Meeting of the Parliament

Meeting date: Wednesday, November 15, 2023

Official Report 1062KB pdf

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Parliamentary Bureau Motions

The next item of business is consideration of Parliamentary Bureau motions. I ask George Adam, on behalf of the Parliamentary Bureau, to move motion S6M-11262, on the approval of a Scottish statutory instrument.

Motion moved,

That the Parliament agrees that the Mental Health (National Secure Adolescent Inpatient Service: Miscellaneous Amendments) (Scotland) Regulations 2023 [draft] be approved.—[George Adam]

I call Paul Sweeney to speak to the motion.

17:06  

Labour will not support this motion tonight, as we believe that there is more work to be done to ensure that these regulations are proportionate and appropriate for children.

This particular SSI seeks to amend the Mental Health (Safety and Security) (Scotland) Regulations 2005 to add Foxgrove, a new national in-patient facility for children and young people aged 12 to 17, which is located at the Ayrshire central hospital in Irvine, to the list of hospitals that are subject to the regulations.

Agreeing to the regulations would mean that young patients would be subject to the same measures as currently apply to adult facilities under the regulations, such as the searching of patients and their belongings; the sampling of certain body fluids or tissues; placing restrictions and the prohibition of visits; and the placing of restrictions on the kind of things that patients might have with them in hospital, and possibly the confiscation of items.

Labour welcomes the introduction of much-needed specialist services, but we remain concerned that more work needs to be done to ensure that these regulations do not undermine the human rights of children, including those set out in the United Nations Convention on the Rights of the Child.

In written evidence to the Health, Social Care and Sport Committee, the national youth justice advisory group said:

“NYJAG don’t believe the measures should be authorised as they stand as children under eighteen have different levels of need and maturity”.

The Children and Young People’s Commissioner Scotland said:

“We ... recommend that alternative proposals be developed, using as a starting point the Secure Care Standards and Pathways”.

In addition, the centre for mental health and capacity law at Edinburgh Napier University said:

“There should ... be a detailed human rights impact assessment undertaken in addition to this limited consultation.”

Indeed, a consultation on the regulations lasted just two weeks, receiving only nine responses, and many were unaware that it was taking place.

A full children’s rights and wellbeing impact assessment has not been completed, and there are legitimate concerns to do with the consent and capacity of the patients, given their age and varying complex needs. Although I appreciate that the minister committed to conduct a children’s rights and wellbeing impact assessment when she was before the Health, Social Care and Sport Committee last week, such an assessment should have been completed prior to the regulations being laid in Parliament.

On that basis, Labour will not support the regulations tonight. I would encourage members of all parties to vote with us and to defer the regulations until a full children’s rights and wellbeing impact assessment and a satisfactory level of consultation with critical stakeholders have been undertaken.

I call Maree Todd to respond.

17:09  

Let me be clear from the start: Foxgrove is an essential service for children and young people with complex mental health needs. There is currently no other service in Scotland that can meet those needs. If the amendments are not passed, Foxgrove will be unable to maintain a safe and therapeutic hospital environment for young people who require care in a medium-secure facility.

I reassure members that the safety and security regulations sit within a comprehensive legal framework of the Mental Health (Care and Treatment) (Scotland) Act 2003, which is designed to uphold patients’ rights while ensuring their safety and that of those caring for them. Of course, children and young people have different levels of need and maturity to adults and they require developmentally appropriate support. I reassure members that, prior to admission and throughout their stay in Foxgrove, children and young people will be involved in supported decision making around all aspects of their care and treatment.

I have been clear that, in line with the safeguards that are built into the regulations and the 2003 act, the measures will be applied only when necessary and in a proportionate way that is sensitive to the developmental stage of the child or young person. The approach will be consistent with that employed for children in secure care and, in particular, the secure care standards and pathways.

Patients who are appropriately admitted to medium-secure conditions present significant risks to others, including staff and peers, and the regulations allow the clinical staff to take proportionate measures to maintain a safe environment. There is no intent to be punitive. In the absence of those powers, it would be impossible to maintain the necessary safe, therapeutic hospital environment that is needed to promote recovery.

I ask members, please, to be assured that when the measures are applied they will uphold and protect the human rights of children and young people, in line with our commitment to the UNCRC. The regulations also allow scrutiny and oversight by the Mental Welfare Commission for Scotland.

Surely we cannot tell whether the regulations will uphold those people’s human rights until we have done a human rights assessment. As my colleague has just outlined, that has not been carried out.

As I explained at committee, much of the work for the human rights assessment has been completed and we are very content to complete it. We are certain that it will comply, and we will provide the committee with that.

With regard to the consultation, a short, targeted consultation was undertaken between 28 September and 12 October. Although only nine responses were received, they were from key bodies that are charged with upholding the human rights of children in Scotland. In addition to the consultation, officials arranged meetings with those stakeholders in order to seek further information on the responses. From those meetings, stakeholders’ discussions indicated broad support. Therefore, I think that, in addition to the initial consultation, there has been a sufficient level of engagement with key individuals and organisations.

