Seòmar agus comataidhean

It has been interesting to see the evidence that the committee has gathered, and I know that the committee rightly went to London to look at the experience there. The manner in which those functions are exercised in the Scottish Parliament is different from how they are exercised in the UK Parliament. The UK Government has far more discretion than the Scottish Government about the powers that it can exercise. I have seen nothing to suggest that there is any substantial concern here.

I go back to a point that I have made already. If there was any concern, it would be perfectly possible for the Parliament to prescribe that there should not be that function or that the function should be exercised differently, probably—I hazard a guess—by using another form of secondary legislation-making power.

It is, because it is not just a matter of the legislation coming before the chamber. A considerable amount of work has to go into the creation of legislation in advance.

I would throw it back at you, Mr Balfour. You are taking forward a member’s bill. How would you fancy taking forward five in a year? I think that you should be well cognisant and well apprised of the substantial amount of work that has to go into the crafting of a bill, its consideration by a committee and the Parliament’s capacity to support members.

That takes us back to my point. Candidly, yes, there are pressures on Government. There is the idea that the Government is gargantuan and has a million people working for it, but there are only so many people there to support ministers to take forward amendments to legislation. Also, there are only so many people in Parliament to support Opposition members and back-bench members of the party in Administration to take forward amendments. That is just a reality. If Parliament wants to enhance its capacity, that is for Parliament to consider, not the Government.

You are quite right to say that we are not doing a stage 3 every week. I hazard a guess that Parliament would not want us to do a stage 3 every week.

That would very much depend on the context. I can give a hypothetical example of something that I do not think we would do but which could lead to concern about the appropriate use of those powers. An executive or a Government might decide that it had better use a power that it will soon no longer be able to use, just to circumvent a sunset clause. That might be a cynical view, and I suggest that we would not do that. It comes down to the purpose of the sunset clause and why we would use such a clause just because a power existed in a particular form. I am not clear what the purpose would be.

I disagree with that perspective. I have seen no evidence to suggest that it is being used more frequently. To be candid, we are almost in danger of coming to the conclusion that that is the case because it is repeatedly asserted to be so. I have not seen anything to suggest that there is greater frequency.

The issue might come down to the fact that we have no strict definition of framework legislation. However, in so far as what we have considered might fall into that category, I do not think that there is evidence to suggest that framework legislation is happening more frequently. I am certainly aware that members assert that that is the case, and I have noted some witnesses saying the same, but I have yet to see anyone setting out a specific amount of legislation that would suggest that it is happening more frequently in comparison with previous sessions.

We are not going to get everything right every time, but we certainly aspire to do so. That is my expectation.

In effect, what we have done—and, obviously, there are difficulties in seeking to do this—has been to look back over the legislation that has been passed over the history of the Parliament, and we have not seen anything that would suggest that there is more use of so-called framework bills now than there has been in the past.

In fact, in this parliamentary session, over the four programmes for government, we have announced the intention to introduce 57 bills—not all of which have necessarily come to light, for various reasons—and we could perhaps identify six of those 57 bills as framework bills in character. Therefore, I do not think that there is any greater frequency in the use of framework bills.

I perfectly accept that you have flipped the issue on its head and asked me to disprove it, but I respectfully suggest that it is usually those who make the charge that have to prove it rather than those who do not.

Again, I respectfully say that Maree Todd made a statement to the Parliament just last week or the week before—I cannot remember which—in which she laid out the Government’s intended way forward for that bill. That came on the back of parliamentary scrutiny. By my estimation, that—if nothing else—shows that parliamentary scrutiny is effective in so far as Parliament can determine and command what legislation should say. To be candid, that bill has gone in a direction that the Government did not want. However, I go back to what I said in my opening statement: in a parliamentary democracy, the Parliament should retain that power. I very much consider that bill to have been determined by the process of scrutiny.

On your point about looking at things in retrospect and with hindsight, of course, we need to learn from every circumstance. We have gone through that experience, and we will seek to learn from it, just as we would in passing any form of legislation.

I am grateful for the opportunity to be with you this morning.

The Scottish Government takes seriously the implementation of legislation that is passed by this Parliament. The work that is involved in implementation varies enormously and can be particularly complex. Some provisions have little or no cost, whereas others give rise to significant costs. In addition, the implementation of legislation can rely on other organisations and agencies that we need to work with. The three acts that we are discussing today involve some significant operational issues for a number of agencies—in particular, justice agencies. In addition, in some areas, rules of court may be needed.

Many of the substantive provisions of the Children (Scotland) Act 2020 are already in force. Work is on-going on the regulation of child contact centres. We aim to lay Scottish statutory instruments next year to put the Care Inspectorate in place as the regulator. We also plan to lay commencement regulations for further provisions of the act next year, and have reconvened a working group on child welfare reporters.

