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At present, as I mentioned in my opening remarks, concerns about risk of harm are referred to local authorities under the National Health Service (Scotland) Act 1978. However, as I mentioned, that does not cover scenarios of financial harm or financial abuse, which is an important aspect of the system that we develop in the regulations. As well as filling those gaps, the regulations absolutely maintain our commitment to supporting some of the most vulnerable people we engage with. Although we have had an interim process in place, it is important that we set out our approach in a clear and transparent fashion.

Monitoring is extremely important, given the sensitivity of the information and the importance that the agency and the Government overall attach to ensuring that we deal with it sensitively, appropriately and thoroughly. A new system of records is being developed to record statistics. Given the sensitive nature of the information in question, it is not held in the main system for all staff to see; it is held in a sensitive way such that only the staff who are dealing with the issues in question will be able to see it. They will be able to monitor that and report up to the executive team as required.

It might be best if I give an example. In a situation in which an application is being made for child disability payment, contact will clearly have been made with a parent or carer, and a member of our local delivery team might have genuine concerns not necessarily about the child but about the parent or carer. There might be, say, mental health concerns of whatever kind, or a fear that there is domestic abuse. It is very important that, when we talk about dignity, fairness and respect, we apply those things not just to the client but to everybody whom the agency comes into contact with. In that example, the local delivery staff member will be able to come back and go through the processes that we have talked about in order to assist the carer or parent who might be in difficulty, even though they are not technically the client. Perhaps such examples help to bring out the importance of looking at the situation that presents itself to a member of staff as they are going through a case.

All staff have mandatory data protection training, which is refreshed annually. Staff training on identifying vulnerable people who are at risk of harm has been delivered alongside guidance and a process that ensures that staff can raise concerns quickly and effectively. All concerns that are identified are discussed with a line manager and then forwarded to the safeguarding team that I mentioned in my opening remarks. As I said, that dedicated safeguarding team comprises experienced professionals who are responsible for considering referrals and reporting to the appropriate authority. The team is overseen by the deputy director for health and social care and the chief medical adviser. That experience and knowledge inform the proportionality of the information sharing.

The process has many levels and it involves many checks and balances with a view to ensuring that all staff are trained and that information is shared sensitively within the agency and, in particular, the safeguarding team, which has a great deal of experience.

The primary focus of Social Security Scotland is to ensure that people receive the assistance that they are entitled to, putting the person first and treating them with fairness, dignity and respect, in line with the key principles of the Social Security Scotland charter. However, the Scottish Government recognises that, in undertaking that role, Social Security Scotland engages with some of the most vulnerable people in Scotland. Inevitably, that will lead to instances in which it becomes apparent that a person might be at risk of harm. To adequately support people in that situation, we must have a clear and robust process in place.

As such, and in keeping with our commitment to support the wellbeing of the people whom we engage with, in March 2022 a public consultation was launched seeking views on creating a specific legal gateway for Social Security Scotland to make to the relevant authorities referrals concerning risk of harm. The consultation responses demonstrated overall support for the proposal.

It is important to make a distinction between cases in which a person might be at risk of harm and those in which there is an immediate threat or risk to life. Situations in which immediate threat or endangerment to life are observed are reported to Police Scotland under the common law duty of care. The regulations that we are considering today cover sharing of information when a person is at risk of harm, with harm variously being defined, depending on the sharing, to include significant neglect; physical, mental or emotional harm; or the likelihood of their causing self-harm.

Child and adult protection services in local authorities are governed by legislation that is underpinned by Scottish Government national guidance on child protection and by a code of practice for adult support and protection. Those allow referrals to be made by Government agencies and third sector organisations that engage with vulnerable people and which may have cause to refer concerns of harm. In July 2022, the code of practice was updated to include Social Security Scotland as one of the agencies, in recognition that the agency is a key partner with a role to play in supporting vulnerable people.

Referrals in which a risk of harm has been identified are currently being made by Social Security Scotland under an interim process while the regulations are being considered. The agency has a safeguarding team that is staffed by qualified health and social care professionals, who review all concerns that are raised and, where appropriate, make referrals using a gateway in health legislation.

However, that legislation covers sharing of information that is related only to physical and mental harm and does not cover financial abuse. The regulations will enable the sharing of information relating to harm that is caused by financial abuse.

Furthermore, for the purposes of transparency, I consider it appropriate to create a bespoke and explicit legal gateway to cover safeguarding referrals from the agency. Additionally, in drafting the regulations, officials identified that, where a person is an adult with incapacity under the Adults with Incapacity (Scotland) Act 2000 and has a power of attorney, a legal guardian or is subject to an appropriate order, the public guardian has authority to investigate concerns of financial or property abuse. The drafting therefore includes referrals to the Office of the Public Guardian when that is suspected.

The process of preparing the regulations has involved significant engagement with relevant parties, including the Information Commissioner’s Office, local authorities, health and social care officials, information governance policy leads, social work leads and data protection officials.

