Education (Additional Support for Learning) (Scotland) Bill: Stage 3
The next item of business is stage 3 proceedings on the Education (Additional Support for Learning) (Scotland) Bill. In dealing with amendments, members should have the bill as amended at stage 2—SP bill 16A—the marshalled list and the groupings, which I have agreed.
The division bell will sound and proceedings will be suspended for five minutes for the first division this afternoon. The period of voting 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 and 30 seconds for all other divisions.
Section 5A—Additional support
Amendment 15, in the name of Margaret Smith, is grouped with amendment 16.
The bill has been deemed necessary partly to restate some of the key messages of the Education (Additional Support for Learning) (Scotland) Act 2004 in the wake of various court judgments, one of which was a decision by Lord Wheatley. The Education, Lifelong Learning and Culture Committee was right to be concerned about that judgment, as it struck at one of the central features of the 2004 act: the definition of additional support needs. Lord Wheatley's judgment restricted additional support to educational support offered in a teaching environment. However, as we know, a range of support is necessary to assist some children in accessing education. The code of practice lists a number of interventions—everything from social work support to psychiatric support.
I was pleased to support the Government's amendment 7 at stage 2, which reiterated the intended definition of additional support.
Amendments 15 and 16 are based on the suggestion that was made in the joint submission from the Govan Law Centre, Scotland's Commissioner for Children and Young People, Capability Scotland and many others that the bill's provisions should cover not only section 1(3)(a) of the 2004 act, as amendment 7 at stage 2 did, but section 1(3)(b), which relates to early years provision, to ensure that they apply to children who are not based in school or who have a prescribed pre-school place. Those children are included in the original definition of additional support needs for a purpose.
Having spoken again to the various groups who supported the amendments previously, I know that they remain concerned that we could be leaving young children in their crucial early years at a disadvantage. For example, we might jeopardise early communication interventions by speech and language therapists and diminish the systems of preparation for pre-school and school education for children with special and additional needs.
The Govan Law Centre continues to argue strongly that an amendment to section 1(3)(b) of the 2004 act for pre-school children aged zero to three is really needed. Changing the definition of additional support for that group categorically would not require an authority to take responsibility for a child from age zero to three. However, it would ensure that, if they have that responsibility through the application of section 5 of the 2004 act, as amended by section 5D of the bill, which was inserted at stage 2, the additional support would not be confined to support in a classroom. That is obviously particularly important for under-threes.
Section 5 of the 2004 act provides that, for disabled children who are assessed as having additional support needs, the authority has a duty to provide such additional support as is appropriate. The authority then has to look at section 1 of the 2004 act to see what additional support means in the context of a child aged zero to three. At present, what they see in section 1 is reference only to "educational provision." It makes less than no sense that additional support for school pupils is now not restricted to educational provision, but additional support for pre-schoolers is.
The Government's approach at present removes the difficulties that were introduced by Lord Wheatley's decision for pupils aged three to 18 but compounds them for children aged zero to three. It might even have the unintended effect of requiring education authorities to enrol disabled children at that young age in academic establishments, rather than allowing authorities to provide support in other, more appropriate contexts, such as at home or in health centres.
Amendment 15 is a technical amendment that will allow amendment 16 to be inserted properly. I urge colleagues to support amendments 15 and 16.
I move amendment 15.
Before I call the Minister for Children and Early Years to respond, I remind members that if they wish to participate in the debate on any of the groups, they should press their request-to-speak buttons when the group is called.
I call Ken Macintosh.
Thank you for the reminder, Presiding Officer.
I add Labour's support to amendments 15 and 16. It is important to remember that, although the 2004 act gave local authorities the power to address the needs of children from zero to three, it did not impose on them a duty to do that. Since 2004, we have found that, in practice, the needs of a number of children in that group have not been addressed or assessed.
I draw to members' attention the needs of deaf children in particular, who are often diagnosed between the ages of zero and three.
Having accepted amendment 7, in the name of the minister, at stage 2, which addressed Lord Wheatley's judgment, it is important that we transfer that to children aged zero to three, which is what amendments 15 and 16 do.
It might be useful if I explain that the 2004 act currently requires an education authority to provide additional support to certain disabled children in their area who are under three years old. That duty applies where such children have been brought to the attention of the education authority as having, or appearing to have, additional support needs arising from a disability and the education authority establishes that they have such needs.
However, I do not believe that it is appropriate to place education authorities under the same statutory duty to make provision for disabled children under three as for children over three. It simply does not make sense for the same definition of additional support to apply to under-threes as that which will generally apply for those children for whom the authority has a responsibility from pre-school onwards.
That is because education authorities have completely different roles in relation to the different age groups of children. The role that education authorities can play to support disabled children who are under three is described—correctly—as that of educational support and is part of the early years framework, which recognises the right of all young children to high-quality relationships, environments and services that offer an holistic approach to meeting their needs. It is correct that a broader definition applies to children for whose school education the authorities have responsibility.
Approximately 200 severely disabled children are in the age range of zero to three and a high number who would be affected are less severely disabled. Determining the costs exactly has not been possible, but one thing is certain: the proposed new duty will result in significant additional costs to education authorities. I reiterate that the effect of amendments 15 and 16 is that education authorities will take over a responsibility that is properly located with other agencies at the moment, so education authorities will incur extra costs but the children concerned will have no extra benefits.
I call Margaret Smith to wind up.
I have nothing to add.
Do you wish to press or withdraw amendment 15?
I will press amendment 15.
The question is, that amendment 15 be agreed to. Are we agreed?
No.
There will be a division. I suspend proceedings for five minutes.
Meeting suspended.
On resuming—
We move to the division on amendment 15.
For
Aitken, Bill (Glasgow) (Con)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Carlaw, Jackson (West of Scotland) (Con)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Hume, Jim (South of Scotland) (LD)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McArthur, Liam (Orkney) (LD)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
O'Donnell, Hugh (Central Scotland) (LD)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stewart, David (Highlands and Islands) (Lab)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tolson, Jim (Dunfermline West) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
MacDonald, Margo (Lothians) (Ind)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Gil (West of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
The result of the division is: For 69, Against 48, Abstentions 0.
Amendment 15 agreed to.
Amendment 16 moved—[Margaret Smith].
The question is, that amendment 16 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Carlaw, Jackson (West of Scotland) (Con)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Harper, Robin (Lothians) (Green)
Henry, Hugh (Paisley South) (Lab)
Hume, Jim (South of Scotland) (LD)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McArthur, Liam (Orkney) (LD)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
O'Donnell, Hugh (Central Scotland) (LD)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stewart, David (Highlands and Islands) (Lab)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tolson, Jim (Dunfermline West) (LD)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Gil (West of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Abstentions
MacDonald, Margo (Lothians) (Ind)
The result of the division is: For 70, Against 47, Abstentions 1.
Amendment 16 agreed to.
Section 5C—Additional support needs etc: specified children and young people
Amendment 1, in the name of the minister, is grouped with amendments 2, 3, 3A, 3B and 17.
The bill, as amended at stage 2, requires authorities to treat all children and young people who fall into a number of specified categories as having additional support needs, regardless of whether they need additional support in order to benefit from school education. Many authorities and stakeholders, such as Children in Scotland, share the opinion that the provision will categorise children as having additional support needs when they do not, in fact, require additional support.
That said, I acknowledge that looked-after children and young people are a unique group—a group that does not fare as well educationally as others do. However, the bill omits the group of looked-after children who have the lowest educational attainment: those who are looked after at home. Our amendments in the group will rectify the situation.
The Scottish Government accepts and shares the concern of the Education, Lifelong Learning and Culture Committee on the position of the groups of children who are identified under section 5C of the bill. I thank Margaret Smith and the Liberal Democrats for their helpful suggestion that we create a working group to consider how the 2004 act is working for those groups of children and young people. I am more than happy to take on board Ms Smith's suggestion and to establish such a group urgently to examine how the act is affecting the groups of children that are specified in section 5C. The working group will report in due course, and we will act on its recommendations. I therefore urge Parliament to support amendment 2, which will delete all the other categories of children that are contained in section 5C, and amendment 1, which will extend the provisions of the bill to encompass all looked-after children.
