Chamber and committees

I saw the letter, or at least extracts from it, last night. I have had discussions with the sector in the past, and I understand that many in the sector are sympathetic to something along the same lines, although they may have a concern about the drafting of the amendments or a broader concern.

In what I have outlined so far, I am trying to say that we need to look at the issue again. Given the amount of public funding that goes into higher and further education, it would be reasonable to expect those institutions to have higher levels of responsibility for providing safe systems.

What “safe” looks like will be many things. I have focused on the issue of violence against women and girls, and we can think of many reasons why it is necessary to create systems that minimise the risks of that violence. However, my amendments are far more wide ranging and relate to many other situations and pressures that affect students.

I would be very happy to meet the cabinet secretary in relation to any of the amendments. In response to her comments generally, I would say that my main argument today is about the simplicity of having an overriding duty of care. I hear that she is concerned about confusion and that institutions have specific responsibilities that are carried out in specific ways. However, if we look at how rights have been created in legislation historically, we see that very simple duties have been created. It is quite unusual and surprising that institutions in this country do not have that overriding duty of care to their students. That is the issue that I am attempting to explore today.

We can continue to create very specific responsibilities, but by doing so, there will always be gaps. We will all have been involved in cases and situations in which we felt that educational institutions have failed students over many decades. My amendments attempt to raise the minimum standard that we expect of all institutions.

The cabinet secretary’s points about the rights of the child echo Martin Whitfield’s point that it might well be that the legal obligations are higher for younger students than for some older students, but that does not mean that, as a society, we should say that similar duties should not exist for students who do not fall within that category.

I am interested in what the cabinet secretary says, but I ask that we consider whether having a generic duty of care that would be interpreted according to the facts and circumstances in each individual case would strengthen our legal framework in educational settings in Scotland. It is worth exploring that.

I will withdraw amendment 224 and I do not plan to move any of the other amendments today.

Amendment 224, by agreement, withdrawn.

Amendments 48 and 118 not moved.

That was a very helpful intervention from Miles Briggs.

I am attempting to explore the possibility of a generic duty of care. How that duty is implemented would be considered over a lengthy period of time, and it may change over the decades as people’s understanding, knowledge levels and views on what it is reasonable to expect change.

I am attempting to increase the legal threshold, if you like, that currently exists. As Miles Briggs said, different institutions provide very different levels of support. Often, that support has improved in recent years as a result of lessons that have been learned following sometimes quite tragic circumstances. As I understand it, there is not a uniform standard across Scotland, but there has been an improvement in recent decades, as institutions have responded to campaigning and concerns that have been raised. The idea behind my amendments is to create that minimum legal threshold, as opposed to recommending specific actions, such as providing access to food banks, which is an approach that I have not considered.

It is more that there should be a duty of care, in the same way that institutions have a duty of care in relation to many of the other relationships that they have.

That intervention from Martin Whitfield is extremely helpful, particularly its focus on age. I would argue that some barriers are artificial, including, perhaps, around the different levels of legal responsibility towards different students, depending on how they are categorised.

I am arguing that institutions should have a general duty of care, which would be a helpful development in terms of Scots law. The detail of what that might look like may be something for discussion, but I do not think that it necessarily needs to be outlined in legislation. The aim is to improve overall standards and the overall legal requirements. Although I am happy to focus on specific amendments, the general concept is that institutions should have a generic duty of care in the way that they have duties in relation to many of the contracts that they are involved in as universities or colleges.

Amendment 224 would require there to be a dedicated member of staff to ensure that qualifications Scotland was meeting its obligations in relation to a duty of care. I was not in any way suggesting that that would necessarily mean recruiting a new member of staff; it was more that there should be someone in the organisation who would have specific responsibilities to ensure that those obligations were met. That might require another member of staff, but I do not believe that that would automatically be the approach taken. It would be more likely that the organisation would have somebody with a role in driving that piece of work.

Amendment 241 would require that, in exercising its functions, qualifications Scotland owed a duty of care both to students and to those taking part in training for a qualifications Scotland qualification. The suggestion covers a number of cases where there has been concern about the experience that students have had. There would be a responsibility to act in the aforementioned parties’ best interests and to have regard to their mental and physical wellbeing.

Amendment 288 sets out a duty of care for educational and training establishments. At the most basic level, that duty of care would involve the establishment attempting to act in the best interests of teachers, practitioners and learners. That relates to a wider health and wellbeing agenda, and it would ensure that teachers, practitioners and learners were entitled to access support from education and training establishments and to have that codified to ensure that learners who faced additional barriers were able to achieve their fullest potential.

Amendment 333 details an inspection plan, which would be set out by the chief inspector as soon as it was practical to do so. The plan should include details of how an assessment would be conducted to ensure that establishments were upholding their duty of care and that groups were having their needs met. That perhaps picks up on some of the points that Miles Briggs made in his intervention about the practical implications for institutions. Would it mean them considering providing a service that they currently do not?

Of course.

Yes—exactly.

To ask the First Minister what the Scottish Government’s position is on whether the reported increased annual cost of Scotland’s prisons to over £77,000 per prisoner represents good value for public money. (S6F-03996)

As the First Minister knows, Scotland has the highest number of prisoners in western Europe, per head. If we want to reduce prison costs, we must reduce the number of people in custody and the levels of offending. Some people must be kept in custody but, as a country, we spend comparatively little on community justice. Does the First Minister accept that we need to shift resources significantly to robust alternatives to custody, which the evidence suggests are more effective at reducing offending for many prisoners?

I have two amendments in this group, amendments 68 and 64, both of which aim to reduce trauma by empowering victims to ensure that they have information and are in a position to make representations. At the moment, victims often do not have information about the legal process around their case and communication is regularly poor. Indeed, complainers often describe the criminal justice system as retraumatising. My amendments aim to empower victims within the process.

Amendment 68 would require the Scottish Government to set up an independent legal representation pilot for rape victims to give them information and advice. There is significant scope in Scotland to give victims far more advice and support in the justice system. As we know, complainers often say that they find the challenge of retelling and sometimes reliving their stories retraumatising. The experience of the criminal justice system for complainers is also often felt to be retraumatising, intimidating and disempowering. My amendment 68 calls for a pilot for complainers that is similar to systems that exist in many other jurisdictions, including California, most European countries, Australia, Colombia, Ireland and many other countries across the world. Many of those systems have brought in representation for victims in recent decades—that representation was not initially in place. Scotland needs to look at such systems in more detail.

The amendment states that

“The Scottish Ministers must, by regulations, provide that any person who is or appears to be a victim of rape or attempted rape and meets any other specified criteria is ... to be entitled to independent legal representation”.

I understand that, in other countries, advice extends beyond a year—for example, it could be until the conclusion of compensation. Is there any particular reason why the timeframe of a year has been chosen? Is there any evidence that that is right? We can imagine situations in which, a number of years later, there are live issues.