Education Committee, 19 Apr 2006

Meeting date: Wednesday, April 19, 2006

Official Report 191KB pdf

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Subordinate Legislation

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Children (Protection at Work) (Scotland) Regulations 2006 (SSI 2006/140)

Good morning, colleagues, and welcome to the Education Committee's ninth meeting in 2006. I hope that you had a restful Easter recess. I welcome Andrew Welsh, who is here as a substitute for Fiona Hyslop. I believe that he has been to the committee before, so he knows what to expect.

Agenda item 1 is subordinate legislation. The first set of regulations is to be considered under the negative procedure. No members have asked for witnesses to attend. As members have no points on the regulations, do we agree that we have nothing to report on them?

Members indicated agreement.

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Joint Inspections (Scotland) Regulations 2006 (draft)

We move to a second Scottish statutory instrument, which will be taken in two parts. First, under agenda item 2, the committee will take evidence on the draft regulations. Then, under agenda item 3, we will consider the draft regulations under the affirmative procedure. Robert Brown, the Deputy Minister for Education and Young People, will give evidence. He has with him Jackie Brock, from the children and families division of the Education Department; Sara Davies from the health planning and quality division of the Health Department; and Douglas Tullis, from the office of the solicitor to the Scottish Executive. I ask the minister to make his opening comments on the draft regulations, after which we will ask questions.

I will kick off with one or two comments about the background. The parliamentary debates on and the committee's scrutiny of the Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill demonstrated the "overwhelming support", as the committee described it, for the principle of joint inspection of services for children. There was unanimous agreement that joint inspection teams had to be given powers to deliver robust joint inspections, to enable them to report with confidence on whether services work together effectively to ensure that children are safe and protected and that their range of needs are being met. The aim is also to provide reassurance to all professionals that information that might otherwise be confidential can be disclosed lawfully.

The draft regulations, supported by the draft code of practice, set out the powers that joint inspection teams will be able to use in the conduct of joint inspections; define the arrangement for using the powers; and, in regulations 5 to 9, create offences for those who fail to comply with the requirements for entry, information and explanations. The committee and the Executive spent a lot of time considering how the powers should be exercised in relation to two of the key principles that will be applied during joint inspections. The first is that of seeking the consent of individual children to access records, about which concerns were raised by health professionals and voluntary organisations during the passage of the bill. The responses to the consultation on the draft code of practice suggest that such groups have been satisfactorily reassured.

Consent is a fundamental principle that should be observed, but we think—and the Parliament agreed—that express consent is not necessary or desirable in every case. We considered arguments about the circumstances, in particular in child protection, in which express consent would not be necessary. The draft protocol for the joint inspection of child protection services was redrafted to make the situation clear, and most respondents agree that the redrafting has been helpful. In particular, the redrafted protocol is helpful in that it explains the process. Comments were also received from the office of the Scottish information commissioner, most of which have been taken into account.

The draft regulations will help to provide the clarification and reassurance that are required if joint inspections are to be conducted robustly and in line with the requirements of the European convention on human rights and the Data Protection Act 1998. The committee will remember that we committed to a review of the legislation and the code of practice when the first four joint inspections of child protection services have been completed—that will happen by the end of the year. The review will take place before pilot joint inspections of wider children's services begin in 2007. I will provide the committee with further details on those inspections.

The Subordinate Legislation Committee highlighted a drafting error in the draft regulations. Regulation 11 creates offences in the event of obstruction of or non-compliance with regulations 5 to 8. Regulation 5 gives a member of the joint inspection team the power to enter premises owned by a person who provides children's services. The power of entry is subject to regulation 5(2), which requires a member of the joint inspection team to produce an

"authenticated document showing the authority to exercise the power",

if they are requested to do so. The effect of regulation 11 is inadvertently to create an offence on the part of a member of the joint inspection team who fails to produce such a document. It was not the Executive's intention—or the committee's, I dare say—that failure to provide such a document should be an offence. The situation is not likely to arise, because members of the joint inspection team should carry documentation as a matter of course. If appropriate documentation were not available, the matter would have to be resolved immediately through the appropriate channels. Although in practice the error has no implications and its effect is technical and academic, it needs to be remedied and we intend to lay an amending regulation to deal with the matter—we will probably do so later in the week.

The matter demonstrates the strength of the Parliament's scrutiny process. I apologise sincerely for the error, which should not have happened. If the matter is resolved by approving the regulations as currently drafted today and dealing with an amending regulation immediately afterwards, the necessary and vital work of joint inspection can proceed, as the committee, the Parliament and the Executive intend. I am sorry that I have had to take up time to talk about the error and I will be happy to answer questions on the matter.

Thank you. Before I open up the meeting to questions from members, it might be helpful if the minister were to outline the implications of the committee dealing with the error in a different way, by rejecting the draft regulations and asking that a new instrument be drafted.

