Seòmar agus comataidhean

That would probably be helpful. It would be advantageous to reconcile the two issues at stage 2. If Mr Whitfield’s amendments and mine are agreed to, a little bit of tweaking might be required at stage 3, but I absolutely agree on that principle, and I will certainly be supporting Mr Whitfield’s amendment 136.

I have a lot of sympathy with what is intended here. However, it strikes me that amendments 88 and 89 are actually trying to do the opposite. With regard to amendment 88, the member rightly pointed out that, where local authorities are given too much discretion, things such as financial pressures come into play. My concern is that amendment 89, in giving the local authority the discretion to judge whether support is necessary, would result in local authorities cutting off support earlier than would have otherwise been required. Does the member share my concern about what might happen if we empower local authorities more to make that judgment themselves? We would be having the system, rather than the young person, make the judgment.

I hope that the minister can help me out, because I am honestly struggling with what to do with the amendments in this group. I understand that a lot of the issues were caused as a result of a Supreme Court judgment, which was obviously outwith the Scottish Government’s hands. However, they have also, in part, been caused by the fact that a legislative review initiated by the Government should have taken place long before now. There is a bill in front of us now, while the Government is saying that there will be a legislative review, which will conclude at the start of the next parliamentary session, and that it will be for the next Parliament and Government to make decisions in the light of that.

I accept the minister’s point that the approach that has been taken with the amendments in the names of Martin Whitfield and Roz McCall in this group is not an ideal way to make law. I accept that there would be additional fragmentation from agreeing to those amendments. However, I am weighing that up against the fact that, if we do not make those amendments, young people will lose the recourse that they would have had if there were to have been a UNCRC-compliant version of these particular provisions in the bill.

The minister said that the amendments would risk fragmenting provisions across different acts. Will she specify what the practical negative effect of that would be for care-experienced young people and others who are in the system? I am trying to balance that negative effect with the negative effects that there would be if we were to pass a law that is, in part, not compliant with the UNCRC, and which would therefore cause young people to lose the ability to try to take action to receive redress via the UNCRC’s provisions.

I start off the group by briefly quoting the section of the Promise that is relevant to it. It says that

“all of Scotland’s institutions, organisations, national bodies and Local Authorities who have responsibilities towards care experienced children and young adults, must be aware of, understand and fully implement all their parenting responsibilities.

What care experienced children and young adults need must be at the heart of decision making, so that all of Scotland can live up to its parenting responsibilities.”

Section 5 of the bill requires ministers to

“issue guidance for the purpose of promoting understanding, by public authorities … of … care-experienced persons”

Obviously, I support that, but I do not think it goes far enough. Being care-experienced is not a protected characteristic under the Equality Act 2010, so there is no public sector equality duty obligation on public bodies to consider the impact of their decisions on care-experienced people in the way that they are required to for people who do have such characteristics.

I do not think that guidance alone will solve that issue. There is a live debate and a live question about making care experience a protected characteristic, but that is outwith our devolved competence. However, we can put general duties on public bodies to have regard to and to consider the impact that they have on care-experienced people as they go about discharging their duties in any matter that would affect those people.

Amendment 143 would put that requirement in law and would ensure a more systematic approach to considering the needs of the community. It would not predetermine decisions or the outcome of any decision making about how public authorities discharge their duties, but it would force those bodies at least to consider what impact they will have on care-experienced people. I think that that is a broad, quite simple and not particularly restrictive duty on public bodies that will force them to ask themselves that question before going about discharging their duties.

I move amendment 143.

I am still inclined to think that a simple, broad provision for public bodies to have due regard is the ideal option, but I take on board what the minister has said. I am glad that she has accepted a couple of the other amendments in the group, particularly in relation to the language of “due regard”. On that basis, and in the light of her offer to continue discussions ahead of stage 3, I am content not to press amendment 143 at this point and will support the amendments that she has indicated she supports.

Further discussion will be required ahead of stage 3, because having regard to specific guidance is unlikely to be sufficient and it would be better to have a broad duty to have regard to the needs of care-experienced people and the impact that decisions can have on them.

Amendment 143, by agreement, withdrawn.

