 Good morning, and I welcome everybody to the 15th meeting of the Education and Culture Committee in 2015. I remind all those present that electronic devices should be switched off at all times. The first item for us this morning is to decide whether to take item 6 on our response to the SPCB on Scotland's commission of our children and young people in private. Members agree? That's agreed. Thank you very much. Our next item is to take evidence on the Historic Environment Scotland Act 2014 incillary provisions order 2015. I welcome to the committee Fiona Hyslop, the Cabinet Secretary for Culture, Europe and External Affairs, and her supporting officials. Good morning to all of you. After we have taken evidence on the instrument, we will debate the motion in the name of the Cabinet Secretary at item 3. Officials are not permitted to contribute to the formal debate. I begin by inviting the cabinet secretary to make some opening remarks. Thank you, convener. Good morning. This order is part of a group of instruments that we have laid to complete the actions that implement the Historic Environment Scotland Act 2014, which the committee considered last year. The other instruments all follow the negative procedure, but they are related to the affirmative order before us today. We have consulted extensively on the details of procedure that are dealt with in these instruments, and I will publish the Government's response to that consultation very shortly. There is widespread agreement with our own views as to the best way forward in general and on matters of detail, so we have been able to follow a consensual route in preparing this order, as well as in the other instruments. Historic Environment Scotland will assume the existing functions that Historic Scotland and Arkham carried out from 1 October this year and will take on new, broader remit on the same date. Turning to the order in front of us, I can summarise its purpose very quickly. This order changes several pieces of primary legislation where the Scottish ministers currently have a role so that Historic Environment Scotland is named, enabling it to perform those functions from 1 October. Those functions involve Historic Environment Scotland being consulted or playing other roles to support other bodies who are charged with decision-making functions. The order sets out transitional arrangements for situations in which administrative processes are not completed at the date of change, and those are intended to avoid any double handling or of any delay for those who are waiting decisions. The order also adds Historic Environment Scotland to enactments that list bodies require to adhere to statutory public procurement and regulatory standards. The specific enactments that the order changes to ensure Historic Environment Scotland's role are the Road Scotland Act 1984, the Building Scotland Act 2003, the Land Reform Scotland Act 2003, the Housing Scotland Act 2006 and the Environmental Assessment Scotland Act 2005. A few of the enactments that were dealt with in this order generate substantial volumes of consultation or other work. The bulk of the regulatory and consultation work for Historic Environment Scotland will arise from the Ancient Monuments Act and the Listed Buildings Act and from a range of planning and environmental impact assessment regulations. The principal acts for those areas already cover the new dispositions, which means that the revised procedures can be implemented by changes to regulations that follow negative procedures. Finally, the order adds Historic Environment Scotland to the Procurement Reform Scotland Act 2014 and the Regulatory Reform Scotland Act 2014 to require it to operate according to the standards that are expected of public bodies in those areas. Finally, the order helps to deliver the Government's commitment to position Historic Environment Scotland as the national lead body in our collective efforts to understand, protect and value Scotland's Historic Environment and contributes to setting the high standards that we expect Historic Environment Scotland to uphold. I welcome the committee's support for those provisions. Thank you very much, cabinet secretary. Do any members have any questions to ask at this stage? Good morning. Good morning. Can I just ask—no problem with the order? What management changes are likely to take place by changing or consolidating the organisations under HES? That is a big question that was discussed with the committee at length during the actual consideration by the committee of the primary legislation in the act. Considerable management changes have been in effect for a significant amount of time already. In terms of procedures that we are currently in the process of recruiting the new chief executive, the new board has already been established and is already meeting, so the transition process and the management changes are being affected, as was discussed with the committee when they were looking at the primary legislation. We will be happy to forward you some information about that, if that is helpful for your background. Thank you very much. Can I check, cabinet secretary, about the consultation? I believe that there were two consultations that affect that particular order, the one in summer 2013 and then the one on the changes to regulatory arrangements that took place in the winter of 2014-15. It is just to ensure that those consultations cover directly the changes that are now being done. I am happy for that. The changes in the large scale that were set out in the act were covered by the first consultation, directly at the framework. The second consultation looked at the detail, looked at draft regulations, transitional provisions and so forth. We dealt with a group of nine regulations that were then drafted. As full draft regulations, we received comment on them and analysed that comment and taken it on board. There have been some very minor changes to the drafting. Generally, the response was very positively in favour of the arrangements that are set out here in general and in detail. A few queries about very minor technical matters have been addressed, and we are publishing a report on that in the next week. That is very helpful. Thank you very much for that. Any further questions? I will now move to agenda item 3. As indicated, we now move to the formal debate on the instrument, which is item 3. I invite the cabinet secretary to speak to and move the motion. I will just move the motion that the Education and Culture Committee recommends that the Historic Environment Scotland Act 2014 and Sillary provision order 2015 be approved. Thank you. Any contributions from members? I presume that you do not wish to respond. Thank you very much. I will put the question to the committee that the motion S4M-13406 be agreed to. Are we all agreed? We are agreed. Thank you very much, cabinet secretary. I will suspend the meeting briefly. Our next item is to take evidence on the Education Scotland Bill. Before we do that, I thank everyone who has made written submissions on the bill to the committee. We received almost 100 submissions, which will help to inform our detailed scrutiny of the bill in the coming weeks. We will also take evidence from two panels of witnesses today, the first of whom will cover the bill's provisions on attainment, inequalities of outcome and on the proposed chief education officer. I welcome to the committee this morning Keir Bloomer, representing Reform Scotland, Professor Sally Brown from the Royal Society of Edinburgh, Professor Sue Ellis, Joseph Browntree Foundation and Ian Glenny, Scottish Secondary Teachers Association. Welcome to all of you. I am going to move straight to questions, if you do not mind, from committee members. We are going to start with Chick Brody. Yes, I want a good morning. In terms of the submissions that we have had, there is a vast range of, as you would expect, opinion. I just wonder to what extent do you think legislation in general can contribute to closing the attainment gap, as opposed to custom and practice? A very important question. My view and the view of Reform Scotland is that the answer is only to a very negligible extent. What is proposed in the legislation present moment, it seems to me has only one guaranteed effect, which is that every two years there will be a frenetic outburst of activity preparing reports, so we will get lots of bureaucratic action, we will get lots of reports, most of them in competition with each other trying to demonstrate huge quantities of activity. However, that is not after all the purpose of what is being put forward. What is being put forward is basically a statement of aspiration. Looking through the evidence, the only argument in favour of putting such an aspiration into law that I have seen is that it will help to raise awareness. That is addressing a problem that we do not have. As we have said in our evidence, Scotland has been aware of the problem for the best part of half a century. Successive Governments in good faith have made all kinds of initiatives in order to tackle it. The profession has been solidly behind it, but the success achieved so far has been negligible. The problem is not that people are insufficiently aware of the issue. The problem is that we have not gotten agreed consensus on the way forward to tackle it. My view is that legislation has very little to contribute on that. Any other views? Professor? The view of the Joseph Rowntree Foundation is that it is useful because it puts it on the agenda and it sends a clear signal to people involved in education that the issue has to be tackled. One of the things that came up when