Children's Hearings (Legal Representation) (Scotland) Amendment Rules 2009 (SSI 2009/211)
The next item of business is a debate on motion S3M-4811, in the name of Michael McMahon, on behalf of the Parliamentary Bureau, on consideration of a Scottish statutory instrument, the Children's Hearings (Legal Representation) (Scotland) Amendment Rules 2009 (SSI 2009/211).
Motion moved,
That the Parliament agrees that nothing further be done under the Children's Hearings (Legal Representation) (Scotland) Amendment Rules 2009 (SSI 2009/211).—[Michael McMahon.]
We are extremely tight for time and I have no time to take out of the next debate, so members must adhere strictly to the times that they are given.
I welcome the opportunity to discuss in Parliament new arrangements for making available state-funded legal representation for relevant persons in children's hearings, by way of a Scottish statutory instrument that was made in June and which I will refer to as the SSI.
As some members will be aware, the matter has been discussed at length at the Education, Lifelong Learning and Culture Committee. As I have already done at committee meetings, I make clear the Government's commitment to protecting and promoting the principles and ethos of the children's hearings system. The system is all about the best interests of the child, and the SSI will help to ensure that that remains the case.
By way of background, the SSI ensures that relevant persons may be provided with free legal representation to assist them in a children's hearing if that is necessary to ensure their effective participation in the decision-making process. A relevant person is usually the child's parent, but it can be other people who have a close involvement in the child's life. The Scottish Government made the concession in the context of a legal challenge in which an individual argued that the absence of provision for state-funded legal representation breached their rights under the European convention on human rights. The Court of Session has not yet issued the judgment in the case, so I am sure that members will understand if I do not go into details about its particular circumstances. However, the Scottish Government has already accepted that the absence of any provision whereby a person could apply for state-funded legal representation before a children's hearing if they were unable to participate effectively without such representation was incompatible with articles 6, 8 and 14 of the convention.
That rationale applied to any relevant person who was unable to participate effectively at a children's hearing without legal representation. Therefore, the Government decided to act quickly—as soon as it was clear that there was a legal requirement to make available assistance in certain circumstances—to ensure that any relevant person who was incapable of participating effectively in a hearing because of their physical or mental capacity had the possibility of legal representation if their individual circumstances merited it. That is why the Government took the unusual but legitimate and justifiable step of breaching the 21-day rule by bringing the SSI into force the day after it was laid in Parliament in June.
The SSI provides an interim route through which such provision can be made proportionately and quickly; the regulations are carefully restricted and we see no less intrusive way of resolving the difficulty. However, I propose to include a permanent scheme in the children's hearings (Scotland) bill that I plan to introduce to Parliament early in the new year. As such, nothing in the statutory instrument ties the Parliament's hands in relation to the children's hearings (Scotland) bill. If evidence suggests that the arrangements introduced by the SSI do not work, we can look to revisit them in the bill.
I move on now to emphasise what the consequences will be of annulling the SSI. I place on record my deep disappointment that the Education, Lifelong Learning and Culture Committee chose to support the motion to annul and potentially jeopardise support to some of Scotland's most vulnerable people. I have spoken to the committee at great length about the fact that the SSI is no longer about securing a right of representation; that point of law has already been conceded and I ask you to bear this in mind today.
The main issue boils down to the fact that the committee seems determined to remove a measure that simply prevents the most disadvantaged people in Scotland from being further disadvantaged. Relevant persons can already have legal representation at hearings if they can afford to pay for it. I have repeatedly made that hugely important point, which the committee has failed to recognise. So, I ask, are you as a Parliament really going to say to a person who does not have the capacity to participate effectively in proceedings about their child, "You can't pay so you can't have help"? I urge you to vote against annulment of the SSI.
I make it clear that voting to annul the SSI will not prevent from coming forward cases in which relevant persons need support. It will, however, prevent some of the key people at hearings from accessing the support that they require and are entitled to in meeting their basic human rights. Annulment will not magically remove those people from the system.
Before the minister concludes, can you give us the Government's view on the legal effect of passing the motion today? Is it the case that the SSI would cease to have legal effect as from today and that the law would therefore revert to where it stood before you laid the SSI?
I remind all members to speak through the chair and not to each other directly.
Yes, Mr McLetchie is correct in his interpretation. Following a vote by the Parliament to annul the SSI, we would have to revoke it with immediate effect as of tomorrow. That would remove the current rights of relevant persons and, as the member is undoubtedly aware, it would also call into question the children's hearings system and its ability to make disposals in line with the ECHR.
You must conclude, minister.
I will just make this point. In 2002, state-funded assistance for children was introduced. The SSI simply extends that state funding to relevant persons—primarily parents—in certain circumstances. I very much hope that members see how a decision to annul the SSI could seriously affect those who might need legal representation. If, for example, a relevant person is assessed as having the language ability of a child of six and a half, the literacy skills of an eight-year-old and the numeracy skills of a six-year-old, how can we honestly expect them to have their say and to put across their perspective without help and support? We have a moral duty to support them.
I say to the minister that as I extended his time, I might have to reduce his time for winding up.