The regulations make provision for Social Security Scotland to make referrals only where there is concern about risk of harm. That is to ensure that there is no interference with the investigating powers or decision-making processes of local authorities. It remains for local authorities to make risk assessments and to evaluate additional help that is required by the individual.

For the avoidance of doubt, the sharing for which the regulations provide will ensure that such a referral will have no impact on the assessment of a person’s application for assistance; that only information that is relevant to the risk of harm that has been observed will be shared; that consent from the individual who is being referred will be sought in most instances—although I have included provisions for cases to be referred in which consent cannot reasonably be obtained; that no information concerning a referral of concern of a risk of harm will be held on a person’s file relating to their application for assistance; and that such a referral will be stored in a separate restricted access file, in line with data protection laws.

The aim of the regulations is to support vulnerable people who are identified as being at risk of harm by referring them to the appropriate authority for help and support, which—as I am sure the committee will agree—is a positive action for the people who need it most.

I thought that I had lost you halfway through my answer, Mr Doris, but that is fine. I have met and visited the offices of the project that you mentioned. I noticed that you had that event and I had hoped to come down to meet them again. I was impressed by the work that the project does and I am pleased to see it recognised in the Parliament.

While I was on that visit, we spoke in great detail about the real concern that we should all have to ensure that abuse is seen in the widest sense, including financial abuse. That is why I was clear in my opening remarks about the need for us to recognise all abuse, including financial abuse. It is a clear concern for many different demographics. The committee will be aware that particular concerns have been raised about older clients and financial abuse towards them. Mr Doris rightly mentioned aspects around domestic abuse and financial control being part of that. I hope that the regulations will be able to assist those women in those types of situations, if agency staff come across that.

The timetable for the bill is up to the Parliament but, if it is passed by the end of the year, it will commence by mid-2024. By then, public authorities will have had an extra two and a half years to get ready for the compatibility duty, during which time they will have had access to a growing range of national training and support.

I hope that the six-month commencement date is not unreasonable, but it is important that we continue to work with public bodies to ensure that we support them in the process and that we look carefully at their concerns and any implications that there might be.

When the bill was introduced, it did not have a commencement date but, if my memory serves me correctly, I think that it was included at stage 2. It is unlikely that we will be able to amend the commencement date at reconsideration stage, as it is not something directly to do with the Supreme Court judgment, which is what the amendments are all about.

Again, it is up to the Presiding Officer to decide the issue. However, the date is already in the bill, and the parts of the legislation that we are not seeking to amend as a result of the Supreme Court judgment will stand.

Looking into the matter has been a complex process. One of the reasons for that—as I also said in my opening remarks—was very much our wish and desire to ensure that we still had the maximum coverage possible.

That is why we looked at a number of avenues to see the different ways in which the bill could be amended. Those provided, for example, further coverage, but increased the level of complexity in the bill, which—as the committee heard—was a concern. We tried very much to hold to the intentions of the original bill that was passed in order to seek as much coverage as possible.

During the intervening period, there has been careful line-by-line scrutiny in the Scottish Government of the Supreme Court judgment. There has been a great deal of engagement with the UK Government, which initially included engagement with the Secretary of State for Scotland, to see whether there was any willingness to do this in another way—for example, to change the devolution settlement to allow the bill to remain as it was originally passed—but the Secretary of State was not willing to consider that.

We have had a number of periods of stakeholder engagement in which we went through the options that we could provide. The drafting element then came in. There has been very close working about the specifics at lawyer-to-lawyer level, with the Office of the Advocate General, because we were keen to get as much assurance as possible that what we were doing would provide the maximum coverage but would not carry the risk of another Supreme Court referral.

Once I had taken a policy decision on where we wanted to go with the different options that were available, those were tested with stakeholders, and the detailed amendments were shared with the Office of the Advocate General. The two Governments were doing that important work at lawyer-to-lawyer level, because I wanted the bill to have the maximum impact while also reducing the risk of another Supreme Court referral.

I hope that I have talked the committee through the process, but I am happy to go into further detail on any of the steps, if the committee would find that useful.

Thank you and good morning, convener.

I am grateful for the committee’s careful consideration of this important bill. As the committee is well aware, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was passed unanimously by the Scottish Parliament in 2021, but could not receive royal assent due to its referral to the Supreme Court by the United Kingdom law officers. The Supreme Court judgment has significantly impacted on our ability to legislate for human rights in Scotland, although I stress that we very much respect the Supreme Court’s judgment.

In amending the bill to address the judgment, I tried to balance three considerations: protecting children’s rights to the maximum extent possible; minimising the risk of another Supreme Court referral; and making the law as accessible as possible for users. I reached the conclusion that the maximum effective coverage for children’s rights in the present devolved context is for the compatibility duty to apply only when a public authority is delivering devolved functions that are conferred under acts of the Scottish Parliament or common-law powers, which means that it will not apply when powers are delivered under acts of the United Kingdom Parliament, even in devolved areas.

