Contents
- Attendance
- Decision on Taking Business in Private
- New Petitions
- Continued Petitions
Continued Petitions
Abusive and Threatening Communication (PE1652)
The next item on the agenda is consideration of continued petitions. Petition PE1652, by Irene Baillie, which we last considered in November 2017, is on abusive and threatening communication. The petition calls for a change in the law with regard to abusive and threatening communications sent from a mobile phone, to deem the owner of the phone responsible for any communications sent from that device.
The clerk’s note provides a summary of the current position, following Lord Bracadale’s review of hate crime legislation in Scotland and the subsequent debate held in Parliament in June 2018. The Scottish Government has recently launched its consultation on Lord Bracadale’s recommendations, which closes on 24 February 2019.
Do members have any comments or suggestions for action?
There is merit in waiting for the conclusion of the consultation. I would be loth to close the petition at this time. In the first instance, we should contact the Scottish Government to seek information on whether the conclusions of Lord Bracadale’s review address the call for action in the petition. The petitioner clearly has a valid argument. We may all have been subject to such communication in this occupation. I have a lot of sympathy with the petition.
I was interested in what Lord Bracadale said about online activity and the need to prove who had sent messages to meet the requirement for corroboration. He specifically said that that posed challenges. However, the review goes on to state:
“The question of whether corroboration should be abolished generally, and whether any safeguards would be needed if that were to happen, is currently with Ministers.”
It is important that we do not close the petition until there is further consideration of that as part of the consultation and ministers have been given the opportunity to comment on it.
We want to highlight to the Scottish Government that although we are not clear whether the consultation will address any of the detail of the petition, it should be alive to the petition.
I am interested in what would happen in similar circumstances in other parts of the United Kingdom. I can see the logic of deeming a person to be responsible if there is consistent behaviour over time from their mobile phone to your mobile phone. However, if a coercive person has taken your mobile phone and is using it to send messages to somebody else, you would be liable for that. I am sympathetic to the petitioner’s case, but we need to tease out which part of the issue is a result of Scots law and which part is because it is a complicated crime that is difficult to deal with.
Are we agreed that we should not close the petition until the consultation is closed and that we will write to the Scottish Government on the issues that we have highlighted?
Clearly, the corroboration issue is the salient point. I think that we are still waiting for the petitioner to comment on the final report of the independent review. It would be good to get the petitioner’s view on that.
Yes—that would be useful.
Do members agree to that approach?
Members indicated agreement.
I again thank the petitioner. If she wishes to respond to the final report, we would be interested to hear her views.
Independent Water Ombudsman (PE1693)
The next continued petition is PE1693, by Graeme Harvey on behalf of the Lowland Canals Association, on an independent water ombudsman. We first considered the petition in September, and we have a note from the clerk that summarises the submissions that have been received following that meeting.
The submissions from the Inland Waterways Association and the Royal Yachting Association Scotland express some support for the establishment of an independent water ombudsman as called for in the petition. The Inland Waterways Association expresses its support on the basis that the Waterways Ombudsman carried out the function between 2005 and 2012. The Royal Yachting Association considers that there is an argument for the establishment of an independent water ombudsman, but with a broader remit than that proposed in the petition.
Both submissions consider that current Scottish Government funding is not sufficient for Scottish Canals to carry out its functions efficiently. The Cabinet Secretary for Transport, Infrastructure and Connectivity’s submission addresses those concerns, highlighting the additional funding that has been provided to Scottish Canals in recent years.
Scottish Canals and the Scottish Waterways Trust do not support the action that is called for in the petition, on the basis that it will result in an additional layer of regulation and is not the best use of public money at this time. The cabinet secretary indicates that the Scottish Government does not consider the establishment of an independent ombudsman to be the most appropriate way to address the petitioner’s concerns. He adds that, although no specific cost analysis has been undertaken, significant resource is likely to be required to set up and run such a body.
Do members have any comments or suggestions for action?
It is difficult, because there are so many conflicting pieces of evidence. For example, the Scottish Public Services Ombudsman said that having a water ombudsman would not be the best use of public money, but the Royal Yachting Association wants one. There is a clear concern that public money has been wasted, particularly over the millennium link project. Audit Scotland says that it plans to
“consider these potential risks further in the 2018/19 external audit, alongside how Scottish Canals continues to fulfil its statutory obligations”.
