 Can I welcome everyone to the 28th meeting of the Education and Skills Committee in 2017? Can I please remind everyone present to turn their mobile phones and other devices on to silent for the duration of the meeting? The first item of business is the decision on whether to take all future considerations of the children and young people information sharing Scotland Bill, stage one draft report in private. Is everyone content that all future considerations of the draft report will be taken in private? The second item of business is on witness expenses for the committee's education reforms work. Are members content to delegate sign off of any witness expenses to me? The next item of business is our final evidence session that is part of the children and young people information sharing Scotland Bill. Today we will hear from the Cabinet Secretary for Education and Skills and Government officials. Can I welcome to the committee John Swinney, Cabinet Secretary for Education and Skills, Ellen Barth, Bill team leader and John Patterson, the divisional solicitor of the Scottish Government. Thank you for coming along today and I understand Cabinet Secretary, you would like to make a short opening statement. Thank you, convener. I welcome the opportunity to be with the committee today to discuss the children and young people information sharing Scotland Bill. I would like to say at the outset that I accept unreservedly the Supreme Court decision and as a consequence I accept that the information sharing provisions in the children and young people Scotland Act 2014 did not adequately respect the right to private and family life. The bill addresses the issues raised by the Supreme Court and will ensure that the rights of children and young people and their parents are respected. The bill has two overarching objectives. Firstly its provisions will support agencies and individuals to work with children, young people and families in an integrated way that also facilitates the lawful and proportionate sharing of information. This will ensure that every child and young person can better access the support and the help that they need to succeed. Secondly the bill will allow the selections in the 2014 Children and Young People Scotland Act on the name, person, service and the child's plan to be commenced. Without this bill to address the Supreme Court judgement, those legislative provisions cannot be commenced, effectively removing two key elements of the getting it right for every child approach which are entitlements arising from families themselves asking for improvements in the support that they need and want. This approach is required as too many children and families continue to struggle to navigate services and too many children and young people don't get early access to support which could help them to succeed. Relying on the good practice of some and hoping that others catch up will not deliver for every child and young person in Scotland, that is why legislation is required. We know that effective and proportionate sharing of information is essential to getting it right for every child. That is why the duty to consider which is at the heart of this bill is necessary. For the first time relevant authorities and name, person, service providers will be required by law to consider the information they hold and whether the sharing of such information could support, promote or safeguard the wellbeing of a child or young person. It also provides professionals with a focus to consider the consequences for wellbeing of not sharing information when consent to share is not granted. The measures in this bill must provide the clarity and certainty that many are looking for in relation to how to share information lawfully within the context of fulfilling the functions of getting it right for every child. I will listen closely and consider carefully all of the evidence which the committee has taken during the stage 1 proceedings on the bill. As I set out in my letter earlier this week, I accept that there is more that I can do to ensure that we give everyone the certainty and clarity they are looking for following the Supreme Court decision, not just in relation to the bill provisions, but also to measures which the bill will give effect to and indeed broader getting it right for every child ambitions. Many witnesses have called for greater clarity about what the named person is and what it is not. We will therefore develop and deliver a positive awareness raising campaign, which will make clear for children, young people, parents and practitioners what they are getting it right for every child approaches about and how the named person will support them. The Government will lead it but will ensure input from others to inform the approach that we take. Witnesses have also raised concerns about resources and support for implementation. Reflecting on the evidence presented to the committee, I can confirm that further financial resources over and above those set out in the financial memorandum will be provided to assist implementation beyond the first year of introduction. I intend to consult with stakeholders on the detail of this multi-year approach as the bill proceeds. The code of practice provided for in the bill is one important part of the suite of materials that will be made available to practitioners to support their work. Whilst I had hoped that the illustrative draft code of practice would demonstrate how the power to make a binding code contained in primary legislation could work to address the issues raised in the Supreme Court judgment, I acknowledge that this approach has not had the intended effect. It is essential that we get right the code of practice provided for in the bill as well as the statutory guidance required under the 2014 Act and other support materials which will be required. To ensure this, I will establish the GERFEC practice development panel this month. This panel will have an independent chair and broad and relevant stakeholder membership to ensure that these materials are workable, comprehensive and user-friendly. This approach will allow for full and proper consideration of changes to data protection law as a result of the general data protection regulations and the UK data protection bill. This panel will ensure that the experience and expertise of practitioners informs the material through dialogue and interaction with the wider stakeholder community and that practical knowledge of information sharing in the public sector and children's services is the foundation for the development of these materials. As I outlined to the Delegated Powers and Law Reform Committee, my intention has been always to ensure meaningful dialogue and scrutiny of the code of practice by Parliament. I'm happy to accept the recommendation of that committee that Parliament be given final approval of the code of practice and can advise that I will bring forward such an amendment at stage 2 in the bill process. Convenant, I'm determined that this bill will ensure everyone working to support children, young people and families in Scotland will not only do so within the requirements of the law but will also feel confident in fulfilling our collective ambition to get it right for every child. I look forward to answering questions from the committee this morning. Before I start asking the questions, I'd just like to put in record my thanks to everyone who has contributed already to the committee's work on the children and young people information sharing Scotland bill and particularly wish to thank the attendees of the focus groups last week for taking time in their evenings to come and contribute to the evidence. Cabinet Secretary, we received a letter earlier this week from a number of organisations who originally voiced a great deal of concern and to be fair still have some of those concerns at this stage but seem to be now coming round to saying that it's important this piece of legislation passes. What would you put down to the fact that they seem to have changed their position in your view? What do you think has happened since we started taking evidence? I think what has happened in the consideration of the bill so far is that my attempt to try to be helpful to the committee by providing a draft illustrative code of practice without all of the consultation that we would ordinarily put into such an effort has proved not to be helpful. What this bill does is this bill makes some very clear changes to the law in relation to changing the provisions of the 2014 act to establish the duty to consider information sharing as opposed to an obligation to share information, which clearly the Supreme Court judged not to be consistent with article 8 provisions. The approach that we've taken, again informed by other decisions of the Supreme Court, is to rely on informing that duty to consider through a code of practice, and that code of practice will be binding, but for it to be binding it has to be clear and it has to be informative. I took a decision late in the proceedings of the preparation of the bill to put an illustrative code of practice into the committee along with the bill. Because I took that decision late, there was not the opportunity for the breadth of consultation. I thought that it would be helpful to the committee to have the look of what a code of practice might be like. I accept that that has created some confusion and uncertainty among stakeholders. Listening to that evidence over the course of the last few weeks, I have made it clear to stakeholders that the provisions of the draft illustrative code of practice are what they are, the contents of a draft illustrative code of practice and not the final product. I have set out to stakeholders and also to the committee the approach I intend to take to ensure that we have a full engaged participative approach to the formulation of that code of practice. I welcome the comments of stakeholders who have embraced that approach. Can I ask the stakeholders that wrote this letter? Will they be consulted? Will they be part of the solution for the new code of practice? I wonder if I can take you back to the children and young people's bill when it first went through this Parliament. At the time, we were advised by the Scottish Government that the legal advice was accurate. Of course, that turned out not to be the case. At the time, there were independent legal advisers who warned of the potential danger of exactly what the decision will be in the Supreme Court, as it turned out. Can I ask you, cabinet secretary, because I think that it is very important to this committee as we attempt to scrutinise this bill? Can I ask you to outline what legal advice you have taken this time? I think that I need to put the question from Elizabeth Smith into a wider context, because when Parliament passed the legislation, obviously the Government proposed it to Parliament and we took the necessary advice in preparing that legislation. The legislation was then tested twice in the courts of Scotland, in the outer house and the inner house, and the bill was, and the legal challenges were dismissed in the outer house and the inner house of the court of session, the highest courts in Scotland. The case was then referred to the Supreme Court. I think that when you look at the practice of the Supreme Court in the period between 2014 when our legislation was passed and the judgment that emerged in the Supreme Court in July 2016, in that period the Supreme Court had