Chamber and committees

Again, it is incumbent on the Government to look at all those things in the round. Even if you go beyond my bill’s scope and look at some of those settings, such as residential schools and early years settings, they have multiple layers of oversight, which my bill does not alter. Likewise, residential schools must have a relationship with the local authority, which my bill, again, does not alter.

How those different things interact needs to be looked at. Frankly, the scope of some of those bodies needs to be considered. I looked at early years when I was a member of the then education committee in the previous parliamentary session. The Scottish Social Services Council, the Care Inspectorate and local authorities all have a view. We need to consider that.

On the question of the scope, I do not think that the bill will require additional or dual reporting because it is about regulating school settings. It is clear when a school setting is a school setting, and those bodies will already have relationships in place. The wider point is important and needs to be addressed, but it simply would not be sensible for me to attempt to do so with this bill.

That is my understanding. I set out the pattern of my direct engagement with the Scottish Government, but there has also been engagement between the NGBU and Government officials. The Government also notes that education authorities are currently meeting the costs that are associated with the restraint training that is required by the existing guidance and that those costs are acknowledged in the financial memorandum. In a sense, the Government notes our approach and seems broadly to agree with that.

That topic requires detailed guidance. A raft of considerations is involved in notifying parents, guardians or carers that an incident has occurred, but those should quite rightly be a function of guidance rather than put in the bill. I simply want to ensure that the notification happens without question, which is what the bill sets out.

I also note that there have been questions about whether 24 hours is too long. It would be perfectly within the gift of the guidance to specify a shorter period than that. I cannot quite come up with an example, but there are circumstances, particularly around the recording of the incident rather than the informing element, in which a period of reflection or bringing together all the perspectives might be required before the recording can be completed. I expect to see context and other considerations properly included as functions of the guidance, but they are certainly not things that can be included in the bill.

Yes. That is a feature of the bill. HMIE would need to consider how restraint and seclusion form part of its inspection regime. I would not want to overspecify that.

In my view, any regulator or provider of oversight is always there to provide support and encourage good practice as well as to stop bad practice. As you outlined, the Care Inspectorate’s role in reducing restraint in care settings is a good example of what we would hope for in the new regime. I would not want to specify precisely how that would work but, clearly, the inspectors should be asking about those topics, particularly in settings where such things might be more likely to happen.

I struggle to answer that question, because I do not know. I do not really understand why that is not happening, because these are very serious situations.

I take the view that schools act in loco parentis. There is a bond of trust between parents and schools, and parents trust that schools will tell them when things happen to their child. Given the level of recording, reporting and acknowledgement that is already required, I do not understand the argument that it is somehow burdensome to ask for that when it is a result of direct intervention.

The only thing that I can interpret—we see this in some of the responses—is perhaps an anxiety that reporting deliberate action might result in further action. However, that is an argument for putting in the guardrails, with clear processes in place so that that is not the case.

We all understand, especially in relation to children with profound needs, that there might well be a need to intervene physically. However, it is important that we are very clear about how and when that happens. Critically, because schools act in loco parentis, it is also really vital that parents are told. Ultimately, schools act on behalf of parents, so parents must be informed, and as quickly as possible.

The fundamental reason why I have introduced a member’s bill is that I do not believe that we have seen the urgency of action that was called for back in 2019.

I understand the complexities. I also understand some of the concerns about the burdens that it might place on practitioners. However, at the end of the day, in the most serious instances, we are talking about things that, in any other setting, we would consider assault and, certainly, use of force. In any situation where organisations or, especially, the state are using those things, we need to give it very careful consideration. I am, quite simply, frustrated that we have not seen more urgent action.

We certainly need clear recording so that we understand the situation, and that must be on the basis of law. Whenever someone’s liberty is restrained, whenever someone is put in seclusion or whenever force is used against another individual, we need careful scrutiny of that. Fundamentally, that is what it boils down to.

We have had guidance, of one sort or another, for well over a decade now. It is time to have it on a statutory footing.

If there has been criticism from that quarter, it is that they would like me to go further and do more to increase scope and to look at other areas. The existing law on additional support needs is a complex web of different bits of legislation, starting with the Education (Scotland) Act 1980, extending to the Education (Additional Support for Learning) (Scotland) Act 2004, and beyond. I recognise that there is a real need to provide some clarity on the different rights that those acts embody, as well as the recourse. If I had time and resource, I think that there would be a lot of merit in an education bill that resolved those issues.

Likewise, there would be a lot of merit in looking at other contexts in which young people find themselves when they are in the care of people other than their parents, guardians or carers, whether that is transport or overnight accommodation. Quite simply, my bill is a members’ bill; it has to have clear scope. The complexity of tackling those additional issues would require a level of resource that is not available to me. There is an election next year, and I think that the new Government should look at those issues very seriously.

It is difficult to set that out, because the engagement has been extensive. I have had a huge amount of engagement with a huge number of organisations at various stages and in various forms, including Enable and the National Autistic Society Scotland, and I have mentioned that I have visited Donaldson’s. I have also engaged with Children First and Children in Scotland. I do not think that it can be overstated how important they have been in shining a light on the topic. They have brought to light what is happening in our schools, the sorts of practices that are sometimes employed and the need for action. Frankly, we would not be here without their engagement and diligent work, and I think that they will play an important role.

As the convener pointed out, a number of children who are impacted by those practices are not able to express themselves. They may be non-verbal or, if they are verbal, they may not have the full range of expression. Therefore, organisations that are able to provide advocacy and insight are really important. Their role is invaluable and my engagement with them has been extensive, not only throughout the development of the bill. As members may be aware, I sat on the Education and Skills Committee during the previous session of the Parliament, and my engagement stems back to the start of my time in the Parliament in 2016.

It perhaps does not provide that clarity by definition, but I hope that it would by process, as it would require the Government to maintain the guidance.

At the end of the day, I cannot legislate for the Government to provide good guidance. I wish that I could, but I cannot. Nor do I think that it would be appropriate to provide that level of clarity in a bill—that would not be sensible. However, I can try to ensure that the guidance is being consistently applied, which is a really important element of placing it on a statutory footing, and I can ensure that it is maintained, updated and reviewed. Without it being on a statutory footing, there would be no compulsion on the Government to produce guidance on the topic ever again.

The recording and reporting elements are useful, not just so that we all gain clarity; they force a requirement for precision. I am familiar with what Mr Rennie is talking about. When things are vague, they are not guided by clarity but driven by speculation. I am doing everything that I can to increase clarity. I would argue that it is the lack of clarity at the moment that is leading to the situation that Mr Rennie is concerned about.

I think that you might be putting words in the GTCS’s mouth slightly when you say “piecemeal”. I think that the GTCS recognises the value of the bill but considers it to be very specific—“specific” is the word that I would use, rather than “piecemeal”—and it is absolutely right.

As I alluded to earlier, there is a much wider question about safeguarding, the legislation on additional support needs and the rights and recourses that individuals have. That is all really complicated. A broad range of legislation alludes to this area, and that needs to be looked at. However, as I said in my discussions with the GTCS—it acknowledged my point—-as necessary as such an effort is, it goes far beyond the scope of a member’s bill.