We are a long way off reaching a conclusion on the issue, which is a shame, because the main issues are the detrimental fall-out for tourism and maintenance. I am interested in what other members think we should do.
My sense is that people think that there is a problem and have suggested having an ombudsman as a way of addressing it. Even if we do not agree that there should be an ombudsman, there is still a problem. Scottish Canals says that there is constant wear and tear and increased usage and that it has a queue of maintenance projects. However, there is a repair backlog of £70 million, and we are also told that there is a risk of collapse. The Royal Yachting Association said:
“It is our opinion that Scotland’s Canals are close to the tipping point at which the successful regeneration achieved over many years is at risk of collapse and the £98M of public money invested in the Millennium Link Project, wasted.”
It feels to me that, even if an ombudsman—or whatever—is going to cost money, it cannot possibly be anywhere near the £70 million repair backlog, with the danger of losing the benefit of all that investment and having a network that is in disrepair and cannot benefit the tourism industry.
I noted the £70 million backlog as well. The Transport (Scotland) Bill is going through Parliament at the moment. I wonder whether this should feed into the bill, or at least whether we can highlight the petition to the lead committee, because it should fit in with the overall picture. The worrying thing is the amount of money that is going to be required to maintain this heritage asset, or at least to bring it back up to a standard where it can be used by those who want to use it.
It feels like a false economy. We can certainly flag up the issue to the Rural Economy and Connectivity Committee, which is handling the Transport (Scotland) Bill. I have an overwhelming sense that public money is currently being wasted and the benefits of the strategy are being lost. Scottish Canals is taking quite a defensive approach, saying that it is all difficult and complicated and that it cannot do things because they would not work. There seems to be vagueness about what the SPSO can currently do. It does not seem to be able to do terribly much.
I am also quite interested in the suggestion—I am not sure which group made it—that there should be a broader strategy about boating and people who use the water for leisure beyond just canals. I found that an interesting and compelling argument.
The petition came about as a result of frustration with Scottish Canals, particularly because some bridges had been closed on the Forth and Clyde canal. The problem was exacerbated by a perception that Scottish Canals was not on top of its game. Clearly, Scottish Canals has a number of challenges, and has been landed with the £70 million backlog. The bridges are now being repaired thanks to a lump sum that the Scottish Government has given Scottish Canals to get it sorted, but that cannot continue. You cannot just stick a plaster on everything as and when it comes up.
I have a lot of sympathy for the petition, but I can see the argument regarding the cost of setting up a separate ombudsman, particularly when we look at the number of cases that have come in to the SPSO to date. I think that it has only dealt with around 10, and there are cost issues in setting up another ombudsman, although there is clearly an argument for it. I would be keen to get more information from Scottish Canals, and possibly also from the Royal Yachting Association. We need to get different viewpoints on the setting up of a separate ombudsman.
There is merit in what Angus MacDonald has suggested. We also need to tease out the discourse about the fact that Scottish Canals has statutory obligations. As mentioned by the petitioner, the Royal Yachting Association has noted Scottish Canals’ comment on the
“changing nature of our business from a canal body to an increasingly leisure related business.”
The cabinet secretary has stated:
“Scottish Government Grant in Aid cannot be used for commercial investments.”
However, the Government has said that it wants to see how things develop and what return there will be on the investment that it has made, which I assume will be used for maintenance. Further on, there seems to be a reference to wear and tear being caused not just by usage but by climate change, which adds in a new factor.
10:30
It feels a bit like the thinking went, “You don’t have to give one explanation; just give as many as you can think of.” Part of the issue must be that Scottish Canals has to try to develop surpluses through its commercial programme. The petitioner’s argument was that Scottish Canals has lost sight of its core business and that we could end up losing the benefit of all the investment in the millennium link project. In addition, the backlog is still not being dealt with, which must be compounding over time.
It would be useful to take evidence from Scottish Canals. There are a number of submissions from other interested groups. We may want to hear from Scottish Canals and get responses from other groups thereafter. Members mentioned the Royal Yachting Association in particular. Maybe, in conversation with those groups, we could see what the best approach would be.
Members indicated agreement.