One of the few things on which Adam Ingram and I will agree this afternoon is that it is truly regrettable that it has become necessary to debate this motion to annul in the Parliament. I firmly believe that, had the minister shown a willingness to listen and respond to the serious concerns that have been raised by the chairs of Scotland's children's panels and by the majority of members of the Education, Lifelong Learning and Culture Committee, today's debate would have been unnecessary, but he seems determined to ignore those concerns and appears to be more focused on attacking those who raise them than on responding to them constructively. However, I am pleased that, today, he changed his tone slightly from the one that he used at committee yesterday.
Members raised a number of concerns at last week's committee meeting. They focused primarily on the potential for the instrument to introduce a much more legalistic approach to the children's hearings system. The minister attempted to allay those fears by stating that that would not be the case and that the measures would apply to only a handful of cases. When pressed, he initially agreed with Kenny Gibson that there would be about 12 to 20 cases a year, but when he returned to the committee yesterday the number had risen to 250 cases a year. However, anecdotal evidence that I have received from panel members and reporters throughout Scotland leads me to believe that the number will be far higher. Some reporters have told me that the wording of the instrument means that at least half of the cases that they deal with could be affected.
For me, that is worrying. If ministers and civil servants can so badly misjudge the impact of the instrument, how can we have confidence when we are told that it will not lead to the children's hearings system becoming increasingly legalistic? Equally, how can we—or the minister, for that matter—have any confidence about the affordability of the instrument? If his department has budgeted for 10 to 20 cases a year but the actual number is many hundreds, what impact will that have on his department's budget and on local authorities?
During the minister's contribution to the committee's debate yesterday, he tried to imply that there was a strong level of disagreement about the SSI among panel members and chairs throughout Scotland. I have to say that the minister really needs to get out more. Yesterday, I spoke to Phillip White, the chair of the Argyll and Bute panel, who said:
"The introduction of this SSI will undoubtedly lead to the whole complexion of the children's hearings system changing from child friendly to legalisation and the focus on the child will be lost in the ensuing legalese. Any changes to the system must ensure that we get it right for every child."
A panel member from Glasgow told me:
"I do not understand why the Government is so determined to rush into this measure. I am very concerned that this will change the child-centred nature of our hearings system."
That member was John Anderson, who is depute chair of the Glasgow panel. In addition, similar concerns have been raised with me by chairs and panel members from throughout Scotland, including Ena Williamson of West Dunbartonshire, Irene Allison of North Lanarkshire and Shona Lynn from Dundee. Let me make it clear that those panel members and chairs came to me and my colleagues to express their concerns.
Scottish National Party members have accused me of playing politics with the issue. If listening to and representing the concerns of panel members is playing politics, I am guilty as charged. If trying to ensure that the rights of the child remain paramount within the children's hearings system is playing politics, I am guilty as charged. If asking the Government to justify the rationale behind the instrument is playing politics, once more, I am guilty as charged.
I repeat for the record that neither I nor any of the people who have contacted me want the Government to ignore the issue of legal representation of parents and carers. No one wants any parent or carer to be unable to engage in a hearing that will take decisions about their child's future. However, is the Government's proposal the best way to deal with the situation? I do not believe that it is.
Will the member give way?
No, I am not going to give way. I am sure that the member is going to speak.
Would it not have been much more effective to engage with stakeholders on the issue and deliver appropriate change in partnership with them? That is what the previous Administration did in 2002. We did not rush in and draft a change that would have had unforeseen consequences.
Yesterday, the minister claimed that the Government had to act because of a court ruling. However, the Government is pre-empting that ruling, because it has not yet been made. It would have been far better if the Government had awaited the ruling and, during that time, constructively engaged with and consulted people about how we ensure that parents and carers are properly represented and engaged in the hearings process.
For the minister to warn that annulling the instrument would leave panel members open to potential ECHR challenges was at best misleading and at worst blatant scaremongering that could have caused needless anxiety to panel members. Why is the Government acting in this way? Because the minister has failed to engage effectively and work with others.
The member must close now.
I stress that panel members and volunteers are asking the Parliament to respond to their concerns. We should take a breath and ensure that we get any changes to the children's hearings system right, so that we can ensure that it continues to be the jewel in the crown of our legal system.
I warn members that the closing speech from Labour may have to be curtailed.
I do not doubt for a moment that it is one of the principal duties of the Parliament and its Government to uphold the principles of the ECHR as they scrutinise relevant matters of justice. It is also their duty to uphold the principles of the Scottish justice system, including those that underpin our different tribunal processes.
For the past week, members of the Education, Lifelong Learning and Culture Committee have been asked to scrutinise the arguments of the Scottish Government and of Ken Macintosh on his motion to annul the statutory instrument. At the end of that process, which involved a vote at yesterday's committee meeting, I chose to abstain on the ground that I did not have sufficient information to judge whether the instrument should remain in force or be annulled.
I will be very specific. First, and most important, the matter hinges on a ruling in the Court of Session that is yet to be made. Voting in favour of the instrument would pre-empt that legal ruling, and would mean that the Scottish Government was asking a committee of the Scottish Parliament to scrutinise a proposal without the benefit of the certainty of the ruling. The minister assures us that that is not the case, because he has been formally advised about what the legal ruling will be: namely, the Scottish Government will lose its case.
