Chamber and committees

The primary focus of Social Security Scotland is to ensure that people receive the assistance that they are entitled to, putting the person first and treating them with fairness, dignity and respect, in line with the key principles of the Social Security Scotland charter. However, the Scottish Government recognises that, in undertaking that role, Social Security Scotland engages with some of the most vulnerable people in Scotland. Inevitably, that will lead to instances in which it becomes apparent that a person might be at risk of harm. To adequately support people in that situation, we must have a clear and robust process in place.

As such, and in keeping with our commitment to support the wellbeing of the people whom we engage with, in March 2022 a public consultation was launched seeking views on creating a specific legal gateway for Social Security Scotland to make to the relevant authorities referrals concerning risk of harm. The consultation responses demonstrated overall support for the proposal.

It is important to make a distinction between cases in which a person might be at risk of harm and those in which there is an immediate threat or risk to life. Situations in which immediate threat or endangerment to life are observed are reported to Police Scotland under the common law duty of care. The regulations that we are considering today cover sharing of information when a person is at risk of harm, with harm variously being defined, depending on the sharing, to include significant neglect; physical, mental or emotional harm; or the likelihood of their causing self-harm.

Child and adult protection services in local authorities are governed by legislation that is underpinned by Scottish Government national guidance on child protection and by a code of practice for adult support and protection. Those allow referrals to be made by Government agencies and third sector organisations that engage with vulnerable people and which may have cause to refer concerns of harm. In July 2022, the code of practice was updated to include Social Security Scotland as one of the agencies, in recognition that the agency is a key partner with a role to play in supporting vulnerable people.

Referrals in which a risk of harm has been identified are currently being made by Social Security Scotland under an interim process while the regulations are being considered. The agency has a safeguarding team that is staffed by qualified health and social care professionals, who review all concerns that are raised and, where appropriate, make referrals using a gateway in health legislation.

However, that legislation covers sharing of information that is related only to physical and mental harm and does not cover financial abuse. The regulations will enable the sharing of information relating to harm that is caused by financial abuse.

Furthermore, for the purposes of transparency, I consider it appropriate to create a bespoke and explicit legal gateway to cover safeguarding referrals from the agency. Additionally, in drafting the regulations, officials identified that, where a person is an adult with incapacity under the Adults with Incapacity (Scotland) Act 2000 and has a power of attorney, a legal guardian or is subject to an appropriate order, the public guardian has authority to investigate concerns of financial or property abuse. The drafting therefore includes referrals to the Office of the Public Guardian when that is suspected.

The process of preparing the regulations has involved significant engagement with relevant parties, including the Information Commissioner’s Office, local authorities, health and social care officials, information governance policy leads, social work leads and data protection officials.

The regulations make provision for Social Security Scotland to make referrals only where there is concern about risk of harm. That is to ensure that there is no interference with the investigating powers or decision-making processes of local authorities. It remains for local authorities to make risk assessments and to evaluate additional help that is required by the individual.

For the avoidance of doubt, the sharing for which the regulations provide will ensure that such a referral will have no impact on the assessment of a person’s application for assistance; that only information that is relevant to the risk of harm that has been observed will be shared; that consent from the individual who is being referred will be sought in most instances—although I have included provisions for cases to be referred in which consent cannot reasonably be obtained; that no information concerning a referral of concern of a risk of harm will be held on a person’s file relating to their application for assistance; and that such a referral will be stored in a separate restricted access file, in line with data protection laws.

The aim of the regulations is to support vulnerable people who are identified as being at risk of harm by referring them to the appropriate authority for help and support, which—as I am sure the committee will agree—is a positive action for the people who need it most.

I thought that I had lost you halfway through my answer, Mr Doris, but that is fine. I have met and visited the offices of the project that you mentioned. I noticed that you had that event and I had hoped to come down to meet them again. I was impressed by the work that the project does and I am pleased to see it recognised in the Parliament.

While I was on that visit, we spoke in great detail about the real concern that we should all have to ensure that abuse is seen in the widest sense, including financial abuse. That is why I was clear in my opening remarks about the need for us to recognise all abuse, including financial abuse. It is a clear concern for many different demographics. The committee will be aware that particular concerns have been raised about older clients and financial abuse towards them. Mr Doris rightly mentioned aspects around domestic abuse and financial control being part of that. I hope that the regulations will be able to assist those women in those types of situations, if agency staff come across that.

Certainly—yes.

We explored what could be done to achieve more coverage for UK acts in devolved areas within the compatibility duty. One example of how we sought to do that was by looking at an approach that would have differentiated between existing and future acts in devolved areas, so that, for example, the compatibility duty would have applied to existing, but not future, legislation.

We also tried to identify ways in which future acts in devolved areas could be included by adding in a regulation-making power under which Scottish ministers could, with the approval of Parliament, extend the compatibility duty to devolved functions that are created under UK acts in the future, even if that were to be done on a case-by-case basis. The reason why we chose not to do that goes back to the complexity that the bill would then have had. It is already a complex piece of legislation, but it will be more complex if those amendments are passed and the bill becomes an act.

When we looked at the complexity issue alongside our assessment of the risk of another referral to the Supreme Court, we, as a Government, came to the view that greater coverage would, in effect, make the provisions too complex for users. We did some testing within the Scottish Government and realised that we were in danger of producing legislation that would be too complex to use, whether by children and young people, their representatives or the public bodies.