we were doing the preparation for the Joseph Rowntree systematic review that we did last year was that I looked through all the advice given to schools for the extent to which that advice framed issues in terms of poverty. I looked at things like GoFec getting it right for every child, how good is our school, all that legislation, all that policy advice to schools. What was interesting was that gender was mentioned, looked after children was mentioned, educational support and children with special needs was mentioned, poverty was not mentioned at all as an issue. One of the things that is useful about the law is that it is putting it very clearly on the agenda. It is asking local authorities to collect data, but the difference will not be made by the local authorities collecting the data. The difference will be made by schools, headteachers and teachers who take that data and use it to make a difference to the children that they teach. Given that duty and that responsibility, would strengthening the duty make any appreciable difference in your opinion to the potential impact of the legislation? No, I think that what will make an impact to the impact of legislation will be the extent to which national advice, local authority advice and school advice line up and marries together so that schools and headteachers are getting the clear advice about clear signposts about what matters and clear information about what works. That is what is going to make a difference. We support the legislation and it will bring the attainment up, but unfortunately we feel that the funding aspects—I think that there are unforeseen funding things that are happening in schools—a lot of our members in schools are currently complaining about the lack of resources in schools that are caused by local authority cuts and local government cuts. At the point that we are no longer able to buy the resources that we could buy five years ago, resources do not make education, teachers make education supported by resources, but one without the other becomes a very difficult thing to move the attainment gap, close it down and we feel that the resources impacts of the legislation to be looked at very carefully. I largely agree with what has been said. It seems to me that the legislation is a necessary initial statement to say that this is on your agenda, this is on our agenda. There are other things that go along with that. For example, the First Minister showing some interest in the London challenge in New York schools. Those are all okay as signals, but of course they are nowhere near enough. As Keir Bloomer identified, we have for a very long time, not just in Scotland but throughout the world, put an awful lot of emphasis on this as an idea, but we have not had the success that one might have expected given the amount of effort that has been put into it. Of course, if you look at the kind of work that the Roundtree Foundation has undertaken, particularly through Strathclyde in the Scottish context, we actually do know a fair bit about the sorts of strategies that can be used in order to develop the kinds of reductions in gaps of attainment that we are looking for, but we do not understand it by any means fully. One of the things that comes over is that you need much more engagement of schools with parents and families. While we have been an absolute plethora of what people have seen as good ideas that might work, we have very little in the way, particularly in Scotland, of proper evidence about what does and does not work. Of course, the work at Strathclyde is a very good starting point, but we are pretty low on that kind of work across the board. We like to think of the ways in which we personally think that something could be done. We are not so good at looking at the evaluation of how effective that has been. Collecting data is important. As long as it does not transmogrify, we start setting targets again as opposed to trying to achieve outcomes. Having said that it is on the agenda, we have had some indication of strategy. Is there any more effective legislative measures that might be introduced to not just put it on the agenda, but to start to see effective outcomes? My problem is that you are used to the word legislative there. I suspect that my answer to the question that you have asked is no, because I do not think that legislation itself will contribute very much. There is a lot that can be done to address the problem. As Professor Brown has already said, the evidence that Sue Ellis has provided you with has got a great many good ideas in it. I would like to think that our own evidence from reform Scotland has some good ideas as well. An issue that needs to be taken much more seriously than it has been in the past is how you create appropriate mechanisms for bringing about change. Scotland has never been short of good educational ideas. What it has always been short of is the means of putting them into effect. You see that, for example, in relation to curriculum for excellence. Curriculum for excellence is an admirable programme in many ways, but there is an astonishing amount wrong with the way in which it is being implemented. That is not your subject for the morning, but I will say more if you want me to, but I will leave it at that at the present moment. I think that the issue of how to bring about change is crucial. A point that is very important here is that I am assuming that nobody in the room wishes to see us close the gap by reducing levels of attainment at the top, although that has happened on some occasions in Scotland. I noticed that the Cabinet Secretary in the motion, which I think was discussed in Parliament about a week or so, referred to us as being a country in a mid-table position in relation to international comparisons, with the implication that that was not good enough. If we are going to address the issue of attainment overall, how you raise standards for everyone and simultaneously close the gap by raising standards even faster for those who are most seriously underperforming at the moment, then that calls for an acceleration in the rate of change in Scottish education of an order of magnitude. What is clear over the past 20 years, if you look at our position at international tables, is that we may have been improving, but we have been improving at a pace slow enough that others have been able to overtake comparatively comfortably. In other words, we are a very long way from having the kind of mechanisms in place that will allow us to address a problem of this complexity in the kind of timescale that is required and of the piece of change that is required. Professor Ellis? I think that what you need to do to close the gap—I think that the images that you have are really important. What we know in Scotland is that the gap starts off before children come to school, but it widens as children move through schooling. What that indicates is that you have a school system that is not serving all children equally well. Looking at what it is about that system and making sure that the system serves all children equally well does not necessarily mean that you have to lower the attainment of anyone else. It is not like some sort of scales where you have to take something out of one thing to put it into another. That is the first thing. The second thing that I think that Roundtree would be emphasising is that this is an issue that applies to all schools in Scotland. Roughly two thirds of children in poverty in Scotland do not go to schools in areas of poverty, but that means that you have very different contexts for change. If you have high schools with a small percentage of children in poverty, five or six percent, schools with an average percentage of 20 percent and schools with much more, those are three very different contexts that face different issues, different affordances and have different levers for change. What you will need is local solutions for each of those things, but then national narratives about change about what works in each of those contexts. The people who make the difference—teachers and headteachers—need to have examples that are not generic but examples of contexts like theirs. If you have a very middle-class school with a very small percentage of kids in poverty, the danger is that those kids then become very isolated. The issue that that school has to face is very different from the sort of issue that a school with a high percentage of kids in poverty has to face. That is not something that you can legislate for to come back to your question, but it is something that you need national knowledge building about. That is what needs to be on the national agenda. It seems to me that we need very much to make use of what other people have already found. For example, the complexity of a strategy to achieve this very important strategic aim, but a strategic aim is, of course, not the same as a strategy, needs to take account of what things have been like in the experience of others. The closest one to us, in a sense, is the London challenge. It has a lot to tell us about the time that it takes to develop this. We are not going to do this by next Monday afternoon. Also about the different elements—we put this into our report—that come up when the evaluations overall of these kinds of very ambitious goals are addressed. At the same time, we want to take account—I have already mentioned the Strathclyde work that you are hearing from today. One of the things that it does in the paper is that it talks about the situation under which you get the worst outcomes when you are trying to achieve something of this kind. It, for example, talks about the difficulties