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Good morning. I open the 31st meeting of the Education, Lifelong Learning and Culture Committee in 2010. I remind all those present that mobile phones, BlackBerrys and other electronic devices should be switched off for the duration of this morning’s committee deliberations.
Thank you, convener. I thank the committee for giving me the opportunity to present evidence on the bill. My connection with autism predates my involvement with the Parliament in any capacity. Many of you will know that I worked in the Parliament in another capacity before being elected.
Thank you, Mr O’Donnell. I am sure that the committee will have a number of questions for you. You have advised us of your long-standing interest in autism. Why do you believe that a strategy that is underpinned by legislation is appropriate for dealing with autism when the Scottish Government has many strategies to which it is committed and that it is currently implementing, but which do not have a statutory footing? Why is autism different?
Your point about the Government’s strategies is well made. When I had a brief look in 1999, I was able to track down about 20 different documents that had the word “strategy” on either their front cover or their front page. The committee will be aware of the recently published carers strategy. During the parliamentary debate on that, I pointed out that although the rhetoric and the recommendations are fine and worth while, implementation is the major challenge. Experience shows that we have revisited the carers strategy three or four times; yet, conversations and meetings that I have had with those who represent carers have revealed that there is still inadequate performance in terms of delivery. The problem is implementation.
What is your response to the Equality and Human Rights Commission’s view that your bill could dilute the Government’s work to end discrimination for all people with disabilities? Its written evidence to the committee suggests that if we single out people on the autistic spectrum we will exclude and discriminate against others who have disabilities.
My view is that the bill is equality legislation. From the consultation responses that I have received and, to an extent, from previous witnesses’ oral evidence to the committee, it is clear that people with autism are currently disadvantaged and—not deliberately, I hasten to add—discriminated against. This bill will, if enacted, provide an opportunity to equalise things. Other pieces of equality legislation such as the Disability Discrimination Act 1995 highlighted and picked out particular sectors of our society for protection because it was perceived that they were not being treated fairly. I see no difference between that approach and the approach that I am taking in this bill, which is equalising rather than discriminatory.
Do you accept the concern that has been expressed not just by the EHRC but by a number of individuals, including the Minister for Public Health and Sport, that if your bill were to receive parliamentary support and to be enacted it would create a legislative framework for an autism strategy that does not exist for any other strategy and that, as a result, Government would be more minded to comply with it at the risk of excluding others?
I see the argument. However, I reiterate that this is an equalising bill that seeks to address the levels of institutional and indirect discrimination that are faced by people with autism in accessing mainstream or person-centred services. In any case, I believe that every Government strategy should be supported and backed by a legislative framework. I do not see why that should not be the case.
I think that such an approach might be rather costly. Is that a costed commitment from the Liberal Democrats?
It is simply an observation, convener.
Perhaps we should not go there.
You have been very clear to the convener about the need for legislation. However, some people have suggested that, given the length of time that the legislative process will take, we could be getting on with putting in place a proper strategy that would be more effective than what is in place at the moment. Do you accept that there might be a slight conflict of interests in that respect? If a strategy were to be developed now without the legislative process and then this legislative framework were to be brought in, would it be difficult to tie the two together?
I have no doubt about that. Let me first deal with the recommendations that the Government has put on the table; they are recommendations, rather than a strategy. Some cynics—I am not one of them—might suggest that the autism reference group, which had been abandoned in 2008, was not resurrected until after my proposal, notwithstanding the fact that a number of organisations had been in communication with the Government during 2008 and subsequently to ask for reinstatement of the reference group. That seems to indicate that there is an awareness in the Government that there were shortcomings in relation to that.
Do you feel that legislation is needed to enforce a more level playing field? Can you be specific about what legislation could deliver that a good strategy could not do on its own?
