Education, Culture and Sport Committee, 22 Jan 2002

Meeting date: Tuesday, January 22, 2002

Official Report 302KB pdf

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Subordinate Legislation

We move to item 4, on subordinate legislation, which could be very interesting.

Is not Ian Jenkins a member of the Subordinate Legislation Committee?

He knows how bad these statutory instruments are.

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Panels of Persons to Safeguard the Interests of Children (Scotland) Regulations 2001 (SSI 2001/476)<br />Curators ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001 (SSI 2001/477)

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Children's Hearings (Legal Representation) (Scotland) Rules 2001 (SSI 2001/478)

I propose that we discuss all three Scottish statutory instruments together. The Subordinate Legislation Committee's report draws particular attention to the second of the Scottish statutory instruments that is before us, but it also refers to the first and the third. I understand that the Subordinate Legislation Committee has expressed concern about the SSIs since their introduction, and that it has been trying to secure changes since then.

From my information, the Executive has said that, although it acknowledges that there are some problems, no further action is proposed. The SSIs follow on from other subordinate legislation that we have considered. We indicated previously our concerns about legislation coming before us that is clearly not drafted as it should be. I ask the folks from the Executive who are present why the Executive has determined to take no action in relation to the points that were made by the Subordinate Legislation Committee, which are numerous.

Good afternoon. I will introduce my colleagues. They are Gordon Watt, who works with me in the young people and looked-after children division of the education department, and Linda Sneddon from the solicitor's office.

The various points that were raised by the Subordinate Legislation Committee received a response from the Executive. However, apart from the comments on the commencement order and the incorrect reference in the rules to one of the regulations, we felt that the points were adequately covered by the Interpretation Act 1978. Although some of the drafting is unfortunate or incorrect, it is not a fundamental fault in the regulations.

I draw your attention to paragraph 42 of the Subordinate Legislation Committee report in relation to the European convention on human rights. The committee made the point that because of

"the failure to provide for an appeal against a decision to terminate an appointment to a panel, the Regulations may conflict with Article 6 of the ECHR and thus raise devolution issues."

What are your views on that?

I do not have a copy of the report to hand, but I am aware of the issue.

The regulations on safeguarders and curators ad litem were intended to re-enact, under the 1995 act, the provisions that operated in the Curators ad Litem and Reporting Officers (Panels) (Scotland) Regulations 1984. We transferred the arrangements under the old regulations to the new ones. The intention was to make as few changes as possible. We do not have the details on why the previous regulations adopted a different approach, so I cannot explain that. As I understand it, the view that an appointment should be terminated is extremely rare; the appointments of individuals are for periods of three years and it is open to safeguarders and curators ad litem to choose to accept a case.

Many of the panel members involved carry out their duties in addition to their normal employment and there is less risk of serious consequences in relation to their appointment being terminated. We acknowledge that there might be an issue, but in focusing on getting the regulations introduced with minimum change, we did not address that matter.

We are awaiting research on the operation of the safeguarder scheme under the 1995 act, which we expect within a few weeks. We will then examine in much more detail the way in which the system of safeguarders is operating and there will be read-across to the way in which the curators system operates. That will include consideration of the appointment process, the qualifications that are required and so on.

I accept that there might not be many people who have their appointments terminated, but failure to have a procedure for appeal would bring us into conflict with the ECHR. It would embarrass the Parliament and the Education, Culture and Sport Committee if we allowed the instrument to come into force, knowing that there is no appeal mechanism and that we are in breach of the ECHR.

There exists the option of judicial review against the decision. In relation to safeguarders, the local authority in consultation with the sheriff principal and the chairman of the children's panel must take the decision. There are built in safeguards and mechanisms.

I do not accept that it is appropriate for a parliamentary committee to rely on judicial review in relation to positions that have no appeal against termination of employment, particularly given that we have adopted the European convention on human rights into Scots law. I understand that that was not an issue prior to devolution, but we are living in a new political situation in which the ECHR applies. I find it remarkable that the Executive would seek to introduce a statutory instrument that might not comply with the ECHR.