The duty to read and give effect to legislation in a way that is compatible with the UNCRC requirements, and the power to strike down incompatible legislation or to issue an incompatibility declarator, will apply only in relation to legislation originating from the Scottish Parliament. The Supreme Court judgment means that this Parliament’s power to give the courts remedial powers is limited by the mere fact that existing statutory provision happens to be in an act of the Westminster Parliament, even when such powers concern matters on which the Scottish Parliament could—and frequently does—legislate.

That has resulted in a disappointing loss of coverage for children’s rights compared with what we had originally hoped to achieve. Although we have tried to minimise complexity in the approach that we have taken, the Supreme Court judgment means that the duties will not be straightforward to understand, as we had hoped them to be.

However, the bill will still provide legal protection for children’s rights that is not currently available in Scotland or, indeed, in any other part of the UK. We should also remember that, although the sections of the bill that are impacted by the Supreme Court judgment are powerful provisions, other important provisions in the bill will mean that children’s rights are respected in the first place and will help to ensure that our statute book is fully compliant with the UNCRC requirements.

The bill requires Scottish ministers to set out and report on how they are giving further and better effect to children’s rights regardless of whether the compatibility duty applies, and for listed authorities to prepare and publish similar reports.

The bill also requires the Scottish Government to carry out a child rights and wellbeing impact assessment for decisions “of a strategic nature” and, when it introduces any new Scottish legislation, to make a statement about its compatibility with UNCRC requirements.

The more limited scope of the compatibility duty means that it is even more important to create a lasting cultural change about children’s rights. I am confident that we can deliver that as a result of the more widely spread support that we are putting in place. That includes a model child-friendly complaints process that can be used regardless of whether the compatibility duty applies, and a wide range of support, training and guidance for public authorities on taking a children’s rights approach.

In the context of the current devolution settlement, the most straightforward way to give children and young people the human rights protection that they deserve is for the UK Government to incorporate the UNCRC into UK law. We have an important opportunity to lead by example, by passing the bill.

I very much recognise the points made in evidence that was given last week. My officials and I have been having the same types of discussions with public bodies. As I have said previously, I recognise that the bill is a complex piece of proposed legislation, and it will become more complex if the amendments are passed. Regarding the evidence that was given last week, I assume that the request for detailed sector-specific guidance is a request for us to set out how policy and practice in a particular area need to change to become UNCRC compliant. The evidence from Andrew Tickell was very pertinent in that regard. He described how the UNCRC did not lend itself to a list of rules; it is more a list of principles that need to be interpreted, and that makes sector-specific guidance difficult. It is for the Scottish courts to decide, when cases are brought to them, what constitutes a breach in the context in which services are being delivered.

However, I recognise that we need to support public authorities, and there are a number of ways in which that will be done. There will be non-statutory guidance on taking a children’s human rights approach, which will be available by the end of the year for those involved in public service delivery in Scotland. We are updating external child rights and wellbeing impact assessment templates and the external guidance, and the UNCRC innovation fund is available. By summer 2024 we will have a national child rights, skills and knowledge framework in place, which will provide a single point through which to access new and existing training resources on children’s rights for a wide range of sectors.

There is also the statutory guidance that is contained in the bill. The bill requires Scottish ministers to issue guidance to support public authorities to comply with the compatibility duty and to promote children’s rights and respect in practice. A group has been convened to consider the development of that statutory guidance, and that will include a framework for reviewing compatibility. We cannot consult on that draft guidance until the bill is finalised, but we are keen to move on that at speed afterwards. So, we have some non-statutory guidance, the statutory guidance and some of the work that we are funding—for example, in the Improvement Service—to assist local authorities.

I very much recognise the concern about the complexity as it stands. We are keen to work with COSLA, SWS and others to see what more can be done in that area. It may not be sector-specific guidance, as they talked about, but we recognise the concern and are keen to work with everybody to deal with that.

I think that that question may be from one of the members of the Scottish Youth Parliament that I met last week. Forgive me if it was not but, if there are not two Ellies involved, I think that it was. We talked about that issue last week, which is a really important aspect of the process. We recognise that some acts are in scope and that some are not. At that time, we talked about looking at what is most important for children and young people, and I was keen to pick up on their suggested ways forward. Myriad acts will be outwith scope and we have to think about how we best take the work forward and what the priorities for children and young people are. If we are looking at moving acts into Scottish parliamentary debate and therefore within scope, that will not in any way involve a short time period.

As I said last week, we will continue with our suggestion that we work together to look at where, for example, there is a potential for greater inequalities to arise if we have some acts that are outwith scope, and at where the priorities are for children and young people. We are keen to start the work in that area. I am sure that we might get on to further questions about audits and so on in due course, but, as part of that work, we need to involve children and young people right from the start and find out what their priorities are, because that will take some time—and much longer still after that to then implement. I am keen to work on their priorities and to put them at the front and centre of what we are doing.