Chamber and committees

Yes. There was discussion from both directions, to be candid. The Government had considered whether there were ways for it to incorporate the provisions in my bill within other legislation.

On many of the points that have been asked about—especially with regard to Willie Rennie’s question about the GTCS, as well as on some broader points—I feel that the bill might have been better progressed as a Government bill, in some ways, as part of a more comprehensive package. I had been very open to the Government taking it off my hands, so to speak, and taking its provisions forward in other legislation.

The legislative programme has become more congested as we have gone through the session, as we are all aware, but that was part of the discussions. There would have been merit in the bill becoming a Government bill. I also think that there is merit in it being a member’s bill, because it is a way of ensuring that we are keeping pace.

I will try to explain my previous “politician’s answer”. The Government has fundamentally been of the view that there needs to be guidance and clarity in this area—frankly, the guidance needs to improve. The Government had been wary of confronting some of the things that have been described, from the voices that we have heard, and it had therefore been ambiguous as to whether it wanted to put the guidance on a statutory footing, but that had been part of the dialogue throughout the period that I outlined in my introductory remarks.

I hope that that provides some context about the dialogue, and as to whether I think that the proposals could and should be dealt with through a member’s bill or through a Government bill.

Yes.

My bill is not prescriptive on precisely how those figures would be reported. It is important to point out that collection would take place at local authority level. Local authorities would be required to provide those figures to Scottish ministers, and it would be up to Scottish ministers how the data would be provided.

Let us be clear about what the definitions would and would not do. It would not be appropriate to put that level of specificity in the bill. The definitions are there to provide a scope of behaviours within which we must have guidance, and it is for the guidance to provide such level of clarity about when seclusion is seclusion and when it is not.

Let us also be clear about what the definition specifies. Seclusion is about putting a child in a space that is separate from other children in such a way that they do not have the choice as to whether to stay in that space. The definition makes that relatively clear. It is not just about a child being brought to the front of a class or put to a corner; it is about separating them from other children and putting them in a separate room from which they cannot remove themselves. That may not be natural language, but it is pretty clear. As a matter of practice, the guidance needs to start zooming in and narrowing in not just on how a decision gets made but on what is the appropriate form of seclusion.

Let us also be clear that seclusion is quite serious. If any of us were to be placed in a room that we could not remove ourselves from and where we were separated from other people, it would be clear that that would be a deprivation of liberty. We know that that practice is going on. From the various reports that the various organisations have provided, we know that there are children who have found themselves, on more than one occasion, put in cupboards, and in such a way that they cannot remove themselves.

Does the wording in the bill provide absolute precision? No, it does not, nor should it. The definition is a matter for guidance, and I would absolutely expect there to be such guidance. However, what is specified in the bill is something that we would all agree is quite a serious situation.

I believe that it should be reported on at local authority level, because reporting in more detail than that would be problematic for two reasons. First, we would not want school-by-school information, for exactly the reasons that have been outlined. Secondly, I hope that the numbers either would be or would become small. In that case, if we were to report at school level, we would run the risk of jigsaw identification. That would be a real concern, particularly in certain school settings with small numbers of children or young people attending. Reporting at local authority level would allow issues to be identified at that level, which would allow further questions to be asked by both ministers and parliamentarians.

It is important to acknowledge that the collection process would not provide the level of detail that would allow for league tables. It would be a matter for the Government to decide precisely how to report those figures.

I am sure that we will get into definitions. However, I note that the bill as it stands would enable the definitions to be elaborated on and thus more precision and categorisation of different types of intervention and the collection of such data. I am very open to tightening up the definitions, especially around the reporting requirements, to make that more precise.

Apologies for that.

I do. I note that it has now been more than a year since the guidance was issued. It is more than possible to consider its effect, but that guidance does not stand in isolation. It is not the case that there was no guidance before that guidance was issued; guidance was issued in 2011 and in 2017. The most critical point for me is that, although the guidance that you mentioned was issued only a year ago, we have been discussing this topic in the Parliament for more than a decade. If the current guidance has not been out for a sufficiently long enough time for us to contemplate its effect, that is a question for the Government rather than for me.

In 2019, a commitment was made to take urgent action and to provide written guidance. Five years ago, it was observed that it was likely that that guidance would need statutory underpinnings. We are now a whole parliamentary session on from that, so, if now is not the time to legislate, when will be? I am perhaps slightly forcing the pace, but I worry that, if I do not do that, nothing further will happen.

That is a pertinent question. In some ways, the issue relates to what I said to George Adam. If there was lots of detail in the bill, I might agree with some of those concerns, but there is not. The bill also does not specify a timeline for the Government to produce guidance; it states only that the Government must produce guidance and ensure that it is updated. It does not say anything about timing. It also does not preclude or pre-empt any reflections; it just requires the Government, as a matter of law, to undertake reflections.

Another key point relates to data. We still do not know the prevalence of some of what we are talking about. I apologise for restating this point, but we are talking about some of the most serious things that can occur in a school setting. Without consistent data, it is hard to have those reflections. As I said, the bill does not pre-empt any reflections. The guidance will be iterative—I do not believe that the guidance that will be produced will be immutable for ever—but we need data in order to have guidance that can be updated.

That was very similar.

Again, let us be really clear about what the bill will do: the definitions will not create any prohibitions or offences. There is nothing in the bill on individual teacher compliance; it will be for schools and local authorities to oversee. It is not the case that individual teachers will face those questions; the questions are for school leaders and local authorities.

Secondly—apologies if I am repeating myself—creating scope in a bill and providing further detail in guidance is a fairly typical way to legislate. My bill makes particular provision to allow those definitions to be elaborated. I know that there is concern about the use of the word “elaborate”, but let us be clear about what we are talking about: it is not about expanding on but about refining, specifying and clarifying. It is important that the guidance is clear because, ultimately, that is the appropriate place for practical advice so that teachers have clarity about what is appropriate or not.

To bring it back to the fundamentals, if force is being used by an individual against another individual that deprives them of their ability to act, that is serious and I think that there needs to be clarity about how and when that is permissible. All the bill does is state that the Government has to provide that clarity in guidance.