The next item of business is a debate on motion S6M-18081, in the name of Natalie Don-Innes, a legislative consent motion on the Children’s Wellbeing and Schools Bill. Members who wish to speak in the debate should press their request-to-speak buttons now.
16:11
Thank you, Presiding Officer, for the opportunity to open the debate, which will focus on proposed changes to United Kingdom legislation that have the potential to increase and improve opportunities for Scottish children and young people, and to put their best interests at the heart of decisions that affect them.
In December, the UK Government contacted the Scottish Government about extending to Scotland the provisions in its Children’s Wellbeing and Schools Bill that relate to child employment and community-based and secure accommodation. More detail was sought from the UK Government to allow there to be consultation with stakeholders and to provide advice to Scottish ministers. Although our engagement has been constructive, a delay in securing the necessary detail to inform our approach has impacted our ability to engage as we would have wished with the Scottish Parliament. However, the positive feedback from children and young people and from other stakeholders enables me to recommend that the Parliament consents to the legislative changes.
Currently, children from the age of 14 up to the leaving age for compulsory schooling can work for up to two hours on a Sunday. The bill proposes to amend those restrictions so that children can work the same number of hours on Sundays as they can on Saturdays. Children will also be able to work up to an hour before school and until 8 pm on any day. Currently, they cannot work before a school day and can work only until 7 pm.
The minister will be aware that the Delegated Powers and Law Reform Committee met on Tuesday. There was no time for the committee to consider a written report on the issue, and there was no opportunity for us to scrutinise the LCM. The Parliament has been asked to approve an LCM that many members have been unable to find the full details of and to ask the appropriate questions about. I appreciate that there has been a consultation with those outside the Parliament, but members in the Parliament seem to have been left behind. Why is there such urgency to get the LCM through today, and why could it not wait until September? Could he also confirm that the approach that has been taken is not good practice and should not be seen as such?
There were a number of questions in there. On the timing and why we are discussing the LCM now instead of waiting, there is a compatibility issue with legislation if we do not do it immediately. As a former minister for parliamentary business, I place great importance on giving the Parliament its rightful opportunity to scrutinise legislation. In this instance, I am afraid that a couple of things were at play. There were delays in obtaining the necessary information from UK Government officials to allow us to move forward, but I accept that there was also an element of delay at this end. I apologise to the Parliament for that, because I think that it is important. I hope that that provides the answer for the member.
Existing caps on weekly hours and a prohibition on working during school hours will remain in place.
The young people whom we engaged with on the changes viewed them as beneficial, because they will allow them more opportunity and greater flexibility to work. Young people said that they feel restricted by the current limitations and find it difficult to save money. Young people often find it harder than adults to find employment. Expanding Sunday working hours provides more opportunities for children to gain skills and experience, save money, develop their independence and better prepare themselves for their futures.
The bill also proposes changes to the rules on the conditions in which children can work. Those rules are currently set by local authorities through individual bylaws and they differ across Scotland. If consented to, the provisions would allow Scottish ministers to make child employment regulations, replacing local variations and providing a more consistent approach across Scotland. Local authorities will retain responsibility for issuing child employment permits and control of the process at a local level. Local authority representatives with whom we have engaged generally support that. In our discussions, the Federation of Small Businesses has also been supportive of the changes.
We will ensure that local authorities are able to engage in creating and implementing the regulations to reflect their local knowledge of businesses and regional differences in employment. Children and young people will also be given the opportunity to express their views, and any changes will be considered in line with their best interests. All other existing relevant legislation will remain in place, including safeguarding measures.
The second area that is covered by the provisions is secure community-based accommodation. The bill proposes a statutory mechanism that will allow children to be placed in community-based provision in England that can provide for deprivation and restriction of liberty measures, if that is in the best interests of the child. Placements in secure accommodation in England are currently possible for children living in Scotland. Provisions in the bill would enable them to be accommodated in the new proposed settings, if appropriate. Ministers are clear that any cross-border placements should happen only in exceptional circumstances and that such alternative provision should not be used where there are capacity challenges in Scotland.
However, flexibility with regard to placement options to meet the varying needs of children is important. There might be occasions when it is in a child’s best interests to be placed in provision in England—for example, to ensure that children are placed closer to their families, which is critical to relationships and wellbeing. The arrangements for and the monitoring and review of such placements will be clarified with relevant stakeholders and the UK Government to ensure that the circumstances align with Scotland’s work on the report “Reimagining secure care: a vision for the future”, the response to which the Scottish Government published today.