Many of the questions that members had when I appeared before the Health, Social Care and Sport Committee related to the operational management of Foxgrove. NHS Ayrshire and Arran, as the commissioned health board, is responsible for developing operational policy. It would be pleased to welcome any interested members on a visit to Foxgrove to help them to understand how it will operate and to address any of their concerns.

The regulations are an essential step in preparing Foxgrove to admit patients, which it hopes to do in March 2024. I therefore urge members to approve the regulations.

The question on the motion will be put at decision time.

The next item of business is consideration of Parliamentary Bureau motion S6M-11264, on the designation of a lead committee. I ask George Adam, on behalf of the Parliamentary Bureau, to move the motion.

Motion moved,

That the Parliament agrees that the Equalities, Human Rights and Civil Justice Committee be designated as the lead committee in consideration of the Gender Representation on Public Boards (Amendment) (Scotland) Bill at stage 1.—[George Adam]

I call Meghan Gallacher.

17:13  

Earlier this month, the Court of Session upheld an initial ruling that the legal definition of the word “woman” is not limited to a person of the female biological sex. That means that a trans woman with a gender recognition certificate—GRC—is given the same recognition in law as a biological woman.

Current legislation allows a trans woman to obtain a GRC if she has lived in her acquired gender for at least two years, is above the age of 18 and has received a suitable medical diagnosis. If the SNP-Green Government had its way, the process of obtaining a GRC would be made much easier by lowering the minimum age at which one can apply for a certificate to 16, removing the need for a medical diagnosis and significantly reducing to only three months the time period for which an applicant must have lived in the required gender. That would fundamentally change the definition of the word “woman” and would expand who would be eligible to sit on corporate boards as a woman.

Around this time last year, the United Nations special rapporteur on violence against women and girls, Reem Alsalem, wrote that the Scottish Government must,

“as a minimum, await the outcome of judgments on these very issues in front of both the Scottish and UK courts”,

including the judgment in the case of the Gender Representation on Public Boards (Scotland) Act 2018, before moving forward with the Gender Recognition Reform (Scotland) Bill.

My Scottish Conservative colleagues repeatedly warned that the SNP Government’s gender self-identification bill would make it significantly easier to change legal gender. Now, as a result of the latest court ruling, the SNP Government is being forced to remove the definition of the word “woman” from the Gender Representation on Public Boards (Scotland) Act 2018. Just as with the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, we are having to use up parliamentary time and resources to fix a piece of poorly drafted legislation. Taxpayers have already had to foot an almost £230,000 bill for the Government’s legal battles as it has tried to save its flawed gender self-ID bill, which is opposed by a majority of Scots. Now, more time and money will be spent on fixing the SNP Government’s latest mistake.

I hope that Scottish ministers will use this court case to finally learn their lesson.

I call Shirley-Anne Somerville to respond.

17:15  

The Gender Representation on Public Boards (Amendment) (Scotland) Bill aims to align the 2018 act with the Court of Session ruling last year, which stated that the act’s inclusion of the definition of “woman” was outwith the legislative competence of the Scottish Parliament and was therefore not law. The bill, if passed, will provide clarity by removing the redundant definition from the statute book.

We looked at all other planned legislation and did not find a suitable bill to take this aim forward. We appreciate that it is unusual to have such a short bill, but it is a simple, small, technical fix to the statute book. The bill does not change the policy intention of the 2018 act. We still wants boards of public bodies to better reflect the population of Scotland.

The Equalities, Human Rights and Civil Justice Committee was the committee that worked on the 2018 act, and it is appropriate that it will work on the bill. The thrust of the 2018 act is an equality issue. The timetable for the Parliament’s scrutiny of the bill is a matter for the Parliamentary Bureau. It is up the Equalities, Human Rights and Civil Justice Committee to decide how it scrutinises the bill. I support the motion to refer the amendment bill to the Equalities, Human Rights and Civil Justice Committee.

The question on the motion will be put at decision time.

The next item of business is consideration of four Parliamentary Bureau motions. I ask George Adam, on behalf of the Parliamentary Bureau, to move motions S6M-11261, on approval of a statutory instrument; S6M-11263, on approval of a Scottish statutory instrument; S6M-11265, on committee substitutes; and S6M-11266, on recess dates.

Motions moved,

That the Parliament agrees that the Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 2) Order 2023 [draft] be approved.

That the Parliament agrees that the International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2023 [draft] be approved.

That the Parliament agrees that the following changes to committee substitutes will apply from close of business on Thursday 16 November 2023—

Jackie Dunbar be appointed to replace John Mason as the Scottish National Party substitute on the Economy and Fair Work Committee;

Audrey Nicoll be appointed to replace Gordon MacDonald as the Scottish National Party substitute on the Finance and Public Administration Committee;

Gordon MacDonald be appointed to replace Ruth Maguire as the Scottish National Party substitute on the Local Government, Housing and Planning Committee; and

Jim Fairlie be appointed to replace Audrey Nicoll as the Scottish National Party substitute on the Constitution, Europe, External Affairs and Culture Committee.

That the Parliament agrees, further to motion S6M-09150 and under Rule 2.3.1, that the parliamentary recess dates of 29 June to 31 August 2024 (inclusive) be replaced with 29 June to 1 September 2024 (inclusive).—[George Adam]

The question on the motions will be put at decision time.