need to report on the regulations to the Parliament. Do we agree to make no recommendation on the regulations?

Members indicated agreement.

Meeting closed at 18:22.