We also remain committed to implementing the Domestic Abuse (Protection) (Scotland) Act 2021. Part 1, when implemented, will provide the police and the courts with new civil powers to issue domestic abuse protection notices and domestic abuse protection orders. The scheme of protection notices and orders is intended to protect people from the abusive behaviour of their partner or ex-partner. We continue to engage with justice partners and other stakeholders, including Scottish Women’s Aid, which officials met recently, to talk through the operational challenges that have emerged as a consequence of the legislation’s provisions for the protection orders scheme. Some of the challenges that have been identified include clarity on the estimated number of cases and, in turn, the costs of implementing the scheme and the short timescales required to process and implement a DAPN and a DAPO, which have been identified by justice partners as extremely challenging.

There are also wider challenges as to how the views of children will be gathered. That area has been discussed with justice partners and outlined in discussions with Scottish Women’s Aid. We are endeavouring to find a workable and sustainable way forward. At this stage, it is not possible to provide an informed estimate of when that will be completed, although, of course, it remains a priority for us.

Colleagues in the United Kingdom Government and other devolved Administrations, whom officials meet regularly, have faced similar concerns. The UK Government has just launched a pilot, having chosen not to resolve some of the issues that we are wrestling with—for example, how best and how quickly to take the evidence of a child.

We aim to bring into force next year part 2 of the act along with sections 2 and 3 of part 1, to provide additional protection to those who are at risk of domestic abuse. Part 2 will help to protect victims by giving social landlords the ability to apply to the court for an order that, if granted, will have the effect of allowing the landlord to transfer a tenancy to a victim survivor. However, court rules will need to be updated, which might affect the timetable. We are taking forward the wide range of tasks that are necessary to commencing the social housing tenancy provisions in part 2 of the act, including secondary legislation, changes to court procedures and work with stakeholders to develop statutory guidance. The process has taken longer than we anticipated, which is why there has been a delay in implementation. We also need to ensure that the provisions operate as intended.

We have committed to implementing the Female Genital Mutilation (Protection and Guidance) (Scotland) Act 2020 within the equally safe delivery plan. Once implemented, the protection orders will provide a fast and responsive mechanism to reduce the risk to potential victims of female genital mutilation, and the creation of statutory guidance will help to address knowledge gaps and offer clarity and certainty for practitioners and organisations working with victims of female genital mutilation.

To ensure the effective implementation of the act, we are working closely with external stakeholders including local authorities, Police Scotland, the Scottish Courts and Tribunals Service and our addressing violence against minority ethnic women and girls network.???

In conclusion, we are committed to commencing legislation passed by the Parliament. Those are complex pieces of legislation to implement but work is on-going.

I am happy to answer questions from the committee. Given that the acts all relate to quite specific areas of policy, I will also seek to bring in Jeff Gibbons, Simon Stockwell and Nel Whiting as appropriate.

First, we are talking about three specific pieces of legislation on which people have communicated with the committee. They are understandably concerned, and it is incumbent on us to respond to those concerns. However, I do not think that there is a general issue or trend across the piece of non-implementation of legislation. If you look across the statute book, you will see that, in most areas where Parliament has decided to pass an act, we get on with the legislation and implement it, but sometimes we find that there are challenges.

We are talking about three acts. I have already made the point that a substantial amount of the Children (Scotland) Act 2020 has been put into effect. Going back to the point that I have just made, we have gone through that process. We have made sure that a substantial number of the provisions are in place. I have referred to—Simon Stockwell picked up on this, too—our plans to implement more of the legislation through statutory instruments that we will introduce next year. Of course, we understand the concerns that have been expressed by stakeholders, and it is incumbent on us to respond to them insofar as they relate to the specifics of the act.

We also need to respond to the overall concerns, which we can do in other ways. With regard to the Domestic Abuse (Protection) (Scotland) Act 2021 and the Female Genital Mutilation (Protection and Guidance) (Scotland) Act 2020, an awful lot of work goes on through our equally safe strategy, which is resourced by quite a significant amount and backed by the Scottish Government. In that respect, 119 projects from 100 organisations have been supported, with £19 million of annual funding. So, yes, we must respond to concerns about the implementation of those acts but, equally, we also have to get on with dealing with some of the fundamental challenges that those acts are designed to deal with, in advance of their implementation.

I recognise that there will be disappointment—I am disappointed, too, that the act is not yet fully in place. I would refer back to my earlier answers on the general challenges that we face; nonetheless, this is a very important area, and the very stark figures that Ms Gosal has provided speak to the absolute necessity for us to try to ensure that the provisions are in place as soon as possible.

There is on-going engagement with various justice partners on the challenges of the current legislation and the changes that might be required to make the act operational. Various pieces of work are under way on how we better obtain the views of children involved in cases; Ms Gosal has indicated some of the figures involved, in so far as they have been reported, but we need clarity on the estimated number of cases and, in turn, on how we would cost and implement the scheme and on the timescales required to process and implement domestic abuse protection notices and orders, which justice partners have suggested could be a challenge.

Those are the issues that we need to work through. That work is happening, or will happen, as quickly as possible, and we would then seek to put in place part 1 as quickly as possible thereafter.

I will hand over to Jeff Gibbons to see if he can say any more on the activity that is under way and the timescales that are involved.