Just as there might be exceptional circumstances that make it appropriate to place a child from Scotland in England and to deprive them of their liberty, children from England may also be placed in secure accommodation in Scotland on welfare grounds. Amendments that the bill will make to section 25(5A) of the Children Act 1989 clarify that the person in charge of secure accommodation in Scotland can deprive a child of their liberty when they have been placed there from England or Wales.
Providing consent today would allow us to continue to work with our stakeholders to ensure that the changes are implemented in line with current Scottish Government policy and Scotland’s unique and lauded approach to child welfare and justice.
I move,
That the Parliament agrees that the relevant provisions of the Children’s Wellbeing and Schools Bill, introduced in the House of Commons on 17 December 2024, and subsequently amended, affecting child employment and community-based and secure accommodation, so far as these matters fall within the legislative competence of the Scottish Parliament and alter the executive competence of the Scottish Ministers, should be considered by the UK Parliament.
I call Douglas Ross to speak on behalf of the Education, Children and Young People Committee.
16:18
I rise to speak not about the detail of the LCM but about the process, and I endorse everything that Jeremy Balfour said. Before I come to what the DPLR Committee discussed this week, it is right to make it clear that the Education, Children and Young People Committee had its first opportunity to discuss the LCM eight days ago—just one week away from the summer recess. People will be aware that this has been an extremely busy week for those in the Parliament with an education interest—I include the cabinet secretary and the minister in that. When we discussed what we could do in our final week, we had to take on board the fact that members were going to be in the chamber late on Tuesday and Wednesday to deal with stage 3 of the Education (Scotland) Bill.
This week alone, just in committee, we have sat for more than seven hours, taking evidence on the University of Dundee. Even if we had wanted more scrutiny of the LCM, which I believe that members would have wanted, there was literally no time to include that in our deliberations.
When I received the letter from the DPLR Committee convener yesterday, I was concerned about the note in the second paragraph that
“amendments and the UK Government’s supplementary delegated powers memorandum have been available since 14 May.”
We got that information on 16 June, well over a month after the UK Government had finished its consideration of the matter.
I echo everything that the DPLR Committee has said about the lack of opportunity to interrogate the matter further. I believe that my colleague Roz McCall will look into some of the details that members of the Education, Children and Young People Committee would have looked into, because we treat such matters very seriously. The minister and the cabinet secretary know that we go into in-depth detail with Scottish statutory instruments and other things, and we would have done so with the LCM had it not been for the timing of its coming here and the business that the committee already had.
I urge the minister to take back to his successor as Minister for Parliamentary Business the point that we need help as committees to do our job and to allow Parliament to do its job, and more time to discuss and prepare for these LCMs would be appreciated.
I will not detain the Parliament any longer other than to say—I think that I am still within the subject—that, because we were so busy as a committee this week, we could not look at the issue. Although it is right that MSPs on committees are busy—I am keen on that as a committee convener—I would like to thank the clerks and the official report and broadcasting staff, who have also sat through more than seven hours of evidence. They were long and thorough sessions and, although it is right that we, as MSPs, do our job, I believe that our clerks and others associated with the Education, Children and Young People Committee went above and beyond this week. On behalf of the committee, I offer my thanks to them.
16:21
I rise to speak on the LCM that we have been asked to approve this afternoon. It has already been highlighted that it covers child employment, secure care and residential care. I have concerns about it, which I will briefly outline to members.
At face value, the proposal to allow residential accommodation as an alternative to secure care might seem uncontroversial. Indeed, the Scottish Government seems quite comfortable in its assertion that it is very unlikely that a child would be given a cross-border placement. Unfortunately, however, unlikely does not mean impossible. The Scottish Government’s memorandum states that
“allowing for this option is in line with article 3 of the UNCRC, which requires that the best interests of the child are a primary consideration in all actions involving them.”
The proposal to allow residential accommodation might seem helpful in offering greater flexibility, especially where capacity is under pressure. Secure accommodation in Scotland is currently under immense pressure, but we must not lose sight of what secure care is and why it matters.