Amendment 3 makes it clear that, where a child or young person does not require additional support in order to benefit from education, the bill's presumption that they have additional support needs will be rebutted. I assure Margaret Smith in particular that amendment 3 will not delete the deeming provision. Education authorities will still have to start from the assumption that such children have additional support needs, and they will still have to assess each child individually. The amendment will, however, remove the potential absurdity of authorities being under a duty to deliver additional support to children and young people who do not have additional support needs.
I understand the rationale behind amendments 3A and 3B and note that they relate only to looked-after children. I trust that that is the case because the Liberal Democrats are supportive of amendments 1 and 2 in my name, which would remove the other specified categories of children who are deemed to have additional support needs. I welcome that support.
I regret that I am unable to support amendment 17, because it is confusing and legislatively unnecessary. The amendment picks out only one reference to children with additional support needs in the whole 2004 act. Its effect would be that other references to
"children and young people having additional support needs"
in the 2004 act would not include those who are deemed to have additional support needs. Without a similar provision for every other such reference in the bill, practitioners would be left to assume that those other references did not include children who are deemed to have additional support needs. Clearly, that is not the intention of the amendment.
I ask Parliament to support amendments 1, 2 and 3, offer my support to amendments 3A and 3B, in the name of Margaret Smith, and ask Margaret Smith not to move amendment 17.
I move amendment 1.
The group contains a number of important amendments. Amendments 1, 3A, 3B and 17 relate to looked-after and accommodated children. Members will be aware that I argued successfully at stage 2 that accommodated children should be deemed to have ASN. After our evidence taking and from our work as MSPs, all of us are aware of the particular challenges that looked-after children face. Time and again, they are let down by the system and by those of us who are meant to be responsible for them.
The needs of looked-after children were highlighted in a number of submissions, including those from the Govan Law Centre and the president of the Additional Support Needs Tribunals for Scotland. Often they have been let down by their parents. Some will say that it is—because of the getting it right for every child policy and the inclusive nature of the 2004 act—wrong to pick out and give prominence to any one group of children, but I believe that looked-after children and young people are a different and unique group. Such children have no parents, or their parents are unable or unwilling to care for them. They find themselves with another parent—the local authority, which is often the gatekeeper to services. I want to ensure that no local authority is tempted to short-change any looked-after child and that no council official is tempted, because of departmental circumstances, not to ask for an assessment or a co-ordinated support plan for such children.
My stage 2 amendment covered, for the reasons that I have outlined, looked-after and accommodated children who live away from their parents, to allow them by virtue of their status to be treated as children with additional support needs. Amendment 1, in the name of the minister, includes looked-after children who remain at home. Rightly, the minister said that the evidence shows that those children tend to have the worst educational attainment. I am therefore happy to accept the extension of the provision to include all looked-after and accommodated children.
The minister's amendment 3 deals with the possibility that some looked-after children will not require any additional support. If we do not amend amendment 3, however, it could create a loophole whereby councils could make decisions without proper assessment or investigation of the individual child.
It was always my intention that there should be assessment of needs, and that councils should retain discretion over the additional support that is delivered following assessment. In response to ministerial concerns, I was pleased to lodge amendments 3A and 3B, which I believe to be reasonable amendments that would make the situation clear.
Amendment 2, in the name of the minister, is crucial. It is fair to say that Ken Macintosh's stage 2 amendment, which added lines to the bill in this regard, reflected real concerns about the implementation of the 2004 act. Those concerns were shared by us all on the Education, Lifelong Learning and Culture Committee, by parents and by many of the organisations that gave us written and oral evidence. Judging from the evidence that we heard, thousands of children and young people whom we would expect to have co-ordinated support plans do not have them. Her Majesty's Inspectorate of Education identified particularly looked-after children, carers and young people with mental disorders as missing out in that regard. The National Deaf Children's Society identified deaf, partially deaf, blind and partially sighted children as being similarly overlooked.
There are two strong arguments before us: they are arguments between the philosophical and the pragmatic. On one hand is the principled position of universality and the inherent dangers of setting up a hierarchy. Supporters of that position will point to what they say is the visionary aspect of the 2004 act, and they will highlight the point of that act as being to extend new rights to all children with additional needs. There is a real strength to that argument.
On the other hand, it is clear—five years on from the 2004 act—that there are particular problems with its implementation. There is widespread variation in how the act has been put into practice and I am sure that all of us in the chamber are aware of those problems.
At stage 2, the minister provided details about a range of work that was being undertaken with the groups of children and young people who are covered in section 5C, lines 7 to 14, of the bill as amended at stage 2—namely: young carers, those with mental disorders, children who are deaf, who are blind and so on. That is laudable, but I do not believe that it goes far enough, which is why I have called on the minister to go further and to set up a working group to consider, particularly and specifically, how the needs of those children and young people whose cases have been raised before us are being dealt with. I hope that the group's work will lead to real improvements for many of our most vulnerable children. I am pleased that the minister feels able to accept that request on our behalf and I welcome the assurances that he has given about setting up a working party specifically to consider the groups that have been identified.
The 2004 act has clearly failed to deliver for many children, so we owe it to them to address that now. The minister said that amendments in this respect are contrary to the inspirational backdrop of the 2004 act but, for the past five years, many local authorities have acted in a way that is totally and utterly counter to the inspirational backdrop that we all supported.
Could the member explain why local authorities have taken that action? Is it purely financial, or is there another reason?
Most of the evidence that the committee took suggested that financial imperatives play a large part in many decisions. Five years on from the passage of the 2004 act, we are about 11,000 young people adrift from the number of co-ordinated support plans that we would expect to be in place, and many other effects of the act have not happened as expected.
There comes a point at which Parliament must underline the circumstances in which we think action needs to be taken. As I said previously, this is a struggle between the philosophical and the pragmatic. By instinct, I am a pragmatist. I have sought and received assurances from the minister that a fresh look at the matter will be taken through the setting up of a working party on the particular groups that I have mentioned. That allows me to accept the minister's amendment 2.
I accept that amendment 17 might lead to confusion, so I will be happy not to move it.
I ask members to vote against the minister's amendment 2. At stage 2, the Education, Lifelong Learning and Culture Committee was able to agree on a range of measures, establishing the rights of looked-after and accommodated children, young carers, children with mental disorders and children with sensory impairments to an assessment of their needs—just an assessment.
I should say in passing that it is—to put it mildly—frustrating to have amendments that were agreed in committee being removed by massed whipped votes in the chamber at stage 3.
That is a new thing—[Laughter.]
Order.
I seem to have hit a raw nerve—[Interruption.]
I hear guilty voices.
Absolutely.
The minister suggested that by identifying a vulnerable group of youngsters we will somehow undermine the principle of the 2004 act, but he went on to agree that accommodated children require to be so identified. Indeed, he went further and proposed that we add to the list children who are looked after at home. The minister has undermined his whole argument. It is difficult not to conclude that his calculations have less to do with principle than with the fact that the Conservatives, Lib Dems and Labour all voted for the inclusion of those groups at stage 2—
Shame.
Shame on the Government for trying to remove groups from the list.
As I argued at stage 2, I accept that in an ideal world we would not have such a list. That was our approach in the 2004 act. However, five years later, we are trying to amend the 2004 act with the benefit of experience, and experience tells us that looked-after and accommodated children, young carers and children with mental disorders are not benefiting from the legislation as fully as they might.
I have an open mind on the matter and came to the debate to learn about it, so I hope that members will indulge me. If local authorities have been excluding the groups of children and young people that Ken Macintosh mentioned, why does he think that those groups' inclusion in the bill will make local authorities more likely to include them in the future?
That is because local authorities will be under a statutory obligation to do so—they will have to assess the needs of those groups. Currently, many children are not even being assessed. It is not that they do not get a CSP; they are not even assessed.
I refer Margo MacDonald to the helpful briefing from Govan Law Centre, the National Deaf Children's Society, the Scottish Association for Mental Health, the Royal National Institute for the Blind Scotland and others, which highlights the evidence. For example, in 2007 HMIE reported that only
"A few education authorities were beginning to address mental health issues in children … A few authorities had also recognised the need to look at the effectiveness of provision for young carers and the provision of local young carer support. However, this process was at an early stage of development."
