Chamber and committees

Commencement, which is the focus of group 7, is a key point that I and the member in charge have discussed in great detail in recent weeks, as we have worked to consider an appropriate approach to amendments. I am very clear that the timing of commencement must be informed by clear and robust evidence and demonstration that the system is ready to meet the demands of the bill. Without such an assurance being in place, commencement risks undermining deliverability and the impact of the legislation.

Early feedback from key delivery partners, including COSLA and representatives of the residential outdoor education sector, highlights that it is currently challenging to robustly estimate a realistic timeframe for commencement, as that will depend on a number of factors, which we will need to work to clarify with stakeholders as part of the implementation planning process. We have discussed some of those challenges this morning.

Fixing a date for commencement in the bill would lead to increased risks for education authorities and managers of grant-aided schools if they are unable to meet the statutory duty to provide residential outdoor education under the bill.

The Scottish Government’s general position on commencement of legislation is that it should be done through regulations. The Scottish ministers must have control over how and when commencement takes place to ensure that implementation of legislation is meaningful. Amendment 18 will achieve that aim, although its doing so is subject to amendment 19, which I will come to in a moment, being agreed to.

Liz Smith and I have discussed the importance of the Government producing a tangible delivery plan that seeks to drive progress against key checkpoints to ensure that the system’s readiness for commencement is established in a timely and transparent way.

I can confirm that, if amendment 18 is agreed to, the Government will commit to producing and publishing a delivery plan to ensure that commencement takes effect as soon as reasonably practicable after royal assent. I anticipate that that plan will cover a range of outstanding issues that must be appropriately and fully explored, and, where possible, addressed. The committee has touched on some of those this morning. For example, it will be necessary to establish a baseline of current provision and the capacity of the outdoor education sector to meet new demand; to consider teacher workforce implications; to look at funding requirements and potential sources of funding; and to put in place appropriate monitoring arrangements to ensure delivery over time.

For those reasons, the Government supports amendment 18, and I encourage members to vote for it.

Liz Smith and I have also discussed what other approaches might help to drive progress towards commencement, in the absence of a firm commencement date. Amendment 19 will require that commencement regulations be made by 30 September 2027. I suggest that that is a meaningful and constructive mechanism in that respect.

Amendment 19 will mean that, within the academic year following royal assent, the Government will set out a date for commencement. That will provide a strong signal, not only for national Government but for local government and other key delivery partners, on the pace of transition that is required.

Amendment 19 also seeks to introduce the ability to factor into the regulations consideration of whether and how commencement may be phased over time.

For those reasons, I support amendment 19, and I encourage members to vote for it.

The amendments in this group relate to undertaking reviews and reporting on the provision of residential outdoor education, including equity. As introduced, the bill does not include provisions on monitoring or evaluation of delivery. As such, I recognise Pam Duncan-Glancy’s positive intent in lodging her amendments and the importance of monitoring. However, in their current form, the amendments present some challenges.

Amendment 8 seeks to impose a requirement on Scottish ministers to report on equal access to residential outdoor education that is provided under the bill, in particular for pupils with additional support needs.

I agree that it will be important to monitor, with a particular lens on equity, the uptake of visits to residential outdoor education centres. However, the way in which amendment 8 is framed—by stipulating that the report should be produced within 12 months of the date of royal assent— is not workable. If commencement were to occur in July following royal assent, as was envisaged at the bill’s introduction, that would probably mean that the report required by amendment 8 would have to be produced within just a few months of the substantive provisions coming into force. It is quite unlikely that, by that point, the system would be in a position to make good on the new statutory duty to provide to an extent that would yield any useful data for a report.

Amendment 9 seeks to ensure that ministers produce a report on uptake of provision of residential outdoor education by pupils who might otherwise face barriers

“as soon as reasonably practicable”

after commencement. The lack of clarity on timescales of reporting would create challenges.

Amendment 10 seeks to ensure that ministers undertake a review within five years after royal assent to determine the legislation’s overall impacts, particularly in relation to improving equity in provision and access to residential experiences, as reported on under amendments 8 and 9.

As was the case on amendments 8 and 9, I have difficulties with the time periods that are set for the reporting requirements. The Government’s preference is for the legislation to be commenced via regulations, as per Liz Smith’s amendments 18 and 19. Those regulations, which would be required by September 2027, would appoint a suitable commencement date. The timescales that are set out in amendment 10 would mean that a review would have to be carried out a short time of, or a few years after, commencement, which would present some challenges. Although I agree with the intent behind amendment 10, a more constructive review period would be five years after commencement of the act, which would allow us to gather better data.

I recommend that members do not vote for the amendments in this group at stage 2, but I support the ultimate purpose behind them. I am happy to commit to lodging suitable amendments on reporting at stage 3. I hope that Pam Duncan-Glancy will not press amendment 8 or move amendments 9 and 10. If she does, I encourage members to vote against them.

I would be happy to discuss that with the member in charge of the bill.