of short-term external support for tuition or hit-and-run interventions or developments, and interventions that rely on anecdotal evidence. We mentioned just now that this is not a session about curriculum for excellence and its reform, but we need to learn from that. One of the things that has been very striking about the Government's strategy for curriculum reform has been its fragmentation. Enormous numbers of groups and committees have been set up to do different things and in different places, and they have had virtually no collaborative engagement and, indeed, no mutual accountability, and accountability is very important. It seems to me that that is something that we really need to go for. That does not mean to say—somebody the other day accused me of being back on an old research and development model. I am not on an old model. I really want to be on a new model, but that does not mean to say that you do not have development and that you do not have research, and you do not, of course, have collaboration. I thought that it was very interesting that the SIP report that came out from Education Scotland quite recently was a collaborative exercise of Education Scotland with schools and also with some collaboration from Glasgow University, but it did not tell us anything about the impact on the whole system. It told us because the only data that it reported was teachers' preferences and views, what the teachers like for this kind of collaborative exercise. Fifty years ago, I was a teacher and we had collaborative exercises then in the 1960s, and we really liked them and they were really valuable, so that is not a new finding. What it did not tell us was, have we looked at any basic measure which would allow us in the future to say whether the intervention had had any effect? You cannot just measure something at the end. You have to measure it at the baseline as well, and that seems to be something that we have neglected, both in the curriculum for excellence, and, if we are not careful, we might do it in this new strategic goal. I think that most of us can see the things that have an impact on educational attainment in our communities. We can see more affluent families paying for extra tuition for the children, we can see more affluent parents paying for transport and using the place and request system to move their kids to schools that are seen as perhaps not doing as well to schools that are higher performing, and that is just the families who have not specifically bought houses and paid extra money to buy houses and catchment areas for perceived better schools. We have more affluent parents who are better educated and are able to help out with their children's homework. Are any of the measures in this bill going any way to address those drivers of inequality? Should the Government actually be consulting on what they can do to, well, not taking away any of those measures, because you do not want to reduce the ability and attainment of people at the top? I am consulting on the issues that can be addressed and balanced, such as homework clubs and whether that is adult learning classes to improve the educational ability of parents to teach their children. Should the Government be consulting on specific measures and policy interventions such as those and looking at introducing, including those in the legislation? Professor Brown, you have identified the characteristics of families that perhaps lead to lower attainments in those who are somewhat disadvantaged. It is to do with parental education, it is to do with occupation and all those things that you have mentioned. One of the things—Sue can probably tell you more about this than I can—that the round-tree foundation work has done, which has not just been done in Scotland, is that it is found that the most promising area is the engagement of schools with families. There are a number of different ways in which they can engage in families. I mean, we have always done a lot of telling families what they ought to do, and quite often they have done absolutely nothing about it. But the round-tree foundation does have some research, which indicates what actually might work. It seems to me that that is the sort of thing that we should be focusing in now. We should be focusing on what do we know from Scotland and other places about examples that do work. What are the examples that might work? I mean, they look sort of promising, but we have not really got hard evidence. And what are the things that we know that we may be very adhering very strongly to that actually do not work? It seems to me that the big question—I mean, we were talking about having a requirement on local authorities to report that they are paying attention, but what we need to focus on now is how do we make a difference? I mean, Scotland is certainly not leading at the moment. If it put enough effort into it, of course it could, and that seems to me to be what we need to do. Can I just come back on that point there? When we are speaking about what works and what works on what we think could work, is there an argument for—if we have consulted and we have identified what does work—is there an argument for including specific policy initiatives within the legislation? Yes, they would, providing that they start on a small scale and pilot work is done. I mean, one of the big dissatisfactions with the curriculum for excellence was that no pilot work was done and you learn an enormous amount. You learn about things that look as if they might be successful and are worth going on with, but you also learn about what does not work and you get some understanding of why things work and why they do not work. But if you drop in everybody into it straight away, you are much less well informed. I think that there is a difficulty about using legislation as the vehicle for doing this. The Government has plenty of means at its disposal for sponsoring initiatives of whatever kind in relation to closing the gap. It does not need to legislate in order to do it. The difficulty about legislation is that you then have a prescribed list of approved ways of going about things, which is difficult to change and which may, in the light of experience, be demonstrated not to have been the best-chosen examples. I return to the question of how you bring about change in a large and complex system, such as education, and I do not think that you bring it about primarily by top-down action. I think that one of the questions that has to be asked is whether schools see themselves as customers of the national agencies, the main national agencies, in this case being Education Scotland and, to a lesser extent, the Scottish Qualifications Authority. Do they believe that those are places where they can get help in resolving the problems that they are actually experiencing? I suspect that the answer to that question is no. They tend to see these agencies as ways of imposing upon them policies devised further up the system, and that seems to me to be the wrong way round. We have always had three levels of educational governance. We have had a national level, we have had a local authority level and there is a school level. I am not sure that we are any longer clear about what the functions of these three levels are. On the one hand, there has been a growing tendency for micromanagement from the national level or from the national level's agencies. In the period since the last local government reorganisation in the 1990s, a reorganisation that most people were very unhappy with at the time, and it is astonishing that it has lasted as long as it has. In that intervening period, partly as a result of the much lower average size of authorities and partly as a result of funding constrained, the ability of that middle tier to function in the way that it was originally intended has been seriously impaired. There is yet insufficient recognition of the importance of initiatives at the level of the school. Schools in Scotland are more empowered than they are in many parts of the world, but they are less empowered than they need to be. There is a need for a significant adjustment in our model of governance so that it encourages innovation at the different levels and of kinds that are appropriate to the different levels. However, am I suggesting that you take some of the excellent suggestions that you have received and legislate them into universal existence? Most certainly not. That would be a very retrograde way of addressing the problem. Legislation is too clunky for this sort of approach, but you have a national level of advice that should be giving quite strategic advice to schools and local authorities about what is going to give the biggest pay-off and how to get there. At the moment, that strategic advice is not always absolutely clear to schools, so there are 101 initiatives coming out, but how a school or a local authority chooses from those initiatives is not always very clear. Things like the book bug are an excellent initiative, but it needs a strategic layer above it that says that reading engagement matters, that is why it matters, and that is the sort of context in which that initiative will give a really big pay-off for your school. The level of strategic advice coming out of national bodies is absolutely crucial. If you have national bodies that issue masses and masses of a scattergun approach of things to try, then it can distract local authorities and schools from determining what is going to give the biggest pay-off for them in their circumstances. That is why data is important. I think that local authorities are many of them using data quite well at their level. Tailoring how