been pursuing a consistent line of legal interpretation and legal analysis in a number of judgments, which had not preceded 2014, but had followed 2014, where in a whole host of different questions they were requiring public authorities to set out interpretations of legislative provisions in their words, in accordance with the law. That emergence of that strain of thinking in the Supreme Court's consideration post-dated the 2014 consideration of the bill, and that clearly influenced the judgment of the Supreme Court in July 2016. I accept that the interpretation of the law moves on and the Supreme Court has jurisdiction over those questions, so that is why at the outset of my comments to the committee this morning I unreservedly accepted the Supreme Court judgment. In defence of the advice that the Government took in 2014, that advice was based on the legal debate at that time. Obviously, the decisions of the outer house and the inner house were taken within that context as well. The world has moved on, subsequent to 2014, with the decision of the Supreme Court, which is why I am now taking the steps that I am taking with this legislation. In relation to what legal advice I have taken, Liz Smith will know the conventions that ministers follow about whether or not legal advice has or has not been taken. However, let me just say to the committee that I would not be here today if I had not taken all the necessary advice that I believed that I should and ought to take and follow in getting to the point that we are at today. Thank you for that, cabinet secretary. I mean, notwithstanding the context that you have given, the fact of the matter was that the Supreme Court made a ruling that has been very difficult as far as this policy is concerned. Our difficulty as a committee is that as we scrutinise the new bill, we have members of the legal establishment who are either very concerned that the bill does not address, or in some cases does not fully address, the legal concerns that were raised by the Supreme Court. Therefore, our scrutiny responsibility is to ensure that we are holding the Scottish Government to account about the legal advice that has been provided. We are sitting here this morning having listened to legal advice that is still very concerned about some of the legal context of the new bill, and that is set against your comments to the Delegated Powers Committee, where you believe that, particularly in the light of the faculties of advocates, that advice is incorrect. Could you explain to this committee why you believe that the legal advice that you have taken does address all the concerns of the Supreme Court? The issues that were raised by the Supreme Court essentially related to two questions. One is about the proportionality of the consideration of the approach to information sharing, and the second was about the distillation of the legal framework to ensure that it was clear to practitioners the legal framework in which they operated. Those are the two issues that are at the heart of the Supreme Court judgment. The measures that I have taken are designed to inject proportionality into the question of the sharing of information, so there is not a duty to share, there is a duty to consider sharing. We then set out, and the Court of Practice will do so, the exercise of how that proportionality question should be exercised. Secondly, the Supreme Court judged, and this is my point about setting out the provisions in accordance with law, that we had not essentially marshaled those propositions in a way that practitioners could readily access that information. I think that the Supreme Court talked about a logical puzzle that lay at the heart of it all, and the bill that is before the committee makes those provisions. If I look at some of the evidence that the committee considered on the legal question, and Liz Smith is absolutely correct that issues have been raised by the Faculty of Advocates in this respect, but the representative of the Law Society of Scotland said, Kenny Meaghan, that the move from a duty to share to a power to share information and an emphasis on the need to consider whether information is relevant and can be shared is a helpful safeguard from the perspective of ensuring proportionality. I simply use those two points both of which are contained within the legal debate which the committee has heard to illustrate the fact, and of course we are legislators, we deal with legal debate about different provisions and we must decide, and it's not a new situation for us to find ourselves in it on a constant basis, but what I believe we have done here is to look carefully at the issues in the Supreme Court judgment because I'm acutely aware that the issues raised by the Supreme Court judgment must be addressed, must be addressed, and we've taken the necessary advice and steps to get us into the position whereby we can put a bill in front of the Parliament for scrutiny which enables us to do that. Now that of course will not allow or not enable legal debate to disappear, legal debate will be around on these questions, I accept that, but what I would say to the committee is that the government has taken the necessary steps to address those points. I'm sure that other colleagues want to come in on this point too, but can I just make the point again that as a committee we're in an exceptionally difficult position here because if we relate to 2013-14 it was very clear at that time that there was a legal opinion out there which was subsequently proven to be correct that the bill had a lot of legal issues. We have in front of us just now a Scottish Government that's telling us that this new bill has addressed these concerns and to use your own words time does move on and part of that time moving on means that there is new legislation particularly in terms of data protection coming down the line in the not too distant future, but we've also got legal opinion out there that is still questioning in some cases, very significantly questioning whether, in fact, the Scottish Government has got its legal advice correct. In my opinion, I think that this legal opinion matters very much to the rest of the debate. I think that it matters to the effective level of scrutiny in Parliament and therefore can I ask again cabinet secretary, are you absolutely confident that this bill will not be challenged in a legal context again? First of all, can I say that, and I come back to something I've said already, which can test the point that Lisbeth is making about legal debate in advance of the 2014 bill. The 2014 bill was tested in the outer house and the inner house of the court of session and overruled. It's not for me to question the judgments of the outer house. My duty as a legislator is to respect the decisions of the courts and those two courts validated the approach that we had taken. Subsequently, it went to the Supreme Court and the Supreme Court took a different view, and I'm respecting that opinion because it's my duty to respect what the courts say, but I simply, for completeness, am making the point that the legal position taken by the Scottish Government was validated by both the outer and the inner house, so it's wrong to say that there was no legal judgment and debate on those questions. On the second point, can I say that this will not be challenged legally? Well, that's not a matter for me to say. I can't stop individuals challenging this legally. This is a free country. People can bring forward whatever legal challenges they wish to bring forward, but certainly from my point of view, the issues raised by the Supreme Court judgment are the issues that I am obliged to address if I wish to commence the provisions of the 2014 act in relation to parts 4 and 5. That's precisely what I'm bringing before Parliament, with confidence that those provisions have the legal foundation to address those issues. There seems to be a suggestion that a number of organisations who express concern and whose positions have moved on, that it's simply been down to an initial lack of understanding of what the Government was proposing. As much as I find that potentially understandable, given that there seems to have been a failure to live up to the promise of a summer of comprehensive consultation, I think that it is about something far more substantial than that. To look at the evidence from the Children's Commissioner specifically, the commissioner says—and I'll just quote the last line, but just to ensure I'm being accurate—that legislation is intended to address the technical deficiencies in the Children and Young Persons Act relating to information sharing by mending the act to ensure that it's compliant with the AIDS Protection Act and with the ECHR, the bill that is currently drafted does not achieve that. Why do you believe that the Children and Young Persons Commissioner takes that position? And what do you believe that they have not understood? Well, that's an issue, I think, for the Children and Young Persons Commissioner to set out to the committee in their rationale for so-doing. My view on that is that the Supreme Court raised two important questions for the Government to consider, and they're the ones that I addressed in my answer, a moment to go to Liz Smith. The Government has brought forward provisions that do exactly that, that directly engage in those questions. Now, Mr Greer said that there seemed to be a suggestion that stakeholders had not understood the Government's provisions. That's not my position. My position is that the Government has quite clearly not explained effectively its provisions in the draft illustrative code of practice, and I've set out to the committee why that happened. It happened because I took a judgment during the preparation of the bill that it would be better to provide for the committee a draft illustrative code of practice, because I thought the committee would say to me, when we've got this bill and it's dependent on a code of practice, where's the code of practice? So I thought, for completeness, I would provide a draft illustrative code of practice to show the type of territory we would be covering. But I accept that we didn't have adequate time to consult with stakeholders who would have been able to give us a more enhanced proposition. And as a consequence, I can't expect these stakeholders to be comfortable with its contents if they've not had the adequate opportunity to participate in the process. So it's not a lack of understanding on their part. It's an acceptance on my part that we decided to do something for which we didn't have adequate time in the bill preparation to engage our stakeholders, and I'll make sure that that happens as we take forward the bill and the design of the code of practice. The provision that's set out in the 2014 act was deemed disproportionate. The Government's proposal is to bring in the new provision, the statutory duty to consider. Bearing in mind, I would suggest almost certainty of a further legal challenge to that. We did not have been a legally far more secure position instead of introducing a new provision to simply state that information sharing should take place under existing data sharing frameworks. My view would be that that is precisely what we have done, that we are saying in the bill that any consideration that has to be undertaken about information sharing must be entirely compatible with the existing legal framework and that, in the supporting documentation to the bill that's available