The answer is quite simple; there would be a delay in proceeding with the first joint inspection, which has already been held up to an extent by the requirements of the Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Act 2006. Because the matter relates to child protection we are extremely anxious that there be no further delay in taking matters forward and carrying out inspections. If we were to lay a new instrument, which is an approach that I discussed with officials, there would be a delay of two to three months in getting things right, given the time period for the laying and consideration of instruments before they can come into effect.

Thank you for that explanation. I invite comments or questions from members.

The minister said that the drafting error has no implications and that its effect is academic, but I am sure that a lawyer would not agree. How did such an error happen?

The draft regulations are complex and, I think, follow or translate regulations that have been made in other contexts. There was simply a mistake; I cannot say much more than that. The intention was to make it an offence to obstruct people who require entry to premises, but unfortunately regulation 11 refers to regulation 5 in general, which means that an offence would be committed if regulation 5(2) were not complied with.

There is an argument that it is not necessary to amend the draft regulations, and we have had an exchange of correspondence with the Subordinate Legislation Committee along those lines. However, at the end of the day, we are satisfied that we need to act properly and that, to put the matter right, we need to get rid of the reference to regulation 5(2) as one that will create an offence.

I am not a lawyer, but it seems to me that the wording was in danger of making either or both parties to the inspection guilty of a criminal offence. That is not trivial. I am concerned that such a fundamental problem was created through drafting. Is there any explanation as to why that happened? If I can spot the problems from an initial reading of the draft regulations, I would have thought that the Executive draftsmen should have spotted them a mile away.

You are absolutely right that the matter is not trivial and that we do not want to create offences that should not be created. However, for a problem to arise in practice, an inspector would first have to appear without documentation and, secondly, somebody would have to decide to make an issue of that and to report the matter to the procurator fiscal. The chances of anybody being prosecuted for such a matter are minimal in the extreme. However, that is not the point. We must put the draft regulations right, which is why we want to take the course of action that I outlined. The problem, even in theory, will exist for only a couple of months until it is resolved, so the chances of an issue arising are not great. The matter is an embarrassment—there are no two ways about it. However, now that the situation has arisen, the alternatives are to deal with it in the way that I have suggested or to bring about a two or three-month delay in the process of joint inspection by starting all over again, which I am extremely reluctant to do. I hope that the committee will be with me on that.

It is fortunate that the Subordinate Legislation Committee spotted the error. During my time in Westminster, I saw a lot of badly drafted legislation that caused problems later on. I am concerned about why any inspector should turn up without documentation. Unless I am wrong, removing the words "if … requested" from regulation 5(2) would make it compulsory for inspectors to have documentation. Surely inspectors, who will have massive powers to look at and obtain information, should automatically have documentation. The simple change of removing the words "if … requested" would make it compulsory for inspectors to have documentation and would achieve the purpose.

We must change the draft regulations, but, regardless of what the change is, that cannot be done through the present process. We must realise what will happen in the inspection procedure. Notice will be given to the recipients of the inspection that inspectors will come. Everybody will know that the inspectors are on their way, so there will not be an issue about documentation. I would be surprised if anybody demanded documentation in that situation, but they will be entitled to do so if they wish. If they did so, and a dispute arose, regulation 5(2) is intended to deal with that situation. I agree entirely that inspectors should carry documentation, but, nevertheless, given that they are human beings, it might sometimes be forgotten. We would not want inspections to be held up, or criminal offences to be created unnecessarily, because of a technical mistake.

I do not wish to prolong the discussion, but the mistake is not just a technical one; it is a major error, and I hope that that will not happen again.

Just for clarity, will the minister give us the definition of the term "authorised person" and the source of that definition?

The definition of "authorised person" is found in the Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Act 2006. I am not sure whether Mr Welsh has a copy of that, but I can give him the reference.

Perhaps you will just say which section it is in.

I think that it is in section 7, which is on interpretation.

I just want to clarify the matter. If you can give me the reference, that will be fine.

I am just looking for it.

I presume that the 2006 act also contains a definition of the documentation that is required.

I am sorry—the definition of "authorised person" is in section 3(3).

Your second question concerned the nature of information. Section 7 of the 2006 act contains definitions applying to information that is held confidentially in medical and personal records. Those definitions are drawn from the Data Protection Act 1998 and elsewhere.

I understand that the person doing the inspection has massive powers to look at all sorts of records and to share those records. What authorised documentation would the person doing the inspection be required to carry?

I see what you mean—sorry. Under section 1, ministers request a joint inspection. They write to all the inspectorates that they require to be part of the joint inspection team and to give the team the authorisation—under the 2006 act—to conduct a joint inspection. That enables the inspection team to draw on the powers that are set out in section 3 of the 2006 act and in regulations.