The minister argues that both the Court of Session and Scottish Government ministers have a duty to ensure that the principles of the ECHR are upheld, which undoubtedly is the case, but I challenge the Scottish Government to produce the unequivocal evidence that the legal opinion that it has presented to the members of the Education, Lifelong Learning and Culture Committee and to Parliament this afternoon is correct.
It is incumbent on the Scottish Government to explain fully exactly why it has conceded the case prior to the legal ruling being made. I understand that in at least one other case when a Scottish Government predicted the outcome of a Court of Session ruling, it was in fact wrong. On that basis, is it right for the Scottish Government to attempt to force committee members into believing that the outcome of the appeal is certain? Past experience suggests that that is not the case.
Secondly, there is the issue of conflicting legal advice. The minister clearly asserted that if members of the Education, Lifelong Learning and Culture Committee voted to annul the instrument, various individuals—including members of children's panels—could find themselves in breach of ECHR regulations. However, my impression, having sought legal advice, is that that is simply not true: only the Scottish Government can be in breach of ECHR regulations. I am disturbed that other committee members may have received conflicting legal advice on what I would have thought was a very straightforward matter of fact: either those bodies can be in breach of the ECHR or they cannot. The time that has been spent on establishing the truth of the matter has not been helpful, especially for those who do not have the privilege—or should I say the curse—of a legal background.
Thirdly, I have had great difficulty in assimilating some of the minister's responses to questions at committee sessions. At the committee meeting on 1 September, I asked him to confirm whether or not there would be implications for the conduct of children's hearings if the instrument were approved. He replied:
"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."—[Official Report, Education, Lifelong Learning and Culture Committee, 1 September 2009; c 2619.]
However, in the next breath he cautioned me that the instrument was a separate matter from the children's hearings bill, which is designed—and is about to be redesigned—to change the procedures that govern children's hearings. Likewise, the minister said in his opening statement at that meeting that there would be an "interim route" and that a "permanent scheme" would be proposed at a later date. That implies that changes are to be made.
I believe that all members of the Parliament, including the minister, wish to protect the central ethos of the children's hearings system—a system that has served Scotland well and which enshrines the principles of the Kilbrandon report. That ethos is clearly at the heart of the representations that we have received. I ask all members to think carefully about the matter.
The Liberal Democrats are unwavering in our support of the children's hearings system. We have a system that puts the interests of Scotland's children at the heart of its proceedings, maintains a philosophy of trying not to be adversarial and is grounded in the Kilbrandon ethos of a welfare-based system for looking after children in need. Education, Lifelong Learning and Culture Committee members of all parties have been vociferous in their support for the individuals who work within the system, particularly the panel volunteers who dedicate their time to ensuring that decisions reflect the needs and rights of the children involved.
Our first major concern about the content of the instrument relates to its potential to erode the long-standing ethos of the children's hearings system. It may also lead to the overlegalisation of the system by stealth, to the detriment of children and others involved. The Government maintains that the rules cover a specific group of people—we were told that it would be "a handful"—and that the impact on the system is therefore minimal. The chair of the children's panel chairmen's group disagrees with that assertion. Last week, he wrote to the Education, Lifelong Learning and Culture Committee, urging members to annul the instrument. He said that it would have
"a profound effect on the way Children's Hearings are conducted."
The minister has since had to concede at committee that the "handful" could amount to around 250 people a year. At a meeting at the Parliament last week, children's panel chairs told committee members that the first few weeks of operation have shown that numbers may exceed even the minister's revised estimate. Anecdotal evidence from panel members indicates that the number of legal representatives who have been appointed since the instrument came into force in June amounts to more than a quarter of the estimate, with 36 being appointed in four weeks in Glasgow alone. The Government has no idea of the numbers involved and therefore no idea of the cost of this state-funded representation. Every day in our courts, individuals are faced with challenges to their rights, but we do not open up free legal representation to all.
There is no debate about the need for vulnerable adults to be represented at children's hearings when they lack the capacity to represent themselves effectively. We do not wish to deny anyone that right. Our concern is the efficacy of the instrument in ensuring that that—and only that—is the consequence of implementation.
As I made it clear at committee, we agree that adults with incapacity or mental health needs should be supported in that way. However, the drafting of the instrument goes much further than that. Last week, we asked the Government to resubmit a tighter instrument, because the current drafting makes it clear that the measures apply to a much wider group than the Government would have us believe. For example, it covers cases that involve parents' rights. The instrument is also more widely drawn than the 2002 rules on legal representation for children, which were introduced following a decision of the Court of Session and full consultation.
I understand from panel members that they do not feel that they have had the relevant training to allow them to decide whether an individual requires assistance. Such implications not only jeopardise the rights of the child in proceedings but risk delays in the system, particularly given the previously highlighted shortages in the number of legal representatives. It is unlikely to be in anyone's best interest for hearings to be delayed while panels try to find the level of legal representation that is required under the instrument.
Our second major concern relates to the Government's handling of the issue. The Government has justified the breach of the 21-day rule by saying that it has been presented with an "emergency". In a letter to the committee, it said that there is a "clear view" of the Court of Session. That is misleading. The Court of Session has taken no decision thus far and there is therefore no detail of the ruling, including detail on what the Government may be required to do. I fail to see why any decision would necessitate such urgent action that it requires the Government to bypass consulting those who work in the system or to disallow proper parliamentary scrutiny of such a significant change.