for practitioners, we will address the second issue from the Supreme Court judgment, which is to set out clearly a distillation of what that framework looks like to enable practitioners to be able to take forward their judgments in exercising that duty to consider. Just finally, there was previously a requirement on the face of legislation to have regard to the views of the child or young person taking into account their level of maturity, etc. Why is that no longer the case? That will be the case in the way in which the judgments that arrived at around the seeking of consent to share information and the clear involvement of children and young people as part of that process that should be set out in the code of practice. We've had feedback from stakeholders that GERFIP, which is getting it right for every child, is a world-class practice framework. Two of the elements of that are the children's plan and name person, parts 4 and 5. What will the impact be if we don't bring forward the information sharing? As things stand just now, I cannot commence parts 4 and 5 of the bill and the provisions on the child's plan and information sharing cannot be commenced without alterations because the legal framework has had the issues raised with it by the Supreme Court. Unless we bring forward and secure legislation, those elements of the bill cannot be commenced. In the Government's stakeholder engagement, have you heard any alternatives that both address the Supreme Court judgment and allow commencements of parts 4 and 5? The Government arrived at the contents of the bill after a period of consultation that took place in the latter part of 2016. As we engaged in that discussion with stakeholders, the information that we gathered in that process led us to the formulation of this bill. I am satisfied that at that moment we had a good and open discussion with stakeholders about the correct approach to address the issues raised by the Supreme Court, which got us to the position of the legislation that is now in front of the committee. I did not hear approaches that allowed us to do this differently or that would enable us to achieve the purposes envisaged in the original legislation of ensuring that the name person proposition was more widely available in Scotland through legislation that would enable that to be achieved without the changes to the law that we are now making. That dialogue was very helpful in getting me to the point of realising what measures we had to take to ensure that this was the case. I hear what the cabinet secretary said in response to other colleagues about not having control over whether or not individuals choose to challenge the legislation. Given the complexity and the fact that we have seen a leading family law QC, the information commissioner and a number of other legal experts tell us that the bill is open to challenge. Is it really how confident the cabinet secretary is given the legal advice that the Scottish Government would be successful in the event of a legal challenge? The judgment on that question is essentially informed by looking at what the Supreme Court said in July 2016 and identifying the issues that it raised being adequately and directly addressed by the provisions in this bill. That is what I focussed on in my thinking around this and on the advice that I have taken. Quite clearly, I want to be in a position where the legislation, if challenged, is unsuccessfully challenged. My consideration has been very much focused on those direct questions of proportionality and codification. The provisions on the bill directly address those questions, and I am therefore confident that the Government has addressed the issues in the Supreme Court. Fundamentally, I have to accept that that is my best assessment of it. If there was to be a challenge, the courts would have to determine that challenge. That is one of my big concerns, because a huge amount of damage could be done if there was to be another successful challenge. That would pretty much derail a huge part of the Scottish Government and this Parliament's agenda. That is where, as a committee, it is difficult for us because we do not have access, obviously, to the Scottish Government's legal advice. We are making a very tricky decision. A large part of that is based on your assessment of the law and how confident you are. Given how controversial this is and the big challenges, I am trying to get a feel for how confident the Cabinet Secretary is. Would you be willing to take personal responsibility and consider your own position if this legislation falls apart? It is just on a scale to get an idea. The committee is not really the place to ask for his resignation. I am only asking for his resignation. If this legislation falls apart, convener. I actually thought the way Mr Mundell's question was going. I almost thought that he was going to ask me if I would place a bet. I take that kind of assessment as well. On a scale of 1 to 10, how confident are you? The committee knows me well enough to know that I take forward my ministerial responsibilities in a deadly serious fashion. I take all proper advice and consideration to come to the conclusions that I have come to. I have come to the committee this morning and I have been quite candid about a misjudgment that I have made about giving the committee a code of practice that was drafted and illustrated in all the caveats in the book, but it just was not. It has created more confusion. I did not want to do that and I am sorry that that is the case that the committee has had quite a bit of its time taken up by the debate around a code of practice, which actually is not the subject and the question that the committee is being asked. That is my judgment on the last few weeks in that respect. In coming to the committee with the bill, I have taken all the necessary advice that I need to take to satisfy me in my judgment that the two issues of proportionality and codification have been addressed in the bill. However, as I say, if there is a legal challenge, the courts will determine that. Mr Mundell raised an issue about derailing the agenda. Of course, the agenda can be derailed in a whole host of different ways. It can be derailed by the fact that practitioners become anxious about deploying some of these measures because they do not feel that they have a clear legal framework in place, and I am trying to put a clear legal framework in place. The agenda can be derailed by a court challenge, which says that the legislation is not fit for purpose, and that is a judgment that the courts would arrive at if they faced a legal challenge. However, what I want to assure the committee about is that what I am bringing to the committee is not something that is unnecessary. It is not something that we do not need to do. It is something that we do need to do if we want to have in place the type of support that makes the child's plan and the getting it right for every child agenda meaningful through the exercise of the name person responsibilities. It is on that basis that I come to the conclusions that I come to. On the final point that Mr Mundell raises, of course, I take responsibility for all of my decisions as a minister, and they are my decisions, and I have to be accountable for all those decisions. I wonder if I could then ask a number of technical questions. How big a number? Three, and I'll stick to them. They're quite snappy. I wondered, in terms of what you said before, that the legal framework had changed since 2014. I just wondered, given that there are three pretty prominent cases within the Supreme Court judgment Sunday Times versus United Kingdom, Gillan versus the United Kingdom, and Silver versus the United Kingdom, all listed in accordance with law section of that judgment. If you could talk me through how you felt the original legislation met the considerations of those cases set out in the Supreme Court judgment. Well, simply because the thinking of the Supreme Court, the point I was making my answer to Liz Smith, was that it is pretty clear that the thinking of the Supreme Court had developed subsequent to the passage of the 2014 act, and that the Scottish Government had formed its view on the basis of that point in that approach prior to the Supreme Court's thinking becoming clear in that respect. That's the point that I make about the development of the Supreme Court thinking. I think that the Supreme Court also took issue with foreseeability, and I think that paragraph 77 of the Supreme Court judgment, it starts to talk about that. I really wondered how the Cabinet Secretary had interpreted what was set out in Gillan versus United Kingdom at paragraphs 76 and 77, because obviously that judgment was made in 2010 before the last legislation was passed. It talks about who legislation is intended to cover, and also giving people protection against arbitrary interference. I just wondered whether the Scottish Government had considered those legal issues last time round, and whether it feels a meeting them this time round. What I think is the case is that the questions that are in the essence of the judgment that the Supreme Court made in 2016 on our provision were driven by a necessity and a requirement to ensure that the codification of different provisions were set out in a fashion that made the obligations clear on practitioners and on authorities in a fashion that was not viewed to be as obligatory in before 2014 and certainly not viewed as obligatory by the judgments that were made by the Court of Session either in the inner house or the outer house at that time. My point is that the Supreme Court's judgments were taken in a form that required that to be essentially part of the legislative framework and consideration that we had to take into account, and the bill that is before the committee now is designed to do exactly that. I would like to have a look at the concept of wellbeing. The Supreme Court said that wellbeing is not defined, and the only reference that it said that was available were the eight factors under Shinari, which has been around for a very long time, and even some of them were a little bit vague. Do you consider that wellbeing needs a more specific definition in order to ensure that the implementation of the legislation is consistent? The question of wellbeing was addressed in the 2014 act, and in that act the eight wellbeing indicators were set out, safe, healthy, active, nurtured, achieving, respected, responsible and included. Those are, of course, subjective terms, but what they are designed to do is to provide a context within which professionals can exercise professional judgment about how effectively the wellbeing of a child or young person is being supported. That is a framework with which professionals have been operating for some time and assist in formulating the judgments that they make about whether the wellbeing of young people has been properly supported. I think that the definition is set out with a clarity with which professionals are familiar, which then enables them to exercise their judgments. There have been comments from some of the practitioners that there needs to be flexibility in terms of the definition of wellbeing, simply because, if the definition is too tight, they believe that there will be discrepancies in the implementation and interpretation. At the moment, they were saying that the definition of wellbeing is sufficiently flexible that different practitioners can interpret it for their own