I do not want to repeat evidence from the National Deaf Children's Society that I have quoted at length, on the underachievement of deaf children and children who have sensory impairments. I will at least refer members to the evidence in the report that was published this week by the University of Edinburgh, which found that no form of support plan is in place for 26 per cent—more than a quarter—of identified severely to profoundly deaf pupils.
What will happen to kids who are not on the list, such as kids who are suffering from grief or family breakdown?
As Christina McKelvie knows, the bill reaffirms the right of every child to have an assessment. We identified a range of particularly vulnerable groups. It is absolutely wrong to assert, as Ms McKelvie seemed to do, that by highlighting the needs of some children we are somehow demoting others. If that is the case, why is the minister highlighting the needs of looked-after and accommodated children? How can he pick out the needs of looked-after and accommodated children and ignore the needs of young carers and children who have mental disorders, even though the Government's inspectorate found that such children have particular needs, which should be identified?
It is simply absurd to argue, as the minister tried to do, that we are forcing local authorities to provide support to children who do not need it. The suggestion that that will happen as a result of the bill is laughable.
I look forward to hearing more from the minister about the working group that Margaret Smith mentioned. I am sure that all members will welcome the group. The bill will not be the last word on the implementation of the legislation.
A parent said, "A vote for amendment 2 is a vote for the status quo." I urge all members to reject amendment 2 and to support the other amendments in the group.
As was the case with the 2004 act, the ethos of the bill is to provide adequate and relevant support to children with additional support needs. It is not the intention to provide that support where no such need exists or to introduce legislation the consequence of which would be to leave out certain categories of children who have additional support needs but whose disability is not covered by a specific legislative definition.
Since stage 2, various legal issues have arisen in that connection. Amendment 2 addresses those issues and the possibility of unintended discrimination, and seeks to preserve one of the fundamental principles of the 2004 act, which is why the Scottish Conservatives will support it.
I will clarify some points. The stage 2 amendment arrived in the bill although there was no majority on the committee; rather, it was approved by the convener's casting vote. In those circumstances, I am perfectly entitled to bring the issue back to Parliament.
I will summarise the effect of the amendments in the group. They will have the combined effect of deeming all looked-after children to have additional support needs, but will relieve education authorities of the requirement to meet needs that do not exist, the fact of their existence having been established only after appropriate assessment. It is important to recognise that looked-after children are in a unique position because it is perceived that local authorities have a conflict of interests as corporate parents on the one hand and as providers of services on the other. That defines the uniqueness of looked-after children and why they deserve to be covered in the bill.
Why will the minister not, therefore, address the needs of young carers, who often look after their own parents?
I have already indicated that we will address the needs of young carers in the working group that I have agreed with Margaret Smith to set up. Young carers are already covered by the 2004 act, as are all other groups of children who have additional support needs.
Amendment 2 will remove the additional categories of children that Mr Macintosh placed in the bill at stage 2. We do not want to establish a hierarchy of needs, in which some groups of children with additional support needs are prioritised over others, which is what will happen if local authorities have statutory obligations in respect of specific groups of children. That would undermine the inclusive ethos of the 2004 act.
Does the minister accept that the committee received substantial evidence of recalcitrance—I cannot describe it any less strongly—in some local authorities on that point? The issue is enforcement rather than legislative change. Will he undertake to deal with enforcement against those councils and improvement of the service as central issues for the working group that is to be set up?
I certainly undertake to do that. After the bill is passed—as, I hope, it will be—we will return to the code of practice and guidance to local authorities on implementing the bill's provisions. We can, in those, certainly address the issues that Robert Brown has raised and we can cover them in the working group that I have undertaken to set up.
Amendment 1 agreed to.
Amendment 2 moved—[Adam Ingram].
The question is, that amendment 2 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Allan, Alasdair (Western Isles) (SNP)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Keith (Ochil) (SNP)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Campbell, Aileen (South of Scotland) (SNP)
Carlaw, Jackson (West of Scotland) (Con)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Finnie, Ross (West of Scotland) (LD)
FitzPatrick, Joe (Dundee West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hume, Jim (South of Scotland) (LD)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Kidd, Bill (Glasgow) (SNP)
Lamont, John (Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
MacDonald, Margo (Lothians) (Ind)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McArthur, Liam (Orkney) (LD)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McLetchie, David (Edinburgh Pentlands) (Con)
McMillan, Stuart (West of Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
O'Donnell, Hugh (Central Scotland) (LD)
Paterson, Gil (West of Scotland) (SNP)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robison, Shona (Dundee East) (SNP)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Somerville, Shirley-Anne (Lothians) (SNP)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Tolson, Jim (Dunfermline West) (LD)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Foulkes, George (Lothians) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
The result of the division is: For 79, Against 42, Abstentions 0.
Amendment 2 agreed to.
Amendment 3 moved—[Adam Ingram].
Amendments 3A and 3B moved—[Margaret Smith]—and agreed to.
Amendment 3, as amended, agreed to.
Amendment 17 not moved.
After section 5D
Amendment 18, in the name of Claire Baker, is in a group on its own.
I am delighted to speak to amendment 18, on the provision of advocacy services during a tribunal. I would have preferred to lodge an amendment on the provision of support services and advocacy, because it is clear that action needs to be taken in both those areas. If there was greater availability and uptake of support services, there would be less need for advocacy services at tribunal. However, I have been limited by the bill's financial restrictions, so amendment 18 focuses solely on the provision of advocacy services.
Amendment 18 is a simple amendment that would place a duty on ministers to secure provision of an advocacy service that would be available free and on request for tribunal proceedings. It addresses the anomaly that although the 2004 act created the right to advocacy, it did not create an accompanying duty on anyone to ensure the delivery of, or access to, advocacy services. Amendment 18 is supported by a range of bodies, including Independent Special Education Advice (Scotland) and Children in Scotland.
During stage 1, the committee heard evidence of the increasingly adversarial nature of some tribunals and of the need for parents and young people to be properly supported during the process. Amendment 18 would begin to level the playing field, particularly for those without the financial resources to hire an advocate. Ensuring the provision of an advocacy service that is available on request and free of charge to all parents is an important right that should be introduced to the bill. The provision of mediation and dispute resolution is in the 2004 act, and the opportunity should be taken with this bill to include the provision of advocacy services. At stage 1, the minister recognised the importance of advocacy services, saying:
"I want to ensure that parents have access to advocacy".—[Official Report, Education Lifelong Learning and Culture Committee, 21 January 2009; c 1905.]
During discussions at stage 2, the minister explained how the Government would achieve that:
"I am committed to establishing a representative advocacy service at tribunals for all parents and young people throughout Scotland. I propose the allocation of £100,000 per annum for a service to represent and/or support parents and young people effectively at tribunals."—[Official Report, Education, Lifelong Learning and Culture Committee, 22 April 2009; c 2194.]
Amendment 18 will deliver a service to which the minister has already committed in principle and financially. I believe that it is important that that commitment be secured within the bill to give certainty and security to parents and young people who require advocacy services.
I move amendment 18.
The amendment will be moved later.
I very much welcome amendment 18 and its focus on the need for advocacy support for parents and young people at tribunals. A case can be made for the need for advocacy services prior to that stage, so that parents can be supported earlier in the process and, indeed, so that disputes might not make it through to the level of a tribunal. However, all of us at committee, whether we liked it or not, were acutely aware of the costs involved in various amendments to the bill. I believe that amendment 18 strikes the correct balance.
The committee sought to achieve a greater balance of arms for tribunals between parents on the one hand and local authorities on the other, many of which employ lawyers and some of which employ Queen's counsels to argue their cases at tribunal. Amendment 18 and its projected funding requirement of £100,000 mirror a commitment that the minister made at stage 2 to invest that amount in tribunal advocacy services. I believe that it will represent valuable support to parents at what can be an incredibly stressful time. I thank Claire Baker for bringing the issue back before us at stage 3. She has been tenacious in her quest.
Frankly, I am surprised that amendment 18 has been lodged, given my discussion with the committee at its evidence-gathering session on 22 April. It appears that commitments given by me as a Scottish Government minister have been discounted. That causes me some concern. The undertaking that I have given is to establish a representative advocacy service at tribunals for all parents and young people throughout Scotland. I also advised that I expected that the service would help parents and young people with independent adjudication and with other remedies that are open to them to resolve disputes with education authorities. Amendment 18 is somewhat narrower, as it would exclude any help with other dispute resolution mechanisms.