We will continue with the petition in recognition of the important issues that are in it. I thank a number of organisations for the substantial responses that we have received from them.
Adoption (PE1701)
The next petition for consideration is PE1701, by Nathan Sparling, on changing the law to allow adoption for people over the age of 18. Members will recall that we first considered the petition in September, when we heard evidence from the petitioner. The submissions that have been received to date are included in our meeting pack and are summarised in the clerk’s note.
Adoption and Fostering Alliance Scotland and Adoption UK are broadly supportive of the action that is called for in the petition, although they caveat their respective positions. AFA Scotland has indicated that the immediate priority should be to ensure that the current law is made fit for purpose for children in the care system, and Adoption UK has suggested that any changes in respect of parental rights and responsibilities
“would be hollow in practice.”
In their joint submission, the Cabinet Secretary for Justice and the Minister for Older People and Equalities acknowledge the motivation behind the petition, but consider that
“the current legal provisions strike an appropriate balance between the interests involved.”
They do not believe that the current law amounts to a breach of article 8 of the European convention on human rights or of the Human Rights Act 1998.
The Law Society of Scotland has summarised the current legal position, particularly on parental rights and responsibilities and succession, and has noted that there are options
“to mitigate the lack of legal status between two adults who consider themselves to be in a relationship akin to parent/child”.
It has further noted that there is no international consensus on the issue, that it would potentially be a significant change to the law, and that reform
“should not be undertaken without further debate and research.”
It has suggested that such research should include a
“comparative study of the position in different jurisdictions.”
Do members have any comments or suggestions for action? I am interested in finding out something from the Scottish Government. It acknowledges the petitioner’s motivation, but considers that
“the current legal provisions strike an appropriate balance between the interests involved.”
I do not know what interests are in conflict with each other so that a balance between them is being sought. I might be missing something there, but I wondered whether we could pursue that further with the Scottish Government. Would it be to the detriment of a group of people for legislation to go through? I am not quite sure why that would be.
Professor Kenneth Norrie said something similar. He said:
“That depends on a balance of what the new law would achieve, with the difficulty of achieving it. In my view the complexities, and costs, far outweigh any potential benefit.”
That is a different argument. That says that it is not worth it, because it would cause a lot of fuss to do it. The Scottish Government has implied that there is a conflict of interests and that the current position seeks a balance between the two interests. I do not know who it would be problematic for to permit an adult to be adopted by the person who brought them up. I am not sure what the conflict of interests is. It would be useful to have that amplified. I understand absolutely that the adoption organisations want to focus on young people, but whose interests would not be met by legislation saying that adults could be adopted? That is the question that I was wrestling with.
I am trying to work out who would be harmed by that. On the flipside, Adoption UK said that changes to adoption legislation
“would be hollow in practice.”
I am wrestling with the idea of whether we need legislation.
I suppose that the petitioner’s argument is that they knew that they could get succession rights. A will could be written and all the rest of it, but it is significant emotionally for the petitioner to have that relationship recognised in law. The argument from the lawmakers is whether an individual experience like that merits a change in the law, particularly if it had other consequences. However, I am not quite clear about what those other consequences are.
I would like somebody to tell me.
I assume that the petitioner is perfectly clear that they could get succession rights through a will but still wanted to lodge their petition. We found the petitioner’s evidence quite compelling when we first considered the petition. We are asking what the harm would be in changing the law in the way that the petitioner seeks. There is clearly resistance to doing that, but it does not seem to be because it is complicated and people do not want to go there.
The law obviously changes for a person when they reach 18. For example, one of the boys who I coach has just turned 18 and he lives in foster care, so there is a huge change in his legal position now. I understand that there would be an issue around that legal age with regard to the petition, but I fail to see where legislation comes into the matter otherwise. I would like somebody to come in here and tell me what the downside is with what the petitioner seeks.
The petitioner has not yet responded to the submissions received on the petition, so it would be good to hear from him regarding whether the law could do things in other ways and whether publicly declaring that he was adopted would be sufficient. We should also ask the Scottish Government what the conflict of interest might be, where it perceives there to be a possible downside and what makes it think that the law has the right balance on the matter. The Law Society of Scotland suggested that we also contact the Scottish Law Commission on the issue, so it might be worth getting its views.