discipline, and it works very well trusting to their professional expertise. Would you agree with that, or is that too loose? I think that that is the framework in which professionals want to operate, because the name person provision is about taking the proactive measures to intervene earlier to provide support before problems become more serious issues, which may well affect the welfare and the safety of a child, which is a completely different regime, or where problems may crystallise into being more serious and therefore require greater public sector interventions to meet the needs of a child. We are all familiar with the rationale that the earlier we can intervene to support a child or a young person or family, the better that is going to be. The wellbeing definition that is in section 96 of the 2014 act is designed to create the framework within which professionals can operate to exercise that judgment. Comments have also been made about training in different local authorities, where perhaps some of the training would move you down a different definition of wellbeing. That seems to be welcomed by a number of the practitioners, but does it create a difficulty if there is a national roll-out of some sort of training programme? Would that preclude that? No, because this legislation is predicated on professional judgment, and it is for professionals who we trust ordinarily to exercise those responsibilities on a regular basis to interpret and consider those characteristics and decide whether there is a requirement to offer support to intervene in any particular way to meet the needs of young people. There is a range of indicators that are set out in section 96, but it is up to professionals to decide how best to exercise the judgment within that framework. There has been some comment to the committee that there should be a definition that it should be on the face of the bill or in the code of practice. From what you are saying, that would not be the case. We have the wellbeing indicators, which are very clear. I think that what is important is in our education and training around the exercise of these responsibilities, that we listen carefully to the practice of professionals and ensure that that practice informs the guidance that is available to anybody who is required to exercise responsibilities in this way. Just to pick up what I think is a fundamental dilemma that we face, you are quite right to say that there are practitioners who believe that the wellbeing principle is flexible and allows for professional judgment. The problem is that if they are challenged on, I am probably more so challenged because they now have a duty to consider whether to share information or not. If that challenge takes place, they are much less secure in the knowledge that their judgment will be accurate because of the subjective nature of the scenery indices. That is my understanding, one of the concerns that the Supreme Court had, that wellbeing has the subjective nature to it, which might suit flexibility in professional judgment. What it does not suit and what has come through loud and clear is the concern among professionals. If they get legally challenged on something, the scenery indices will not be an adequate definition for wellbeing. I do not accept that point because I do not think that anything in respect of the framework is changing as a consequence of this legislation. The scenery indicators are there. They are part of the framework of consideration that professionals are exercising their responsibilities within just now. There is obviously a question of the judgments that get arrived at by professionals in this respect, but fundamentally the areas of activity that we are talking about here are areas of activity where individuals can quite clearly form a judgment about what is the best thing to do to provide the support to an individual child, young person or family. That is the professional judgment that we rely on as a society on an on-going basis for these professionals to make that judgment. Can I just take clarification on that? Do you accept that the change from the duty to share and now becoming the duty to consider whether to share adds a complexity that is part of the concern for the practitioners? No, because the reason why we are legislating here is that, and why we are legislated in 2014, is that good practice, which we have seen being deployed in different parts of the country, is what it is. Good practice deployed in different parts of the country, but not in all parts of the country. What this legislation is, is a prompt to give impetus to ensure that we are taking a more proactive approach, a more preventative approach consistently across the country, so that that good practice is available more widely than just in some parts of the country. That is why we are legislated in the first place, and essentially what we are completing in this process is the framework that enables us to ensure that that good practice is available to some people in some parts of the country, is available right across the country. I have a duty to consider what that looks like. A duty to share has a benefit that is simple. You have an obligation, and if you do not share, you can go back and test it, and you are responsible for the fact that you did not. What would a duty to consider look like in terms of evidence that you had considered and then decided not to share, or evidence that you had considered and then decided to share? That feels like a different thing from simply an exercise of professional judgement. You would expect or would you expect that there need to be written evidence? Would you have to take a log? What would that look like? I think that what we envisage—and obviously that is something that we have to discuss very carefully with our stakeholders. Is that not being discussed? It is part of the discussion that we will have to go on to ensure that we have the— Sorry, it is not being discussed when you decided that you would move from a duty to share to a duty to consider to share what that actually would look like, what the implications would be for MDs who was going to exercise that duty. Yes, we have discussed the nature of that change of the responsibility from duty to share to duty to consider. Of course, that has been discussed. Yes. What we need to have further discussion about is exactly what might well be the requirements of demonstrating how the duty to consider was exercised. I think that it is important that we listen carefully to stakeholders and practitioners as we go through that exercise to make sure that it is not burdensome, that it is consistent with the exercise of professional duties and that it is demonstrated in a fashion that addresses the issues that the bill requires. Can I just say with respect—I would have expected that work to be done before you put it into a bill—whether it is doable or achievable or not, that you might already have thought what would that look like? Rather than you give the duty and then, later on, you can have that conversation. It seems to be the wrong way round. The good practice already exists that demonstrates how professionals consider these points. It is a case of engaging with that good practice and with the professions and to make sure that we take it forward in a fashion that is consistent with that good practice. Thank you, convener. The scope of what information can be shared is not altered by this bill, either in terms of the nature of that information or the quality of information that is set out in the data protection act and is on the basis of child protection. I was wondering if the cabinet secretary agrees with that assertion. Is it conceivable that there is ever a situation where information could be shared on the basis of wellbeing if it does not meet that child protection threshold set out in the data protection act? Mr Johnson is inviting me to make a distinction that I do not think can exist, because in all circumstances there is an obligation to operate within the existing legal framework on data protection. Unless I am misunderstanding the question, there is an obligation on practitioners to operate within the framework of the existing law in whatever circumstance they are operating. The reason why I asked that question is that clarity is at the absolute heart of this. In terms of what the duty is to consider looks like, clarity is very important for no other reason than it was one of the things that the Supreme Court set out. My concern is that we are asking practitioners to consider on the basis of wellbeing, but what is actually permitted is dictated by child protection issues set in the DPA. Essentially, we are asking them to consider on the basis of one set of criteria, but what they are permitted to share is dictated by another set of criteria. That led Jenny Scott from the Faculty of Advocates to describe it as a difficult juggling act, and Kenny Meakin described it, particularly around consent, as balancing two irreconcilable points. I was just wondering what the cabinet secretary's response to that point is. My response is that the practitioner must operate within the law, and the law will stipulate that their actions have to be consistent with the contents of the Data Protection Act. That is in relation to any question of wellbeing. On the question of a child protection issue—I will only add that in for completeness—there are exceptions on child protection matters that allow provisions of the Data Protection Act to provide exceptions where a child protection issue is at stake for information to be shared because there may be concern that a crime has been committed. That would not be available on the question of wellbeing because the Data Protection Act does not provide for that to be the case in relation to wellbeing. You do accept that the act is explicitly asking practitioners to consider on the basis of one set of criteria, but the scope of what may be shared is set out by a Data Protection Act, or by a successive legislation. That is the situation. Finally, you described in your earlier points that the information sharing is necessary for the role of the named person and the operation of that policy. Indeed, Ross Greer asked you about alternative approaches. In the view of Jenny Scott and Clan Child Law, this could proceed with that information sharing on the basis that information can already be shared under existing law. I was just wondering why the cabinet secretary felt that the named person could not be put into operation under that basis, essentially with information sharing being on the basis of policy rather than legislation, and therefore removing this complexity altogether. Essentially, for the reason that I think I answered Liz Smith a moment ago, that we have good practice in some parts of the country, but we do not have it everywhere. This is essentially legislation to get us to a position of taking forward good practice to support children and young people and their families in all parts of the country. That is a decision that was essentially prompted by the act in 2014. Now, we are in a hiatus situation just now because if we roll the clock back to before 2014, legislation was taken forward to roll out this good practice. That was the purpose of the legislation. We now find ourselves in a situation where we have some legislative uncertainty and my worry would be that if we do not complete this journey, then that good practice will not be rolled out and we may, in