Official Report 661KB pdf
14:42
The next item of business is stage 3 proceedings on the Restraint and Seclusion in Schools (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2—that is, SP bill 61A—the marshalled list and the groupings of amendments. The division bell will sound and proceedings will be suspended for around five minutes for the first division of the stage 3 proceedings. The voting period for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons or enter RTS in the chat function as soon as possible after I call the group.
Members should now refer to the marshalled list of amendments.
Section 1—Restraint and seclusion
Group 1 is on the scope and application of restraint and seclusion provisions. Amendment 1, in the name of John Mason, is grouped with amendments 3 and 6.
Amendment 1 will provide a regulation-making power to amend the definitions of restraint and seclusion in section 1 at a future date, where ministers consider it necessary to do so. I understand that the Cabinet Secretary for Education and Skills is keen on such an amendment and I think that it makes a lot of sense. The regulation-making power will be able to be exercised where necessary to prevent the current definitions capturing actions that do not carry a significant risk of harm and, on the other hand, it will allow the definitions to capture additional actions that do carry a significant risk of harm. The regulations will be subject to the affirmative procedure, which will provide Parliament with an opportunity for scrutiny.
I will set out why I consider that amendment 1 matters, and how the bill now offers a clearer and more practical approach to restraint and seclusion in schools. At stage 1, we in the Education, Children and Young People Committee had reasonable concerns that the bill might accidentally pull in routine and harmless interactions, such as guiding a child by the hand across the road or offering physical support as part of a child’s everyday care. The committee wanted to ensure that the system would be workable for staff, without unnecessary paperwork or confusion.
A number of changes that directly addressed those points were introduced into the bill at stage 2. The bill now includes clear definitions of restraint and seclusion. Statutory guidance will provide clarity about the difference between action that significantly restricts a child’s movement and something that is simply day-to-day support. That should mean that we can clearly say that holding a child’s hand or other ordinary interactions are not restraint and are not covered by the bill. Restriction of movement, such as with equipment that is used as part of a child’s agreed support plan, might still fall within the definition of restraint in section 1, but regulations made under section 4(4A), which was added at stage 2, will be able to specify that such actions are types of restraint that do not need to be recorded or reported.
Amendment 1 will ensure that the definitions in the bill remain appropriate and workable. If, in future, activity that is genuinely routine is still being mistakenly treated as restraint or seclusion, an adjustment can be made to the definition in section 1. That should ensure that the framework always remains practical and proportionate. Together, those provisions respond directly to the committee’s concerns and should create a balanced, workable system that protects children, while supporting the professionals who care for them.
I move amendment 1.
I thank John Mason for lodging amendment 1. The regulation-making power will be used by ministers only where they consider it necessary to ensure that the definitions capture only actions that carry a significant risk of harm. Further safeguards are provided, in that ministers must consult before laying regulations. The affirmative procedure will also apply. Amendment 1 will ensure that the definitions can remain workable, proportionate and fit for purpose, as circumstances and practice evolve. That directly addresses concerns raised by the committee at stage 1, and our trade unions, and I support it.
Amendment 3 will adjust the duty in section 3 that requires schools to inform parents of incidents of restraint or seclusion so that it does not apply to the types of restraint or seclusion that are specified in regulations made under section 4(4A) as non-reportable. That will ensure that the parental notification duty is fully aligned with any changes to the recording and reporting duty in future. To require schools to notify parents of such incidents would be overburdensome and would create unnecessary complexity for teachers.
Amendment 3 will allow ministers to set the types of restraint and seclusion that need not be recorded and reported to parents, should interventions of no concern unintentionally fall within the bill’s definition of restraint and seclusion. I am grateful to our teaching unions, which I met this morning, for suggesting a constructive and practical proposal in this area. Amendment 3 directly addresses their concerns and the additional feedback from the committee.