I hesitate to say that the force of law focuses the mind considerably, but it does. I believe that legislation is necessary. Like all committee members, I have watched as the strategies that have been produced by not just this Government, but by previous Governments, have been revisited and—not to put it too bluntly—sidestepped by those who are responsible for their implementation. What we need centrally is leadership, and we need it to be focused in a legislative framework. There are too many variables and options if things are not built on a legislative framework, and the danger is that we are reduced to making decisions by focus group. The legislative framework in the bill will provide a focus for ministers and officials, and it will provide focus and leadership that we do not currently have on Government recommendations for the people who are responsible for implementation, in a much more specific way than a general strategy without legislative support would. I recognise that in many ways they will be devolved areas of responsibility.
Thank you for that answer. It is helpful, and I can understand your perspective.
My response to that is hypothetical to an extent, until we see what happens with the proposal. As I said to the convener—and without getting into party politics, which would only get me into trouble—I am strongly of the view that the rhetoric and the commitments that are made in relation to strategies that do not have legislative support, but which are drawn up with the best of intentions, are all too often diluted when it comes to implementation. We all have experience of that, either as elected members or, as in my case, through having previously worked in the Parliament. We have all seen the dilution of such strategies. Sometimes I understand the reasons for it, but that does not mean that those reasons are necessarily right.
I do not think that anyone would dispute the size of the issue that the bill seeks to deal with, but I am not completely clear about what, in concrete terms, you think legislation underpinning a strategy would actually provide for families that a strategy without legislation would not provide. Can you give me some concrete examples, in the everyday life of a family with someone with autism, of situations that would be different were there to be legislation in place?
I have been very clear about the box in which I have defined my proposal. Experienced in a limited way as I might be in this area, it is not for me to define the contents of the strategy that could emerge. I am sure that, with some tweaking, and following consultation of a variety of stakeholders, some of the proposals among the Government’s recommendations might be of benefit.
Yes, but which bits of legislation are currently failing?
There is currently no specific legislation that relates to autism. A number of pieces of legislation across the spectrum of legislative provision, such as Education (Additional Support for Learning) (Scotland) Acts 2004 and 2009, should pick up such issues, but the problem is that there is nothing to stop any local authority or service provider saying, “We didn’t need to do that.”
I do not mean to put you on the spot with respect to your comments in response to a previous question, but I will. You suggested that strategies that are not underpinned by legislation are in some way defective. What were you thinking about? Were you thinking about the dementia strategy or our strategies relating to people with various other disabilities? I am not putting words in your mouth, but I think that you said that it would be better if all the strategies were underpinned by legislation. How many bills do you envisage?
My concern is that, unintentionally, loopholes are left that people can get through. Let us consider the disability legislation as an example. To some extent, the example is anecdotal; it is based on conversations that I have had with people. I can think of one local authority that has a three-year waiting list for an opportunity to access independent living funds.
Are you suggesting that you would like a bill to underpin every strategy that the Government has?
I could make a reasonable case for that.
Could you find parliamentary time for it?
That is an entirely different question, and it is the Government’s responsibility rather than that of a back bencher. I am saying that having a legislative framework and giving a strategy force of law focuses the mind and affects how people approach implementing that strategy. That is my intention with the bill. It is about focusing the mind and minimising the loopholes that allow public and other organisations to find ways of not doing things in the most effective way and to the best of their ability.
The question is whether the bill brings in additional legislation to address gaps or whether it tries to make existing legislation work effectively. In the example that you gave of a child and their co-ordinated support plan, the issue should have been resolved through the co-ordinated support plan and existing services. If that is not working properly, the question is whether the bill will make it work any better than it does. Last week, in light of evidence that it took, the committee felt that, although there is a range of legislation to support children in school up to the age of 18, there are issues with adult services and transition. We felt that those issues need to be addressed. The question is whether the bill is the right way to do it. Are there gaps in the current legislation that need to be filled, or is the bill about making that legislation work more effectively?
It is probably a combination of both, to be honest. Working from memory, I think that about 7,500 children in Scotland’s schools are recognised as having autism and there are about 44,000 who need support. It is difficult for me to make an assessment of the needs of all those children and how they are being met because they are variable and even gathering the statistics is a major challenge.