For clarification, the definition of authorised person appears at section 3(3) of the 2006 act.

I have got that.

I welcome to the meeting Richard Baker, who is here as a substitute for Wendy Alexander.

Do you have any other questions, Andrew?

The whole situation is unsatisfactory. I am concerned about why the mistake happened in the first place, and I hope that the minister will ensure that it does not happen again.

I like to give absolute guarantees in such matters but I guess that these things happen. I can only apologise to the committee for that. Every care is taken with these matters, but the draft regulations are quite complex and occasionally things slip through. Embarrassingly, that was the position here. Officials will be conscious of the consequences if such things recur.

The minister will be aware that the British Medical Association was not happy with the provision to give inspectors the power to remove from premises any documents, including personal medical records. A general practitioner, for example, might need constant access to health records. What is the reasoning behind taking the original rather than a copy? From the point of view of the doctors in the BMA, it would be less disruptive to their practices and to the health service if a copy was taken rather than the original.

I should say something about the process here. The experience to date on joint inspections is that what is often most useful to the inspectors is conversation with the doctor or other professional involved. The inspectors do not often need to go to the second stage of getting hold of the records and taking them away. That is dealt with in the draft protocol, which I think the committee has seen at an earlier stage of the procedure. I think that I am right in saying that a procedure is laid out for what happens with documentation. I ask Sara Davies to clarify that.

Certainly. I just have a couple of points about the copying of the records, about which there has been a long debate. First, it can be dangerous to copy original records and take the copy elsewhere, because records can be mislaid or have different entries put into them. The inspectors are required to annotate any records that they inspect so that we have an audit trail of who has looked at any record at any time. There is a concern not to take copies of original records.

Secondly, GPs and the BMA have pointed out that general practices often have no quiet place where records can be looked at. That is dealt with in the draft code of practice. If possible, there will be somewhere in the practice to look at second-line records, such as GP records. The core records, which are health visitors' records and school records, will be taken to one place so that they can be looked at by the team.

It is worth adding that the core records are the health visitor records and the school nurse records, rather than the GP records. It is usually the core records that the inspector is after, rather than the GP records.

Can the minister reassure doctors that, although there are powers to remove any documents or records from the premises, in practice that would be done only in the most exceptional cases and that every effort will be made not to disrupt GP practices?

That is absolutely the case. The intention is not to cause disruption to practices. The draft protocol states:

"Non-core records"—

that is, primarily the GP records—

"will not leave health premises. They will be reviewed by the inspectors in a quiet confidential area within relevant health premises."

That is undoubtedly the intention in most instances. The only exception would be when there is no quiet place in the surgery or other health premises. In such cases, the records will be taken to a room in the local authority's base, where they will be kept locked up and made available only to the inspectors. Every effort is being made to keep the records confidential.

The draft regulations contain provisions on the destruction of copies of documents after a certain period. We are going a long way to satisfy the requirement for confidentiality. That has been recognised by the medical interests involved.

I presume that original documents will be returned in due course.

Yes. They will not be destroyed.

Notwithstanding the drafting error, the draft regulations are welcome. The subject has been fully debated by the committee. I seek further reassurance about the protocol, which we have seen in draft form. Will it be published? Will it be given to the committee, the Parliament and the general public?

I think I am right to say that the revised draft protocol was issued on 30 January with a deadline for comments of 17 March. We are now finalising it. The protocol will be published and we will make a copy available to the committee. If you want any further reassurance, I am happy to provide it.

You said that you will take the draft regulations away and rectify the error. Can you tell the committee how you will change the wording, what you will alter and why?

I am not proposing to take draft regulations away. I hope that the committee will agree to—

I meant that you will make a new set of regulations.

Yes. The change relates to the terms of regulation 11, which deals with the creation of offences. A change will be made so that the regulation refers to regulation 5(1), rather than regulation 5(2), which is the one that causes the problem.

As there are no further questions, we move on to item 3, which is consideration of the motion on the draft regulations. As we are now on to the formal debate, officials are no longer allowed to contribute to the proceedings.

I invite the minister to speak to and move motion S2M-4144, in the name of Peter Peacock.

Given that we have explained the draft regulations in depth, I do not want to say anything further.

Motion moved,

That the Education Committee recommends that the draft Joint Inspections (Scotland) Regulations 2006 be approved.—[Robert Brown.]

As no member wants to contribute to the debate, I do not think that the minister needs to sum up. I am sure that the committee agrees that we wish to draw the Parliament's attention to our concerns about the drafting and the assurance that we received from the minister that, if the motion is agreed to, an amending instrument will be laid as quickly as possible.

Motion agreed to.

That the Education Committee recommends that the draft Joint Inspections (Scotland) Regulations 2006 be approved.

I thank the minister for his attendance.

Meeting suspended.

On resuming—