Liz Smith and I have established a shared understanding that enabling financial contributions to be sought from parents of pupils who wish to participate in the residential experience is a practical way of strengthening the bill’s deliverability and affordability.

It is important to say that, with amendment 15, I do not believe that it is the member’s intention—nor would this be the Government’s position—that financial contributions should be applied on a blanket basis, or as standard, to all pupils who participate in residential outdoor education from a particular school or in an education authority area. That would fail to achieve the equity of provision that I believe that Liz Smith is seeking to introduce through the bill, which I fully support. Indeed, I believe that it is reasonable to expect that careful and sensitive consideration would—and should—be given by the education authority, or by managers of a grant-aided school, to determining the appropriateness of seeking a financial contribution in each instance.

For those reasons, I ask members to vote for amendment 15.

The Scottish Government considers Liz Smith’s amendment 17 to be essential in ensuring that the bill is deliverable and affordable. In my discussions to date with the member in charge, I have made it clear that the Scottish Government will consider funding for residential outdoor education as part of budget negotiations, in partnership with COSLA. That will ensure that all financial pressures, including new statutory duties with financial implications, are considered through COSLA’s formal financial governance process. I hope that the commitments that I have made to date and my work with the member in charge signal my intention to follow through on that.

In addition, it is my view that it is unnecessary to include in the bill an express statutory duty on the Scottish ministers to fund such provision. There are many examples of pieces of legislation that place duties on education authorities or result in education authorities incurring costs without imposing on ministers a specific duty to provide funding. Examples include the Period Products (Free Provision) (Scotland) Act 2021, which originated as a member’s bill, and the legislation that put a statutory duty on education authorities to deliver 1,140 hours of funded early learning and childcare. Implementation of that duty was funded by the Government, and the sums involved were determined in negotiation with COSLA and local authorities. We might reasonably expect a similar process to be undertaken here.

I assure members that, if the bill is passed, the Government will work at pace with delivery partners to gather additional data to inform improved and robust costings, which can then be used to inform discussions with COSLA. It is worth noting that our ability to do so in an appropriate timeframe will be subject to amendments 18 and 19 in group 7, on commencement, also being agreed to. We will come to those later.

I therefore support amendment 17, and I ask members to vote for it.

Turning to Pam Duncan-Glancy’s amendments 3, 4 and 5, I am supportive of amendment 3, which will make clear to local authorities and to families of disabled children and young people to whom self-directed support is available that such funding can be used to support participation in residential outdoor education. It is reasonable to require the guidance that will be issued under the bill to cover that matter, so I hope that members will vote for amendment 3.

I also have no issue with endorsing amendment 4, which provides a definition of “self-directed support” and accompanies amendment 3.

I understand the intention of amendment 5. It is, of course, essential that pupils with additional support needs are appropriately supported to take part in residential outdoor education. However, I believe that we will achieve that aim through the mixed funding arrangements and the existing approach, as well as through the consideration process with COSLA as part of budget negotiations on the local government settlement, which I mentioned in relation to amendment 17. On that basis, I ask Pam Duncan-Glancy not to move amendment 5. If amendment 5 is moved, I encourage members to vote against it, should it not be pre-empted.

Yes, I agree. The issue is one that we can look to address further in the guidance. I am more than happy to continue to have conversations on the issue. However, as I have said, amendment 5 is not appropriate, given the way in which it is laid out.

I understand why John Mason lodged amendment 11 and his intention in doing so, which is to make clear to schools, through the statutory guidance, that they can make use of pupil equity funding to enable pupils to attend residential visits. That is in line with the mixed model of funding that is used at present by schools. We all agree whole-heartedly that that approach should continue under the bill. That is why, as I have stated, I support Pam Duncan-Glancy’s amendment 3, which would ensure that guidance must cover the funding sources that are available to support visits. I view PEF as one such funding source.

However, we must consider that PEF is not underpinned by legislation. Should a future Scottish Government change what PEF is called or how it works in practice, any reference to it in the bill would potentially become unworkable. I commit to ensuring that the guidance references that appropriate additional funding sources provided by the Scottish Government be listed as part of giving effect to amendment 3. I hope that that reassures Mr Mason and that he will now not move his amendment 11. If he does, I encourage members to vote against it.

On Mr Mason’s amendment 12, the first part of the amendment relates to the duty to fund, which Liz Smith’s amendment 17 seeks to remove. Should that amendment be agreed to, amendment 12 cannot be called, due to pre-emption. The latter parts of the amendment allow headteachers to allocate a portion of the school’s PEF to support residential outdoor education, with the intention of reducing the cost for all pupils or subsidising the cost of the visit for those from lower-income families. However, for the reasons that I gave in relation to Mr Mason’s amendment 11, I do not see that that requires to be set out in the bill. Should amendment 12 be moved, I ask members to vote against it.

Mr Balfour’s amendments 22, 23, 24 and 25 allow us to debate a very important set of issues, and I put on record my thanks to him for lodging them and allowing us to have that debate.