Furthermore, I have concerns about the definition of "advocacy service" that is contained in amendment 18. The definition makes no mention of empowering parents or young people to speak up for themselves to secure their rights. I know that a number of advocacy providers share my concern about that.
Therefore, I ask Ms Baker to withdraw amendment 18 and to rely instead on the undertaking that I have given.
I apologise to Ms Baker, who was quite right to move amendment 18 when she did. I ask her to wind up the debate.
As I said in my earlier comments, amendment 18 is supported by Children in Scotland, ISEA and a range of other organisations.
I accept that the minister supports the provision of advocacy services for the tribunal process and that he is committed to delivering such services, but I believe that the best way to secure that commitment and to provide the service with the certainty that it deserves is to translate that commitment into the bill.
I am afraid to say that we have seen too many organisations lose political support and funding when priorities change. I believe that advocacy services for parents and young people at tribunals should not be left vulnerable to that possibility.
I will press amendment 18.
The question is, that amendment 18 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Carlaw, Jackson (West of Scotland) (Con)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Harper, Robin (Lothians) (Green)
Henry, Hugh (Paisley South) (Lab)
Hume, Jim (South of Scotland) (LD)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McArthur, Liam (Orkney) (LD)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
O'Donnell, Hugh (Central Scotland) (LD)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stewart, David (Highlands and Islands) (Lab)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tolson, Jim (Dunfermline West) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
MacDonald, Margo (Lothians) (Ind)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Gil (West of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
The result of the division is: For 71, Against 48, Abstentions 0.
Amendment 18 agreed to.
Amendment 19, in the name of Karen Whitefield, is in a group on its own.
The purpose of amendment 19 is to ensure the provision of independent mediation at local authority level. Although there are some excellent examples of the provision of mediation in some local authorities, evidence suggests that the fact that some councils provide mediation services internally has led to poor take-up because of concerns about how independent such services are. Parents often need mediation when a dispute arises between them and the local authority. Concerns have also been raised with the committee that some local authorities have made little or no provision for mediation.
Kenny Gibson lodged a similar amendment at stage 2 but chose to withdraw it because of a technical drafting issue. The committee agreed to his withdrawing it, but it was believed that it would be resubmitted at stage 3. Amendment 19 is a redrafted version of Kenny Gibson's stage 2 amendment. Account has been taken of the drafting problem that the minister highlighted at stage 2. As Mr Gibson said at the time, we need to ensure that
"there is no postcode lottery for mediation services".—[Official Report, Education, Lifelong Learning and Culture Committee, 29 April 2009; c 2250.]
That is what amendment 19 seeks to do. It has the support of ISEA and the for Scotland's disabled children coalition, so I urge members to support it.
I move amendment 19.
Amendment 19 would prevent a mediation service from being provided by anyone who had any involvement in the exercise by a local authority of any of its functions, regardless of whether or not those functions related to education, by redefining the circumstances in which mediation services are to be regarded as independent. Ms Whitefield has confirmed that the aim of amendment 19, as with the amendment that Kenneth Gibson lodged at stage 2, is to prevent authorities from using in-house mediators and to require those authorities that currently provide an in-house mediation service to employ an independent mediation service provider. We understand that at least two authorities deliver in-house mediation services.
There is no evidence whatever to suggest that in-house mediation services are in any way less effective or of a lower standard than mediation that is provided by an independent mediation service provider. To prohibit those authorities that have taken steps to put such a service in place from maintaining that service without any evidence that such a step would improve provision appears to me to be illogical and a rather negative development. I firmly believe that the mediation services for which the 2004 act provided are well regarded by all parents and that, in this instance, we in the Scottish Parliament should leave it to each education authority to decide the precise details of how it provides such services. Our role is to ensure that mediation services are provided free of charge to parents and young people, as the 2004 act provides.
Accordingly, I ask Karen Whitefield to withdraw amendment 19.
I listened carefully to the minister's comments. Although he suggests that there is no evidence that there is a problem with the mediation services that Scotland's 32 local authorities provide, the Education, Lifelong Learning and Culture Committee heard from a number of organisations that expressed particular concerns about the impartiality and independence of mediation services.
No one doubts the commitment of those people who work in the mediation services that local authorities offer internally, but the point is about independence. It is essential that parents who seek mediation services have confidence in the system. Given that such parents are often in dispute with their local authority, they can have confidence in the system only if those mediation services are delivered independently. Therefore, I have no intention of withdrawing amendment 19.
The question is, that amendment 19 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Carlaw, Jackson (West of Scotland) (Con)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Harper, Robin (Lothians) (Green)
Henry, Hugh (Paisley South) (Lab)
Hume, Jim (South of Scotland) (LD)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McArthur, Liam (Orkney) (LD)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
O'Donnell, Hugh (Central Scotland) (LD)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stewart, David (Highlands and Islands) (Lab)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tolson, Jim (Dunfermline West) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Gil (West of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
The result of the division is: For 73, Against 47, Abstentions 0.
Amendment 19 agreed to.
Amendment 20, in the name of Ken Macintosh, is in a group on its own.
Amendment 20 was suggested by ISEA. It deals with the problems that parents have encountered when trying to access dispute resolution. As members will know, at the moment when a parent or a young person wishes to refer their case to dispute resolution, they direct their complaint in writing to the local authority, which is the gatekeeper to the dispute resolution process.
In its evidence to the Education, Lifelong Learning and Culture Committee, ISEA highlighted that, in most cases, local authorities deemed those referrals from parents as not competent. The only recourse then for families is to take out what is called a section 70 complaint, which, as we are all aware, takes months. Even worse, if parents do not know about section 70, the complaint goes nowhere.
ISEA estimates that, in the five years since the passage of the 2004 act, between 20 and 25 parents have managed to access dispute resolution. However, on the upside, in the cases in which ISEA has been involved, there have been successful outcomes. That is something that we should hold on to.
I believe that all members want a reduction in conflict between parents and local authorities, and for cases to be settled long before they reach the tribunal stage. Amendment 20 will enable parents to lodge their complaint directly with Scottish ministers. That will not only address the problem of one party to the dispute being the gatekeeper to the resolution process but allow the process to be more widely publicised. If the amendment is accepted, there will be one central point and one address to write to—information easy to distribute to parents.
As Mr Gibson argued at stage 2, what is proposed will make it easier to obtain an independent adjudication, and will therefore enhance the rights of parents and young people. It will also provide a more accurate picture of how many such references are made and received. Most important, it will remove the delays and problems that many parents experience, and it will increase parental confidence.
When dealing with a similar amendment from Mr Gibson at stage 2, the minister queried the use of the phrase "in the first instance". Those words have been removed, which I hope makes the amendment more acceptable to all and more palatable to the minister.
At stage 2, the minister welcomed the advantages that the amendment then being considered would bring in that the Scottish Government would be alerted to any applications for dispute resolution and to any breach of timescales by a local authority. The minister then suggested that he would consider how to take the matter forward. I would welcome his thoughts on the problems that ISEA has identified with dispute resolution and, in particular, on the proposal before us in amendment 20.
I move amendment 20.
Amendment 20 provides that regulations as to dispute resolution may require that, where a parent or young person makes an application for dispute resolution, that application must be made to the Scottish ministers instead of—as at present—the local education authority.
As I made clear at stage 2, I appreciate that authorities can sometimes be tardy when it comes to contacting the Scottish ministers to nominate an independent adjudicator. That is simply unacceptable. To address that, I said that I would issue a direction under section 27(9) of the 2004 act to direct authorities to comply with the relevant timescales that are laid down in the regulations.
I recognise that it may be beneficial for the Scottish ministers to be alerted to the fact that a parent has submitted an application for dispute resolution, as that would enable Scottish ministers to contact authorities directly on a case-by-case basis where it is thought that an authority may be in breach of the relevant timescales. However, it is vital that any new process that we introduce is as easy as possible for parents. Most parents, particularly those located in the more remote areas of the country, would prefer to be able simply to visit or to send a reference to their local council offices rather than to have to write to the Scottish ministers in Edinburgh with all the details of their case.