The action that the Government is taking is totally different from that which the Government took in 2002, when a case had been lost. Having heard the concerns of panel chairs and others about the instrument, why does the Government not feel that it is worth while reconsidering it? Why is the Government not taking the time to get it right? Surely it should ensure that it does not replace one legal problem with a host of others. Why does the Government feel that it is acceptable to breach the Education, Lifelong Learning and Culture Committee's right to proper scrutiny and to fob us off with misinformation and vague answers?
There is a willingness on all sides to get this right for Scotland's children. I urge the Government to withdraw the instrument and to let us think again.
The children's hearings system is unique to Scotland, combining justice and social welfare. It has proven to be extremely effective and something that we should cherish. However, as with many systems, when humans enter the equation, flaws can emerge. A prime example is the Miller case, which highlighted the need to provide children who met specific criteria with free legal aid. In 2002, that issue was dealt with by providing said legal aid. More recently, a similar issue was highlighted.
It is surely a matter of natural justice that the most vulnerable people in our society should obtain free legal representation if it is difficult for them, perhaps because of mental incapacity, to fully or effectively participate in a children's hearing. There are two main reasons for that. The first is that, as outlined on the Scottish Government web page about the children's hearings system:
"The participation of the child and family members (or ‘relevant persons') in discussing the best course of action is seen as essential in allowing all issues bearing on the child's welfare to emerge and in enlisting the support of children and families for the measures decided upon."
Surely denying free legal representation to relevant persons who are incapable of participating fully in a hearing would breach that fundamental aim of the hearings system.
Secondly, by not providing free legal representation to the aforementioned relevant persons, the hearings system would be operating in direct contravention of the European convention on human rights, including, as we heard in the committee, article 6, on the right to a fair trial; article 8, on the right to respect for private and family life; and article 14, on the prohibition of discrimination. I am sure that members agree that denying human rights for a moment longer would be an insult to the proud tradition of Scots law and the hearings system itself.
For those reasons, an extension of the 2002 rules should grant not only children but other relevant persons free legal representation should their individual circumstances merit it.
I am aware of scepticism about this change in the hearings system, which we have heard about in some depth this afternoon, and which some argue is both legalistic and challenges the original ethos of the entire hearings system. In my view, such claims are wholly inaccurate. If a child or parent was able to obtain their own lawyer to represent them at a hearing, they could do so. There have always been lawyers in children's hearings.
Since 2002, there have been state-funded lawyers for some children at hearings, and research has shown that that has had no negative impact on the ethos of the robust children's hearings system, which is strong enough to accept a change that will impact on significantly less than 1 per cent of cases. Qualitative research notes that lawyers attending hearings respect the system's non-adversarial nature, while noting that panel chairs have the authority to insist that that ethos is protected.
Furthermore, given that legal representation is already allowed where a parent, child or other relevant person can pay for it, refusing to provide free legal representation for those who genuinely require it but cannot afford it would, in effect, exclude Scotland's most vulnerable adults from fully and effectively participating in hearings and would lead to decisions affecting their families being made on the basis of affordability.
Given that, by law, the issue had to be resolved as quickly as possible, adequate consultation took place with statutory consultees. In addition, I understand that Mr Ingram offered on no fewer than three occasions to meet members of the Education, Lifelong Learning and Culture Committee to brief them. However, that was not communicated to members by the convener of the committee.
The hearings system was operating in contravention of the ECHR, which could not continue. It was essential that we acted to address the problem. In doing so, we have also protected and enhanced the fundamental principles and original ethos of Scotland's unique and valued children's hearings system.
On a point of order, Presiding Officer. Is it appropriate for a member of this Parliament to provide inaccurate information suggesting that an approach was made to me, as the convener of the Education, Lifelong Learning and Culture Committee, offering briefings on the SSI? I have asked the minister to write to me confirming when those approaches were made—no such approaches were made. It is unhelpful for members to perpetuate an untruth in this place.
As the member knows, what members say in the chamber is not a matter for me to rule on. I am not in possession of all the facts and figures and I must therefore leave the matter until the member receives the letter from the minister.
We are now eating seriously into the time for this debate.
We find ourselves in unfamiliar territory this afternoon. Most of us are used to raising the odd serious concern about subordinate legislation, but this is certainly the first time I have asked colleagues to move against a statutory instrument. What is even more unusual is the subject matter, given that I believe that most of us, from all parties, would regard ourselves as friends of the children's panel.
This is an issue on which I would have expected and hoped we would unite. Instead, we have had this week's descent into somewhat bad-tempered bickering. However—and although I do not agree with the minister's somewhat apocalyptic language this afternoon—I, too, was pleased to hear the more temperate tone in which the minister and, indeed, Kenny Gibson, couched their remarks. I wish to concentrate on areas in which I believe there is genuine disagreement. I hope that there is room for the Scottish Government to manoeuvre to address the concerns that clearly exist.
The rules will introduce state-funded legal representation for adults—parents and guardians—who require such support
"to effectively participate in a Children's Hearing".
As the Education, Lifelong Learning and Culture Committee sat last week to consider the proposed changes, we received a letter from the children's panel chairmen's group asking us not to approve the SSI. The letter confirmed what many of us had picked up from constituents, from letters and e-mails and from other panel members and reporters. As Karen Whitefield highlighted, there is great unease among those who know and work in the hearings system that the whole ethos of its being a lay-administered system of child welfare and justice could get lost in moving to an overly adversarial and legalistic focus on parental rights.