Last year, in this Parliament, we passed the Children (Care and Justice) (Scotland) Act 2024, which moved away from placing children in young offenders institutions and into an individual child-based system that increases the use of secure care, with all the safeguarding and specialist support that come with it. We said that the outcome of that would be that there would be immense pressure.
The briefing from the Children and Young People’s Commissioner Scotland for this LCM also raises concerns, specifically about the possibility of cross-border placements. I stress that the fact that the Government assures us that such placements are unlikely to happen does not mean that they will not happen.
Residential care is not secure care. It does not offer the same physical security, therapeutic oversight or legal framework. It is not a like-for-like substitute, and we should not treat it as one.
I have a couple of questions for the minister. What legal guarantees could be put in place to prevent residential facilities being utilised in a justice-related placement? How will cross-border oversight be managed if the facilities are based in England? I look forward to the assurances and information on that, and I accept that the minister is stepping in on this matter.
I will also briefly address the child employment provisions. On the surface, they are not controversial, but there is an open question that I would like clarity on. Does the bill cover children who work on family farms or in small businesses? I understand that we have legislation on that, but, all over Scotland, that is not just a job but part of family life. That is how many people—especially young people—learn responsibility. If there is any unintended impact, we must understand it and address it.
Finally, I come to the point on process that has already been highlighted very well by Jeremy Balfour and Douglas Ross. It is my understanding that the LCM is being rushed because the UK Government did not fully appreciate the Scottish implications of the amendments, despite the UK bill being in the House of Lords. I note the minister’s comments and his apology for any delay on the Scottish Government’s side, and that is accepted. However, Parliament is being asked to approve last-minute changes to devolved legislation without full consultation, without detailed impact assessments and without certainty on how those powers would be used.
We are being asked to give up scrutiny and to take on trust that it will all work out, and I am afraid that I cannot do that. I was assured that the concerns raised about secure accommodation provisions in the Children (Care and Justice) (Scotland) Act 2024 would not be an issue, but it has come to pass that they are. When vulnerable children are involved, I cannot simply go on assurances—the price is too high.
We have a responsibility to protect the integrity of our justice reforms, the clarity of our devolved powers and, above all, the rights of the children we serve. On that basis, we will not fully support the legislative consent motion, but we will not oppose it.
16:25
I will speak on behalf of Scottish Labour to various elements of the LCM. I compliment both committees that were involved in this matter—I appreciate the challenge in being able to scrutinise legislative consent memorandums.
Without repeating what I said, I refer to my earlier comments about how LCMs are dealt with in the Parliament and the obligations on Governments in dealing with and facilitating the matter between them. I suggest that the Parliament could help with that, most probably in the next session.
What fundamentally underpins the bill to which the legislative consent memorandum relates—the Children’s Wellbeing and Schools Bill—is an attempt to break the link between a young person’s background and their future success, which is a goal that we share in Scotland and in Wales, Northern Ireland and England. There are two processes here—one relates to employment and the other, which I would like to spend a few moments discussing, relates to secure care.
I echo what Roz McCall said about the current state of secure accommodation in Scotland. As of today, there is one vacant bed. No doubt we will, sadly, return to that issue after the recess. Will the minister intervene in relation to the question that has been raised by the Children and Young People’s Commissioner Scotland about ensuring that cross-border placements are only ever used for a young person in appropriate and exceptional circumstances?
I appreciate the opportunity to clarify. Let us be absolutely clear that the bill does not in any way change the approach in Scotland. Indeed, if we take the comparator of reverse cross-border placements, I believe that there are currently only three England-based children resident in Scotland under the system—this time last year, there were 20-odd. The direction of travel has been set. I understand the commissioner’s query, but, in reality, the bill changes nothing about the approach that we will continue to take in Scotland. I hope that that offers reassurance.
I thank the minister for his intervention. Unlike Roz McCall, I am reassured by that, because I think that, when the Government gives such assurances, we should be able to rely on them. I thank the minister, who I know is stepping in today for the debate on the LCM.
Will the member give way?
I will finish my point, and then I will come to Mr Balfour.
I thank the minister for stepping in to cover the debate at this late stage.
Martin Whitfield will be aware that the legislation that we pass does not last just for the duration of the current Government; it lasts for years to come. I am happy to accept what the minister says, but we do not know how the legislation could be used by future Governments, which might have a very different view. Is Martin Whitfield not concerned that, if there is a Scottish Government policy change, the legislation could be used in a way that would have a damaging effect on young people in Scotland?