national bodies use data and the advice that comes out of national bodies is important. I think that it is not always filtering down. The data does not always get to teachers and head teachers quickly enough and in a form that is helpful enough for them to use that data to improve teaching and learning in their classrooms. Our concern is that time to teach is important for our members. If you want to close the attainment gap, teachers are teachers and they like to teach, they need to teach, they want to teach, so we need to get them doing what they are good at. Obviously, the tackling bureaucracy initiative of late has tried to reduce a lot of the bureaucracy burden and the extra bits that do not allow us to teach, and yet recently there was still a survey that said that the average Scottish teacher is working 47.5 hours a week. However, the problem is that if you want to support children, a lot of the things need to be done today, not tomorrow and not next week, and as a result we need to allow teachers time to teach and I would argue time to support, and time is the greatest thing that we cannot buy. Developing issues for curriculum for excellence, developing things for the national 5, the national 6 and the new higher, it gets in the way of some of the aspects of teaching, and when all is said and done, a lot more gets said than ever gets done, so what we need to do is allow teachers to do what they do best, to teach and to support those in front of them. That will genuinely close the attainment gap. Adding legislation that gives us more bureaucracy, I would argue, will not meet that. I picked up a little about what Mr Bloom was saying there. This is a legislature. We are legislators and what we do is legislate. There is always a temptation to think that wielding the legislative stick will resolve any and all issues. It strikes me from listening to what you are saying, that we have known the issue about closing the attainment gap. It has been around for decades now. We have any number of different solutions that would address aspects of it, both through the work of the Round Tree Foundation, through Reform Scotland and others. I am slightly concerned that we may get distracted by putting in place through legislation something that makes us feel good that we are moving in the right direction, but it takes us away from doing the sorts of things that we should be doing, which are evident from the Round Tree Foundation report and other pieces of work, and which, as the London challenge has demonstrated, are pretty resource intensive and where the resources need to be channeled to those where the need is greatest. Professor Ellis, you pointed to the numbers of children in poverty who are not in the SMID 20 areas. Is there not a risk that, with this piece of legislation, we are making ourselves feel good because we have put something into statute, but we are not getting on in doing the things that all the evidence shows us. We should be doing in terms of targeting the resources, forming those engagements with families, providing the support to teachers to do what they need to do. Is that a legitimate concern to have? As long as the legislation is not the be all and end all, the legislation is a prompt for other things to happen. That is what is important. For example, if you look at something like homework, research shows that parents in poverty give their children just as much support with their homework. As parents who are not in poverty, the problem is that the support is not as high quality because their own education is not as good. They are not on the networks that can help them to get that support. I bet that there is not a single person on your committee who has had a child doing highest who has not at some point phoned a friend to get an answer to a homework query that child has had. If you are looking at what you need to do, you need to provide homework clubs, and you need to make sure that the right kids are coming to those homework clubs. The recruitment methods for that are different. If you want kids in poverty to come, you need to have peer-to-peer recruiting rather than teachers or parents necessarily telling kids to come. There is lots of implementation knowledge that schools need. National bodies could be broadcasting the research on what works and the implementation knowledge so that if a school wanted to do that, they would know exactly what they have to do to make it work. That, in a sense, goes back to what Mr Bloom was saying about the relationship between SQA, Education Scotland and schools and local authorities and education departments. The risk is that, with a legislative requirement, we have got resources taken up pulling together the sorts of reports that are going to be required under this legislation, and not necessarily task with putting in place the sorts of relationship and activity that you are talking about. That is why a light touch legislation is useful, but a legislation that asks local authorities to collect hard-call outcome data about what is working and what is not working rather than the data that Sally was talking about about what people would like to do. I will add one thing, which is that it seems to me that I am not sure whether the council is going into legislation. However, if there was a policy of more evaluation, I mean that you just mentioned, maybe if you put your efforts into Education Scotland and your money in there, maybe you will not be able to do the other things. That is very true, and we should have an evaluation of Education Scotland. Certainly, the commission on school reform from reform Scotland put that up two years ago and said that Education Scotland should be accountable in the sense of being evaluated by 2015. I did ask a senior person at Education Scotland the other day whether there was any move on that, and there has been no move. It seems to me that you could have within policy—I am not quite sure that I understand the distinction between policy and legislation all the time—but you could have something that definitely looked to evaluate to see whether you were putting the money in the right place. Good morning. I would like to try to get a basic understanding of the problem with attainment that we have. I note that the Royal Society of Edinburgh has put in air submission—there is a quote over a period of at least 50 years—many of the most important initiatives taken in Scottish school education have been intended to prove outcomes for the disadvantaged. In those circumstances, the rate of progress is all the more disappointing and demonstrates the intractability of the problem. My concern is that when we say intractability, we are talking about that it is unmanagable. There is no way that we can deal with the issue, if we have given up on the issue. I agree with everything else that is in the statement, but the intractability just makes me think that it is almost as if we are saying that it is an impossible task. I do not think that we were using intractability as a synonym for impossible, but we were indicating that the evidence that we have from this history is that it is very difficult to do. You are not going to get it done by next Monday afternoon. I thought that it was interesting in looking at the evaluation of the London challenge that they focused on secondary education only for a period of five years, which of course is quite long in a Government's lifetime. It brought it home to me then that you have to really develop and test and then perhaps redevelop your ideas. That does take a while, but it is worth it in the end. They have shown it to be worth it now because, of course, they have extended it to other areas. The fact that there have been successes—sometimes people will identify successes in particular schools or maybe in particular classrooms—is rather different from something system-wide, but nevertheless it suggests that it is not impossible to change. However, we are also at the position now that we are in the very early stages of knowing things that are likely to be a fruitful way forward, and we need to put emphasis on that. The other thing that I was going to look at is that we have also got the attainment gap is narrowing, but it is narrowing slowly over a period. There is clear evidence about the strong correlation between poverty and attainment. What would we say here today that the key triggers in that—I know that we have discussed it to a certain degree already, but if we can get it in more detail—how can we deal with this situation? What is the best way forward in your opinion? I am happy to answer again. I think that the relationship with the family and parents is very important. We have some indications from the work that Rowntree has done of what sorts of things might work well. There are also other things, such as mentoring, for example, which can take a number of different forms that are probably quite promising, but we have not really got any sound evidence. If you look at what the official statistics say about the families in which the children who attain less are likely to come from, there are things like education of the parents, particularly the father. I was actually in Norway over the weekend and I was talking about this and a Norwegian challenged me and said that that cannot be true. The mother's education must be important, so I am not going to stand on a platform—I did try and persuade this woman, but I will not do that here—but there are the kinds of things that it would be very difficult to change. It would be a lot more straightforward to try and change the relationship between schools and parents. There is a figure—I suspect that I got