Amendment 22 concerns the participation of pupils who have a carer. I absolutely agree with the principle that, where a pupil requires a carer or carers to support their participation in residential outdoor education, they should face no barriers to having a carer or carers attend. However, I believe that the most suitable approach to achieving that aim is to address those matters within the guidance that ministers will be required to produce. The bill already makes provision for that approach and requires that residential outdoor education be suitable for any additional support need that a pupil might have.

I thank Jeremy Balfour for lodging amendments 26 and 27 and for facilitating debate on these matters at this stage. Both the amendments relate to assessing and improving residential outdoor education facilities to meet the needs of pupils with additional support needs, in particular those with complex care needs and disabilities. As Mr Balfour will be aware from scrutiny of the bill so far, this matter has regularly been highlighted by me and by other members. Again, I thank Mr Balfour for facilitating this debate at this stage.

I welcome and understand the principle behind the amendments, although I do not necessarily believe that legislation is the appropriate way to address the issues. With respect to amendment 26, Mr Balfour is seeking to require ministers to undertake a review of residential outdoor education facilities that are used to make provision under proposed new section 6A of the 1980 act, with specific focus given to understanding the capacity of existing facilities to meet the needs of pupils with complex care needs or a disability. I fully appreciate Mr Balfour’s concern.

However, there are important challenges with how amendment 26 is framed. It does not provide a clear definition of what is meant by “complex care needs”, and it relies on an approach of diagnosis, which might exclude pupils in the process of seeking such a diagnosis, or for whom a diagnosis is not straightforward. A further technical issue is that, assuming that amendments relating to commencement succeed, the timings will not necessarily work. Facilities would not necessarily be used to provide residential outdoor education under new section 6A of the 1980 act within 12 months of the bill getting royal assent, and it would be unclear what facilities would fall within the scope of the review. The timescale for the review to have taken place is therefore not realistic. As with the points that I raised on amendment 8 concerning reporting, I do not think that it is pragmatic to undertake a review that is tied to provisions under the eventual act at such an early stage.

As we are about to discuss in relation to group 7, my view is that a more appropriate approach would be to amend the bill to bring its provisions into force through commencement regulations, as has been detailed in amendments lodged by Liz Smith. In that scenario, the Government would give careful consideration to how best system readiness could be established in a timely manner in response to the demands of the eventual act and with regard to ensuring access for pupils with additional support needs. That has already been a topic of conversation between me and the member in charge, following discussions with representatives of some centres.

We would work collaboratively with the sector to seek input from education professionals working in special schools, from parents and carers of young people with additional support needs, from third sector organisations working with disabled young people and, vitally, from children and young people with additional support needs themselves. That engagement would be essential to gaining an understanding of what it means for a residential outdoor education facility to be suitable for their needs. I hope that that reassures Mr Balfour and that he will therefore not press his amendment. If he does, I encourage members to vote against it.

Amendment 27 would place a statutory duty on owners of a residential outdoor education facility to ensure that their facility provides at least one changing places toilet facility within two years of royal assent. Again, although I understand the reasoning behind the amendment, there are inherent difficulties with it. Standards for which buildings require a changing places toilet are set out in planning regulations. Many—possibly most—residential outdoor education facilities do not fall under the regulatory criteria that are set for requiring changing places toilets. Nonetheless, as Mr Balfour mentioned, the Government has championed and supported the roll-out of changing places toilets in appropriate public settings, including through the £10 million changing places toilets fund.

At the moment, I do not believe so. Further engagement with the unions to understand some of the complexities that we have been over in the committee previously will be key.

I give a commitment that that will be part of the discussions around assessing system readiness and capacity. I have repeatedly said that a key part of the deliverability of the bill is ensuring that centres are properly equipped for all pupils, especially those with disabilities or complex needs. To an extent, that touches on the next grouping of amendments, which deals with commencement, and the need for us to understand where we currently are and where we need to get to in ensuring equity for all pupils in Scotland.

I fully support the intention behind Mr Balfour’s amendment, and I would be happy to undertake to explore how we provide for that in the statutory guidance. I also take Mr Briggs’s point about the need to assess the centres’ capacity in our future discussions with them. I hope that that reassures Mr Balfour and that he will not move amendment 27. If he does, I encourage members to vote against it.

I am sorry—I was just agreeing.

Because I engaged widely with people on what their priorities were for the Promise and on what their priorities were for the bill. I could not engage directly on the specific provisions in the bill, because to do so would be to disrespect this committee and, essentially, to disrespect Parliament. I had to wait until the bill was introduced to be able to speak with stakeholders and members about those very specific provisions.

However, there was a level of understanding of what would be included in the bill, given that four public consultations were under way. I was very clear, leading up to the introduction of the bill, that it was very likely that there would be provisions in the bill relating to those consultations—hence the need to consult in the first place.

I heard the concerns around engagement.

Mr Ross says that what I have said is not true, but I can assure him that what I have just highlighted in terms of who I and my officials have engaged with is very true.