We also considered that compatibility could have applied when public authorities are delivering their duties under powers that are conferred by amendments to UK acts that are made by acts of the Scottish Parliament. We do not feel that there is a legislative competence barrier to doing that but, again, the provisions that would come from that would be extremely complex. That balance of the risk of complexity in coverage, and the risk of a Supreme Court referral led me to take the decision that I have taken.

When the Supreme Court judgment came through, the Scottish Government asked the Secretary of State for Scotland to look into whether the current devolution set-up could be changed to allow the bill to proceed, as the Parliament had voted for. That would have been an alternative, but the Secretary of State for Scotland was not willing to consider it. On that basis, we needed to adapt the bill. That was clearly disappointing, but that was the state of play, so we are where we are.

The other obvious way to achieve greater UNCRC incorporation is, of course, for the UK Government to do what we are doing within our limited powers, and put the UNCRC on the UK statute book.

Those are two alternatives, but they were not open to the Scottish Government; they needed the UK Government to take action.

The question has been an interesting part of the discussions that we have had with stakeholders as we have prepared for the reconsideration stage. It is not only about the amendments but about how we deal with the implications of the bill as it stands.

The UNCRC strategic implementation board was informed at its last meeting that I have asked officials to commission a review of UK acts in devolved areas. I make it clear that that review is not to identify whole UK acts that would be worth converting into Scottish Parliament acts but to identify provisions in UK acts that could be converted.

As the committee is well aware from its own discussions on legislation, an entire UK act could have hundreds of provisions in it. The Scottish Government might wish to amend such legislation, as might the Scottish Parliament—I am sure that members might wish to make amendments. That will take time to go through the parliamentary process. As I mentioned in my answer to Maggie Chapman, we are also keen to look at the priorities of children and young people as we consider the audit.

I have already made a commitment to such work. At this point, I cannot give a timescale for it, because we need to scope out exactly what it will entail, but I am keen to get it initiated as soon as is practically possible. As I said, it is very important to involve children, young people and others who are impacted in how we can generate findings in a phased way and how we can take them forward.

We are keen to see what the Government can do to respond to requests in relation to an audit and to see how we can work together with stakeholders on how we do that, which is also important.

On 18 October, I wrote an open letter to children and young people to provide an update on the bill, which explained why we are seeking to amend it and how it will apply to them. We are also keen to continue our work on communicating directly with children and young people and, obviously, with stakeholders. We have touched on communicating and working with stakeholders in previous responses but, if Ms Wells would like further information on that, my officials and I can go into it in further detail.

There is a real need for us to work with children and young people and ensure that any communication is child friendly—that is very important. That is one reason why we have the rights-respecting schools award, which is available to all state schools in Scotland. We also have a communications group that is helping us to develop our approach. We have, for example, Young Scot working on a social media campaign for young people, and we are grant funding the Children’s Parliament to help raise awareness of children’s rights among children and young people. We also have a guide for parents, carers and family members that will be updated when, with the will of Parliament, the bill is passed and, as I mentioned, there is the Clan Childlaw funding. The Children and Young People’s Commissioner Scotland will play a central role, too, but it will be very much up to the commissioner to decide how to take that forward.

Once the bill becomes an act, the process will become more legalised. Even without the bill being passed, we are taking it into consideration in legislation that we are working through at this stage, to ensure that things are UNCRC compliant. Other members might wish to amend bills in various ways—that is not an issue for the Government—but this is certainly something that the Government is already looking at. The bill brings it into legal focus.

Thank you, convener, and I thank Arden for the question.

Now that we have gone through the bill process, and as we look forward to what will come next, after it is passed—as, I hope, it will be—it is important to ensure that children and young people remain very much at the heart of everything that we do. It is also important that we remain focused on the dialogue that we are already having with children and young people, and that we keep it going. For example, one of my most recent meetings on the subject was with two members of the Scottish Youth Parliament—not the Children’s Parliament, where Arden is—to talk about the issues that are in the bill and, importantly, about the steps that will happen next.

We need to ensure that we give children and young people much greater awareness of their rights, and we currently have a number of funding streams to ensure that that is happening. As I said in my opening remarks, that will, we hope, help Arden and others to look not just at where we have had to change the legislation at the reconsideration stage regarding the compatibility duty but, more widely, at their rights and how to ensure that those rights are being respected and observed.

A great deal of work has gone on and will continue. I and other cabinet secretaries and ministers meet Children’s Parliament and Scottish Youth Parliament representatives, and we have the Cabinet takeover as well. For a number of years, the UNCRC has been one of the issues that they have spoken about. It is for them to decide on the topics that they address, but I would be surprised if that discussion does not continue.

The timetable for the bill is up to the Parliament but, if it is passed by the end of the year, it will commence by mid-2024. By then, public authorities will have had an extra two and a half years to get ready for the compatibility duty, during which time they will have had access to a growing range of national training and support.

I hope that the six-month commencement date is not unreasonable, but it is important that we continue to work with public bodies to ensure that we support them in the process and that we look carefully at their concerns and any implications that there might be.

When the bill was introduced, it did not have a commencement date but, if my memory serves me correctly, I think that it was included at stage 2. It is unlikely that we will be able to amend the commencement date at reconsideration stage, as it is not something directly to do with the Supreme Court judgment, which is what the amendments are all about.

Again, it is up to the Presiding Officer to decide the issue. However, the date is already in the bill, and the parts of the legislation that we are not seeking to amend as a result of the Supreme Court judgment will stand.