Commissioner for Children and Young People (Scotland) Bill: Stage 3
The next item of business this afternoon is the stage 3 proceedings on the Commissioner for Children and Young People (Scotland) Bill. Members should have the bill—SP bill 71A—as amended at stage 2, the marshalled list that contains the amendments selected for debate and the groupings.
Section 4—Promoting and safeguarding rights
Amendment 2 is in a group on its own.
I congratulate the Education, Culture and Sport Committee on what is a good piece of work. Initially, I had a bit of difficulty with the setting up of yet another commissioner's post by the Parliament, but after reading the bill, I believe genuinely that a good job has been done.
My amendment 2 seeks assurances from the committee about the context in which the commissioner would review law and practice. I am less concerned about practices in relation to children and more concerned about reviewing the law.
Whenever we set up a commission, which is an unelected body, the Parliament should consider carefully the commission's role and how it relates to the role of elected people. I want to ensure that the review of the law provided for in the bill happens in some kind of context.
I appreciate that it is clear in section 10 that there should be an annual report to Parliament. I see the connection between sections 4 and 10, but I would like the committee to reassure me that those two sections should be read in tandem and that any responsibility that the children's commissioner has for reviewing the law recognises the role of Parliament and elected members ultimately to decide what is best for the law relating to children, despite the fact that the commissioner has a role in that, too.
If I get the reassurances I seek, I am prepared to withdraw the amendment.
I move amendment 2.
I understand the concerns that the member has, particularly in relation to the commissioner having the potential to usurp the supremacy of the Parliament.
I reassure the member that we have put several checks and balances in place to prevent that from happening. In particular, under section 4(2)(b), the commissioner will consider legislation, policy and practice relating to the rights of children and young people, a review of which could result, for example, in a recommendation and report to the Parliament under section 12, so it is already the case that any review of law, policy and practice could result in a report to Parliament.
Section 10 deals with the annual report, which must include the steps taken during the year to fulfil each of the commissioner's functions. Given that the duty to review in section 4(2)(b) is one of those functions, any review would be included in the annual report, which will include any recommendations that the commissioner wishes to make. In addition, the commissioner may at any time lay a specific report dealing with the review under the power at section 12.
Therefore, there are already sufficient checks in the bill to require the commissioner to report to the Parliament on such matters. One of the underlying principles of the bill is that the commissioner will work through recommendation and persuasion; the bill contains no powers that allow the commissioner to enforce any recommendations that he or she may have, nor to require implementation of any findings from the annual or other reports.
In other words, the only way in which to create real change is through the reporting mechanisms to the Parliament. It will be for the Parliament to take action on those issues if it so chooses, and we fully expect any successor committee to give careful consideration to any recommendations that the commissioner may outline in his or her report.
We have also been careful to avoid going too far, and placing the commissioner under the control of the Parliament. A large degree of independence from both the Parliament and the Executive is imperative to the success of the post. Rather, the bill sets out an appropriate system of checks and balances through the reporting mechanism. That will ensure that the commissioner promotes and safeguards the rights of children and young people, but does not cut across the proper function and rights of other bodies. That reflects one of the committee's key principles in developing the legislation.
I hope that I have provided the member with the necessary reassurances. The requirements for annual reporting, the power to bring other reports to the Parliament, and the lack of any other enforcement mechanism will ensure that the commissioner has no alternative but to bring his or her recommendations directly to the Parliament. The bill in no way impacts on the Parliament's supremacy. Given those assurances and the explanation, perhaps the member will feel able to withdraw the amendment.
In view of the assurances that the convener of the committee has given, I am happy to withdraw amendment 2.
Amendment 2, by agreement, withdrawn.
Section 6—Involving children and young people
Amendment 1 is in a group on its own.
In line with Pauline McNeill's opening remarks, I congratulate the committee on its work. I also begin by apologising for introducing my amendment at stage 3. Saying that I was involved in the Water Environment and Water Services (Scotland) Bill and the Building (Scotland) Bill is not an excuse; it is simply my explanation for missing stage 2 committee meetings.
What lies behind amendment 1, which I may not press on hearing the convener's response, is the concern that I felt when I read section 6(2)(b). At the moment, the bill ensures that young people will have their views taken into consideration when the commissioner is deciding what work to undertake. I want to ensure that the voice of young people is a critical and continuing voice in the work of the commissioner. Young people should not be able to say only what they would like to see the commissioner doing; they should also be able to comment on the work that the commissioner is undertaking and to assess critically any work that has been undertaken in the past.
On the annual report being laid before the Parliament, I noticed that section 10(2)(d) states that the report will include
"the strategy for involving children and young people in the work of the Commissioner."
Will the convener of the committee assure me that we can ensure that the spirit of the bill relating to young people's continuing and critical voice in the work of the commissioner can be encompassed under that section, rather than under section 6(2)(b), which to me says that they will be able to comment only on forward planning rather than being able to assess critically work that has been undertaken?
I move amendment 1.
Section 6(1) places the commissioner under a general duty to encourage the involvement of children and young people in all his or her work. That is intended to ensure that the work is informed by the views of children and young people. The committee derived the approach from our view that the principles of consultation, participation and accessibility should underpin all the commissioner's work.