The Government does not claim that we have no role in the process. We have a role, but it is not the one that is proposed in amendment 20. Surely, the issue is about what individual parents want and the access that they have to their local providers. Our role is to support the process without getting in the way of it. Accordingly, I do not consider amendment 20 to be a good solution to the issue, so I ask Ken Macintosh to seek to withdraw it.
The minister has approached the issue in a serious manner and has offered an alternative way of dealing with it. The issue is a moot point. The trouble is that, in the five years for which we have had the dispute resolution process, it has not worked very well. We are not talking about a huge number of cases. The minister argues that it is easier and simpler for parents to go to the local authority. He also talked about what parents want. I suggest that it is probably easier and simpler for parents to go straight to the minister, and we know that that is what they want, because they have told us that through organisations such as ISEA. Although I acknowledge fully that the minister means well and has suggested an alternative, the simple question is whether we want parents to go to local authorities or through the minister. I think that they should apply to the minister. On that basis, I will press the amendment.
The question is, that amendment 20 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Carlaw, Jackson (West of Scotland) (Con)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Harper, Robin (Lothians) (Green)
Henry, Hugh (Paisley South) (Lab)
Hume, Jim (South of Scotland) (LD)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
MacDonald, Margo (Lothians) (Ind)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McArthur, Liam (Orkney) (LD)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
O'Donnell, Hugh (Central Scotland) (LD)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stewart, David (Highlands and Islands) (Lab)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tolson, Jim (Dunfermline West) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Gil (West of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
The result of the division is: For 72, Against 47, Abstentions 0.
Amendment 20 agreed to.
Section 5E—Provision of published information to certain persons
Amendment 4, in the name of the minister, is grouped with amendments 5 to 12 and 21.
Amendment 4 will place authorities under a duty to ensure that a summary of the information that they publish under section 26 of the 2004 act is provided to parents of children and young people with additional support needs. That will allow parents to request further information on subjects that are of relevance to their child. The amendment also provides that information on how to access all of the section 26 information should be sent to parents of children and young people with additional support needs. I emphasise that that will not allow authorities simply to provide a signpost to information in isolation, as the signpost will have to be accompanied by the summary.
Amendments 5 and 6 will focus the range of parents and young persons to whom authorities are required to send the information that is published under section 26 of the 2004 act by linking it to those children and young persons with additional support needs
"for whose school education the authority are responsible".
Amendment 7 is a technical amendment that will tidy up a drafting ambiguity in section 5E. The amendment makes it clear that the test that authorities are to use in establishing whether a young person lacks capacity relates solely to the young person's ability to understand the information that is published under proposed new section 26(1)(d) in the 2004 act.
Amendments 4 to 7 will strike a better balance. They will enable parents and young people to access the information that they require in an environmentally friendly way and, in so doing, will remedy a totally disproportionate obligation on authorities that would result in a lot of wasted time, money and paper.
Amendments 8 to 10 are technical amendments to put the bill in a better order. Incidentally, amendments 4 and 8 are in no way related.
Amendment 11 focuses the places in which the summary of information that is published under section 26 of the 2004 act should be available by linking that to schools under the management of the authority.
Amendment 12 focuses the schools that must include the summary in their handbooks, publications or websites by linking that to schools under the management of the authority.
Amendments 8 to 12 will create a more practical and proportionate section 5F.
Amendment 21 enables the Scottish ministers to make an order specifying certain persons from whom parents and young people can obtain further advice, information and support in relation to additional support needs, including support and advocacy services under section 14 of the 2004 act. It places local authorities under a duty to publish information on those persons. I very much welcome the amendment and will ensure that we consult on the persons who are to be listed in orders.
I ask Parliament to support amendments 4 to 12 and I also offer my support for amendment 21, in the name of Margaret Smith. I move amendment 4.
Amendment 21 builds on an amendment that I brought to the committee at stage 2. It seeks to add to the information that councils give to parents about local advice, support and advocacy services by including other nationally specified bodies from which people can get information and support, and it ensures that those bodies should be specified by ministers. The intention is to name national bodies that are specified by the Government, from time to time, as organisations that will provide information nationally. It is clear that we cannot, at any given time, put the names of such organisations into legislation or regulations. The amendment is a way of ensuring that, when a national body gives information that is supported by the Government, that information is made available to people. I have redrafted the amendment to make it clear that that will sit alongside the information that is already given out by councils and will not supplant it.
I will comment on amendments 11 and 12, picking up on some difficulties for Scotland's disabled children. Parents, children and young people should have access to ASN summary information in more places than just schools, given the importance of partnership nurseries, learning centres and family centres.
Will the member give way?
No.
Information should be provided in the widest range of settings so that it has the widest possible reach to affected children and their families. There is a concern that amendment 11 would limit the provision of information on ASN simply to schools that are run by local authorities.
Moreover, as some local authorities place children with ASN in independent special schools but retain a responsibility for their education, it follows that families with children at such schools should be able to access information about ASN. To deny them such access would be a disproportionate disbenefit arising from the attempt to prevent private schools from benefiting from local authority information. Accordingly, amendment 12 is also unhelpful if we are seeking to ensure that all children with ASN and their parents are provided with the appropriate information regardless of where they access that information.
I echo Margaret Smith's concerns on the amendments. We have debated the provision of information at length in committee and it troubles me slightly that we are returning to the same arguments today. It was agreed by majority view in the committee that we do not want parents to be signposted to where the information is on display. We do not want them to be pointed in the direction of the local library. We want the information—even if it is only a summary of the information—to be given to parents in person. The issue is far too important to leave it to parents to find their way through the morass of information that is already available.
I hate to throw a spanner in the works—[Laughter.]
You love it.
We are discussing how information on legislation is distributed to parents. Are we creating a precedent that would apply to all departmental information?
First, I congratulate Margo MacDonald on delivering what I think was an Edinburgh kiss to the members on the Conservative benches—I certainly saw a nod of her head in that direction.
I do not believe that we are creating a precedent. We want to create a duty under this particular legislation to provide parents with information on additional support for learning. It would not apply to other statutes or cases.
I am disappointed that we are revisiting this issue again. The committee made its view absolutely clear at stage 2, and because the bill has no financial resolution, we worked hard and made a lot of compromises to ensure that our amendments came within the terms of the bill. We have already compromised our initial position to an extent, and I am concerned that the minister is trying to pull back some of the ground.
The key concern involves the proposed section 5E(a)(ii) that would be introduced by amendment 4. I recommend that members vote against that amendment. Amendment 8 specifically refers to that section, so I think that it is linked, even though the minister says that it is not.
We will support amendments 5 and 6 on the ground that it is unfair to ask local authorities to provide information for pupils for whom they might not have any addresses, but I am aware that many pupils who are either at private schools or are home educated have additional support needs. I would like to hear the minister say that the local authority will still have the power—if not a duty—to supply the parents of those pupils with information, as it would be unfair to discriminate against them.
Amendments 11 and 12 seek to rewind the clock on the committee's deliberations, and I urge members to vote against them.
Throughout the evidence sessions in the committee and during the passage of the bill, it has been abundantly clear that, although some local authorities are exceptionally good at providing relevant support to children with additional support needs, some are not. Sadly, in some parts of Scotland, children's support services fall woefully short of the expected standard—or, in some cases, are non-existent. In those areas, parents have little assistance with regard to what support services are available or what procedures they should follow when things go wrong. In those cases, it is all too easy for a local authority to make a token reference to what is available and hope that parents and families have the good sense to know automatically where to look for help. There is a clear need to provide a level playing field in that respect and to ensure that we are doing everything possible to identify all the cases in which there are additional support needs, to correctly diagnose the problem, and to ensure that the relevant support is provided.
It has been my intention—and, I believe, that of Margaret Smith and the Labour members—to ensure that parents are physically given the necessary and relevant information so that they are better informed and, therefore, better able to supply the appropriate support to their child. That should be a statutory obligation on local authorities. The Scottish Government has argued that that is the case under section 26 of the 2004 act, and that by lodging amendment 4 it is seeking to ensure that only a summary of the necessary information is provided, because the placing of the word "any" before "information" would mean families being provided with all the information that was relevant to any form of additional support needs, which inevitably would mean them ending up with far too much information.