The Scottish Government says that the option currently available to adults provides a “sense of belonging”, and that adults can
“change their name, have official records amended and ... make arrangements for succession”.
Does that mean that the Scottish Government believes that there is already an informal option in place and that it would therefore be reticent about taking matters further?
Yes. I suppose that the Scottish Government’s view is “If it can be done that way, why do you need to do it this way? Why do you need to change the law?” That is what we could tease out from the petitioner. We could also say to the Scottish Government: “If it isn’t a terribly complicated thing, we should just do it. To whose detriment would that be?” If the committee agrees, therefore, we will write to the Scottish Government and the Scottish Law Commission, and ask the petitioner to respond to the submissions received today and to the comments in our discussion of the petition.
If it is possible, I would like the clerks to ask about something that Professor Norrie said, which was that when adoption was first introduced into Scots law, it allowed for the adoption of adults, if only in limited circumstances. I would like to know more about the background of that, because if that was possible, why is not it an option?
We could also ask the Scottish Government for its response to the Law Society’s suggestion that we need research and that it would be interesting to get international comparisons. Is that all agreed?
Members indicated agreement.
Autistic People (Targets and Outcomes) (PE1704)
The next petition for consideration is PE1704, by Duncan MacGillivray, on improving targets and outcomes for autistic people in Scotland. The clerk’s note provides a detailed summary of the submissions received since our first consideration of the petition in September. Those submissions are included in our meeting papers. Members have before them a copy of the petitioner’s response to those submissions. His response is also available on the petition web page.
In his submission, the petitioner states that he was
“very disheartened at the poor response from other stakeholders”,
noting that only 12 of the 32 local authorities responded to the committee’s call for their views on the action called for in the petition. He adds that the content of those 12 responses highlights the
“great disparity across Scotland in the nature and quality of autism support and services”.
The petitioner also considers that some of the responses from local authorities were defensive. He notes that many of those who responded referred to assessment processes that have
“promising titles but ... are vague and unclear in what they actually mean or entail”
and which are also unclear in terms of an indication of their effectiveness. He considers that it must be acknowledged that views from service providers have a bias towards their own positive portrayal.
The petitioner notes that a number of responses acknowledged that there require to be
“real measurements of the impact of the Scottish Autism strategy”,
and he considers that the provision of carer needs has been affected by the Carers (Scotland) Act 2016, which allows local authorities discretion to assess criteria for support. He refers to that as
“a subtle but highly significant change in supporting carers and families”
that has, in his experience,
“produced a reduction in support”.
The petitioner also highlights his concern that service users and autistic people appear to have a lack of voice. He provides an example of autism strategy events being scheduled in venues and at times that were prohibitive in terms of the ability of parents, service users and carers to attend. He also observes that, where it was possible to attend events, those events
“were always top heavy with professionals”.
Other issues that the petitioner identifies in his submission include concerns that there are insufficient resources across local authorities to provide the required level of support, which is exacerbated by a shortage of educational psychologists as well as a lack of courses to increase the numbers of those professionals.
Do members have any comments or suggestions for action?
I declare an interest in that I have a couple of constituency cases that relate to the issues that this petition raises.
One of the things with being a list MSP is that you work across a number of constituencies. From that experience, I can say that it is evident that there is a disparity in how even neighbouring councils address this issue. I have heard of parents moving house so that they come within the jurisdiction of another authority that performs a much tighter investigation in relation to kids who potentially have autism.
The issue that has been raised is a problem. The submission from the Educational Institute of Scotland talks about the policy being one of “inclusion without resources”. That phrase jumped out at me.
We are duty bound to investigate the difference in the way in which councils approach the issue of the needs of people who require additional support for learning. As I have seen in individual cases in my constituency, the issue has a major impact on individuals and families. Across the political spectrum, people say that it is something that has to be addressed.
I agree that there seems to be an issue in relation to the disparity across Scotland.
I must agree with the point that the petitioner makes at the start of the petition, which is that it is not acceptable that only 12 of the 32 local authorities have bothered to respond to the request from the Public Petitions Committee. That is unforgivable. I suggest that we contact the local authorities that have not bothered to respond and ask them again to give us a submission on the issue.
I think that we would all agree to that, as it would enable us to get a proper picture.