it from Keir originally—that suggested that about 20 per cent of young people who include those coming from impoverished homes do not achieve what we would want them to achieve. We tend to explain this by saying that they come from chaotic families, but when you look at the proportion of families that are chaotic—I mean that I am talking about drug dependency and things like that—it is only about 1 per cent of families. So what is happening to the other 19 per cent? We really need to look at something like that rather than focusing on the view of the impossibility of doing anything. Children are coming from a great deal of poverty in the background. One of the worst attaining groups that we come across in schools that my members deal with are those who are looked after and accommodated. It is not fair to say that those children have had incredibly hard lives, and it is not fair to say that they are in a chaotic background now. The people who do the looking after and accommodating them be in a home or in fostering, they strive to give them consistency, to give them the support that they perhaps have never had. It may take to the upper part of primary, the lower part of secondary, before they get any form of stability, but they have missed so much. I always feel that they are at the bottom end of the attainment gap. Obviously, if they are furthest away from the norm, perhaps they are something that legislation will help. The rights for additional support of children over 12 with capacity could well work within legislation, and we would support that greatly. Those children may be somewhere where we use the word parent, but the parent is a broad church. Whoever takes on the parenting responsibility may not be able to drive the children forward the way the child would like, and to give the child some power is one of the things in legislation that is very strong and greatly supported. Maybe off you have a dozen quick thoughts, if I may. There's a lot. I'm concerned about the time. One early years. Sus already made the point about children being far behind before they ever get to the education system. We need to do something more systematic about the period from birth, or perhaps from before birth, through to the age of two or three, when they might begin to have contact with the education system. Two, Sally's right about the 19 per cent, and the point was made by Sue earlier on. It isn't that the children of the 19 per cent are not loved and helped by their parents, but their parents are less able to help them than some other parents are, and we need therefore to do much more to help those parents. Three, relationships in schools are absolutely critical and getting positive relationships between children and teachers, which has been, I think, something of a success story under curriculum for excellence, needs to be taken a lot further. Four, we don't target the resources that we have as effectively on poverty and disadvantages we might do. I suspect that, in Scotland, there is now less resource targeted specifically at the disadvantage than there is south of the border, and we must bear in mind the point that Sue made earlier, that the disadvantaged are not the same as the children in disadvantaged schools. There are plenty of poor children who need to be helped, who are attending other kinds of schools. Five, quality staff need to be retained in the schools where they are most needed. Lastly, is the point about processes of change that I have already hammered, which Sue very usefully fortified for me when she talked about the nature of the advice that is given out by national agencies. Too much advice, insufficiently strategic, muddled, unreadable, barbarously written. We need to do something about that. As children move through their schooling, you need early intervention, but that will not be a complete inoculation against future failure. You need early intervention before children come to school, you need intervention during primary school and secondary school. The research shows that families are really important for younger children as children get older. It is more about peer-to-peer and wider outside school networks. Schools need to become very consistently good at negotiating with families and liaising with families in a way that is about dialogue, not about broadcast. They need to become very consistently good at putting children in secondary schools on to the sorts of employment networks, industry networks and giving them the range of vision of where they could end up, but also the social contacts that they need to get their first experiences of work. We know that the research on children's work experiences shows that if you are living in poverty, you tend to not get as an exciting work experience in school as if you are a middle-class child with all the context that middle-class families have. That is important, but ultimately, in terms of the curriculum, the core of how children spend their day, what we know is that children in poverty benefit most from a broad, rich, knowledge-rich and intellectually exciting curriculum. Concentrating not on some sort of grad-grine, skills-based, atomistic approach or some sort of generic process approach that says that the knowledge that they need does not matter, but giving them the knowledge that they need. The research on literacy, for example, shows that you can get children so that they are quite good at decoding. The evaluations of no child left behind in America on a million and a half kids show that you can get those kids so that they are quite good at decoding, but they are not good at reading because they do not have the broad general knowledge that a middle-class child has to actually bring to the text and understand it well. If you want to equalise opportunities in terms of the school curriculum for kids in poverty, you need to provide an intellectually interesting and exciting knowledge-rich curriculum that gives them the knowledge that will set them up for the rest of their lives. I have a supplementary from Siobhan McMahon. A lot of the evidence has suggested that we need evidence-based approaches, which I agree with, but a lot of the evidence has also said that there is not enough evidence-based out there and that we are not doing enough in that field. I am just wondering how long it would take to have effective evidence-based collection and, therefore, to work on that. How long do we estimate that? Secondly, it came up on evidence from Professor Brown, but it was in the Joseph Rowntree Foundation about mentoring. I just wonder where those volunteers would come from. Who do we think will be doing the mentoring? It is all very well-proposing, but we should be looking for our mentors. The data on mentoring shows that, as a whole, mentoring is not a particularly powerful way forward, but for some particular groups it is very powerful indeed. For example, Strath Clyde, for several years, has run a successful mentoring programme for kids living in poverty in Springburn, who should be going to university and should be doing law, medicine, dentistry, all those sorts of things and, in fact, have no relatives at all who have ever been to university. Our mentoring programme for that works really well because it is really tightly targeted. There is quite a lot of evidence that shows that mentoring for looked-after children, for example, is a very difficult thing to do because those are children who are already vulnerable. If you do mentoring in a way where the mentoring programme breaks down, it is another source of failure and it can do harm rather than good. Knowing that it is not just the headline of the intervention that matters, it is how you implement it. Evidence can indicate what might be worth trying, but Scottish schools and local authorities need to collect data to look at whether it is working in that particular context. You have two different problems with evidence-based approaches. One is the American approach, which says that fidelity is everything, and this is the programme. You have to do it to the letter. What happens very quickly is that teaching becomes mechanistic and does not intellectually engage kids. The curriculum becomes very crowded and is not joined up, so we do not want that. What we want is the diamond that Sally talked about, where you have proven, promising and unproven interventions. Schools go first for the proven. If there is no proven, they go for the promising. If there is no promising, they go for the unproven. However, as they are doing the implementation, they are constantly attending not to what they are providing, the input, but to the actual impact on the target group that they want it to have. The use of data can make the education system much more sustainable, much cheaper and much quicker and slicker to respond to the issues on the ground, which is what a good education system will do. The bill places a new duty on local authorities to provide school education in a way that gives the desire of reducing inequalities of educational outcomes. We already have national priorities, including the requirement to raise standards of education attainment for all in schools. We have the Equality Act of 2010, which has the public sector equality duty, which says that those carrying out a public function consider how they can positively contribute to a more equal society through advancing equality. Given that we have the national priorities and we have the Equality Act, do we need further legislation to specifically refer to reducing inequality? All political parties have been struggling with this for decades about how to be closed this attainment gap, but will further