I do not accept that argument, but I made it clear that I was willing to consider a Scottish Government alternative, which we see in proposed paragraph (i) of amendment 4. Sadly, that has come at the price of accepting proposed paragraph (ii) of amendment 4, which would oblige local authorities only to flag up where information is available rather than ensure that families are given it. For me, giving families information is a crucial part of the bill, as it provides them with greater assurances about and knowledge of their child's needs, rather than leaving them to navigate their own way around the rather daunting current system.
Despite section 26 of the 2004 act, giving families information clearly has not happened. For that reason, the Scottish Conservatives will be opposing the Scottish Government's amendments 4 and 8.
Finally, given that this matter is so important, it is disturbing to note that lobbying is still going on in the middle of the debate.
I re-emphasise to Elizabeth Smith that, with amendment 4, we seek not simply to signpost for parents or young people where they can find information but to provide a summary of information. The alternative, which is included in the bill as it stands, is to require all the information that the authority publishes under section 26 to be sent to parents of children with additional support needs and young persons with such needs. That could be a substantial volume of information on paper or in other formats, so it could cost a substantial sum of money. We do not believe that placing duties on local authorities to act in such a wasteful manner is an appropriate way to conduct ourselves. Amendment 4 was lodged to address those issues.
On Ken Macintosh's point about what will happen if an education authority places a child in an independent school, of course the authority will be required to provide information to the child's parents.
I am disappointed that we have not reached a consensus on this matter. Additional burdens will be placed on local authorities as a result.
The Parliament is in this position because the Government failed to provide a financial memorandum to the bill that promised local authorities additional resources if the Parliament deemed them necessary.
Frankly, I urge the Parliament to give little credence to that argument. The bill was accompanied by a financial memorandum, as is normal. No member raised at stage 1 the question of the bill's lacking a financial resolution and the Parliament unanimously supported the bill at stage 1 in the full knowledge that no financial resolution was attached to it. I therefore reject the member's criticism out of hand.
I am sorry that the Parliament has been unable to reach an agreed position on this matter. An unnecessary burden will be placed on local authorities to no effect. Members might reflect on that when the debate is over.
The question is, that amendment 4 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
O'Donnell, Hugh (Central Scotland) (LD)
Paterson, Gil (West of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Carlaw, Jackson (West of Scotland) (Con)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Hume, Jim (South of Scotland) (LD)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
MacDonald, Margo (Lothians) (Ind)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McArthur, Liam (Orkney) (LD)
McCabe, Tom (Hamilton South) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stewart, David (Highlands and Islands) (Lab)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tolson, Jim (Dunfermline West) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
The result of the division is: For 49, Against 72, Abstentions 0.
Amendment 4 disagreed to.
I invite the minister to move amendments 5 to 12 en bloc.
Amendments 5 to 12 moved—[Adam Ingram].
Does any member object to a single question being put on amendments 5 to 12?
Yes.
As a result, the questions will be put one at a time.
Amendments 5 to 7 agreed to.
Section 5F—Availability of published information
The question is, that amendment 8 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Brown, Keith (Ochil) (SNP)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Gil (West of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Allan, Alasdair (Western Isles) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Carlaw, Jackson (West of Scotland) (Con)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Hume, Jim (South of Scotland) (LD)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McArthur, Liam (Orkney) (LD)
McCabe, Tom (Hamilton South) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
O'Donnell, Hugh (Central Scotland) (LD)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stewart, David (Highlands and Islands) (Lab)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tolson, Jim (Dunfermline West) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Abstentions
Harper, Robin (Lothians) (Green)
MacDonald, Margo (Lothians) (Ind)
The result of the division is: For 46, Against 73, Abstentions 2.
Amendment 8 disagreed to.
Amendments 9 and 10 agreed to.
The question is, that amendment 11 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Gil (West of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Carlaw, Jackson (West of Scotland) (Con)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Hume, Jim (South of Scotland) (LD)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
O'Donnell, Hugh (Central Scotland) (LD)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stewart, David (Highlands and Islands) (Lab)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tolson, Jim (Dunfermline West) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Abstentions
Harper, Robin (Lothians) (Green)
The result of the division is: For 47, Against 71, Abstentions 1.
Amendment 11 disagreed to.
The question is, that amendment 12 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Gil (West of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Carlaw, Jackson (West of Scotland) (Con)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Hume, Jim (South of Scotland) (LD)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfries) (Lab)
O'Donnell, Hugh (Central Scotland) (LD)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stewart, David (Highlands and Islands) (Lab)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tolson, Jim (Dunfermline West) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Abstentions
Harper, Robin (Lothians) (Green)
The result of the division is: For 46, Against 69, Abstentions 1.
Amendment 12 disagreed to.
After section 5G
Amendment 21 moved—[Margaret Smith]—and agreed to.
Amendment 13, in the name of Adam Ingram, is in a group on its own.
When an authority is planning for a child to leave school, the provision set out in amendment 13 will place the authority under a duty to
"seek and take account of"
the child's view in relation to the provision of any information to an appropriate agency or agencies. Currently, section 13 of the 2004 act places a duty on education authorities to provide information about any child or young person with additional support needs to other agencies where the authority considers that those other agencies will have a role in supporting the child or young person once they have left school education. The information may be provided only with the consent of the child's parent or the young person, but the 2004 act does not require the child to be consulted in the process.
Amendment 13 has been lodged as a result of on-going discussions with Scotland's Commissioner for Children and Young People on how we can strengthen children's rights. As a result of the commissioner's concerns that the 2004 act does not give children a voice in decisions about their personal information, I am pleased to have lodged amendment 13, which will ensure that authorities are under a duty to
"seek and take account of the views of the child"
in relation to the provision of information to agencies. In practice, that will mean that authorities will have to seek and take account of the child's views before they share any information with an appropriate agency or agencies. I am sure that members agree that amendment 13 will strengthen the rights of children and is a positive step in the right direction.
I move amendment 13.
The minister will be relieved to hear that I rise merely to give him my whole-hearted support, in the spirit of consensus for which he has called this afternoon. Transition is an important issue; it was raised as a concern at the committee and acknowledged by the minister. The evidence from Scotland's Commissioner for Children and Young People was persuasive. It is important that we reflect the views of the child, as we have always done in our legislation in this Parliament. I am happy to support amendment 13.
Amendment 13 agreed to.
Section 6—References to Tribunal in relation to co-ordinated support plan
Amendment 22, in the name of Ken Macintosh, is grouped with amendment 23.
Amendments 22 and 23 come from the organisation ISEA and deal with one of the weaknesses in the dispute resolution procedure. Currently, when a local authority fails to comply with or uphold the terms of a co-ordinated support plan, parents have to turn to dispute resolution. The problem arises—as I outlined earlier—that the local authority itself is the gatekeeper to that dispute resolution. ISEA has suggested that it would make more sense if the tribunal had the power to deal with the failure to uphold the contents of a co-ordinated support plan.
ISEA spent three full days with parents at a tribunal hearing on the contents of their severely disabled young son's CSP. The tribunal upheld the reference and the content of the CSP was changed dramatically, to ensure that input from education, health, social work and the college were all specified and quantified, and that the equipment and resources, such as an extra room, were written into the CSP. That young person's amended CSP was to be implemented by August 2008. ISEA then wrote and spoke to the education authority early in November about the significant number of educational objectives that had not been implemented. ISEA had previously pursued dispute resolution on the young person's case, but that was ignored by the local authority, therefore ISEA decided to pursue an order under section 70 of the Education (Scotland) Act 1980. Today, halfway through May, ISEA tells us that it is no further forward and that it is disappointed because it expects that the young person will leave school without their CSP being completely implemented.
ISEA wants non-compliance with the terms of a CSP to go before the tribunal because that is a quicker route, and the tribunal should be able to enforce its decision.
I know that the committee supported a number of amendments at stage 2 that dealt constructively with similar concerns. I hope that members and the minister will feel similarly inclined to support amendments 22 and 23.
I move amendment 22.
Amendment 22 would extend the types of references that may be made to the tribunal to include a failure by the education authority to provide, or to make arrangements for the provision of, the additional support that is contained in a co-ordinated support plan and that is necessary for the child or young person to achieve their educational objective.