My understanding of amendment 1 is that it is meant to place a further duty on the commissioner to consult children and young people in the context of current work, and any reviews thereof, as well as on future work. I understand that it also intends to ensure consultation with children and young people on the commissioner's annual report.
I do not think that the amendment achieves what it intends. If a review of work involves looking back at work that has been completed—which is my understanding of a review—the amendment does not seem to cover on-going work. As for annual reports, I suggest that the amendment would have been clearer if it had been explicitly linked to section 10, which deals with annual reporting.
I will say emphatically for the Official Report that consultation as a duty will be a constant and crucial part of the commissioner's work. If the commissioner is not consulting and involving children and young people in their work, that will be a fundamental failure. However, it would be unrealistic to expect commissioners to be permanently engaged in consultation about all work that is being carried out, as they would then be able to do nothing else. The issue is about creating the right balance in how the commissioner carries out consultation and engages in inquiries and reports to the Parliament to enable us better to serve the children and young people whom we seek to serve.
In addition, the amendment's apparent aim—in particular, its use of the words "any reviews"—would result in a degree of confusion with section 6(4), which stipulates that the commissioner
"must prepare and keep under review a strategy for involving children and young people … in accordance with this section."
Any such confusion would not be helpful.
Finally, ambiguity in the wording of the amendment might raise expectations that what is intended is a review of the kind of work that the commissioner is remitted to undertake—that is, a review of the commissioner's powers. The committee gave that matter careful consideration before we concluded that such a provision was not necessary. Instead, we envisage that once the office is established, the commissioner will wish to use his or her experiences to judge whether the powers that we have given are adequate. That could then be brought to the attention of the Parliament through the annual report.
I hope that the member will accept that children and young people are at the heart of the commissioner's work and that consulting and involving them is imperative to the post's success or failure. Given my explanation and assurances, I hope that she will withdraw amendment 1.
I am sorry that amendment 1 was perhaps not worded as carefully as it could have been. The amendment is a second draft and tries to ensure that the continuing voice of young people is heard. Given what the convener has said about that being the spirit of the bill—as I have always understood it to be—and her concern that amendment 1 would simply confuse matters, I seek leave to withdraw it.
Amendment 1, by agreement, withdrawn.
Section 7—Carrying out investigations
Amendment 3 is in a group on its own.
Section 7 provides the commissioner with power to
"carry out an investigation into whether, by what means and to what extent, a service provider has regard to the rights, interests and views of children and young people in making decisions or taking actions that affect those children and young people."
I have deliberately quoted the opening subsection, as it describes the limit of the power. The power is not—as has been suggested in some quarters—open ended.
The section also limits the areas and matters that are subject to investigation. In particular, it prevents investigations into matters that relate to a particular child or young person.
I was intrigued by the member's comment, "as has been suggested in some quarters". Will the member be more explicit and tell the chamber in which quarters that has been suggested?
Some people outside the Parliament have suggested that the provision makes the bill much more open ended. I want to make it clear for the Official Report what the intention of the bill is, to avoid confusion and the need for clarification in the future. As I have said, section 7 limits investigations and prevents them when such an investigation is the proper function of another person. It is intended to avoid duplication of effort and investigation into individual cases.
The amendment, which was first suggested by the Executive at stage 2, seeks to ensure that the policy that I have set out prevents any investigation by the commissioner into matters that are before a court or tribunal. The amendment will prevent the commissioner from investigating decisions and actions taken in court or tribunal proceedings. It will also prevent the commissioner from investigating any matters that relate to proceedings currently before a court or tribunal. However, the amendment does not prevent the commissioner from investigating infrastructure matters: for example, the availability of various ways for children to give evidence to court.
I am grateful to the Minister for Education and Young People and to the Deputy Minister for Education and Young People and their officials for their assistance with the amendment.
I move amendment 3.
I would like clarification of the new section 7(c)(ii) that the amendment proposes, which would prevent the commissioner from investigating
"a matter which is the subject of legal proceedings before a court or tribunal."
We can all recollect occasions on which MPs, MSPs or newspapers have made efforts to find out information about something and have been told, "It is sub judice; there is a law case." The law case might, in a Dickensian manner, take years to start, and civil actions, once they start, can dribble on endlessly. I would not like the bill to include a provision that enables people who fear investigation by the commissioner to drum up a spurious civil action or to prolong an existing civil action merely to prevent an investigation.
I hope that Karen Gillon can give us some satisfaction and clarification on that point. I see what the amendment aims at, but I am worried about the provision being misused.
I will clarify the matter for the member as best I can. I would not want someone to pursue a spurious legal case for the sake of usurping the role of the commissioner either, but it would be inconceivable for the Parliament to pass a bill that would undermine the legal process in this country. I hope that the member will understand that the commissioner is not above the law and so will require to work within the parameters that exist. That means that if a case is before the court, it should be allowed to proceed and seek its rightful conclusion through the process to allow us to move on. To do anything else would lead us into a dangerous situation and would set a dangerous precedent.
Amendment 3 agreed to.