I am grateful for Mr Balfour’s intervention. Of course, no Parliament or Government can bind future Governments. On his underlying point, of course there should be concerns about differences that might occur in the future, whether at a Government or a parliamentary level. I have raised that issue in a number of debates during this parliamentary session. I am less in agreement on whether this is the point at which to draw the line in the sand. I understand from Roz McCall’s contribution that the Scottish Conservatives will not oppose the motion but will merely abstain.
As with our previous discussion about framework bills, a large number of questions has arisen in recent years, from both Governments and from both Parliaments, and we need to seek answers to them, because people outside the chamber are looking for them.
Given the minister’s reassurance about cross-border placements, for which I thank him, I will leave my contribution at that.
16:30
I will deal first with the legitimate points that members have raised.
I absolutely take on board Douglas Ross’s point about the workload of the Education, Children and Young People Committee and its having had insufficient time to deal with the issue. He noted the date of 14 May. I should explain, in case it has not been clear, that there continued to be to-ing and fro-ing between the two Governments. As I understand it, that was in part because of a clause in the bill and the fact that we were completing the work on reimagining secure care ahead of making it public. For our part in that to-ing and fro-ing, I apologise.
As I said earlier, as a former Minister for Parliamentary Business, I could not agree more about the need for the Parliament to have an appropriate amount of time to do its work. As I explained, there would have been a legislative compatibility issue had we allowed consideration to run beyond the timeframe that we have.
As I understand it, Roz McCall was talking about the proposed community-based secure accommodation in England. She is no doubt aware that no such accommodation is currently available. The bill provides for such facilities to be developed. If the bill is agreed and receives royal assent, the UK Government will consult on the provision of and the requirements for the facilities. In effect, we are future proofing our approach by referencing the existence of such accommodation. I give her the reassurance that this is not in any way a change in our approach. As I said to Martin Whitfield, this is about getting the wording of the legislation right, and the bill does not make cross-border placements more likely.
The point about family farms was a very good one for Roz McCall to raise. I do not have the answer for her today, but the bill provides a power for ministers to create a single bylaw—that is probably not the correct term—that would apply across the whole of Scotland. There will be consultation on that. I will ask officials to take on board the very fair point that she made to ensure that whatever is brought forward captures that issue that she has rightly raised. The Parliament will have a role in that regard.
I thank all members for their constructive and thoughtful contributions. No Government or Parliament on these islands has done more to progress the rights of children and young people. We are rightly proud of what we have achieved together in this Parliament in that regard.
We are also rightly fierce in protecting the best interests of children and engaging with them to get their views on decisions that affect them. The provisions on employment should give children more choice and opportunity to make decisions about when they work to gain income and independence. They modernise our approach to children’s employment and will make protections and opportunities more consistent across the country. I will quote a young person who was engaged with the proposed changes:
“I think that it will make young people happier and able to work and gain more experience.”
Although it would have been our preference to legislate on this devolved matter here at Holyrood, it would have been wrong to pass up the opportunity to update what is an outmoded statutory framework. A system of 32 local byelaws on child employment lends itself to inconsistency across councils in relation to permitted and prohibited types of work. Some bylaws are out of date and are not reflective of modern-day employment opportunities. Most have not been updated since the early 2000s—indeed, one dates back to 1973. Some still refer to the prohibition regarding children working as chimney sweeps or on merchant ships or undertaking work in coal yards. Creating central regulations will provide consistency, reduce the administrative burden of updating byelaws and allow for engagement to ensure that updates reflect the needs and interests of children and young people, as well as local communities and economies.
The provisions on community-based accommodation will provide flexibility and choice in providing the most appropriate placement for a child, if deemed appropriate and in an exceptional circumstance, and if it fully meets their care needs. No significant issues were raised about either of those changes by stakeholders, and there was recognition of the value of them. However, it is recognised that further engagement will be undertaken with key stakeholders.
As I said earlier, I note the concerns of the DPLR Committee regarding timescales, and, once again, I apologise that the Parliament was not given more time to consider the changes. When working with UK bill measures, that is not always feasible, but I accept the importance of giving parliamentary committees more opportunity to scrutinise proposed legislative changes, especially changes as important as these. I hope that the Parliament will agree that the changes will help to protect and enhance the best interests of Scotland’s children and young people and will, accordingly, give consent.
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