fact, have a rolling back of good practice because there will be uncertainty over the legal framework. My understanding is that information sharing is but one component of the named person role. The other points in terms of liaising with families, co-ordinating with services, being that single point of contact, none of those things are fundamentally undermined by information sharing provisions being brought forward or not, and indeed the information sharing could still take place. Again, I do not understand why the role of the named person is fundamentally—I accept that there may be elements that would be more difficult with that potentially, but I do not see that it is fundamentally flawed if you do not have the information sharing provisions brought forward. Essentially, the duty to consider information sharing then requires all professionals to consider whether or not there is something they need to do or to act upon as part of this provision. It is moving from a situation—in much of this is tied up with the original thinking around the legislation in the 2014 act—that we were trying to create an approach that would ensure that more young people were able to have access to this type of support, where it was not always the case in all parts of the country. It was about providing the legislative impetus to ensure that good practice was able to be deployed. Now, where we find ourselves now is in a situation where I think there is a considerable amount of nervousness amongst the professional community about the issue. I think that the committee in Parliament has got two choices about how to address that, either to agree this bill and create legislative certainty in that fashion, or not agree the bill and try to ensure that the practice that Mr Johnson has talked about, which is formulated on largely a voluntary basis, will prevail within Scotland. I would be concerned that, because of the legal debate that we have had, because of the hiatus that we are in, unless we provide legal certainty through the passage of this bill, then that good practice will be undermined. Based on what you have just said, cabinet secretary, on the nervousness of practitioners, there is also considerable nervousness amongst families now that we have had this period of time where the named person, legislation and information sharing has been discussed in the media, in the society at large. You mentioned about a public information campaign. How is that going to take into account disseminating confidence to families and indeed to children who might have to use an named person service? What we would want to do is to make sure that we adequately and effectively counter the unease that there is clearly and the uncertainty that has been created as a consequence of the Supreme Court's decisions and the pause that we have had to put in place on the implementation of the legislation so that we can take care proactively and dispassionately to set out what are the minutes of the legislation, the services that are available and the supportive role that would be envisaged. I think that it is important that we try to ensure that members of the public are equipped, whether that is a child or a parent, with that information. Will the code of practice, the way that the code of practice is written, be written in such a way that it is understandable to families who might actually want to look at it to know how their information might be shared? That has to be a requirement. The code of practice is of no value if people cannot understand it. Whoever has a relationship to the code of practice must be able to understand it. I will ask a couple of questions about the code of practice, but I should start by defending Oliver Mundell. When Mr Swinney was in opposition, he used to demand lots of us resigned on a regular basis. I will pass a few of his press releases over from those days, John. I have a very different recollection of events, Mr Scott. Well, indeed not. I wonder if I could start by asking the cabinet secretary if he would accept that much of the evidence that is laid to this committee in respect of the code of practice—and indeed, I am sure, to his office personally—reflects that practitioners believe that the code of practice is central to the provisions of this proposed legislation. Therefore, does he think that the code can be finalised prior to the finalisation of the UK Data Protection Act 2018? Yes. With certainty? Yes. And when will that be? Well, I do not know when. But is it 2018? If Mr Scott will forgive me, I am predicting that the course of the UK Government is not something that I think any of us can do with great confidence at this particular moment. I am flippant, but I should not be. What I would accept is that there may well be changes that will come in the future to the legislative framework, because we do not in this Parliament have competence over all of the issues that may well be affected by the Data Protection Framework, but we do not have legislative competence over Data Protection, so there may well be changes in legislation that come, and we would have to make sure that we were acting, and we had guidance, and we had a code of practice in place that was compatible with whatever the emerging legal framework was. I entirely take the point that we do not know when that will be the case, but it is not going to be in the next six months, is it, to the best of your knowledge? No, I would not know. Therefore, in the letter that you wrote to the committee on the 6 November in which you say that you are establishing a practice development panel this month, November, is that panel to undertake work on the code of practice, or is that different from the consultation that you envisage on the code of practice? That is to undertake work on the code of practice. Am I right in saying that this letter reads that you have yet to appoint a chair and the people on that panel? That is correct. So when will those people be in place? Do it very swiftly. Okay, and when do you envisage it concluding its work? The group will conclude its work in a timely fashion once the bill has completed its passage within the Scottish Parliament, and once due consultation and dialogue is taken place to get us to a point where the framework is judged to be effective and appropriate and then can come forward for parliamentary scrutiny. Is there no reason why, would it be fair to say that the panel could not begin its work irrespective of whatever stage the Parliament has reached on this matter? I envisage that starting in the next, and of course certainly before the bill has, assuming the bill moves into the further stages of its parliamentary passage, that work can start within this process. And the work that it's going to do, I was interested in the language you used in the letter where it reads the code to be made under the act once passed will quite properly start from a quote, blank piece of paper. Do you want to just explain to me why you used a blank piece of paper as a language there? Okay, what I was trying to say there was that I'm not going to oblige the group that comes together to take the illustrative code of practice as their starting point. That's the point that I was trying to make. So the committee therefore really has no sight at the stage of what that code may look like at all? Well, yes, it does because I've given a draft illustrative code of practice, which I have accepted as perhaps not been the finest piece of work the Government has ever produced. So that's there to try to help the committee in its deliberations. But what I think is important, and this is exactly the dilemma that I judged would be part of these proceedings. The legislation that is before Parliament, and the question that the committee has to answer is whether it supports the general principles of the bill, which envisages the creation of a code of practice. Now, my judgment was the committee would perhaps ask me for an illustrative code of practice to be available whilst considering the bill, which is why I introduced the draft illustrative code of practice that I did. But equally, I could have taken the view, well, look, that's for another day. That's for later on the process. And then the committee could have asked me the question that Mr Scott has just asked me. So what I'm trying to signal here is that the advice that I have taken says to me that the only way we can proceed to address the issues of the Supreme Court are to put in place the bill, to follow it with a code of practice, and the code of practice needs to be formulated in a fashion that commands confidence amongst practitioners, professionals and members of the public and children and families. We've got to make sure that we do that properly. I take the last point of that. I don't frame the question in that way, but I take the last point that the code of practice must command confidence. Therefore, given that we're dealing with, in some sense, a very narrow piece of legislation, the code of practice is called to this and you accepted that in your original answer. Therefore, I find it very difficult to see how the dilemma the committee is in here across all of our considerations is how we give consent to a narrow principle in relation to a Supreme Court ruling, yet we do not know at this stage what that code is going to be, because Gillian Martin asked a very fair question. It's got appeal to families. The one we saw might appeal to lawyers but certainly didn't appeal to families. Fundamentally, I think the question that Mr Scott puts to me is answered by the commitment that I gave at the outset of the committee hearing that Parliament will have the final say on the contents of the code. That's another way of looking at that, but that's for another... Well, sorry, I think that's a very significant way, because Mr Scott, the committee has not been asked today to sign up to the code of practice, nor has Parliament. The committee has been asked to sign up to the general principles of the bill, and I've conceded today that, in a change to the proposition because I've listened to the evidence of the committee, I have conceded that Parliament will have the final say by vote on the contents of the code of conduct. The provisions of the bill already are in visage that I would lay the code of practice in draft within Parliament. The code of practice would be available for consultation in Parliament for 40 days. I must take account of any comments on the draft code that is expressed by Parliament within that 40-day period, and I'm now proposing to amend the bill to put in another stage in that process that the code will come back to Parliament for Parliament to decide itself, not me, Parliament, whether the code is acceptable. So there's a huge change in the position. Sure, but there's an absolutely opposite view to all that, which is the code of practice called to this, which we've agreed, I think we've accepted that, and the code therefore has to be the fundamental starting point for how this committee should consider it, and despite all you have just said on the parliamentary process, and I totally accept that you've moved and suggested some new ways of of Parliament seeing these things, and that's a wealth that could be seen by those who see the parliamentary processes as the right thing, the fundamental issue for us as a committee is we haven't got a code, and yet you're asking us to approve something without a code. But I'm not been asked, but I'm not asking you to approve the