Another point is that the appointment of the panel does not result in employment. Being a member of a panel allows one to be approached to undertake a specific piece of work, but as I understand it a contractual employment relationship is not involved.

Is there an appeal process to deal with the termination of whatever that contractual agreement is?

There is no appeal process.

I can scarcely believe what I am hearing. I will repeat two words that you used. You accepted that the drafting was "unfortunate" and "incorrect".

I said that about some of the minor errors.

No, you said that the drafting was unfortunate and incorrect, but that it did not produce fundamental flaws. You are asking the Education, Culture and Sport Committee to rubber-stamp drafting that is unfortunate and incorrect and—in one respect—contrary to the ECHR. Although on seven occasions in a three-page document the Subordinate Legislation Committee has said that the regulations create problems, we are meant to rubber-stamp them.

The regulations have simply been sent through again after a little tidying up of the pre-devolution regulations as a result of the Regulation of Care (Scotland) Act 2001. The regulations need to be re-examined, because things have changed substantially since 1995. If that is to be done, it should be done in a careful, thorough, painstaking and legally correct manner, rather than in a manner that produces drafting that is—in your words—unfortunate and incorrect.

I used the words unfortunate and incorrect about the typographical errors and so on. I must rely on advice about whether the regulations that are presented are compatible with the ECHR. When the regulations were being prepared and laid, that issue was not brought to my attention. My understanding is that the provisions are compatible with the ECHR.

I will ask you a fair question. Have you seen the Subordinate Legislation Committee report?

No, we saw only the Official Report of the proceedings. I have not seen the Subordinate Legislation Committee's report.

I will ask a simple question about your activities. Ministers have brought us a piece of subordinate legislation. I, along with other members of the Education, Culture and Sport Committee, have never seen a report like the report of the Subordinate Legislation Committee. We are not experts in the field. As the convener indicated, this is not the first time that we have seen drafting that we find to be defective.

In those circumstances, is there a procedure that ministers can take to withdraw the regulations—to take them away, to draft them in a form that the Subordinate Legislation Committee and others like and to bring them back to us—or is it a take-it-or-leave-it option? As a civil servant, you will know the answer to that.

Making the changes that I think the committee would wish to be undertaken—to provide an appeal mechanism—would require consultation with the individual local authorities concerned about the procedures that would be required. That would take time. The regulations were regarded as an adjunct to the rules that were intended to introduce the option of legal representation for children to protect their rights within the hearings, following the court judgment last August. Our aim—and ministers' aim—is to ensure that those arrangements are put in place as soon as is practical.

I think that if we took the regulations away we would have to adjust the commencement order and amend the existing regulations. I am sorry, I will have to seek procedural advice from my colleague.

As the commencement orders come into force today, the only option would be to withdraw the regulations, which would leave no regulations in place until new regulations could be implemented. Until now, we have been working under the regulations under the Children Act 1975. From midnight tonight, those regulations will have no effect and the new regulations will come into force. Withdrawal of the new regulations would leave no regulations, because the repeal of section 103 of the 1975 act and the commencement of section 101 of the Children (Scotland) Act 1995 would automatically mean that the previous regulations would have no force.

If we withdrew the regulation at this stage, we would have no regulations relating to safeguarders or the curators ad litem. It is possible to amend regulations subsequently. An amendment can come before the Parliament in the usual way and can be made when the regulations are in place.

However, as members cannot amend subordinate legislation, that amendment would have to come from the Executive. The Executive would have to acknowledge its error before lodging an amendment. Is that correct?

Yes. I should stress that the—

The information that I have says that SSI 2001/478 is required to come into force because of a breach of the European convention on human rights that was brought to light in the courts, but you are asking us to support another SSI that might also breach the ECHR and require us to implement another SSI in a few months' time when it, too, is challenged in court.

It is a mad, mad, mad, mad world.

Basically, yes.

We are faced with a judgment of the Court of Session that says that the absence of a system to enable legal representation to be considered for children in hearings in certain circumstances is a breach of the ECHR. SSI 2001/478 is intended to remedy that breach. Whether the regulations for curators and safeguarders represent a breach of the ECHR has not been established by the court. My advice is that they do not. We present the regulations as complementing the rules to respond to the Court of Session judgment that identified a specific breach.