I was quite struck by the defensive tone of the responses from the Scottish Government and the local authorities. All the responses stressed that the issue was complicated and that there cannot simply be the kind of assessment that is proposed. In a sense, the situation is similar to the one that we discussed in relation to the first petition that we dealt with this morning, in that it is recognised that there is a problem but there is not necessarily an agreement with the solution that has been identified by the petitioner. That is particularly the case around the issue of a possible autism act. We could tease that out further, but it would be interesting to know what the circumstances are across the country.
I should say that I also sit on the Education and Skills Committee, which is considering the question of support for young people with autism in education, as a direct consequence of the report, “Not included, not engaged, not involved”, which was produced by the National Autistic Society Scotland, Scottish Autism and Children in Scotland. It contains strong evidence that some young people are not able to access education because people around them are not appropriately trained to provide that education.
10:45Those young people might be on part-time or other timetables, because they are managed in the main stream or there is no longer appropriate specialist provision. Due to the presumption of mainstreaming, there is a double hit, so young people who should be supported in the main stream are not supported sufficiently, and there is no longer alternative provision for young people for whom mainstreaming is not appropriate. That is an issue to—[Interruption.] I think that that noise is coming from the crèche.
It is like the Mosquito device.
One other issue that we need to look at is access to assessment. In some councils, there is resistance to allowing kids to be assessed.
Is it not more that they are resistant to putting a timescale on assessment? That feels to me as though they are having to manage a limited resource.
There is a small but significant issue about educational psychologist courses. We put a Scottish statutory instrument through the Education and Skills Committee on re-establishing bursaries or other financial support for people who are studying for such a qualification. However, we are being told by the EIS that only one university in Scotland was due to offer the training next year, but it is not going to run the course now, presumably because there was not enough demand. The people who do such assessments in schools will not be replenished any time soon.
The petitioner is asking for diagnosis within a calendar year, which is not unreasonable. I was astounded that the National Autistic Society Scotland said that it found in its research that young people have to wait 3.6 years for diagnosis.
There are a number of issues here. It runs parallel with the mental health service pathways because it is about the clarity of pathways. It is not one size fits all, and it seems that there are no clear guidelines in local authorities. Some people are presuming that children with autism or children whose parents believe that they have autism are being seen within an appropriate timeframe, but there is no evidence of that. As there was a lack of input from many local authorities, I imagine that they are unaware of the timescales.
I am also struck by the different ways that boards look at the pathways through learning disability services or, when appropriate, mental health services. The pathway comes first and then the timeframe comes into it. They have to get the pathway right. I said that one size does not fit all—it has to be bespoke—but perhaps those services need to work together a little bit more so that the resources can be used collaboratively.
There is a challenge in whether support follows the assessment—that is another issue.
There are a number of issues to write to the Scottish Government about. There is the question about educational psychologists, and the question of whether the Scottish Government will commit to recording, publishing and monitoring autism diagnosis waiting times, which, in itself, might be helpful. The Scottish Government said that there is
“a recognition that varying waiting times across Scotland are too long and should be improved”,
so we can ask how it will do that.
There is also a question about whether school teachers are sufficiently supported by support staff to meet additional support needs. The other thing is about training for everybody in the school community. For student teachers, should that be in initial training? Also, what training and support is there for people who work in schools with young people with autism?
Is there anything else that we could ask? Have I missed anything from what has been highlighted?
We could question the Government on whether it believes that it will transform the lives of autistic people by 2021, which is when it has committed to deliver those priorities. That is not very far away. From what we have seen here, the Government has a lot of work to do.
There is also Angus MacDonald’s point about going back to the local authorities. Although we understand the pressures that they are under, it would be useful to get their responses to our questions on this area. Are we agreed on all that?
Members indicated agreement.
In that case, we have a substantial amount of work to do. I thank the petitioner for his further submission, which has given us a lot to think about with regard to what has already been established. We will revisit the petition when we have had a response from the Scottish Government and, hopefully, local authorities.
We have reached the end of the public session. Before we close, I thank the committee, our petitioners, people who have given evidence and those who have responded to us. We have done a substantial amount of work this year.
We wish everybody a very happy Christmas and a peaceful new year.
10:50 Meeting continued in private until 11:08.Previous
New Petitions