Amendment 23 would extend the power of the tribunal to enable it to specify the action that is to be taken to rectify such a failure. It would also enable the tribunal to specify a time within which such action must be taken. Under the current legislation, a failure of that type is already referable to dispute resolution and/or the Scottish ministers in the form of a section 70 complaint. However, I can see the logic in enabling all CSP-related matters to be dealt with by the tribunal. I therefore support amendments 22 and 23.
Amendment 22 agreed to.
Amendment 23 moved—[Ken Macintosh]—and agreed to.
After section 7A
Amendment 24, in the name of Margaret Smith, is grouped with amendment 25.
The provenance of amendments 24 and 25 is the on-going concern that the data on children and young people with additional support needs remain weak in places. We need information, so that we know what services we need to provide and plan for. As MSPs are aware, the for Scotland's disabled children campaign, and others, wrote to them to urge them to support the amendments and said that no one knows how many children have ASN.
Like others, people who are involved in that campaign are keen to have more detailed and accurate information, to allow effective planning, resourcing and delivery of services. Amendment 24 would require the Scottish ministers to report to Parliament in the five years following commencement on what progress had been made to ensure that enough information was available to allow effective monitoring of the 2004 act's implementation. That would make a positive difference to the legislation.
Amendment 25 picks up on gaps in the information that is currently gathered. I understand that the statistics define a child with ASN as one who has a co-ordinated support plan, a record of needs or an individualised educational programme. That measures those with ASN for whom a plan has been put in place, which is not the same as identifying everyone who has ASN. Data on the main reason for support for pre-school pupils are not collected, either.
I appreciate that the minister is attempting to address the matter. My amendments would complement and not contradict his efforts. The Scottish ministers acknowledge the need to address the lack of data collection and publication on the number of children and young people with ASN. The voluntary sector continues to work with ministers to develop that further. However, the for Scotland's disabled children campaign says that
"Without a statutory duty to collect and publish data as laid out in"
my
"amendment 25, there is a risk that with a change in priorities and/or resources, such data collection and publication could be discontinued. This baseline evidence is essential to the future planning and resourcing of the ASN framework: we currently do not know if the level of resources and investment in different types of support is the right level because we do not know the extent of need. Given the current pressures on resources such an evidence based approach to service design, planning and delivery is surely essential."
Amendment 24 would enable the Scottish Parliament to continue to play a role in monitoring progress by the Scottish Government to address data needs. Accordingly, it would complement amendment 25 and would allow broader evidence to be presented, particularly on implementation issues. For example, if a duty to report had existed from the 2004 act's inception, the slow progress in transferring children with records of needs to the new ASN framework—more than 5,000 still have records of needs, 18 months after the transition period ended—could have been discussed, explored and remedied.
I hope that the minister will support amendments 24 and 25, which are in my name, and I urge all members to support them.
I move amendment 24.
I support Margaret Smith's amendments. At stage 1, several members spoke about the need to improve data collection and the dissemination of information. Almost every organisation that lobbied the Education, Lifelong Learning and Culture Committee flagged up the lack of standardisation and agreed data, which would form the basis for any policy making. Given that, we should unite around both the amendments that Margaret Smith has lodged.
Amendment 24 would perhaps have been more accurately entitled, "Availability of statistical information on additional support needs". As a Scottish Government minister, I gave the clear commitment at stage 2 that my officials would discuss with voluntary organisations and any other interested stakeholders how to improve the data collection system for all children with additional support needs. I acknowledge that ways might exist to improve the additional support needs data that are collected through ScotXed.
Amendment 25 outlines matters, including the costs of providing support, on which information would have to be published. All parties agree on the importance of reducing the burdens of monitoring and reporting on local authorities, yet the amendment would introduce a new bureaucratic requirement on councils that would be of extremely limited use. The amendment is so broadly drawn that it is difficult to envisage a system that would result in consistent information being provided by local authorities. Even if collecting the information consistently were possible, the purpose that it would serve is unclear. The key issue must be meeting the needs of children and young people, not how much has been spent on doing so.
I ask Parliament to allow collective discussion to take place between me and all the stakeholders. We as a Government would commit to that before deciding on the best way forward. Accordingly, I ask Margaret Smith to withdraw amendment 24 and not to move amendment 25.
As Ken Macintosh said, almost every group that gave evidence to the committee highlighted data and information as a problem to one extent or another.
Costs are an issue that has weighed heavily on the minds and workload of Education, Lifelong Learning and Culture Committee members over the past couple of months. In my 10 years in the Parliament, I have never spent so much time investigating and researching the costings of amendments.
In fact, amendment 24 made it through yet another part of the tortuous process: the Presiding Officer's office considered it over the course of the past week. Costings have been looked at. The Presiding Officer accepts that the amendment has de minimis costs.
I am not about to second-guess or challenge a decision of the Presiding Officer—
When it suits you.
I say to Mr Brown that, many times in the past few weeks, I have been on the receiving end of judgments that I have had concerns about. I did not query them any more than I will query this one.
We have gone through hoops in the most tortuous process that any of us have ever gone through. For the Government to say now that the amendment would have costs, when the process that we have all been expected to go through to reach this point has deemed that not to be the case, is unacceptable. I will press both amendments in the group.
The question is, that amendment 24 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Carlaw, Jackson (West of Scotland) (Con)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Harper, Robin (Lothians) (Green)
Henry, Hugh (Paisley South) (Lab)
Hume, Jim (South of Scotland) (LD)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
MacDonald, Margo (Lothians) (Ind)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McArthur, Liam (Orkney) (LD)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
O'Donnell, Hugh (Central Scotland) (LD)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stewart, David (Highlands and Islands) (Lab)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tolson, Jim (Dunfermline West) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Gil (West of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
The result of the division is: For 73, Against 46, Abstentions 0.
Amendment 24 agreed to.
Amendment 25 moved—[Margaret Smith].
The question is, that amendment 25 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Carlaw, Jackson (West of Scotland) (Con)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Harper, Robin (Lothians) (Green)
Henry, Hugh (Paisley South) (Lab)
Hume, Jim (South of Scotland) (LD)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
MacDonald, Margo (Lothians) (Ind)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McArthur, Liam (Orkney) (LD)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
O'Donnell, Hugh (Central Scotland) (LD)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stewart, David (Highlands and Islands) (Lab)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tolson, Jim (Dunfermline West) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Gil (West of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
The result of the division is: For 74, Against 46, Abstentions 0.
Amendment 25 agreed to.
Section 7B—Provision by education authority for education of pupils belonging to areas of other authorities: recovery of costs where pupil has additional support needs
Amendment 14, in the name of the minister, is in a group on its own.
Section 7B inserts a new section 27A into the 2004 act to attempt to ensure a right of recovery where an authority has provided additional support for any pupil who belongs to the area of another authority. If the aim of the section is to ensure a right of recovery between authorities, I ask members to be assured that the right exists already in the 1980 act, as has been confirmed by the courts and Glasgow City Council's decision to settle its dispute with East Renfrewshire Council.
The 2004 act amended section 23(2) of the 1980 act specifically to cover children with additional support needs. Any attempt in the bill to restate that right merely confuses the position. In the recent Court of Session case of East Renfrewshire Council v Glasgow City Council, Lord Penrose put the matter beyond doubt, stating that
"the plain language of the"
1980 act
"entitles"
East Renfrewshire
"to recover from"
Glasgow
"appropriate sums reflecting the cost of additional support services provided by"
East Renfrewshire
"to children belonging to"
Glasgow's
"area notwithstanding that the children were placed in response to parental choice."
Section 23(2) states clearly that an authority may recover an agreed amount from another authority, but the same clarity does not exist in the bill as amended at stage 2. Section 7B provides that, if a claim to recover reasonable costs is made,
"that other education authority must make payment."
Who is to decide what a reasonable amount is? Is it the host authority? If so, home authorities may consider that section 7B is tantamount to writing a blank cheque.
The existing law is clear; section 7B is unnecessary and creates legal uncertainty. I therefore urge Mr Macintosh and the Parliament to support amendment 14, which would remove that pointless and confusing section from the bill.
I move amendment 14.
I hesitate to reopen this discussion. Most members are aware of the background to the issue. One dispute—between Glasgow City Council and East Renfrewshire Council—has been mentioned, but we are dealing with a matter of principle that could apply to many other authorities, wherever children are on placement requests to authorities other than their own.