Given the reasonable way in which Ken Macintosh is making his argument, does he not accept the minister's point that there are, between now and the introduction of the bill, a few months in which it will be seen in practice whether all the apocalyptic things will happen or not? Does he accept that that is a reasonable time for dealing with the matter and a reasonable way in which to do so?
The minister has claimed that not to proceed would leave us in breach of the European convention on human rights. As the committee has discovered, however, there has been no legal ruling, no ECHR judgment and no decision from the Court of Session or anyone else. There has also been no consultation on the potentially far-reaching proposal. There is little certainty as to how many cases will be involved or how many parents will require legal representation.
Perhaps what is most pertinent is that few of us, and few people outside Parliament, understand the need to rush the rules through. Panel members, reporters and even solicitors have questioned whether the Scottish Government has got the SSI right, yet the Parliament is expected meekly to accept the minister's assertion of the need for urgency, with no court ruling to back him up. I believe that the Education, Lifelong Learning and Culture Committee and the Parliament have no choice but to annul the instrument and to ask Scottish ministers to rethink their approach to the matter. Lest there be any doubt, I do not question the need to support vulnerable parents, particularly if there are worries about diminished capacity. We must ensure that all parties can participate effectively at children's hearings, but any proposals must be fully scrutinised.
Members might be interested to hear that, since we raised our doubts over the SSI at committee last week, I have been contacted by the solicitor whose case at the Court of Session appears to have provoked ministers into action. She believes that, by allowing the panel to appoint a solicitor only from its approved list, ministers will not even meet the needs of vulnerable parents. What if those parents already have their own legal representative? Should they be forced to accept the appointment of a solicitor with whom they have no relationship?
Because there has been no consultation on the proposal, there has been little time to assess fully how wide ranging the reforms might turn out to be. The minister's vague assertions on numbers, on which we are supposed to base a decision, do not fill me with any confidence. The minister should take a leaf out of the former Administration's book from 2002, pull back the reforms, consult widely and bring the proposal back to Parliament.
Before calling the next member, by way of fair notice I inform all closing speakers that they will each have to reduce their speaking times by one minute.
It is important that we leave party politics behind when considering this issue, which is about vulnerable families and child protection. It serves Scotland's interests better if we leave party badges outside.
Let us be clear about what annulment today of the statutory instrument will do: it will remove a provision that has been in place since June this year. We cannot have a slopping-out situation all over again. We are talking about the provision of legal advice, at the state's expense, to adults who are obliged to attend a children's panel but who are incapable of understanding or taking an active part in the proceedings without a solicitor or advocate to act on their behalf. The decision is made by the chair of the panel, who observes that the person is in need of legal assistance. The provision is intended for people who cannot themselves afford such assistance.
The principle of access to legal assistance at hearings is not new. People who can afford legal representation have always been able to be accompanied by a solicitor. The SSI addresses an injustice that has been embedded in the system and to annul it today would be to say that Parliament thinks that although people who can afford a solicitor should be entitled to representation, vulnerable members of our society—people who are most in need of a solicitor's assistance—who cannot afford to pay should be denied the help that is available to people who have bigger bank accounts.
Such an approach runs counter to the basic principles that we expect to find in Scotland, and I think that it runs counter to the intentions of nearly every member, if not all members, of the Scottish Parliament. A rights-based system that enshrines the United Nations Convention on the Rights of the Child and the ECHR is best for Scotland. I will strive to achieve such a system. It is regrettable that those lofty ideals appear not to have triumphed on this occasion.
We should legislate before there is a problem, not after the fact. Committee members said that the SSI should not remain in force because the minister could not tell us exactly how many people it will affect, but if one person's rights are breached, that will be one person too many for me. The minister gave a ballpark estimate that was deemed to be inadequate, but no minister of the current Government, the previous Executive or the pre-devolution Governments has ever been able to predict the exact number of legal aid cases there would be in the coming year. We expect much of our Government, but we should not expect clairvoyance.
The committee heard that some people think that children's hearings might be changed if the SSI remains in force. However, at last week's reception in Parliament I spoke to a number of panel chairs, and I have spoken to another panel chair in Glasgow, who told me that the measure is not only necessary, but good. The only change is that people who are vulnerable and poor have the same access to legal assistance as people who can afford it.
We measure society by the way in which it treats its most vulnerable people. Let us be clear: we are talking not about changing how the children's hearings system operates but about fairness and justice. Panel chairs have the power to appoint when it is deemed necessary to do so, and they have the protection of knowing that they have adhered to the principles in the ECHR. The SSI removes unfairness, undoes an injustice, imports decency into our legal provisions and makes our society better. I urge members carefully to consider what to do and to vote to allow the provision to continue.
This is a serious debate on a proposal to annul an SSI, which no member takes lightly. It has been suggested that members who have raised concerns about the SSI have done so out of party-political bias, but such a suggestion undermines the Education, Lifelong Learning and Culture Committee, whose members have approached their work seriously. The minister's comment to the committee yesterday that it had sunk to "a new low" was unfortunate, and demonstrated that he was not listening or responding to concerns that had been highlighted. I hope that in today's debate we can at least listen to the arguments.