Section 4—Advocacy services for care-experienced persons

There is broad agreement that we all want there to be some kind of independent advocacy, but, at some point, whether the provision is contained in primary legislation or in secondary legislation, which I think is the direction that Jackie Dunbar is headed in, it needs to be defined what “independent” means. Whether an independent advocate is offered or it is a requirement to have one, we need to decide what “independent” means. Before I decide whether to move my amendment, I am trying to get a sense of what the settled view of the committee is.

I am a bit concerned by what Jackie Dunbar has just said about teachers being a source of independent advocacy—

—because they are employees of the local authority. At one end of the spectrum, there is the argument that even someone from a third sector organisation that has been contracted by a local authority could not be considered to be independent, although I think that that probably goes too far. I acknowledge that, at the other end of the spectrum, there is the argument that there are local authority employees, such as teachers, who could be regarded as independent, but I cannot see a definition of independence that a teacher, as an employee of the local authority, would meet.

Will Jackie Dunbar elaborate a bit on what she believes an appropriate definition of independence would be? Whether we include the provision in the bill or we give ministers the power to introduce it through secondary legislation, at some point we need to define “independent”.

I will try to avoid repeating all the arguments that have been aired already, and I thank Jackie Dunbar for allowing us essentially to have a debate during her contribution. It is, however, worth repeating that it is clear from a lot of the evidence that we have received and the representations that many of us have received over the years that there is often a chronic lack of trust between care-experienced young people and those whose job it is to support them but who are also employed by the same local authority that the young person is in conflict with or struggling with in some way. There is a clear conflict of interest—or, at least, and equally importantly, the perception of a conflict of interest—if someone is advocating for a position that is not in their employer’s best interests, especially where there is a financial implication.

Independent advocacy has been a key ask of the care-experienced community for years, and this bill is our opportunity to deliver it. The two questions that the Government needs to answer are what independent advocacy is and whether we can put it in the bill. Given that we have waited so long for the bill, it is frustrating that it does not include a definition of independence, although I accept that that is contested.

Some argue that advocacy should be provided by those who have no connection to a council whatsoever—that it should not be provided by council staff or by those who have been contracted from third sector or private organisations. That would essentially require the Scottish Government to procure advocacy services and provide them nationally. If the concern is that councils would put pressure on service providers to reduce costs, that probably only applies slightly less so to the Scottish Government, but it does still apply.

Amendment 147, which is supported by Nicola Sturgeon, uses the same language as the Mental Health (Care and Treatment) (Scotland) Act 2003 and, as Martin Whitfield has already mentioned, is very similar to other amendments in this group. I agree with him that great minds think alike, but the great minds are not sitting around this table—they are in the Parliament’s legislation team. Amendment 147 uses the same definition as one that already exists in law to define independent advocacy.

I do not pretend that the language here is perfect. I lodged the amendment to see what level of consensus we can achieve, and whether we will accept a group of amendments at this stage and reconcile them at stage 3 or collectively agree not to press them, based on what the minister says. No matter what, we will clearly need to come back at stage 3 to settle this.

My decision on whether I move amendment 147 will depend on what the minister can say about whether the Government believes that we can, to some extent, define independence in the bill or whether it argues that that would have to be done at a later point in regulation. I would really struggle with that, particularly given the length of time that it has taken us to get to this stage, the opportunity that we have and the expectations of the care-experienced community about this point in particular.

That is certainly the position that I am erring towards at this point. To be completely honest with the minister, from the position of an Opposition member, I can say that it is useful for something to have been agreed at stage 2, because it puts a greater degree of pressure on the Government to make proposals for stage 3 if it believes that what has been agreed at stage 2 is not adequate.

As I said a moment ago, given the length of time that it has taken for us to get to this stage and the fact that the issue has still not been resolved, my inclination is to see something agreed at stage 2 that forces us, at the very least, to revisit the issue at stage 3.

I have a lot of sympathy with what Paul O’Kane has outlined. My concern is the feedback that we have had from so many people in the care-experienced community, which I would be interested in hearing his thoughts about. We all recognise that the bill will not fulfil the Promise, but renaming it “the Promise bill” almost suggests that we think that it will. Is there not a risk that doing so would further erode the trust that many care experience people have in the process by making it look like we are patting ourselves on the back and thinking that the job is done, even though we know that at least one more bill will be required to do that?