code. I'm asking you to- You are at a later stage. Well, at a later stage you'll have the opportunity, the Parliament will have the opportunity to accept or reject the code. So, and the code is not new law, and this is a point I went through in detail with the delegated powers committee. It is not new law, it is explanatory information, but Parliament will be the judge of whether we have done that satisfactorily or not. So the committee, under no circumstances, has been asked to approve a code at this stage. It has been asked to approve the general principles of the bill, which require us to bring a code, which is subjected already to significant parliamentary scrutiny, and I've just accepted another layer of that scrutiny, but Parliament will have a veto over that code. Yeah, but the principles are nothing without the code, are they? But the code can't happen unless Parliament votes for it. Yeah, okay, but we could- We are going round to circles now. One other final question. I take it we're going round to circles and that's as much my fault as anyone else's. One other question I had convener, if that was all right, is that I just wanted to quote the RCN, who I presume sent this email to all of us overnight, but the bit that I thought was important in this is that they consider, they support the principles, but they do not support the legislation as is currently introduced because they do not consider it to be the answer to the question, but they specifically say in relation to duty to consider, we believe this may undermine the principles of GoFec by resulting in defensive practice, and that's by practitioners, we're pretty hot on practitioners in this committee because the evidence has been powerful here. Does the cabinet secretary accept that concern, and if so, what's the answer to it? Well, the answer to it is that there will be a variety of different opinions because the committee has had a letter from a whole variety of organisations involved in this area of policy. Aberlour, Children's Scotland, Cross-Reach, Includum, Children's Health Scotland, Social Work Scotland, One-Pent Families Scotland, Enable Scotland. I agree with all that, Mr Scott, but I'm talking about the RCN. In the field of the health service, the Nursing and Bunwifery Council, we can currently see no conflict between the draft legislation proposed, and our own regulatory approach is not to be our code. The Royal Society of General Practitioners, we welcome the amended wording of the bill as it meets our concerns regarding the threat to doctor-patient confidentiality contained in the original bill. We welcome the GMC Scotland, we welcome the proposed move away from creating a mandate to duty to share information about children and young people with a named person. Those issues are, I think, the subject of discussion and debate among organisations, but if Mr Scott is looking for evidence, there's plenty of evidence of organisations. Is the RCN wrong? Well, the RCN has got their opinions, and they're entitled to express them. As Mr Scott knows, I simply marshal evidence of different opinions in front of the committee to judge. Thank you. Just on a point of clarification around the status of the code of practice, I hear what the cabinet secretary is saying. Are those provisions in terms of parliamentary scrutiny going to be on the face of the bill? Also, will that apply to changes in the future to the code of practice, i.e. will it have the status of secondary legislation? The provisions that I went to in section 1, subsection 4 of the bill, on page 3 of the bill, at the amended, the new section 26B of the 2014 act, subsection 6, Scottish ministers must labour for the Scottish Parliament a draft code of practice that they propose to issue. Subsection 7, the Scottish ministers must issue the code of practice, it must not issue the code of practice until after the expiry of the period of 40 days, beginning with the day in which the draft code was laid before the Parliament. 8, the Scottish ministers must, in the code of practice, take account of any comments on the draft code expressed by the Parliament within that period. That's on the face of the bill already. I will bring forward a stage 2 amendment, which the committee, if it approves stage 1, will consider, which will apply an additional provision that will have to tidy this all up, but it will essentially say that the code of practice cannot be put in place until Parliament has agreed that to be the case. If we were to bring forward any subsequent code of practice to take account of changes in data protection legislation, for example, we would have to go through the same process to do that. It would not have the status of secondary legislation because it's not legislation, it's explanatory information, but what I'm trying to do is to address what I can clearly detect as a parliamentary concern about how the guidance can have sufficient authority and command sufficient confidence in Parliament by enabling that proposal to be considered by Parliament and for Parliament rather than me to have the final say. I understand the Scottish Government has been engaging with a number of outside organisations about the draft code of practice and some of the changes that are set out in the cabinet secretary's letter. I just wondered from a point of view of parliamentary scrutiny. Obviously, this committee has spent a long time taking evidence from various organisations, some of whom have given evidence based on one thing that now is no longer essential to our consideration of the bill. I just wondered how the cabinet secretary expects the committee to scrutinise what I would see as a shadow consultation with a set group of organisations. Will the committee make its judgments based on what the committee hears? Will the Scottish Government share any of the information around the discussions and concerns in more detail that it has had with some of the organisations, including some, who have now written a letter revising their position from what they submitted at the start of our evidence-taking? I would say that a fair summary of all of these issues is what I set out in my letter to the convener, which I issued on Monday. How many organisations did the Scottish Government meet with ahead of us taking evidence but after they had submitted written evidence to the committee? We meet with organisations on an ongoing and constant basis. I talk about these issues on a constant basis, and I have volunteered to the committee that I have listened. I have heard the evidence and have been watching every week of the committee's proceedings. I am alert to the concerns that have been expressed and have been addressed openly. I have come here and have accepted that there have been elements of the steps that we have taken that we have not got right. Mr Mundell asked me earlier on about my accountability. I have come here and said that I made a judgment. I said to my officials here, listen, we are going to have to put in a code of practice, a draft elusive code of practice in the bill. It was not part of our original plan because that is not what the committee was being asked to judge. The committee was being asked to judge should we have a duty to consider, should we have a code of practice. I decided to add that in during the proceedings. We could not undertake the consultation and I have accepted that we did not get that right. I am not hiding anything from the committee. The committee has heard the evidence. I have listened carefully to it and I have addressed it in an open published letter to the convener of the committee on Monday. I am here to answer questions about it. Would you accept that there are some people who gave evidence to this committee who have potentially changed their evidence before giving oral evidence on the basis of reassurances that they have received in private from the Scottish Government that the committee was not aware of at the time that we took evidence? The world moves on. I have wrote a letter to the committee on Monday which sums up the changes that I am making to the approach in light of the feedback that I have had from individuals. There is nothing private about it. I have sent a published letter to the committee and I am sitting here in a televised session able to be viewed by anyone around the world explaining what I have done. There is nothing private, but there is no secret information. I have just simply listened to what the evidence of the committee has taken, realised that we have some difficult issues to address and I am openly addressing them in front of the committee. Last question. You shared potentially the Scottish Government's intentions for the future of this bill with some organisations who were giving evidence to this committee before they appeared here. Do you think that that has a potential to affect the evidence that they gave? I do not actually think that is the case, Mr Mundell, because I think—well, I would have to go and look at all the details of the dates, but I have been listening to organisations coming here. There is a logical inconsistency, Mr Mundell's point to me, because I have listened to the evidence of the committee, so I have seen organisations come here and say that we have got this concern and that concern. They have said that already. I have then gone away and had various discussions with people to understand better their perspective and I have formulated a letter to the committee which I have sent and is published. I am here to give evidence and to be answered with it. We are working in dialogue with organisations all the time, but I have not shared my private thinking with anyone before they gave evidence, I do not think, because I am here to give evidence to myself today. I have set my position out to the committee on Monday. Forgive me if this is a naive question, but it came from a recent visit to a group of practitioners who said that I would raise it. Their concern was that, because the code's primary purpose is to ensure that legal compliance that it may not be possible to ever shape it into a fashion that they would find accessible and usable. The proposal that they mooted was that, instead of the code being directed at the practitioners themselves, the code was essentially directed towards the legal representative of the practitioners, the local authority, the legal services department etc. The practice guidance was what was directed immediately to the practitioner. Is that possible? If I understand Mr Greer correctly, I have been asked is it desirable for the code of practice to be addressed to the legal representatives and the guidance to be addressed to practitioners. Is that the question? Yes. As it stands, it is the code of practice for practitioners. Their concern was that it may not ever be in a fashion that they found usable and that perhaps if the code was not directed at them. It has to be usable by practitioners. That is the challenge that we have got to make sure that we get right as part of our dialogue with them. I would like to come in on that point. Is part of that behind that that the legal responsibility touches on something that Liz Smith was talking about earlier on about the individual fearing them being held responsible? Is this about the practitioners wanting to make sure that the body is held responsible and not the individual? Let me provide a little bit of clarity then, convener, on that point. The code of practice has to be available and usable by anybody who is