The matter is complicated, but I want to approach it simply. Not one member of the committee disagrees that there should be appropriate support for vulnerable parents or carers when they are involved in important decision making about a child's future. Not one member does not think that when there is a breach of the ECHR, action must be taken to address it. However, the question is whether the SSI properly addresses those needs.
Committee members received representation from the children's panel chairmen's group prior to last week's meeting. In its letter, the group made it clear that the introduction of the changes that the SSI had brought about was flawed, and the group specifically asked us not to approve the SSI at this point. It is clear that panel members lack confidence in the changes and that there has been a lack of training and information for panel members on when and how to make the decision to appoint legal support. That has led to concern that the changes will undermine the ethos of the children's panel system and introduce an increasingly legalistic approach.
There are concerns that the rushed introduction of the SSI has meant that there has not been proper consultation on, or consideration of, the impact of the changes. The minister said that there was consultation of the Administrative Justice and Tribunals Council, but it is clear that the process has been inadequate in comparison with the process that was followed when state-funded legal support was introduced for some children. The concerns that panel members expressed demonstrate that the SSI would have benefited from greater involvement of stakeholders and panel members.
The minister argues that the rush has been necessary, but we have as yet had no judgment from the Court of Session. It is a complicated matter, and I understand that the discussions on the current legal case seek to determine what level of support needs to be provided, and by whom. There are concerns that the Government's proposal presents problems—such as who would be appointed for legal support and whether that person would be known to, and familiar with, the family—rather than providing a definitive solution. The Government is pre-empting the court judgment, but part of the problem is that there has been no opportunity to explore those issues.
It is disappointing that the minister has continued to state that there is a risk that panel members would be in breach of the ECHR. I believe that that is not the case. As I understand it, panel members have to comply with the law as it is and, with no decision from the Court of Session, cannot be in breach.
The Government has handled the SSI badly with the committee and with panel members. It has rightly delayed the introduction of the children's hearings bill on the basis that it wishes to get it right; the committee asked it to take the same approach with the SSI. The change must, of course, be timely but it must also be right and the committee has not been persuaded that the SSI achieves that.
Like many other members, I would have liked at least another week to think about the issue, but we are where we are. Irrespective of the result of the court case, the question is before us today: do we give the help that parents who have learning disabilities require when they come before panels? My answer to that is now very much in the affirmative: they must receive that help, and receive it as soon as possible.
The questions that I had when I entered the chamber for the debate have largely been answered.
Will the member give way?
No, I cannot take an intervention; I have only four minutes. I ask Ken Macintosh to hear me out.
As a former panel member, I respect the panels absolutely for their dedication to taking non-adversarial decisions for the benefit of children, and to children alone being at the centre. I was concerned about possible overlegalisation, but I have been reassured that the measure will apply in only 1 per cent of cases. Even if there was an element of overlegalisation, there is only one way to help the affected parents, which is to give them the assistance that they require.
However much the help costs, the parents still require it, so the money must be found. I am far more concerned about a lack of budgetary support for social services to carry out the disposals that the panels make. That has been a continuing cause of concern for the past 30 years.
I was worried about panel control, but that question has been answered. In every case, the panel chair will have control over whether assistance is granted, which means that there will be a possibility of informed intervention.
I would very much have liked more time, because 24 hours is not enough to make up my mind on such a serious issue. It has given me limited opportunity to consult organisations, although those that I consulted were extremely helpful. The guidance that I received was—shall we say—variable and I have been left making up my own mind, as MSPs should anyway.
Patrick Harvie and I will vote with the Government at 5 o'clock.
I have left the closing speakers a minute each.
We come to closing speeches. I call Robert Brown. I must hold you to about three minutes, Mr Brown.
Robin Harper said that he had only 24 hours to decide on the matter. Unfortunately, 24 hours was also the time the whole country had to consider it when the statutory instrument was introduced in the first place.
The issue is important, but there is, as the Government has suggested, no division between the parties on the principle, but there is a division between them on the practice. The issue is not so much whether lawyers would be able to represent some clients in some limited situations, but whether a door has been opened through which a phalanx of lawyers will gallop, doing damage to the basis of the system.
As a lawyer by profession and former Deputy Minister for Education and Young People, I am probably one of the only members who has represented people at a children's hearing—I might say, on an ex gratia basis—so I know a little of the background. As others do, I accept that there are sometimes cases in which the parent is unable to participate fully in a hearing without assistance—there is no division in the chamber on that principle. I also accept, despite being a lawyer, that more legalisation and more and more lawyers for more and more parties is not a good thing, because that can lead to formalisation and delay, which are highly undesirable, being stimulated across the system. We need look only at industrial tribunals to see the difficulties of that approach.
The problem is not those aspects, but that the SNP Government has decided to shorten the consultation time and to do without consultation on an issue that goes to the heart of the children's hearings system and its ethos; that it has done so before the relevant judgment has even been issued by the court; and that the minister tells us that he cannot go into detail on the court's decision for what he described as understandable reasons. I have no doubt that the minister has done that for the best motives, but Governments are sometimes too keen on what is seen as the smack of firm Government: no messing about, no time-wasting consultation and no testing of proposals before the people who know best. In fairness, I would not have expected that from this particular minister, but it is in contrast to the previous Administration, which rightly took its time over the 2002 changes.
