Chamber and committees

I am probably at risk of asking the minister to repeat herself; if so, I apologise in advance. I want to be absolutely clear about the policy intentions of the regulations compared to the aspirations for the bill.

Minister, you confirmed to Willie Rennie that the intention is not to incentivise placements, but to raise the standards of placements. You also confirmed to Graeme Dey that one of the Government’s longer-term objectives, which will be addressed through the bill, is to reduce the number of cross-border placements overall. For clarity, will you confirm whether one of the policy intentions or objectives of the regulations is to disincentivise cross-border placements and to temporarily try to limit the number of placements, or is that not a material consideration for the regulations but a longer-term aspiration to be tackled by the bill?

That is helpful. It might well be that the regulations disincentivise placements, but that is not their intention, which is purely about raising the standards of the current situation until legislation is introduced to make wider changes.

I have one final question. Your letter is useful in explaining why some of the specific proposals that the commissioner’s office has offered as alternatives either would not be appropriate or are not possible. There is one proposal that you said would not be appropriate, but I am not clear why—the proposal that one of the conditions be that the facilities that a young person might be placed into must have been rated at least “adequate” by the Care Inspectorate in the past six months. That sounds entirely reasonable to me, but the Government has taken a different position on it. Can you explain exactly why the Government thinks that that is either not appropriate or not possible?

I am keen to hear others’ reflections in relation to the example that Paul Bradley gave of experience of engaging with Scottish Government officials, civil servants and folk from various national agencies, and whether they are bringing the NPF to their discussions with you, and how that is shaping the requests that you make of them and your strategic decisions. Does anybody have a different experience—expecting to go to meetings with civil servants knowing that they will ask how you are contributing to NPF outcomes? Are others’ experiences broadly similar to what Paul outlined?

To clarify, where does responsibility for trying to reduce that variation lie nationally? Does it lie directly with Government or would Education Scotland take the lead on that?

The concerns in the Care Inspectorate report are widespread; I am certainly not disagreeing with you in principle. I am trying to figure out whether we are in danger of letting the perfect be the enemy of the good, especially given that the measure will be temporary. There are a couple more specific points that you raised that I am interested in getting clarity on. You mentioned that

“There is a real risk that without sufficient legal restrictions, Scotland is opening the door to significant numbers of cross-border placements, and to the possibility that this will be exploited by private, profit-making providers.”

My understanding is that that is exactly what is happening now, and that the regulations do not go far enough—which I think the Scottish Government itself would admit. That is why proposals on a children’s justice bill are out for consultation at the moment. Surely what is proposed in the regulations would not incentivise further use of cross-border placements. It might not reduce them by as much as we want, but it would reduce them.

For example—I recognise that you have specific concerns on this point—the regulations will give the Scottish Government the ability, through the sheriff court, to take action against a placing authority. To me, that is a disincentive. If I was an English local authority seeking to place a young person with a private provider that is based in Scotland, the potential for the Scottish Government to pursue me through the sheriff court would be a disincentive rather than an incentive.

Do you recognise that although perhaps the regulations do not go far enough, they do not incentivise further cross-border placements, but instead disincentivise them?

I am sorry to interrupt. I have huge sympathy with so much of what you have said, but I am trying to drill down and identify each point of concern. Am I right in understanding from what you have just said that you do not believe that the regulations would provide a further incentive?

Part of the question here—not all of it—is whether we will end up in a position in which, for the next two and a half years, we will continue to see a significant increase in the number of placements. Do you believe that the regulations make it more likely that we will continue to see such an increase? That is the bit that I am struggling with here. I accept that it is questionable and that we will end up facing a question of constitutional law, but given the provision that allows the Scottish Government to pursue the placing authority, in my view that is a pretty clear disincentive to an English local authority to try for a placement in Scotland. I am still trying to understand why you think that the process incentivises placement in Scotland.

That is really good to hear. The last part of that answer probably points to your answer to my next question but, if such a piece of work was to be undertaken, where would responsibility for it sit? Would it be with Education Scotland or with Graeme Logan and the learning directorate? I am interested in the accountability around evaluation of the scheme overall, but if a specific bit of longitudinal evaluation work was to be done, where would it best sit?

I want to bring together two points that Nick Hobbs made that are perhaps related. A couple of moments ago, you said that there is a question about the connection between the young person and Scottish ministers, if it comes to the issue of whether ministers should pursue the placing authority. The issue is about how ministers would know to do that, if the young person does not have any connection with them.

I think that that is related to the question of the role of the advocate. I completely accept your point that an advocate is not a substitute for legal representation. There are complications because, with the young people who we are talking about, if they have a lawyer in the first instance, in almost all cases, it will not be a lawyer who practises Scots law. Is there not a potential role for the advocate there?

There is a question about how to create a connection between the young person and the Scottish ministers for the use of the potential power to pursue through the sheriff court. Could that not be addressed through guidance for the independent advocates that that is part of their role in advocating for the young person? If, after discussion, the advocate and young person believe that it is necessary, part of the advocate’s role could be to create a connection with ministers and the Scottish Government to see whether the option of pursuit through the courts is viable.

How much of Education Scotland’s role is about ensuring that the RICs and local authorities are evaluating and feeding back versus doing its own direct evaluation?