One of the key purposes of the bill is to change the way in which parents' rights affect the relationship between home and host authorities. I am concerned that the bill will be interpreted by some local authorities in a way that enables them not to meet in full their obligations to children from their area. I am not suggesting that that will definitely happen, but the amendment that inserted section 7B in the bill—to which the Education, Lifelong Learning and Culture Committee has already agreed—will ensure that it does not.
The relationship between home and host authorities is complex. I will not go through all that complexity, but the minister seems to think that Lord Penrose's judgment in the Court of Session put the matter beyond doubt. If that were the case, I would not have lodged the amendment that inserted section 7B in the bill.
There has been a series of cases. The minister says that all have now been settled, which is true, but it is interesting to note that they were settled in the past few weeks, as the bill progressed through the Parliament. The original cases that Lord Penrose settled were early cases—some predated the 2004 act and referred to the old record of needs legislation. Lord Penrose's judgment can be interpreted as establishing a principle, but many other cases were taken under the 2004 act and have never gone to court. They have now been settled between the local authorities concerned, but there has been no test case—no principle has been affirmed by Lord Penrose or anyone else, so there is still a doubt in my mind. I am concerned that, yet again, we may end up in a Court of Session battle over additional support for learning needs, at huge expense. All of us agree that that money would be far better spent on parents.
The minister suggested that section 7B is tantamount to writing a blank cheque. I absolutely assure members—especially all my Glasgow MSP colleagues—that that is not the case. The home authority still has to write the cheque. In other words, it will have to make a reasonable contribution. The authority would have to be taken to court were attempts to be made to get unreasonable amounts of money out of it.
16:15
Will the member comment on concerns from the families of children with disabilities who wish to exercise their right to make a placing request, perhaps because of family circumstances, but whose children end up in a place where they are discriminated against because of their additional needs? Those parents are concerned that choices are made around placing requests on the basis of the burden. Perhaps the local authority where the child comes from—Glasgow City, for instance—might say that it could make the provision elsewhere. I have constituents who feel that there has been discrimination against their child on the basis of their additional needs. That must run counter to the legislation.
As ever, Johann Lamont makes a very good point. One of the reasons why I lodged my stage 2 amendment was because of the many implicit assumptions and things that can go unsaid when difficult cases between local authorities and families who have children with additional support needs are discussed. There is a fear that funding decisions underpin some of the choices that are made. We all know that that is not supposed to be the case, but we all suspect that it sometimes happens—it is the elephant in the room.
I have concerns about situations in which local authorities wish to make a placing request. If the child is deemed to have additional support needs, that could seriously affect the way in which they are treated, and that would be totally unfair. The situation has been unfair on both Glasgow City Council and East Renfrewshire Council—it would be unfair on any authority, whether or not it maintains special schools, and whether it favours mainstream support or whatever else.
The matter needs to be spelled out, and that is what we have done. The committee came to a measured view. We decided that, on balance, it was better to have the provision in legislation. The amendment that we agreed to at stage 2 merely repeats the wording that is already contained in the 1980 act. I urge the minister, even at this stage, to rethink the matter and to accept that that stage 2 amendment was very sensible, and that section 7B will see off at the pass any potential future problems in this area.
The Scottish Government has confirmed since stage 2 that the existing legislation provides clarity about the right of recovery of costs when one local authority provides support to a child who is resident in another local authority area. It has also confirmed that section 23(2) of the 1980 act allows for the authorities in question to agree the appropriate costs, rather than have an imprecise definition of reasonable costs imposed upon them.
I fully acknowledge some of the difficulties that have been experienced between the two local authorities that Mr Macintosh has referred to, but I do not consider them to be of a particularly legislative nature. The Scottish Conservatives will therefore support amendment 14.
I have a great deal of sympathy with what Ken Macintosh was trying to achieve with his stage 2 amendment. Over the years, certain local authorities have had, as we have heard, continuing disputes about the recovery of costs. Ken Macintosh sought to ensure a right of recovery when an education authority provides additional support for any pupil who belongs to the area of another authority.
During the last session of stage 2 consideration, Ken Macintosh indicated that the advent of the 2004 act had disturbed the operation of section 23 of the 1980 act. Having heard what the minister said on the matter, and having discussed the issue with him, I believe that section 23(2) of the 1980 act clearly states that an authority may recover an agreed amount from another authority.
Section 7B states that if
"a claim to recover reasonable costs"
is made, the
"other education authority must make payment."
There is obviously an inconsistency there. There are issues around how that could be worked out, and there are concerns among councils that host authorities might incur significant costs that they would seek to recover with no input from the home authority.
As I have mentioned before, a number of disputes have arisen, particularly involving Glasgow City Council and East Renfrewshire Council. Having sought further information on what action the minister might take on the issue, I am pleased that he has advised us that, since the last stage 2 session, Glasgow City Council has paid for all the cases between it and East Renfrewshire and not just the cases that went to the Court of Session. Keeping the matter to the fore throughout the parliamentary process seems to have delivered some much-needed clarity regarding the existing law and the Court of Session's ruling as far as Glasgow City Council is concerned, as well as a welcome settlement for East Renfrewshire.
The onus is on councils to act towards one another in a reasonable manner and on the minister to take whatever action is necessary when they do not do so. I am sure that all members will support the minister in that regard.
Although I have sympathy with the predicament in which East Renfrewshire Council and other councils found themselves and with Ken Macintosh's position, I accept the minister's assurance that the law is clear on the matter. I support amendment 14, which would leave out section 7B.
I have some acquaintance with the issue, because I convened the Parliament's Education Committee some time ago and subsequently became Deputy Minister for Education and Young People. I am therefore well aware of Ken Macintosh's concerns, which he was right to raise.
However, the points that the minister and other opponents of section 7B made are correct. The amendment of the bill at stage 2 to include that section made the situation more confused. The difficulty is the vagueness of the arrangements that are set out in section 7B, which would allow all decisions about a child's needs to be taken without the home authority ever being consulted or included in the decision-making process, even though it would have to use its budget to pay for whatever was decided on.
Issues between local authorities to do with the extent of what must be paid for and the appropriateness of passing on costs to the home authority have, for the most part, been sorted out in the past. That is the best way of tackling the matter and it is unfortunate that the system has not worked well in some instances, in particular in the cases that involved Glasgow City Council and East Renfrewshire Council. Will the minister have a close look at the background to the matter, to ascertain whether greater clarity can be given to councils? The issue is important and it is entirely unsatisfactory that there should be court actions between local authorities, which waste public funds and sometimes put parents and children in the middle of a dispute. The Parliament should not countenance such situations. Ken Macintosh has a point, as do Glasgow City Council and East Renfrewshire Council, and there might be potential to provide more clarity, so that we can prevent such disputes from arising as often as they have done.
I do not have much to add to the debate. I will certainly follow up Robert Brown's suggestion and perhaps write to him on the issue.
I understand that section 23 disputes have primarily been between two local authority areas. I also understand that all issues have been settled under the current legislation, and the last thing that I want to do is to disturb that process. Although Mr Macintosh might have no doubts in that regard, there are considerable doubts in the minds of the legal fraternity. I ask members to bear that in mind when they decide how to vote on amendment 14.
The question is, that amendment 14 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Allan, Alasdair (Western Isles) (SNP)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Keith (Ochil) (SNP)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Campbell, Aileen (South of Scotland) (SNP)
Carlaw, Jackson (West of Scotland) (Con)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Finnie, Ross (West of Scotland) (LD)
FitzPatrick, Joe (Dundee West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hume, Jim (South of Scotland) (LD)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Kidd, Bill (Glasgow) (SNP)
Lamont, John (Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
MacDonald, Margo (Lothians) (Ind)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McArthur, Liam (Orkney) (LD)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McLaughlin, Anne (Glasgow) (SNP)
McLetchie, David (Edinburgh Pentlands) (Con)
McMillan, Stuart (West of Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
O'Donnell, Hugh (Central Scotland) (LD)
Paterson, Gil (West of Scotland) (SNP)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robison, Shona (Dundee East) (SNP)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Somerville, Shirley-Anne (Lothians) (SNP)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Tolson, Jim (Dunfermline West) (LD)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McConnell, Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
The result of the division is: For 77, Against 41, Abstentions 0.
Amendment 14 agreed to.
That ends consideration of amendments.