There is no question but that the rules, which members have before them to read, are extremely widely phrased. They are not as limited as the minister puts out. I could make a case under them for legal representation for pretty much any parent who has a child before a hearing and in which a supervision order or something stronger was a possibility. I would be surprised if something more focused could not be defined. I wonder, too, about the alternatives—for example, using the Adults with Incapacity (Scotland) Act 2000, as Ken Macintosh suggested to the committee, or supporting people to be better able to participate in the proceedings by way of advocacy or in some other way. It does not necessarily follow that the only way forward is by legal representation in all cases.
It appears that the minister has been a bit surprised by the reception that the SSI got—the tone of the exchanges at the committee left a good bit to be desired. However, it is time for him to recognise that the practice needs to be got right, that he got it wrong and that—dare I suggest it?—he must make a tactical withdrawal. The measure needs full consideration and a proper look at the options and, indeed, the numbers. The minister needs to come back, either in the proposed bill or after due reflection, with an improved offering. It is right for members today to annul the SSI.
I regret that we have got to this state of affairs. I agree with Robert Brown that there were some unedifying performances throughout the proceedings over the past two weeks.
It is extraordinary that there has been such an inexcusable lack of clarity on key points. It is also extraordinary that, given that some of the related tribunal issues were first flagged up back in 2001, we have had to wait eight years for another very important case in the sheriff court to create such a major headache. To put it bluntly, just why does the Scottish Government find itself in this position?
What is most important, however, is the question of the legal imperative, which is the central issue with which we must deal. Is it definitively the case that the Scottish Government has no other option, and no option in this particular timescale? As we understand matters, the Scottish Government conceded the case because the overwhelming weight of legal advice to it was that it was in breach of ECHR requirements. We also understand that, even though there is not yet a Court of Session decision, any failure to sanction representation is now open to challenge and may have serious consequences for the validity of decisions that are taken by children's panels. In short, we are told that there is a legal imperative to act and that the SSI must remain as an interim measure, pending the passing of the forthcoming children's hearings bill. That being the case, we will, with reluctance, vote against annulment at decision time.
I commend the members of the Education, Lifelong Learning and Culture Committee for the detailed consideration that they have given to the issue and for the difficult, but correct, decision that they made yesterday to annul the statutory instrument.
Previous speakers have referred to the indecent haste with which the Government has tried to force through the SSI. I share those concerns. Having studied the committee's deliberations, I am far from certain that the Government has given adequate consideration to the potential impact that its proposals could have on Scotland's respected children's hearings system.
As others have mentioned, members of children's panels have grave reservations about the proposals. The children's panel chairmen's group, which represents all panel members throughout Scotland, had such deep concerns about the move to a more adversarial system that it wrote to the Education, Lifelong Learning and Culture Committee to ask that the SSI be annulled. Are we just to disregard that opinion?
Confusion exists even at ministerial level about how many cases will be affected each year if the SSI is not annulled. At last week's meeting of the Education, Lifelong Learning and Culture Committee, the Minister for Children and Early Years said that the changes will affect roughly six to 20 cases per year. At this week's committee meeting, members were given another guesstimate from the minister. In less than a week, the number of cases that will be affected by the proposed changes leapt from six to 250. Although Robin Harper was told that the minister expects that 1 per cent of cases would be affected, the minister told the committee yesterday that the total would be 0.5 per cent. It will be interesting to see whether the minister can tell us in his summing-up speech what the actual figure will be—perhaps he has a different idea today. Such confusion does little to reassure those who believe that the SSI is being railroaded through, with little thought for the consequences.
We have heard again today that the instrument must continue in force to ensure that the Scottish Government complies with human rights legislation, but the case in question is still before the Court of Session. Once again, the minister has failed to make a compelling argument for rushing the instrument through. I echo the concerns of members who called for the legal advice to the minister to be published in full.
Many members have talked about the huge amount of concern throughout Scotland about the possibility of a fundamental change to the children's hearings system. Many members have met and listened to children's panel members and reporters, who simply do not understand why the SSI is being rushed through without consultation and before the Court of Session judgment has been issued. For the minister to accuse politicians of playing politics, of not standing up for children and of being opposed to legal representation is an insult to the many panel members the length and breadth of Scotland who are concerned about the issue. Panel members give of their time and energy to our children's hearings system, and care deeply about Scotland's most vulnerable children and their families.
The Education, Lifelong Learning and Culture Committee is not at fault. I believe that the committee has acted correctly in the face of a Government that has botched the SSI from the start, just like it has botched the children's hearings bill. I urge members to put Scotland's children's panel system before their party affiliation. Members should support the motion in the name of Michael McMahon.
Let me say to Rhona Brankin that my legal advice was sent to members of the Education, Lifelong Learning and Culture Committee prior to yesterday's meeting.
On a number of points, members should be clear in their minds before reaching a decision on how they vote this evening. First, as Robert Brown said, lawyers are already involved in the children's hearings system, and have been involved since its inception without damage being caused to its ethos. Secondly, the point of law in the court case has been conceded. Irrespective of whether the Court of Session's judgment has been issued, the Scottish Government has conceded in open court that there was a breach of the ECHR. That breach is rectified by the SSI, which is tightly drawn. I put it to Robert Brown that the Court of Session is under no obligation to issue such a tightly drawn ruling. Thirdly, regardless of whether Parliament chooses to annul the SSI, children's panels will continue to need to hear from relevant persons who cannot effectively participate in hearings without legal representation.