Amendment 6 is a straightforward but important technical amendment concerning the definition of “school” in the bill. Section 6 adopts the definition of school that is set out in the Education (Scotland) Act 1980. Under the definition in the bill, nursery schools are excluded. However, as the bill is currently drafted, it does not exclude nursery classes within a primary school. I understand that Daniel Johnson’s intention has always been that the bill should not extend to nursery-age children or early years provision. Amendment 6 is therefore in effect a tidy-up amendment to ensure that, whether in a nursery school or nursery class, the provisions of the bill do not apply. That is in line with the clear policy intention behind the bill.
I support amendment 1 and encourage members to support my amendments 3 and 6.
I am a strong supporter of the bill. The amendments in this group are proportionate and balanced. We have to recognise that there is anxiety and concern among staff and unions, in particular the Community union, the Association of Headteachers and Deputes in Scotland, the Scottish Secondary Teachers Association, School Leaders Scotland and the Educational Institute of Scotland. They would have liked amendments to have been lodged at stages 2 and 3 in addition to the ones that have been lodged. I am speaking in the absence of some such amendments.
In particular, the unions have concerns about the definitions. They believe that there is a degree of ambiguity in the definition of restraint and that it is subjective. They therefore have anxiety about how it will turn out in practice. They believe that, in some cases, specialist equipment could be excluded from use and could be classed as an inappropriate restraint.
This morning, I met the EIS and AHDS, as well as the other teaching trade unions, and I talked to some of their concerns in this area. It is the case that, through the statutory guidance that will be in place, there will require to be a level of consultation with the trade unions. I very much hope that the trade unions will engage with the Government in order to resolve some of their concerns, which Mr Rennie has rightly raised today.
They would very much welcome that.
This is an issue of culture in our schools, which has been evolving over time. We are adapting to high demand with regard to additional support needs and behaviours in schools. We are trying to get a culture that is right, balanced and appropriate and that looks after young people, while providing a good educational environment and ruling out inappropriate restraint and seclusion. It is about ensuring that we have clear guidance on and understanding of what can and cannot be done. That is why it is important to have the appropriate consultation when we go through the processes in relation to the guidance.
The trade unions also have a concern about the wide definition of seclusion. That is why it is important that we have consultation and engagement. In the stage 3 debate next week, I will come back to the issues of workload, resource and culture, which I have already referred to, but I will support the amendments in the group.
: As the member in charge of the bill, I will support all three amendments in the group and all the amendments that have been lodged this afternoon.
I thank the Government for giving me early sight of its amendments. Indeed, there was some discussion about whether I would lodge amendments. Many of the amendments are about operability, so it is important to hear from the Government.
I thank John Mason for lodging amendment 1 and for his interest throughout the bill process. He is absolutely right that it is important that we do not inadvertently capture types of physical contact that we would expect and encourage in our schools, especially for primary school children. Amendment 1 is proportionate and provides a safeguard against the inadvertent capturing of such behaviours. I note that it addresses the issues that have been raised by the teaching unions. I thank Willie Rennie not only for raising those real concerns, as it is important to have them on the record, but for going through all the unions’ acronyms and sparing me from having to do the same thing. Including provisions to adjust the definitions through secondary legislation is a better way of addressing those concerns than having explicit exclusions in the bill, because it means that we can take a more nuanced approach to the definitions.
I note the concerns raised by the Children and Young People’s Commissioner, who urges members not to support amendment 1. I understand those concerns, particularly the one about altering the definition of seclusion, but there are important safeguards. The regulations would be subject to consultation and to the affirmative procedure. Therefore, the Government would have to make a case for alterations, and Parliament would have the final say as to whether they proceed. I believe that that makes the provision proportionate and safe.
It is important that we are able to adjust the reporting requirements in line with changes to the definition, so I welcome amendment 3. Likewise, on amendment 6, we can all understand that the nature of looking after nursery school children is very different from that of looking after primary school children—it is literally a hands-on activity. Therefore, it is really important that we exclude nursery classes and classrooms and nursery children from the bill, because it is a complex area. I very much welcome amendment 6.