legislation help us to achieve that closure? Policy. Legislation is legislation on a page, but if it does not affect a change, it is not to write the words, it is to make sure that the words make a difference. If the legislation affects a change in policy and the current practice within education authorities, then, yes, it makes a difference. From the legislation that has been put in place, further legislation is not going to make a proportionate difference, but it may have a proportionate increase in bureaucracy that will allow people to be less able to support the legislation that is already in place. The bill was pious thinking, masquerading as lawmaking. That does not do anybody any good. I was just going to say that one of the things that it's ridiculous for me to keep quoting roundtree because I'm here for the wrong society of Edinburgh, but one of the things that was very striking was that it suggested that what didn't work was having very broad goals without guidance of what to do, whereas what did tend to work is when you really focus down on what does affect attainment. We don't know all the answers to that yet, but that's what we need to assess. I'm sorry, I'm sounding like a usual parrot. We go on needing research and evaluation, and the Government has not been generous in commissioning research. As I can say, one other thing, which perhaps you are not interested in today, is that the result of that has been that our educational research community has suffered. People have moved. You have to be very careful that you don't then find yourself wanting to fund research, but you haven't got anybody to do it. Given that we've got this bill in front of us, is it better that we pass this legislation, or would it be better that we just change the national priorities? That would send a message, wouldn't it, that might not be the message that you wanted it to send. It might be saying, come on, let's forget this. We've been at this for years, so we'll just drop that. Dropping legislation is a very difficult thing. I wouldn't want to say anything firm on that. I would come back to my original point, that it puts it on the agenda for local authorities. It means that local authorities have to look at it every two years. It means that they have to be collecting data, and I think that what's important is that the message needs to go out to local authorities that it's not just about collecting data for the legislation, it's about collecting data that will improve teaching and learning in their schools. The mechanisms for doing that are through things such as school inspections, through local authority quality improvement officers, and there's a whole load of levers that you've got there. It's on the reporting requirements again. Cossler's response to this legislation is that the bill undermines local democracy and will provide little in the way of useful information that could aid public scrutiny of education. The Scottish Government thinks that it would be helpful to have league tables, but I think that all of you and everything that we read say that there is insufficient baseline and on-going data. It seems to me that Audit Scotland is probably the best source of data in terms of comparing schools. In the recent report, it said that there is no consistent testing between P1 and S3. It also says that, in primary 7, 75 per cent of school pupils meet competency standards in literacy and numeracy. Two years later, 42 per cent meet those standards. To be honest, if you want to find any kind of data or comparison, it seems that we're not finding it in the education sector—I'm also on the Audit Committee—we're actually finding it in Audit Scotland. How do we get some sort of national benchmarking? How do we identify the pupil in whatever school he or she is in? How do we identify that pupil that's falling behind with the rest of the class, give them the support that they need in order to keep up? How do we compare school against school, local authority against local authority, without having the politically unacceptable tests and league tables? That's what I'm struggling with. You don't want tests and league tables. What they tend to do is form the voting with your feet that happens in England, and you then get these very polarised school systems, which are very, very hard to shift indeed. What you do want is—and it's also probably not very helpful to teachers, but certainly primary teachers—to have tests that put children on a general level. It's not quite clear why those children are on that level. It requires a further level of analysis. What you want in terms of data for teachers is that you want teachers to get data quite quickly, quite easily, about the issues that make a difference to children's progress. For example, in literacy, that might be decoding data, which might be observations and running records and book levels. It might be comprehension data, which might be standardised tests. It might be engagement data, showing how much children read and how much they want to be reading and how they see themselves as readers, which would be a survey type of data. What you want is probably not all that data to hit all the schools at all the times. What you want is class teachers to be able to call on that data when that data is going to be most useful for them to have. Having a national bank of surveys and tests that schools could form their own local policies about what information they are going to find out when and how they are going to use that information to move the situation forward is probably one of the most useful things that you can do. The important thing about data is that data doesn't tell anyone what to do. The important thing about data is that it generates a conversation at a classroom teacher level about what the issues are and what the possible ways forward. It gives the class teacher a grounding so that they can try an intervention and then go back and see if it's actually working. Having a data system that puts class teachers and head teachers in control of what data they get and when they get it is way preferable to having some criterion referenced national tests that get done at particular year groups at all years. The issue about criterion reference tests is that very often what then happens is that teachers will teach to the criteria, whereas those criteria are just proxy measures for a whole load of other things. I would go for standardised comprehension tests every day of the week. Of course, if you have standardised comprehension tests, you can get an overall view as well as a specific view of a class and let teachers use those tests as and when they need to to find out about their class. If you are looking for a standardised test, are you looking for a national test that will be used in all schools? I am aware at the moment that many local authorities, I think that it's 27 out of 32, buy in private sector tests from England. There is no peer appraisal, there's no comparison and very little that they can do from there. You're looking towards Education Scotland or whoever to look at a national survey, a national test, a national type of benchmarking in order to not to compare school with school in local authority with local authority, but to identify that child or children who is falling behind. Do we need a national type of test? I think that we need a national bank of tests and surveys that schools can call on. I mean, you're right, you don't want to see that much money just walking south of the border to buy things that we could actually provide much more cheaply, much more cost effectively and much more responsively in Scotland. Of course, when the local authorities are buying those tests from south of the border, they are often geared towards the sorts of political concerns that you have south of the border. For example, in one of the tests, there's a non-word reading score, so you have to read words like banach that don't actually make sense, but they test but they're not. You've been taught your phonics because at one point Mr Gove was very keen on phonics. The problem with that is that the kids who do really well on it tend to be the kids living in poverty who've been taught a lot of phonics but actually don't really expect reading to make sense. The kids who are failing it are the middle-class kids who actually expect reading to make sense, so they read a word like banach and they think that can't be right, that's no real word, it must say banana and they change it. You are setting up a mindset that is not helpful in producing the sorts of readers that we want, so it would be much cheaper for Scotland to produce a bank of surveys and a bank of standardised tests rather than national criterion reference tests, standardised tests to actually do that, standardised on the Scottish population. What we want to see is that there's 100 million being allocated by the Government to address the attainment gap. If we look at the national tests or surveys, whatever we want to call them, it's something that will be consistently used in all schools. How will they be used to measure whether the money has been well spent, whether we have addressed the attainment outcomes of children from poorer backgrounds or low attainment? How can we know from those tests that the money will be spent and will be effective? If you have a standardised test, you'll measure the gap between rich and poor kids on something like comprehension. However, to improve comprehension among children living in poverty, you need to have good decoding, but you also need good reading engagement. The average book written for a seven or eight-year-old child has more rare words and