Chamber and committees

Thank you. Is it the same for you, Jennifer?

Thank you.

This has been a long-awaited evidence session—we have been waiting for almost a year—so thank you for coming this morning.

What is the EHRC doing to help public authorities to focus on outcomes rather than processes? You talked about having good-quality leadership, but why is it so difficult for public bodies to deliver on their duties?

Thank you. This report is bringing it to your attention. We will leave it with you and we do expect follow-up.

Thank you, convener. Thank you again for coming today, John and Jennifer; it is appreciated.

A huge amount of work and feedback—I think that there were 58 submissions—went into the report.

My final question is this: if the EHRC is truly independent, and if it is the duty of all public bodies—I have given the example of some in my own region—to comply with the Supreme Court ruling, why is the EHRC not telling the Scottish Government to just get on with it? You have mentioned the lack of leadership.

I speak on behalf of Stephen Kerr. Amendment 53 would introduce a duty on public authorities to publish a clear statement whenever they relied on the exemption that section 2 of the bill sets out. That duty would require authorities to identify the statutory provision that compelled the incompatible act and to set out the reasons why no reasonable alternative existed.

The intention behind amendment 53 is to ensure that reliance on the exemption is open, accountable and justified. It would prevent situations in which an exemption was applied without explanation or in which a public authority quietly assumed that it had to act incompatibly without testing whether another route existed. The amendment would also ensure that the exemption was used only when necessary and that its use could be understood and examined by the Parliament, stakeholders and the public.

Amendment 54 would complement those provisions by placing a duty on ministers to review and report on the operation of the exemption within three years of its commencement. The committee heard during stage 1 evidence that the Government had difficulty in articulating the circumstances in which section 2 of the bill would be needed. The explanatory material did not provide examples and the policy case was not fully set out. Against that background, it is only sensible that the Parliament should revisit the question once the provision is in force and it is able to see how often the exemption has been used and for what reasons.

The review requirement would help to ensure that section 2 did not drift into becoming a broad or routine mechanism for avoiding compatibility duties. It would give the Parliament the tools to assess whether the exemption remained proportionate and whether adjustments, tightening or even repeal might be appropriate in the light of experience. It would turn a theoretical exemption into a practical, monitored and evidence-based one.

The amendments would not frustrate the Government’s policy intention; they would assist it by ensuring that public authorities had clear expectations and by protecting the credibility of the compatibility framework. They would strengthen the overall legislative scheme and provide reassurance that the exemption was not being misapplied or misunderstood.

Cabinet secretary, you can see that Stephen Kerr is passionate and views the issue as really important. Will you consider meeting him to discuss it in advance of stage 3?

We are still perplexed and scratching our heads. We just cannot understand why part 2 of the bill is included. Clarity is required, so I will press amendment 45.

My amendments are about ensuring that the process that follows a withdrawal request is clear, fair and workable for families and schools. At stage 1, we heard strong concerns that the bill as drafted will place schools in the middle of very sensitive family decisions, without enough clarity or support. The group of amendments responds directly to that evidence.

Amendment 21 would require schools to provide parents with written information setting out the steps that will be followed once a withdrawal request is made. At the moment, parents might not know what will happen next or how decisions will be taken. The amendment would provide clarity from the start and help to manage expectations.

Amendment 22 seeks to ensure that, where possible, all those with parental rights and responsibilities are informed and involved in the process. That is particularly important in cases of separation or shared care, and it would help to avoid situations in which one parent is excluded from decisions about their child without good reason.

Amendments 23 and 24 would make it clearer what schools will have to actively consider by requiring them to take account of the child’s circumstances and the likely impacts of the request on their emotional wellbeing. That would help to ensure that decisions are thoughtful and child-centred, instead of there being a simple tick-box exercise, which the amendments aim to prevent.

Amendments 26 and 27 deal with the issue of capacity. The bill as drafted assumes that children of any age are capable of forming a view, unless proven otherwise. My amendments would introduce a presumption that children under the age of 16 do not have the maturity to form a view and that a pupil who is aged 16 and over does, unless the contrary is shown.

Subject to what the cabinet secretary has just said—that she is willing to take the issue away and look at it, that she recognises the importance of guidance and that she had intended to publish guidance—I will not press amendment 36.

Amendment 36, by agreement, withdrawn.

Amendment 18 moved—[Maggie Chapman].

Before I decide whether to press or withdraw amendment 45, I would like to ask the cabinet secretary about paragraphs 131 and 132 of the stage 1 report. Paragraph 131 says:

“Fundamentally, many witnesses argued that the Scottish Government has not made a case for why Part 2 of the Bill is needed.”

Dr Hill, who was a committee witness, told us:

“The amendments made in part 2 of the bill are trying to address a problem, the extent of which we are not really clear on, in a way that is disproportionate to the impact that it would have on children’s rights.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 30 September 2025; c 53.]

Paragraph 132 of the stage 1 report says that

“This view was echoed by Caitlin Fitzgerald of the SHRC.”

She said:

“The Scottish Government’s position seems to be that it does not think that there are any current incompatibilities. However, we respectfully urge some caution in accepting that position given that we have not seen the Scottish Government’s working. That links back to the issue that we discussed about what the Scottish Government has done to assess what is currently on its statute book and how that fits with the UNCRC obligations. The more we might be speaking about unknowns, the more that exacerbates the issues that we have expressed about access to justice and the potential dilution of the rights in the 2024 act.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 30 September 2025; c 58.]

I think that Stephen Kerr, as we have said, is trying to add something constructive so that you have something to hang on to. To many witnesses, the wording of part 2 feels like fog and they really cannot understand what it is about. I tried to lodge some amendments to part 2, but I was told that I could not, so I had to withdraw them.

Before I press or withdraw amendment 45, I ask whether the cabinet secretary has any views on that point.

No, I think that I have answered the question. I am going to proceed.

Amendments 26 and 27 deal with the issue of capacity. As we have discussed, the bill as drafted assumes that children of any age are capable of forming a view unless proven otherwise. The amendments would introduce a presumption that children under 16 do not have the maturity to form a view. I have said that again because that is our position. I have used the age of 16 because, as I have said, it is a well-established point in Scots law when young people gain an increased level of autonomy. Below that age, parents remain legally responsible for the child’s upbringing and welfare. That needs to be properly reflected in the process; we cannot decide that, for one child, it is one age and, for another child, it is another age. A key point is that the amendments would not silence young children. Young children need to be respected and to have their voices heard. The amendments simply recognise that age and maturity matter and that schools should not be left making open-ended judgments without a clear framework.

Amendments 28 to 30 would change when decisions can take effect by preventing a withdrawal request from being acted on until the full process that is set out in the bill has been completed. That would avoid a rushed decision. It would press pause, particularly when there is a disagreement between a child and their parent.

Amendment 31 would introduce a requirement for written confirmation from both the parent and the pupil that sets out their respective positions. That is for the sake of good order. It would provide clarity about each person’s view, avoid misunderstandings and give schools a clear record of the decision-making process.

Amendment 32 would introduce a mandatory 14-day cooling-off period before any withdrawal or change in withdrawal can take effect, during which any further views that are expressed by the child must be considered. That would allow time for reflection and help to ensure that decisions are not made in haste.

Amendment 33 would require key decisions to be taken by a panel that is made up of senior education staff and an independent advocate, instead of by a single individual. That would bring balance, experience and independence, and it would reduce pressure on teachers.

Amendment 42 would ensure that advice and assistance are available to both the child and the parent if agreement cannot be reached after discussion. The amendment is about support and fairness, not escalation or conflict.

I move amendment 21.