I call John Mason to wind up, and press or withdraw amendment 1.
I welcome both Daniel Johnson’s and Willie Rennie’s comments, as well as those of the cabinet secretary.
Willie Rennie used the word “ambiguity”; other people would use the word “flexibility”. I fully accept that there is a balance to be struck. If we are too rigid, something might be caught that is not meant to be; if we are too relaxed, it is the other way round. The example that we frequently heard in the committee was that, if a child runs across the road, you want to grab them—in any way that you can, frankly—to prevent their being run over. That is why we need a degree of flexibility.
I understand the unions’ point of view and that of the children’s commissioner. I accept that the commissioner’s job is to be on the cautious side. That is absolutely fine, but I suggest that amendment 1 gets the balance roughly right.
Amendment 1 agreed to.
Section 2—Guidance on restraint and seclusion in schools
We turn to group 2, which is on consultation. Amendment 2, in the name of the cabinet secretary, is the only amendment in the group.
Amendment 2 is a minor amendment to allow consultation on the first set of statutory guidance to begin before relevant sections in the bill are brought into force. It provides ministers with flexibility on that matter and will benefit the Government’s engagement with stakeholders, including our school staff, teaching unions, families and children and young people, whose input will be critical to the successful design and implementation of the guidance. Therefore, I invite members to support the amendment.
I move amendment 2.
Amendment 2 is sensible. In essence, it allows the Government to get on with it and do the consultation ahead of the bill coming into force. It is sensible and practical and I support it.
Does the cabinet secretary have anything to add by way of winding up?
I have nothing further to add.
Amendment 2 agreed to.
Section 3—Duty to inform parents of use of restraint or seclusion
Amendment 3 moved—[Jenny Gilruth]—agreed to.
Section 4—Duty to record and report on use of restraint and seclusion
Group 3 is on regulation-making powers. Amendment 4, in the name of the cabinet secretary, is grouped with amendments 5 and 7.
Amendment 4 removes a provision that is now unnecessary because the same provision was made in another amendment that was agreed to at stage 2.
Amendments 5 and 7 add a power to modify enactments to two of the regulation-making powers in the bill where that is necessary to ensure that the bill operates as intended. I have been careful to ensure that those are not broad or open-ended powers. They are targeted to ensure that the bill’s provisions, such as the regulation-making power that enables more frequent reporting to a national body in the future, can work as intended.
Together, the amendments strengthen the workability and legal precision of the bill.
I move amendment 4.
To echo the cabinet secretary’s comments, amendments 4, 5 and 7 are technical amendments that enable the Government to introduce secondary legislation to ensure that the bill is workable and implementable. I note the cabinet secretary’s comments about ensuring that they are focused on the bill’s intent and purpose. I always like to encourage that approach from the Government, rather than it taking sweeping powers. I very much welcome the fact that the Government has lodged amendments that have that focused scope and urge members to support amendments 4, 5 and 7.
Does the cabinet secretary have anything to add by way of winding up?
I have nothing further to add.
Amendment 4 agreed to.
Amendment 5 moved—[Jenny Gilruth]—and agreed to.
Section 6—Interpretation
Amendment 6 moved—[Jenny Gilruth]—and agreed to.
Section 6B—Ancillary provision
Amendment 7 moved—[Jenny Gilruth]—and agreed to.
That ends consideration of amendments.
I advise members that, as they will be aware, the Presiding Officer is required under standing orders to decide whether, in her view, any provision of a bill relates to a protected subject matter—that is, whether it modifies the electoral system and franchise for Scottish parliamentary elections. In the Presiding Officer’s view, no provision of the Restraint and Seclusion in Schools (Scotland) Bill relates to a protected subject matter. Therefore, the bill does not require a supermajority to be passed at stage 3.
There will be a short pause to allow front-bench teams to change position.
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