I was going to say that when the Subordinate Legislation Committee has been faced with pieces of subordinate legislation that we think might be problematic, we have passed them to the lead committee with a note that draws its attention to the defective drafting—which has sometimes been acknowledged by the Executive—with an understanding that the regulations will be changed swiftly. Occasionally, the instruments have been withdrawn and amended before the commencement order has put them in place.

The Subordinate Legislation Committee recognised that the matter that we were discussing is a problem. We have said that we are not unsympathetic to the Executive's difficulties, but we raised the issues to allow the Executive to state its position. I do not think that we should bash ahead and pass a defective instrument without the Executive giving us a genuine undertaking to rectify the problem quickly. If there is an undesirable gap, we can pass the instrument only on the understanding that it will be filled quickly.

The regulation contains issues about the kind of representation children get. It does not say that any member of the panel must be a qualified solicitor. It also says that members of the panel can be paid only when they are asked to represent a child and that there would be no fee for solicitors other than that.

The regulation is a mess that seems to be twirling around inside itself and not getting anywhere.

Before you answer that point, I would like to ask a procedural question. There is a time scale for parliamentary consideration of SSIs of 40 days from the date on which the order is laid. If we have until 10 February to consider this regulation, make the appropriate representations to Parliament and go through the due process, why have you decided to implement the regulation on 23 January? You seem to be saying, "If you don't do this the way we say, you will be left with a big vacuum." Why did the regulations commence before our report to Parliament?

According to the standing orders of the Parliament, we must lay such instruments for 21 days. That is the time that we are told. The Parliament has 40 days to consider such instruments. I do not know why there is a difference between the times.

We must draw Parliament's attention to that. To say that amendments cannot be made to the regulations because that would leave us with nothing is to hold a gun to members' heads. We have a certain period of time to consider instruments.

I regret the timetable. The clerks and the Executive must reflect on whether the timetable is suitable for the consideration of such issues. I am disinclined to take the view that an excuse for producing flawed legislation is that we would otherwise be left with nothing. I want to explore the extent to which the regulations are flawed.

There are errors in the regulations other than those connected to the ECHR. It is human nature for errors to creep in, but why did the Executive not use the opportunity that was afforded to it to correct them? It does not seem that that has been done. Given the basic principle that legislation should be accurate, opportunities to make corrections should be seized upon.

I want to explore whether the regulations breach the ECHR. At present, the termination of a panel member's appointment can be taken to judicial review, but the court cannot reappoint the person; it can simply examine the process by which the decision not to reappoint was made. Is that correct?

The ECHR issue is not related to reappointment; it is related to whether panel members have a right to judicial review if they are struck off during their three-year appointment. A decision on reappointment is taken after the three years, but there is no right to reappointment.

Forgive me; I was loose with my words. If a person's appointment is terminated during the three-year period, a judicial review cannot reinstate that person, but can examine only the process of termination.

The matter is fairly open. In general, the courts inform the local authority that the procedures were not appropriate. The court can explain the outcome of the review to the local authority. In a judicial review, the person can ask the court to decide on their appointment and the court can decide that the termination was illegal. If the court holds that the local authority's decision was not exercised correctly, the decision falls and the appointment would not be terminated.

I was reflecting on the dim and distant past of the Housing (Scotland) Act 2001, in which a judicial review does not reinstate a flawed decision, but merely exposes it as flawed. In that case, the judicial review has no power to rectify the decision.

I am sorry, I do not know the provisions of the Housing (Scotland) Act 2001, but in this case, if the court decides that the decision is incorrect, it can hold it to be incorrect. Generally, the court tells the local authority that its procedures are wrong and that it should use the correct procedures.

Is there a requirement on the local authority to listen?

Yes. If someone takes the case to judicial review, the chances are that if the local authority still does not follow the correct procedures, the person will go back to court. I hope that no local authority would act in that way. However, the authority is not obliged to come to a different decision after a judicial review.

I want to hammer this point.

The party to the judicial review can ask the court to give a specific order. It is up to the court whether it grants the order. A judicial review can do more than simply send the matter back to the authority.

