Chamber and committees

Before I address the amendments in group 1, I reiterate my thanks to the committee for its detailed work at stage 1. I hope that, during this morning, you will see that I have addressed most of the substantive concerns that were set out in your stage 1 report. I have also written separately about some of the other amendments. I would also like to thank the Government for its detailed and engaged dialogue with me and the non-Government bills unit.

Overall, in relation to group 1—which concerns the meaning and recording of restraint and seclusion—the bill must provide clarity through its scope, which is the focus of the definitions, while recognising that practice must be guided with nuance, which is the purpose of the accompanying guidance. I am aware of the concerns that were raised about whether the clarity of scope was sufficient in the definitions as drafted, which is why I have lodged the amendments at stage 2. In principle, amendments 3, 7 and 23 provide that clarity and the assurance that the guidance will deliver the necessary nuance of practice.

Amendment 3 will insert the word “significantly” into the definition of restraint, amending the term to

“significantly restricting the physical movement”.

That makes it clear that the definition captures only meaningful or material restrictions on a child’s movement. That will ensure that minor, incidental or fleeting physical contact does not fall within the statutory definition of restraint. Practices such as holding a child’s hand while walking down the road or the supportive hand on a shoulder as a child goes on stage for a school assembly are clearly not significant restrictions on physical movement and are therefore outside the scope. It is important to have that clarification. Amendments 1 and 2 are minor drafting amendments that will clarify those matters.

Amendment 7 will require that statutory guidance includes an explanation of what constitutes significantly restricting physical movement. The bill already provides that statutory guidance can elaborate on the definitions of restraint and seclusion, as set out in section 2(4). In other words, nothing was preventing the Scottish ministers from explaining that in guidance to the bill, but amendment 7 will ensure that they are required to do so explicitly.

Alongside section 2(4), amendment 7 provides the additional opportunity for examples to be provided in the guidance of what does and does not constitute restraint and seclusion for the purpose of the bill, as recommended by the committee. It will ensure that all education providers receive clear statutory guidance on the threshold for significant restriction within the definition of restraint, supporting consistent interpretation and application of the legislation.

Amendment 23 will give the Scottish ministers the power to exempt categories of restraint and seclusion from recording and reporting requirements. The amendment will enable them to specify by regulations, subject to consultation and the affirmative procedure, types of restraint or seclusion that need not be recorded or reported. That will allow proportionate exemptions for physical interventions that are not of obvious concern and would not warrant formal data collection.

:On amendment 3, the insertion of the word “significantly” and tightening up the definition are important. As we discussed when I gave evidence at stage 1, providing clarity of what is in scope and what is not is important. I think that the word “significantly” usefully does that. Ensuring that there is clarification in the guidance of what that means is important, which is what amendment 7 seeks to do. Finally, I understand the concerns that the commissioner raises in respect of amendment 23, I note that, rather than requiring the Government to exempt interventions, it enables it to do so.

Throughout the discussion of the bill, in front of this committee and outwith the Parliament, there has been a very strong voice about the need for balance. There are absolutely benign and reasonable practices that we would not want to capture, and there are very serious ones that we absolutely must, but there must be balance and nuance. If any practices are inadvertently caught by the definitions, we must have the ability to fine tune or recalibrate them. Amendment 23 provides for that.

I would also emphasise that this would be subject to consultation and the affirmative procedure. If the Government were to bring forward any exemptions for either restraint or seclusion, they would be subject to public consultation, parliamentary scrutiny and a parliamentary vote. I believe that that is a balanced and proportionate approach, but it is crucial that we have legislation that enables Parliament and the Government to calibrate such exemptions should concerns arise following the passing of the bill.

I move amendment 1.

:Amendments 4 to 6, 8, 9, 11 to 14, 28 and 32 collectively replace references to “child or young person” with the term “pupil”, which is given the same meaning as in the Education (Scotland) Act 1980. These amendments respond to an issue that was identified by the Children and Young People’s Commissioner Scotland at stage 1, which I discussed with the cabinet secretary in preparation for stage 2. The purpose of these amendments is to ensure that all children and young people who attend school are fully covered by the bill’s provisions and associated statutory guidance. The issue is that children who are aged four commencing primary 1 might not be captured by the bill. Bringing the references in line with the definition of “pupil” means that those children will be included in the scope of the bill.

I move amendment 4.

:Amendment 10, which relates to the consultation requirements for the creation of statutory guidance, adds children and young people to the list of statutory consultees and ensures that the experiences of children and young people inform the development of the guidance or any revised guidance. Amendment 10 gives effect to the committee’s recommendation that a consultation should include direct consultation with children and young people. The committee also recommended that it should include consultation with grant-aided special schools and independent schools. It is expected that those schools would be consulted as part of the bill’s existing requirement to consult education providers, so an amendment is not necessary to allow that to happen.

I move amendment 10.

:When I was giving evidence at stage 1, I absolutely agreed with the committee that parents, carers and guardians should be informed as quickly and efficiently as possible whenever incidents occur. The question was how best to capture that in legislation. As the bill is currently framed, it requires that that is done no later than 24 hours after the incident occurs, but the committee was of the view that same-day notification should be the norm. This group of amendments gives effect to the committee’s recommendation.