Will the minister take an intervention?
I am sorry, but I have only a few minutes.
That takes me to the central point of today's debate, which is not legal representation, but who should foot the bill. I, for one, am not prepared to tell people who find themselves to be in need of support, but do not have the means to pay for it, that they cannot have help. This Government is committed to helping the disadvantaged—not to presiding over a two-tier system in which those who have resources can pay for legal representation while those who are already in a vulnerable situation have that situation compounded by their inability to access support.
Will the minister give way?
Very briefly.
Does the minister anticipate at what point he will be able to say how much expenditure will be incurred?
I am sure that any expenditure will be coped with by existing budgets.
I return to matters on which members should be clear in their minds, the fourth of which is that the SSI is not linked directly to reform of the children's hearings system. Conflation of the issue that we are discussing with concerns surrounding the draft children's hearings bill is unhelpful, and it is a red herring. I have heard those concerns and have talked to many more people than Karen Whitefield has. Over the past three to five months, I have travelled up and down the country, from Shetland to Dumfries, to engage with children's panel members and chairs, children's reporters and many others in the children's hearings system. I have heard their concerns. Parliament will have a chance to consider the bill in due course.
The bill is of relevance to the present discussion in that it will provide an opportunity for further consideration to be given to the issue of state-funded legal representations. The SSI assists us in dealing with an on-going breach of the ECHR, but as part of our on-going engagement on the bill, we can—indeed, I would be happy to—explore whether there might be alternative ways in which state-funded legal representation can be provided to relevant persons going forward.
The key phrase is "going forward". Looking to primary legislation is very much the long-term fix. For now, we need to ensure that those who appear before a hearing today or tomorrow and who are in need of support have equal access to that support. That is why the SSI is required now. It is required to ensure that we continue to protect the rights of the child, as well as the human rights of others.
On a point of order, Presiding Officer. During the minister's winding-up speech, he advised the chamber that he had provided the Education, Lifelong Learning and Culture Committee with his legal briefing. I have a copy of the letter, which totals three pages, from the minister that was provided to the committee in advance of its meeting yesterday. It gives an explanation of his reasoning for dealing with the matter as he has, but no legal advice is included. He led the chamber to believe that he had provided the committee with that information. Would it be in order for the minister to retract those comments and to clarify the situation for the chamber?
Does the minister wish to clarify that for the chamber?
Ms Whitefield has not covered herself in glory in this whole debate. I will leave it at that.
On a point of order—
I will answer Karen Whitefield's point first. It is a debating point. I gave the minister the opportunity to respond, but he did not.
You have to be very careful about the time. You have exactly—
On a point of order, Presiding Officer.
Cathy Jamieson has one first.
Thank you, Presiding Officer. This is a very important issue. My understanding is that it would have been quite a departure from normal practice had the minister chosen to circulate the legal advice. It is important to know whether he circulated the legal advice.
That is a matter for the minister. I gave him the opportunity to answer and he has answered.
On a point of order, Presiding Officer. I believe that this is not a matter for the minister but a matter for Parliament. It is not a debating point. Everyone, including the minister, accepts that he informed Parliament that he had provided the committee members with his legal advice. The committee convener has confirmed to Parliament that he did not do so: that is a matter of fact. I hope that the Presiding Officers will reflect on that, come back to the chamber and say whether the minister did what he said he did. I am talking about a matter of fact, not about a debating point.
The point was initially a debating point. I gave the minister an opportunity to respond, which he did. The Presiding Officers will reflect on the matter—Mike Rumbles is right about that.
On a point of order, Presiding Officer.
Is it the same point of order?
It pertains to the same matter.
I came to the debate to learn, and the issue that is being discussed seems to be a central point. It might be in order for a motion without notice to be lodged to carry this business over to another meeting. That would give the minister time to reflect and decide whether the legal opinion can be provided.
The Parliamentary Bureau can still do that if it wishes to. That is not a matter for me at the moment.
On a point of order, Presiding Officer. You are right. The matter is not for you, and it is not a matter for the Parliament. If anybody has any complaints about the minister's behaviour, routes are available to them to make their complaint. However, the matter is certainly not for you or Parliament.
I will repeat what I have said. I gave the minister an opportunity to respond. I will take the matter back, and the Presiding Officers will reflect on what the convener of the Education, Lifelong Learning and Culture Committee has said and the minister's response. We will consider the minister's letter and check whether any such evidence was given.
On a point of order, Presiding Officer.
This is my day.
For the sake of clarity, the minister provided to the committee in the way of legal advice an extract from the legal opinions of two of the judges who gave the judgment in the Miller case.
That is not the same as legal advice.
That is what I am saying. It is not the same thing as the Government's legal advice. It was an extract from an earlier judgment. The minister was wrong to call it legal advice. He should apologise to Parliament for that and acknowledge that legal advice was given in the form of the previous judgment. That is the fact of the matter.
I have already said what I intend to do. I have not changed my mind.