It may be helpful to explain that this committee has already had to take through a second piece of legislation because of ineffective drafting. That might explain why we are reluctant to accept drafting that is not as it should be and are wary of anything going forward that may mean that the legislation comes back to the committee six months from now. As I understand the procedure, we can lodge motions with the chamber desk this week and they would be debated by this committee next week. That would give the Executive a week to produce alternative proposals. That may be a useful way forward, to find out whether the Executive is prepared to listen to the views of the Subordinate Legislation Committee and the Education, Culture and Sport Committee on these matters.

It is difficult. We were told informally about some of the points raised by the Subordinate Legislation Committee. We have not seen the report that it has given to this committee. We responded to the Subordinate Legislation Committee's points. We disagree with it on some of the points that it raises; we do not think that some of the issues are a problem. We think that what we have done is correct. We admit that there are typographical errors in the instrument. There is obviously a difference of opinion between the legal advisers to the committee and the Executive.

The Executive's point of view on the ECHR takes into account the decision in the Starrs v Ruxton case. We do not think that there is an ECHR issue. The matter can be reconsidered, but there is the potential for a difference of opinion. We have not seen the formal report that came to this committee: we have seen only the Official Report of last week's Subordinate Legislation Committee.

There is always potential for a difference of opinion. We have had to take through a second bill because of a difference of opinion that proved to be correct. The first bill had to be amended because the information about the drafting was not correct.

This is a very important point. Attached to the Subordinate Legislation Committee's report is appendix D, which contains the response from the civil service about regulation 7(3)(a). It makes no mention of the ECHR. It repeats the argument that we heard earlier—that

"decisions to terminate are taken in very rare cases ... Most panel members carry out their duties in addition to their normal employment and there is less risk of there being any serious consequences on their appointment being terminated."

That response, which Linda Sneddon just mentioned, does not mention the ECHR issue that we have raised today. That response is signed by Linda Sneddon.

The Subordinate Legislation Committee has drawn several issues other than the ECHR issue to our attention. Even if we accept that the ECHR issue would have to be subject to a judicial review and a challenge in the courts—despite the fact that we think it should be dealt with at the beginning—other issues that were drawn to our attention have still not been dealt with.

This is important. We have just been told that there is a disagreement with what the Subordinate Legislation Committee said and that the information was provided to that committee. We have the document, signed by Linda Sneddon, that was provided to the Subordinate Legislation Committee. It does not mention that matter. I find that extremely difficult to take.

On regulation 7(3)(a), in relation to which we had the Official Report of the meeting of the Subordinate Legislation Committee, the committee asked about the functions of the membership, the action subject to judicial review and whether it may have serious consequences. We were answering those questions. I appreciate that our response does not go into as full an explanation as the committee required. The case law was not considered. I take the point.

Can you help me out on when this process started? Are you seriously saying today that there is no opportunity to address many of the concerns that have been flagged up? That would leave us in the position that the committee would approve legislation that you may feel is not likely to be challenged, but could possibly be challenged. We are legislators and we do not want to be criticised for passing flawed legislation, which has nothing to do with us until it comes back to us. We are sensitive to that on this committee.

When we receive a report from the Subordinate Legislation Committee, which is probably more extensive than its reports for any other piece of legislation, that sets the alarm bells ringing. The uncertainty and lack of clarity of some of the contributions means that I am less reassured than I was before. If we agree with what the convener is saying about coming back to debate the motions next week, does that put the procedure in jeopardy? The interests of young people should be paramount for every one of us, but equally we do not want to address one concern about the ECHR and leave ourselves open to a challenge on another. It just seems to be a daft side of the seesaw.

The judgment was delivered on 7 August, last summer. The Executive had to consider carefully what was in the judgment and how it could be effected. Discussions were held with local authorities and members of children's panels as to what scheme might be appropriate.

The initial scheme gave rise to concerns about vires. Local authorities expressed those concerns. The scheme was revisited and ministers approved the principle of the scheme and, on 13 November, it went out to consultation with local authorities, chairmen of children's panels and a range of other interested parties, including safeguarders and the Law Society.