Amendment 15 relates to the timing of parental notification. It will make it clear that parents must be informed by the end of the school day on which the incident occurred or, if that is not reasonably practical, within 24 hours of the incident. In consequence of amendment 15, amendment 18 will create a statutory definition for the end of the school day in order to avoid ambiguity in the application of notification duties. Amendment 16 will allow parents to nominate another person to be notified of restraint or seclusion. That will provide families with greater flexibility in how information is conveyed when parents cannot be contacted. If a parent indicates that another person may be notified, the school may comply with the notification duty by informing the other person instead of the parent.

As a whole, I believe that the amendments strike the balance between efficiency and some of the reasonable adjustments that may require to be made in particular circumstances.

I move amendment 15.

:Following my discussions with the cabinet secretary, the amendments in this group seek to strengthen the training provisions in the bill. At stage 1, some stakeholders suggested adding the development of training standards alongside the approved list of training providers that was set out in the bill as introduced. In its report, the committee recommended that the approved training providers on the list

“must be quality assured and certified training providers.”

In response to those views, amendment 24 would create a new subsection to section 5, which would enable ministers to develop training standards for the use of restraint and seclusion in schools and to maintain a list of recognised training standards developed by others and a list of providers who meet those standards.

Amendment 25 would remove the existing subsection (1) of section 5, which would be unnecessary due to the expanded provision introduced by amendment 24. Amendment 26 would require the Scottish ministers to publish any training standards and lists that they maintain, which would ensure transparency.

For the avoidance of doubt, it is not expected that all teachers and school staff will require training on restraint techniques. I have written to the committee on that matter. The provision of professional learning is a matter for local authorities, who are the employers of teachers and other classroom practitioners, and the bill does not propose to change that. It is expected that relevant teachers and staff would understand the need for de-escalation in the first instance, and that the smaller number of those who may need to use restraint techniques as a last resort would be provided with training on appropriate, safe techniques in order to minimise the risk of any physical or mental injury. The specifics of that would be determined through bespoke training and needs analysis in relevant school settings for those practitioners who would reasonably be expected to need it.

I move amendment 24.

:Amendments 17, 27, and 29 to 31 relate to regulations regarding commencement. It is fair to say that, with any member’s bill, a member will always want their bill to be enacted as quickly as possible and the Government will always want time to get its affairs in order, which is reasonable. The amendments strike a balance between ensuring that we put the provisions of the bill into effect as speedily as possible and ensuring that we get the detail and the preparation right. The group includes amendments that make provision related to regulation-making powers for the bill’s commencement, as well as minor amendments that are intended to tidy up the language.

Amendments 17 and 27 are minor amendments that tidy up drafting of the bill to remove from sections 3(3)(a) and 6(1)(a) the words “or control”, which are superfluous.

Amendment 29 creates a new section relating to the regulation-making powers in the bill. It specifies that the regulation-making powers include

“the power to make different provision for different purposes or different areas.”

In addition, it specifies that regulations other than the ancillary provision regulations are subject to the affirmative procedure. This section does not apply to commencement regulations, which amendment 31 will provide for.

Amendment 30 creates a new section, giving the Scottish ministers the power to make

“incidental, supplementary, consequential, transitional, transitory or saving provision”

for

“the purposes of”

or

“in connection with”

the act. The effect is to provide a standard ancillary power, with the affirmative procedure required when primary legislation is amended.

Amendment 31 amends the commencement provisions in the bill. This follows my discussions with the cabinet secretary about the committee’s recommendation that the future act should not commence until the review of the current non-statutory guidance has been undertaken. Amendment 31 provides for the commencement of the regulation-making ancillary powers in section 8, “Short title”, on the day after royal assent. The substantive provisions in sections 1 to 5 will be commenced by regulations, which must be made no later than 31 July 2028. That will allow ministers time to prepare for the commencement of the act, while also providing a deadline by which commencement regulations must be made.

I move amendment 17.

:At stage 1, the committee recommended that independent and grant-aided schools should report directly to the Scottish Government rather than to the local authority in whose area they are situated. Amendment 19 gives effect to that recommendation by redirecting reporting obligations from local authorities to the Scottish ministers for the schools that are not managed by local authorities.

Amendment 20 is a minor amendment to ensure that the provision reads correctly in consequence of amendment 19. Amendment 21 is intended to clarify the scope of local authority reporting and to amend section 4(3) to specify that each education authority must report incidences of restraint and seclusion in schools “under its management” rather than “in its area”. Amendment 21 is consequential to amendment 19, which changes the reporting requirements in relation to independent and grant-aided schools. It clarifies that an education authority’s duty applies only to schools that it manages and aligns terminology with section 6.

Amendment 22 arose from my discussions with the cabinet secretary and relates to the committee’s conclusion that there is a role for His Majesty’s Inspectorate of Education in Scotland in the implementation of the bill. I have already written to the committee on the matter. The amendment creates a regulation-making power that will allow ministers to require education providers

“to report incidents of … restraint or seclusion … to a person specified in regulations”

and to set out operational detail such as timescales and format. This amendment gives the Scottish ministers the option of establishing a duty for the schools to report each incident in real time to a suitable national body, such as HMIE, once on-going discussions about HMIE’s remit have concluded. That would align with existing Care Inspectorate incident reporting arrangements and proposed Mental Welfare Commission for Scotland reporting requirements for restraint in certain settings. This system would allow the relevant national body to identify and act on immediate wellbeing concerns, whether they arise from a single incident or from patterns of repeated use of restraint or seclusion.

I move amendment 19.

As no other member has indicated that they wish to speak, I invite the minister to wind up and to press or withdraw the amendment.

Amendment 3, in the name of the minister, is in a group on its own.