Chamber and committees

Our collective focus throughout the 1,140 hour expansion has been on improving conditions across the private, voluntary and childminding workforce with regard to funded ELC. When ELC expansion began, local authorities were already paying above the living wage to their staff. The funding settlement reflects that. By contrast, our research indicates that around 80 per cent of staff who delivered funded ELC in the private and third sectors were paid less than the living wage at the time.

We have seen real progress since then, with our 2021 health check indicating that 88 per cent of private providers intended to pay the real living wage to all their staff by August 2021.

Public funding and Scottish Government policy can only effect a certain amount of change and, ultimately, business owners make their own decisions about their business models and salaries. That said, the Scottish Government has taken a range of actions to support the private and third sectors through the 1,140 hours of early learning and childcare expansion programme, including to support the recruitment of highly qualified childcare staff. We are taking a strategic approach to marking out the workforce requirements to deliver our existing and new commitments and we are taking forward a series of actions to support recruitment and retention across all parts of the childcare sector.

On a point of order, Presiding Officer. I would have voted no.

On a point of order, Presiding Officer. I would have voted no.

Teachers continue to have an important role to play as leaders and educators, alongside other degree-qualified ELC specialists supporting our youngest children on their learning journey.

Research shows that the best experiences for children are provided where there is a range of staff with complementary skills and higher level qualifications. We are proud of the continued growth in the number of degree-qualified ELC staff and those working towards degree-level qualifications.

Since the ELC workforce expansion began in 2017, the number of graduates working in ELC with degrees that are relevant to the early years has increased by 52 per cent; I hope that Mr Cole-Hamilton will welcome those statistics.

The Scottish Government does not set targets for early learning and childcare workforce recruitment.

I am grateful for the opportunity to speak to the draft regulations. The Scottish ministers have committed to keeping the Promise by reducing cross-border placements to a minimum. We all agree that such placements should occur only in exceptional circumstances.

Last year, the United Kingdom Supreme Court ruled the use of a court’s inherent jurisdiction to authorise deprivations of liberty in residential accommodation as lawful and as not incompatible with article 5 of the European convention on human rights.

Where deprivation of liberty—or DOL—orders are made elsewhere in the UK and children are to be placed in Scotland, there needs to be an appropriate legal mechanism to recognise them. Currently, recognition is granted through a Court of Session petition process, which is not designed for such cases. In Scotland, a lawful basis for deprivation of a child’s liberty is an essential requirement under article 5 of the ECHR. Therefore, the essence of the regulations is about ensuring that children’s rights are complied with, and ensuring compatibility with the ECHR.

The Scottish Government is satisfied that the draft regulations are ECHR compliant. We published a suite of impact assessments alongside them, including a children’s rights and wellbeing assessment that detailed our consideration of children’s rights.

The regulations before Parliament provide recognition of DOL orders in Scots law, but with conditions attached. The conditions mean that there will be greater accountability for authorities elsewhere in the UK that place children in Scotland, and greater protections for the children who are placed in that way.

I have always made it clear that the regulations represent an interim step towards better regulation of cross-border placements. Of course, we are exploring longer-term solutions as part of the proposed children’s care and justice bill, on which we are currently consulting. We welcome views from all stakeholders.

I know that the office of the Children and Young People’s Commissioner Scotland raised a number of concerns with the Education, Children and Young People Committee. We have engaged with the commissioner’s office and other key actors throughout the development of the regulations. On 23 May, I wrote to the committee to respond to the concerns that had been raised and, on 25 May, I gave evidence to the committee, in which I focused on the improvements that the regulations will make to the status quo for children who are placed in Scotland.

I also stressed that the scope of the regulations—to provide a route for legal recognition of deprivation of liberty orders and to deliver a better regulated placement process—is in line with the powers that the Parliament has granted to ministers. We are clear that funding models that are based on the acceptance of children on cross-border placements cannot be sustained. That is why we are committed to looking at more fundamental measures in the forthcoming children’s care and justice bill.

Ultimately, the regulations will not and should not be a substitute for proper provision being made available for children in England and Wales.

I have met my UK Government counterpart to express my great concerns about the lack of capacity that is driving cross-border placements into Scotland and will continue to seek assurances that those are being addressed urgently.

In the meantime, we cannot delay in taking action to better protect those children. That is why we introduced the draft regulations, which the Education, Children and Young People Committee voted unanimously to support at its meeting on 1 June.

I pay tribute, alongside my colleague Rona Mackay, to the role that ELC providers have played across Scotland in ensuring that essential services could continue during the pandemic. They have played a key role in the effort to fight the virus and to support young children and their families over a very difficult time. I say a heartfelt thank you to them.

We continue to engage with partners to identify and better understand what the impacts of Covid-19 have been on young children, families and ELC practitioners, so that we can respond to their needs. In the 2022-23 period, we will invest more than £1 billion through local government to deliver funded ELC, including expanding the provision of 1,140 hours. The Scottish Government is also funding additional graduate-level posts in ELC settings in our most disadvantaged communities across all 32 local authorities, and it is funding the Care Inspectorate to deliver a targeted improvement programme.

The Scottish Government has made up to £35 million of dedicated financial support available for childcare services since the start of the pandemic, in recognition of the acute impacts on the sustainability of services. That includes the childcare sector omicron impacts fund, which made up to £9.8 million of support available to the sector in the 2021-22 financial year. More than 4,600 grants have been issued to services in the private, third and childminding sectors. The value of the grants available through that fund ranged between £950 and £4,500.

In order to support the long-term sustainability of the childcare sector, the Scottish Government is working with partners to progress the range of actions set out in the financial sustainability health check, including working with Business Gateway to pilot tailored business support offers for all types of childcare provider.

The regulations give Scottish ministers the power to apply to the sheriff court for an enforcement order if a placing authority does not comply with its obligations under the regulations. The process to be followed broadly mirrors the process that would apply if a Scottish local authority was in breach of its obligation to a Scottish child when a children’s hearing had made an order. Scottish ministers would give the authority a notice of intended application by them to enforce the authority’s duty. The matter would escalate to the sheriff court only if the authority did not fulfil its duty within 21 days, as per the order that I previously referenced.

If ministers brought the matter to court, the sheriff could make an enforcement order if it was found that the placing authority was in breach of its duties under the regulations, and that order would be final. That process, if it was required, would be undertaken by ministers—who retain oversight through engagement by way of the child’s advocate—Scottish local authorities and the Care Inspectorate, all of which would be able to report concerns or worries.

We initially put out a call for views and held an engagement with stakeholders in January this year, to which the commissioner’s office contributed, and a summary of the stakeholders’ views was also published in March this year. It was not appropriate for us to share drafts of the regulations before sharing them with Parliament.

I am happy to hand over to Hannah Graham, who will explain the process for regulations of this type.