exercising those responsibilities, so we have to get that into a shape and a character that enables that to be the case. In relation to the legal responsibility for any decisions that are taken or approaches taken, that falls on the organisation, not the individual, so that the legal position is crystal clear on that. Jenny Scott, to the very point, said that the code of practice is balancing such complicated legal points that she could not conceive that it could be a straightforward point. Do you accept that, or how do you seek to attempt to resolve those complex legal decisions in a code of practice? We have to articulate it in a way that will be usable by practitioners within the services that are operating in this fashion, so we have to get that necessary input to make sure that the document will have that usability by practitioners. Is she wrong to question the possibility of that? It's her opinion. Thank you, convener. On the legal responsibility in relation to schools, it will not be a head teacher who will be legally responsible in that sense. It will be a local authority, and the governance reforms that you published yesterday will make no difference to that. Thank you to the cabinet secretary for coming along today. You will be aware from the evidence that we have heard from practitioners and other professional bodies that there is significant concern about training and time for staff and practitioners to be able to receive correct training to implement the name person. That was something that we heard from our focus groups last week. I am really pleased to say that you are saying that there will be some additional funding. Further financial support was the expression that you used, cabinet secretary. I wonder if you could expand on what is going to be available to organisations to roll out the training for, particularly part 4 and part 5. We already made provision in the original 2014 legislation for funding to be available, which was distributed to relevant local authorities and public bodies to support the training and necessary equipping of professionals to take forward the responsibilities. I want to make sure that we adequately address the issues of resourcing that are raised by different bodies. My plan would be, as we take the bill forward, to work with stakeholders to identify exactly how the provision of such support can be put in place to address those issues. At later stages in the bill, I will make the specific provisions on that available to the committee. Will the panel that you are convening have some input into what that training will be, assuming that some of that training will be different from what was originally rolled out? Yes, they will have. I want to ensure that they can shape that agenda. Some of the organisations who raise that concern, I would assume, may be part of that. They will be, yes. Another issue that was raised with us was about other people who are not named persons, or other organisations who are not named persons, but who will feed information into named persons. Is there some provision for training for them? Yes, and there will be wider awareness-raising approaches that we take forward to make sure that there is a wider understanding of the role of the named person and how individuals can contribute to the valuable work that named persons will represent. Mr Swinney, just on the question of training, you have acknowledged in your letter and you have acknowledged again this morning that there will be an increased cost. Could you give us some idea of what that increased cost will be? I cannot at this stage because I want to have that dialogue with stakeholders to make sure that I can address the issues properly. That is dialogue that I will take forward during the course of the bill to ensure that I can adequately assess what is required and be in a position to give clarity to paramedics to what that will envisage. I have some questions around the training that happened before when, for example, local authorities thought that this was going ahead and then there was a Supreme Court judgment. Was there funding given for training at that point and what happened to that funding as a result of the top hiatus that we have had? We distributed, if my memory says me right, just over £10 million to local authorities. As with all funding of that type, it was distributed to local authorities and that is where it remains. Some local authorities have put in place training already and some did not. I imagine that it is a valuable picture across local authorities. For those who did training a few years ago now, could there be a need for more training to happen? Maybe they have spent some of their training budget because they thought that this was coming in and now they will have to redo that training. All local authorities confirmed to us after the passage of the 2014 act that they were ready for implementation because we had a commencement date of August 2016 in that respect. Obviously, the training activities of local authorities have been taken forward within that context. Clearly, the evidence has indicated that there is a desire and a need for further training and support. That is what I want to discuss with stakeholders to make sure that we can adequately address that. I have one further question. I suppose that it comes back to the duty to consider and any kind of documentation that might be required as a result of that. Are you taking into account that there might be, as a result of the decisions made on that, an increase in workload for certain practitioners and how has that been addressed? When I look at the exercise of responsibilities by public servants at local level, there are many public servants who are operating in this space where they are assessing and considering the needs of individuals and how they can most effectively support them. A lot of that existing practice is going on among teachers who are looking at the wellbeing of children in their care or health visitors. We have substantially expanded the number of health visitors in Scotland and there is further expansion on their weight. A lot of that activity is already undertaken. What the bill envisages is that duty to consider shearing information being applied on a more widespread basis. Obviously, that will change the nature and character of some of the work that is taken forward. What has to be borne in mind is that where the practice has been rolled out, it has resulted in a reduction in case load because of the proactive work that has been undertaken to achieve the objectives of name person, which are to avoid more complex cases arising because earlier intervention has avoided that need from crystallising. One of the things that strikes me in this conversation and all the evidence that we have taken is how far away it feels from the real world and how far away it feels from the young people that we are wanting to support. I am sure that that is a concern that you share. Can I just ask first on this question of resources? Can you guarantee that the resources will not be removed from provision for young people and children to training? Yes. Can I perhaps also add that I do share the point that Johann Lamont raises at the start of the question. The difficulty with this particular bill, and it is the point that Mr Scott made earlier on in one of his questions, is a very narrow point. It is an important point, but it is a narrow point that we are having to address here in the bill because of the issues raised by the Supreme Court judgment. However, it is a point that is critical to enabling us to pursue the larger agenda, which is about supporting the wellbeing of children and young people in our communities. I think that it is a challenge because the committee has to scrutinise this very narrow part of the bill to enable that larger picture to be taken into account. For me, I think that the judgment will have to make us whether this legislation makes the situation better or worse for young people. What also strikes me from the evidence, which you have obviously paid a lot of attention to, is the extent to which there has not been a ringing endorsement of the legislation. There has not even been the position that you have taken, which is that this is absolutely necessary in order to protect young people. In fact, many of the practitioners have said that this is what we do anyway, and that it is not really necessary. In fact, they predicate their support for the bill on the quality of the code of practice, so there is not a ringing endorsement. At best, you will get people who committed or named person on Gyrfex saying that we can make this work. We have already mentioned the letter from the group of charities, which is interesting and very useful to us, and we are grateful for it because they outline that they support the needs of the duty to consider. However, if I can read to you one paragraph, I do not want to misrepresent what they have said, because clearly the overall conclusion is that we should support the bill. However, we recognise that significant concerns remain. At this stage, we are prepared to work with the Scottish Government with the aim of producing a bill and code that can be supported by the majority of the children's sector and ultimately the Scottish Parliament. Our current support is contingent on the Scottish Government working effectively with the sector to produce revised measures that address the concerns expressed to date satisfactorily. We are now in a position where we are expected to support a bill that has only got conditional support from its strongest advocates, who in this letter contemplate the possibility that that will not succeed. I wonder if you accept that that is a dilemma for this committee, and, in fact, what it appears to me to be suggested that these organisations want to go away and work with you, from a base point of how do we make this work, rather than say, put the bill through an NC, can we make the best of it? My response to that point has to be set within the wider position of every one of these organisations in relation to the question of the name person. Every one of these organisations wants the name person provision to be put into practice and to put into effect and to be taken forward. In some of their experience in some parts of the country, that provision will be working, and it will be working voluntarily. In other parts of the country, it will not, hence the need for the legislative impetus to put that provision into place. None of these organisations are casting any doubt about the importance of the named person provision, which is the legislation that is already on the statute book. However, for it to commence, for it to be able to have its potential realised, the bill before this committee needs to be passed. I cannot— That is not what they say. What they say is what they say— Can I please complete my— I am not interpreting what the signatures of this letter are saying, and I am purely and simply making it a factual point to the committee that the named person provision cannot be commenced on the basis envisaged by the 2014 act unless the bill before this committee is passed. What I have accepted, and I think my exchange with Mr Scott helped to clarify this point very significantly, is that there is a job of work to be undertaken on the code of practice, which will ultimately depend upon a parliamentary decision as to whether it is enacted or not. I am putting much more involvement and participation for