Yes but, as you have recognised, there is legislation that covers children and young people and they are entitled to transition plans, so they should be receiving them under the current legislation. You seem to be saying that the solution is to introduce further legislation to ensure compliance with existing legislation, but local authorities should be complying with existing legislation. I wonder whether further legislation is the right or most effective way of ensuring that current legislation is being implemented.
I understand the point, and it is well made. However, part of the problem is about the distinct nature of autism. It does not sit within mental health, for which we have a good legislative framework, or within the learning disability sector. All too often, it is a bolt-on. An assumption is often made—perhaps with the best of intentions but without recognising the nature of the condition—that if we do something for the learning disability or mental health sectors, it will automatically benefit those with autism. That is clearly not the case. It is estimated that there are 38,000 young adults and adults out there who are getting no services because they have fallen through the cracks in the current legislative framework because of the way in which it is set up.
One of the arguments that some of our witnesses have made, including the Scottish Society for Autism, is that the bill is designed to help to enforce or implement a strategy, so the strategy should be put in place first so that we can know more detail. What do you make of that argument?
The first thing that we need to do properly—and I have tried to do it with the bill—is consult all the stakeholders. The autism reference group, which was resurrected relatively recently, does not contain any member with autism representing people who have autism; it has no member representing people with autism because it just has organisations. There is one parent, and the rest of the representatives are clinical specialists. I think that proper and wide consultation is needed in order to arrive at a strategy. The Government’s recommendations were drafted before the consultation that it is now engaged in. As I said at the outset, that is the wrong way round. I believe firmly that it is for the Government to put a strategy together. It is not the intention of my proposal to make that strategy. I do not have the expertise to do that. I was concerned that there is no strategy in place; most of the respondents to my consultation were convinced that there is no strategy in place.
One worry that people have about the lack of detail about the strategy in advance of the legislation is that there will be costs associated with any strategy. Do you have any idea of what the costs will be—either the potential costs or the potential savings?
On savings, I think that you have already received evidence from Robert Moffat, of the National Autistic Society, and Mr Somerville, of the Scottish Society for Autism, indicating that the cost of providing inappropriate services is something like £23 billion in the UK. I cannot say, because we do not have accurate numbers—it is all extrapolations—what the cost to the economy is of providing inadequate services. However, I will take a very good run at it and suggest that providing inadequate or inappropriate services is more expensive than it would be to do it properly.
Good morning. The issue of the national strategy underpins a lot of what we have discussed this morning. To follow on from Ken Macintosh’s questions, you said earlier that
It is for the SSA’s representatives to say why the organisation’s chief executive said what he did but, in fact, he also said that there is a desperate need for legislation and that he recognises that people with autism are currently being disadvantaged. Those of us who have a long-standing interest in autism know that the politics of the sector presents challenges in getting people to come together. As I said previously, one member of the reference group is supportive of the bill.
I do not know whether it does, to be honest, but I want to move on.
For more than 10 years, those with autism and those supporting people with autism have been waiting—I have to say relatively patiently—for something that makes a difference to their lives. They have watched developments begin to take shape in other parts of the United Kingdom and have told me that what has happened there is progress. I would like to think that if a strategy that emerges from my bill is sufficiently inclusive and has the force of law, it will meet some of, although perhaps not all, people’s expectations. Very rarely, in my limited experience, are everyone’s expectations met by every piece of legislation that this or any other Parliament puts through. There will be shortcomings—there always are—which is why, as with the Education (Additional Support for Learning) (Scotland) Act 2004, we need to revisit legislation. We need to ensure that it is providing maximum benefit to the maximum number of people.
If the bill does not prescribe what a national strategy should include, how can the committee be reassured that it will ultimately deliver for the people it needs to deliver for?
