Chamber and committees

I will bring in Roz Thomson to cover the methodology of the bill’s financial memorandum in more detail. I have met the Scottish Government about every six months during the bill process. There has been an extensive level of engagement. It was important for the Government to be aware of the bill, especially given its concurrence with the issuing of its guidance.

Critically, as I said directly to the cabinet secretary, it was really important to me that the bill did not contain any surprises for the Government; that is the approach that I have sought to take. As I understand it, the Government broadly agrees with the numbers that are set out in the financial memorandum. The costs are not overly significant. Mr Kidd is absolutely correct to say that the measures do not add up to nothing. There will be costs of around £3 million in year 1, with similar on-going costs each year, which is not the biggest amount of money in the context of the education budget.

Let us also be clear that we have guidance and that all actors say that the guidance is being complied with. I do not envisage a requirement for any huge alterations to the guidance. There will be a need to revise and reissue the guidance, and there will be some additional implementation costs, but we are taking at face value the assurance from both providers and the Government that there is already compliance.

Roz, do you want to provide some clarity about the more detailed elements of the methodology?

I am very glad that it is being as supportive as it is now.

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.

I just want to thank the committee. I hope that I have provided all the answers that you need, but please come back to me if you require any further clarification. Above all else, I want to repeat what I said at the beginning: thank you very much for taking this time—I know that the committee is very busy. This has been a pretty extended endeavour for me, so I appreciate members taking the time and effort to look at my bill.

Apologies for that.

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 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.