Parliament in this process than was envisaged in the bill originally. That is a crucial part of the approach that I am taking. The final point that I would make in this respect about the letter from the organisations is that they support the concept of the process that the Government is going through here, but they want to be immersed in ensuring that that takes the correct course. With respect to what I have committed, they say that their support is contingent on a successful conclusion of that work. That is a very different thing. They are contemplating the possibility that the legislation may not work. They are not saying that if it was simply that we know the support of the named person and that many of us in the past continue to seek to support it, but they are saying that that is notwithstanding. If they simply said that they support the named person, the principle and the bill are required to deliver that, they would say that. They do not say that. They say that their support for that is contingent on an effective outcome. We have been asked to support a piece of legislation without knowing that that guarantees already happened. I am sure that you will accept that as a major problem. I wonder if you can comment on the question of unintended consequences and a significant amount of evidence. I appreciate not everybody. Some people said that they would do their best to make it work. Some people felt that defensive practice would develop now. I understand that other people have said that it has already developed because of uncertainty. Would you share my concern as a consequence of this legislation? People begin to practice even more defensively than they have in the past to the detriment of our shared commitment to the safety of our young people. The events that were associated with the Supreme Court challenge have created a very difficult set of circumstances for practitioners. Circumstances that we did not want to see happening. This letter from the organisations makes it quite clear that the legal uncertainty is creating some of that risk averse practice. What we have got to make a judgment about is how do we resolve that issue? I am at one with Johann Lamont about wanting to see in place the clear process and practice that can support the well-being of children within our society. That is the destination we want to get to. We have to wrestle with what is the best way to do that in the light of where we find ourselves today in the aftermath of the Supreme Court judgment. The question is whether getting to the destination that Johann Lamont sets out will be either aided by the passage of the bill or hindered by the passage of the bill. In my view, it will be aided by the passage of the bill because we will be able to put in place the legal clarity that will enable good practice to be undertaken safely within the law and within the parameters of good guidance. If we do not pass the bill, then the concept of the named person I think goes into our hiatus. As a consequence of that, I think that the opportunities to support the enhancement of the well-being of young people in Scotland is diminished as a consequence. That is your view, but it is not the view that everybody shares. Do you accept that there are significant numbers of people in the legal profession who do not accept that there is legal clarity in this matter now? In fact, there are significant problems with it? Of course, the committee has heard different legal opinions. I am simply asking the committee to accept in good faith. Johann Lamont is absolutely right. What I have just expressed to her is my opinion. I just give my opinion to the Parliament. The committee can consider my opinions. That is what this process is all about. Ultimately, the committee will also want to consider on what basis would I come to the committee with a bill? What will I have gone through to try to make sure that the bill is sufficiently robust to meet the needs of this legislation? I have gone through that process to get to this point. In that context, the bill helps us to provide that legal clarity, although I accept that there will always be legal debate about some of those provisions. Of course, there is legal debate about provisions that Parliament has passed and that have been tested in the courts. On a number of occasions, they have been rejected by the courts. On some occasions, they have been supported by the courts. It is not something that is a new concept in the territory that we occupy. It is not unique. I am interested, however, from my understanding that the main thing that the Government has done to address the Supreme Court concerns is to move from a duty to share from a duty to consider. Can you confirm again that you have not had a conversation with stakeholders about what that duty to consider would mean for the individual practitioner and for the local authority or organisation that employs them? Is it pretty fundamental whether it is workable or not? We went through that process in the latter part of 2016, where we discussed what was the way to respond to this legislation. What would that look like for the individual? We arrived at the duty to consider. We have discussed that with the national implementation group. We have discussed it with our stakeholder forums. In terms of the conclusions of what that looks like in reporting terms or in process terms, I want to make sure that stakeholders have an opportunity to shape that. To ensure that we give adequate space for stakeholders to inform the practice. Surely there is a pretty fundamental way of dealing with this problem, is to go from a duty to share to a duty to consider. Surely, in deciding on that move, you would test the practicality and the implications of such a duty. Would you have to write down your considered view, give evidence that you have considered and rejected, considered and shared? What would that mean in terms of the implications for a practitioner in terms of defence of practice? It cannot be that you would have decided to have a duty to consider without testing that what that would mean in the real world and what the implications for individual members of staff or practitioner would be. On the last point, that position is crystal clear, because the responsibility rests with the organisations involved. There will be issues of professional practice that will affect many professionals and that will be the subject to on-going discussion on a whole variety of different grounds, not specifically about being made person. We have discussed the approach of the duty to consider as being the approach that enables us to address the question of proportionality that was raised by the Supreme Court in their judgment, and we have applied that to the legislation. What I am simply saying to the committee is that I want to make sure that stakeholders can be fully involved in how we finalise the detail of how that is undertaken. You have not road tested the implication of our duty to consider on the individuals who would have to do it, and would you accept that there would be an impact on an individual given the context of the bridge between wellbeing and child protection in the context? In the past, people have not supported this being a problem when you would have expected them to support it as a problem. It is about individual practice. There would be an implication for people. There would be an expectation on them professionally to behave in a particular way, so this duty is significant. It is not just about local authorities and organisations, it will be about individual professionals and therefore the legislation will stand or fall by the capacity for that duty to consider to be deliverable, to be real without creating defensive practice. Good decision making by professionals already relies upon proper and effective recording of information. That is an essential part of all judgments that are applied by professionals. The simple point that I am making in relation to this issue is that I do not want to finalise the details of what that reporting arrangement looks like until such time as professionals have the opportunity to shape that as part of the on-going process, but anyone that envisages that are professionals—and I know that Johann Lamont from her extensive experience in this area of activity will know that the good recording of information to support good quality decision making is an essential component of that process. There is an issue about resources and we accept that you have made more resources available. There can be a judgment about whether, in terms of children's organisations, if you had a choice, that is where you would focus them. This is not a part of the standpoint and I make it quite seriously. One of the problems around an in-person policy has been the way in which it has been represented and the lack of confidence in it and the lack of understanding of its purpose, even by its strongest advocates. You say that you are going to have a national campaign. Given the extent to which people who do not support the policy do not have confidence in what the Scottish Government has done, have you looked at a campaign, a national campaign, that would not be conducted by the Scottish Government in this regard, given that you are seen to—for whatever reason—I am not casting aspersions at all on the Government who, I think, in large part have sought to deliver the in-person policy from the best of intentions. However, that lack of confidence surely will not be addressed by the Scottish Government having a national awareness campaign, and have you looked at other options and how that might be done? I am certainly prepared to do so because the point that Johann Lamont makes may well have some real substance about it, and it may be the best way to try to address some of the issues to take it into a different sphere where we find a different way of going about this. I will certainly give active consideration to that point. Just on one of the points that was raised there, there seem to be a number of witnesses that shared some of the concerns that Johann Lamont did about the responsibility that could be laid on them, the difference between wellbeing and child protection, but it seemed to be more about the fact that they weren't sure that the local authority or the health board or the organisation that was legally responsible was going to be responsible, and if they were given those guarantees, they said that some of their problems would disappear. Will there be strict guarantees given to individuals that it is only in terms of a legal case as it would be just now, like if they had done something that was criminally wrong, that they would be held responsible in a way that they would be without the named person? In section 19, subsection 8 of the 2014 act, it says, responsibility for the exercise of the named person functions lies with the service provider rather than the named person, so there is protection in law in existing statute, which would obviously be commenced with those provisions that are on the face of the 2014 act. Just one last point, cabinet secretary. Would you consider that the practitioners, while in most cases they will be able to continue to use informed consent as a basis for sharing wellbeing information? I would imagine that that would be the almost universal approach that would be taken. In that case, can I thank you very much for your evidence, and we will take a short break when the panel leaves. Thank you very much.