As I said at the outset, it was never my intention to prescribe the contents of a strategy. That is for the wider autism community—carers, people with autism and the various organisations—to engage with. Indeed, people across the whole range of clinical and social settings should contribute to the make-up of a strategy. I think that, even with my limited experience of autism and the challenges that I face it would be highly inappropriate and in fact arrogant for me, as a back bencher, to propose what a strategy should contain. This bill was never intended to be prescriptive in that way.
I understand that, but the question is whether the cart is going before the horse. Should, as the SSA has suggested, the strategy come first and then be underpinned by legislation? As you know, the NAS takes the opposite view, and we are trying to work out the best way forward for this legislation to deliver the outcomes that all of us around the table want.
I recognise that and, as I have said, there have been and continue to be political—with a small p—differences within the autism community. It is the nature of the subject that there are different perspectives on it. The Scottish Society for Autism probably has as much expertise as the NAS, but I believe that there is considerable variation in the expertise of the chief executives of those organisations. I cannot resist the temptation to point out that, for a variety of reasons, the chief executive of the SSA was at first appointed by the Government and with regard to history, expertise, the range of people that it supports and the composition of its membership—its constituency, if you like—the NAS has a much wider footprint.
Kenneth Gibson mentioned the autism strategy in England and Wales. I know that it is only a short time since that was implemented, but do you have any evidence that it is making a difference to services?
At the moment, all the evidence is anecdotal. It is probably just over a year since it was fully implemented and the statistics that are coming back are very low, so I would hesitate to give you a positive or negative view of the outcome. What happened changed slightly from the original proposal. Contrary to some suggestions that you might have heard, I did not simply try to import the English model here. It was deliberately not done in that way.
Good morning.
Good morning.
My question follows on well from your answer to Claire Baker, because I am going to ask you about the duty to have regard to guidance. The “have regard to” provision in section 3 would mean that local authorities could not ignore the guidance that ministers issued, but it does not mean that local authorities and health boards would need to comply. We have heard concerns about that in evidence and I have followed a line of questioning on it. Do you believe that the statutory interpretation of “have regard to” is enough? Would it bind local authorities and NHS bodies to the guidance that is issued by ministers?
You will have seen the information in the Scottish Parliament information centre briefing on the statutory interpretation of a duty to “have regard to” something. It states:
Is that enough? We have experience of local authorities going all the way with placing requests. Do you—
If we as an institution want to devolve decision making as close to the people who are affected by it as possible, doing anything more stringent than what is in the bill would take away from the flexibility that local authorities rightly have. However, the bill provides enough of a shot across the bows, shall we say, of those who would for whatever reasons—probably mostly economic—seek not to apply a strategy, by saying that that would have consequences. The bill is as hard as a back bencher’s bill can be, without overcentralising decision making, which I am fundamentally against, given that I am a Liberal.
We all strive to achieve consensus so that we can move forward on an issue and do what a strategy says. Would having a
Let us pass the bill and see.
I apologise for being slightly late.
I was specific when I proposed the bill and I return to what I have said. The costs that are associated with the strategy are for those who put together the strategy to decide. The costs will depend on the strategy’s content and extent. I would love to have a crystal ball such as the one that COSLA has. It appears to have thought only about spending more money rather than working smarter.
In relation to cost, I will return to a wider issue that colleagues have already touched on. COSLA has told us that there is a fear that the focus on people with ASD under the legislation would mean that money would be directed away from support services for people with other conditions to the benefit of those with ASD. What is your response to that?
COSLA’s response on that seems to indicate that it is acknowledging that people with autism are discriminated against already. As I said in my opening remarks, this is an equalising proposal. It aims to ensure that there is a level playing field for those with a very specific condition that all too often falls between the cracks of learning disability legislation and mental health legislation.
That concludes the committee’s questions to you today, Mr O’Donnell. Thank you for your attendance. I ask you and Ms Nisbet to stay with us while we move on to the next agenda item, which is very brief. I will then suspend the meeting.
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