more multi-syllable words than the conversational speech of a university professor. The only thing that beats it is the expert testimony of a witness in court. If you want to improve a child's vocabulary, if you want to improve their knowledge, you get them reading widely and you get them reading novels. That will impact on their comprehension schools, but the hard measure would be comprehension schools. If it's a standardised school, even if some schools are using a test in primary two and another school is choosing to use it in primary three, because it's a standardised school, you will have standardised results. Each school will know whether they are closing their own poverty gap. As I said, you've got schools working in very different contexts, so the levers that are going to work in those different contexts are going to be different. Scotland's education is surprisingly data-poor. Data-poor is compared, for example, with England and with a lot of other places as well. The difficulty is the one that you have described. How do you increase the flow of data without bringing in undesirable unintended consequences, such as teaching to the test, narrowing of the curriculum and so forth? I think that if you want to improve this legislation, and I can see that it now has been introduced, it's not simply going to be wished away, although I personally, as you might have understood, would prefer that it hadn't appeared in the first place, I think that you should address clause 4, the one about reporting, and transform that into a section that deals with empowering ministers to expand the collection of data. There is, of course, authorities to do that at the present moment anyway, so in a sense you don't require the legislation, but it could be a useful vehicle for greatly improving the range and quality of data that we have at the present moment. Much of the information that we have, you've touched on this, standardised tests done on 27 out of 32 authorities, not 32 out of 32 authorities of varying kinds and so forth. Introducing something that enables national comparability, I think, would be helpful. Incidentally, I think it's also unhelpful that we've withdrawn from two of the three international surveys that we used to be involved with, and I hope that that will someday soon be rectified, but if the legislation were to be changed to give the emphasis upon data rather than on bureaucratic reporting, which incidentally I'm fairly sure will knock through to bureaucratic effort in schools as well, because the first thing that any local authority asked to prepare a report on what it's doing about poverty will do is get schools to fill up funds telling them what's happening at school level. So there really is a danger of huge amounts of worthless bureaucratic activity in this, but if it could be transformed into something that was helpful in terms of boosting the data set that we possession nationally, that would actually be helpful. That's a bit puzzled. On the one hand, Mr Bloom, you're saying that we should collect lots more data. I presume that the effect of that data collection would be done by schools, yes? Yes. But it's a terrible bureaucratic burden for schools to be involved in reporting what activity they're doing in attempting to reduce the attainment gap. Effectively, I'm struggling to understand why one set of bureaucracy is good and the other set is bad. One set of bureaucracy is purposeful and the other set is purposeful. That's essentially the difference. Do you think that reporting on what schools are doing in tackling inequality and poverty in attainment gap is not a valuable piece of information? You've got other ways of getting it. You've got the national inspection system, which gathers a lot of this kind of material in any case. The gathering of data is objective. The seeking of reports is not. What you will get is competition amongst authorities in order to produce reports that make them look as good as possible. Essentially, not only will you have huge quantities of bureaucracy, by which I mean useless data collection, but you will also have massive amounts of mendacity, which is not hugely helpful to the system either. Sorry, I've heard you talking about teacher training. I think that you raised an FOI to say that teacher training in Scotland, if I'm right, includes about 20 hours of literacy training, maybe I'm wrong, and in England it's more. I just wonder rather than always looking at schools for the solutions, is there something that we should be looking at within teacher training that would be helpful to closing this gap? I think that one of the really interesting things about your FOI information was the range of of, because there was one university that only gave 20 hours, and that's four lectures and two workshops in third year, and four lectures and two workshops in fourth year on how you teach a child to read, write, talk and listen from the age of three, right up to the age of 13, and it's not enough. I think that another university gave 90 hours. One university didn't know how many hours it gave, so I think that there's an issue there in teacher education. I think that there's a broader issue to do with the relationship between universities and local authorities. I think that there's a lot of really interesting work going on in local authorities where they are trying to use data, they are trying to use evidence that they're gathering data, but that conversation isn't really happening between university researchers and local authorities, and again between the universities and the schools, universities can provide a really, there are really good examples, I mean I'm working with Renfrewshire at the moment to help raise their literacy rates for children in poverty, and so there are really good examples of universities working well with schools, but you're right that there are things that we need to look at in terms of initial teacher education in terms of continuing professional development, and as Sally said, in terms of research to improve the partnership between universities and schools, I'm not convinced that the current partnership arrangements are sufficiently rooted in the sorts of things that research shows matters, even though universities are changing them. I'm not sure that the model that has been adopted is the best model. I think that both Gordon MacDonald and Mary Scanlon's questions, I mean obviously there's a need to establish the strategic priority in terms of closing the gap and also gather greater data on which to base policy development, but without going down the route of bureaucracy that serves no useful purpose and it strikes me that with the national priorities which state to raise standards of educational attainment for all in schools, there's a way of fashioning that that captures the attainment gap more clearly, but through the work of Education Scotland, both in terms of testing but also the support for teachers and for schools in terms of making an improvement, that it reflects schools working in their own different environments, allows work to be done in terms of the use of standardised testing, which allows us to achieve the objective without putting into legislation a reporting commitment that I'm still struggling to see what it delivers in terms of any real benefit. Comment on that? I think that there are two things that have happened of late. You need a benchmark to start with and then you need to find out how far away from the benchmark you get at the end of it. And one of the biggest things that's affected certainly Scottish secondary teachers is the moving away from some of the real attainment data that we're getting. We used to use a very clunky mechanism called STACs, which was very much based on the attainment and examinations. Lots of children fell through the hole because of incompleting something, so a child could do two thirds of a course and they were rated as a fail. But to me, if you're someone who isn't getting dressed in the morning, doesn't get breakfast and struggles to get to school, the fact that you got two thirds of the course, that's not a failure, that's an achievement. It didn't do that, but we've now moved to the senior phase benchmarking tool, the insight system, which is much more looking at not attainment but achievement. So we've kind of closed the sieve a wee bit and that we catch these kids now. So instead of penalising you for the thing that you didn't get, we reward you for the thing that you did and it carries you on through. But we still don't have the bottom end benchmark as to where you started from to know who you got to. Looking at the London project, they started off saying that this is going to run for five years. We will take data in year one, we will compare the year two data and by the time we get to year five, we will have changed things through, so it's not comparing apples and apples, it's apples and apple-like fruit by the time you get there, but at least the thing that you started with is measurable and repeatable. Our problem is that the foundation is extremely sandy because we don't have, for the reasons that were outlined, a benchmark. If you don't know where you start at zero or 100, then the fact that you got to 1400 at the end, whatever those numbers mean, is utterly meaningless. So we need something that is not a one-year, two-year, next Monday issue. It needs to be five years minimum or the data from year one is meaningless as the data from year five. So whatever it is that we do through legislation, policy or practice, we need a benchmark and we need an end point and only then can you measure the difference between them. But the problem