In the light of that consultation, the concerns expressed about vires in relation to payment of fees no longer remained. The detailed regulations were drawn up for presentation to Parliament on 21 December. At that point, the 21-day rule applied. That rule does not count when Parliament is sitting.

In order to give effect to the safeguarders and curators regulations, we needed to commence section 101 of the Children (Scotland) Act 1995 because that had not been commenced. That commencement order raised concerns in the Subordinate Legislation Committee, which felt that we needed to clarify that the old regulations terminated when the new regulations came into force.

As a result of the Subordinate Legislation Committee's concerns, a new commencement order has been made, clarifying that the old regulations fall. The switch therefore takes place at midnight tonight.

I am trying to comprehend that.

That is not the point. I was asking if there was any stage between August and now at which those concerns could have been modified or addressed. I understand the time scale we are working in and that the shutters are coming down. Why did nobody go away and sort it out?

Those concerns only emerged from the Subordinate Legislation Committee two weeks ago. By that time, the regulations had been made and laid before Parliament. Those concerns were not expressed to us during the consultation. They were new points.

What was the rationale behind laying the commencement order before Parliament on 21 December? Why could it not have waited until the week after the recess?

Ministers are very anxious to put in place a system that protects children during hearings and provides publicly funded legal representatives at hearings when that is necessary. In order to achieve that, the panel members have to be trained on the principles of the scheme. The local authorities have to ensure that they have adequate legally qualified safeguarders and curators on their panels. They also need to set that process in train. Until the Executive's intention was set out in the regulations, that process was not starting properly. The regulations were brought into effect as soon as practicable to make sure that it did. The reason that a date of 23 February was set was to ensure that training of panel members could be undertaken so that the system could become operative, subject to Parliament's approval.

I want to make something very clear so that there is no ground for misinterpretation. The committee does not want to do anything that would jeopardise the rights and responsibilities of young people or their rights to legal representation. If anybody should indicate that by scrutinising the regulations before us, we are trying to do that, I say that we are not.

We are trying to make sure that the process is not open to legal challenge or any other process. I think that there is sufficient concern among the committee members to suggest that we should lay down motions for debate at next week's meeting and allow the minister to come back for further discussion and debate. The committee can then decide how it wishes to proceed.

I do not believe that that will stop things happening tonight. The instruments will still come into force, because a commencement order will be in place until the motions lodged by the committee have been debated by Parliament. If sense prevails, if we are able to move forward together constructively and if the Executive indicates to us how it intends to address the concerns raised by both the Subordinate Legislation Committee and the Education, Culture and Sport Committee, perhaps an accommodation can be found next week. If not, we will proceed with the motions and the instruments will not be accepted.

I associate myself entirely with your remarks, convener. One of the issues that should be addressed next week is the time scale for these orders. I regard it as either incompetence or brinkmanship to put us in this position. That is quite unacceptable.

With many of the instruments that come before the Subordinate Legislation Committee, opinions are divided on the issue of vires. Although sometimes members of the committee and its legal advisers believe that there is doubt about an instrument, we are assured by the Executive that it is aware of our questions but thinks on balance that it is in the right. In this case, the issue may not be as black and white as it seems. For that reason, I support the convener's suggestion that we invite someone to appear before the committee to give us the necessary assurances, so that the legislation can proceed as smoothly as possible.

I support entirely what the convener has suggested. Is the minister aware of the detail of the issue that has been brought before us today?

Not of the detail.

I suggest that you make the minister aware of that detail.

I shall certainly do that.

I suspect that the minister would appreciate that.

I am surprised that Mr McAdam and his colleagues have not had sight of the report by the Subordinate Legislation Committee. Is that normal practice? Is the minister also unaware of the committee's report? It would have been helpful if Mr McAdam and the minister had been on the circulation list.

I find it remarkable that they are not.

What we have before us is an excerpt from the advice that the Subordinate Legislation Committee received.

No, it is the conclusions of the committee.

Those were e-mailed to us.

I stand corrected. I thought that the procedure was for a report to be made and a letter to be sent.

We have received an extract from the Subordinate Legislation Committee's report, which is dated 21 January.

Meeting adjourned.

On resuming—