is that if the benchmark is let's not go for primary test, if it's primary three and the next big thing is when you get at the end of fourth year through the insight tool, well you're not talking about a five-year investment because five years will not cover those to go from the start to the finish. You're talking 10 plus and if the piece of scores that come in after what happens this year, we won't be at all sure if CFE has in fact worked as a concept and that'll be a big problem. That's quite useful to think about in terms of the London challenge is it was very data driven but it was also a very tailored intervention so it wasn't the case of them coming in saying these are the programmes that work everybody's to do them. It actually paired schools who were with similar sorts of catchments who were high achieving and low achieving in different areas so it got school management teams to visit each other. The low achieving schools had independent outside academic advisors from the Institute of Education in London who brought their networks to bear and their analysis skills to bear. The schools were given highly tailored advice about what they did and it's something that isn't really explored in any of the evaluation but the partnership between the Institute of Education and the schools was absolutely fabulous. The leadership that the schools were provided and the emphasis on leadership is really important and there was an econometric report that came out showing that some of the really big gains came when the kids who had undergone the national literacy strategy and shown big improvements in their literacy in the primary sector actually then hit the secondary sector and that seemed to warp on the attainment of the schools. It was a networking approach but it was very data driven and it involved experts from outside the local authority and school. What you haven't referred to there is the legislative driver that made that happen and it's not clear to me that there was a legislative driver necessary. There was a commitment back with funding backed with a recognition that a tailored approach to each of the different schools was what was going to deliver the results. Of course the push and commitment came from London not from Westminster. I mean the actual to get it to going and of course it was then extended to Manchester and somewhere else. It wasn't always as successful in those in those two because it was competing. It had a different context of implementation. I don't have much less time. Yes. Three years against eight. I think that certainly I don't know about the Black Country one but I think that Manchester one of the reasons for that was thinking well we can make up time and we can take advantage of London having taken longer and maybe there's something in that but how much could I just say one thing which is that it seems to me that in talking about testing and I think this is really a big issue in fact we have it on the Royal Society of Edinburgh agenda for thinking about but also particularly we have to be careful that we don't put all our emphasis on the senior phase actually we need to do a lot more work on the basic education phase I think that's something that we would certainly be wanting to emphasise in the future and of course I can't say anything about what tests one should use now but just to say that even if you use standardised tests from elsewhere they can of course always be adjusted to be valid in whatever it is you're aiming to assess but you do have to be very clear what it is you're aiming to assess and when we've talked most of this morning about things like literacy I think literacy is terribly important but it is not the only thing that is important there are many other things as well. Section 20 of the bill requires education authorities to appoint a chief education officer. The bill doesn't give the CEO any particular statutory function but the role is to advise the authority in carrying out its functions in terms of their relevant legislation. Now it says that the officer's qualifications are to be set by the Scottish ministers and regulations while the officer's experience is to be determined by the education authority. Have you been interested in the panel's views as to what the qualifications should be and what the experience should be? I think that some people will see that the director of education as they once were will in fact be the chief education officer but there are two different roles in many ways because a director of education is a CEO of a small company and you don't really need to be a teacher to be a good director of education in fact some people have proved that not to be the case no names. I've been very careful very careful however I think to be a chief education officer your principal business your meeting your murder is education and I think one of the one of the qualifications would need to be GTC registered. I think it's a very important. In terms of experience you're moving out with the remit of this building but certainly you would need someone who spent some time in schools and not necessarily a head teacher but some time in schools so they know what the people that you are directly in charge of who deliver the education at the chalk face you know what they do for a living because if you don't know what they do for a living then you cannot call yourself a chief education officer you cannot be a chief if you don't know what your Indians do. I mean my understanding is that it was bringing education into line with the legislative requirements for social work and that it's just a tidying up of the situation as it is but yes I do have a view but I'm not sure that it's answering your question straight away I mean it seems it seems to us that it's very important that governments control policy I mean that's that's what they have the opportunity to do. In fact what then happens is a question of to what extent do you then start micromanaging at all the levels below policy and we tend to think that that has to be left to the professionals who are in place so we would expect that if there was going to be an insistence on a particular post at local government level it would be in response to a problem and we haven't been persuaded that there is a problem you will have noticed in our written comments to you we've said that there is variation now across the local authorities in the place of an education list only in one case are we aware that somebody doesn't have an education background but we are simply not persuaded that this is a valuable suggestion. I think the key issue is how appropriate is it for national government to be prescribing through legislation the management structures of local government I'm not persuaded that that is the right thing to be doing so it and it doesn't incidentally bring it into the same position as the post of chief social work officer because as the legislation proposed legislation currently stands there are no particular duties prescribed and no powers prescribed that's quite different than the setup in relation to the chief social work officer so I'm not persuaded of the need for this clause and therefore I have nothing to say about what experience or qualifications you should be seeking for it. Given that this is a role which is limited to providing advice Do you think that this particular role should in fact have a stronger purpose than just giving advice presumably being a centre of knowledge about education and so on that people can tap into? That is dependent on how the local authority organises its business, what its beliefs are, what its ideology is if you like, the actual role that would be played. I mean in all cases it seems to me that you have an education input and that sometimes is along with social work and sometimes it's along with the library service or both of these and so on but it is I suppose I'm really going along with what my colleague Keir Bloomer has just said which is that it really is the business of the local authority to decide how they do their education business they do of course have to be accountable for it as well I'm not suggesting they're not accountable but no I really don't have an answer to your question I'm afraid I think it is something that Addis have asked for and they're the people on the ground I think that it is possible and would not be desirable but it's technically possible to have education decisions being made by people who have no experience of education at all because they're from leisure they're from social work they're from a whole range of different backgrounds and I think that what and Addis are very concerned about that obviously so I think that we do actually need to listen to the professionals on the ground and actually look at the extent to which you know if they're saying this is something that's needed I think that we need to read their submission carefully and and take what they say Given that there's been a huge amount of change within local authorities in terms of their organisation and who's responsible for what is there a case that this person could be covering more than one local authority providing expertise across a wider range? Really I mean what you want is someone in when local authorities are making decisions about how they allocate their funding about which projects they go for about how they analyse the data that they've got to actually look at what are the actual education implications of that you want someone who actually understands education on the ground to understand schools as Ian was saying who can actually inform that conversation now it would be a not a good situation if a local authority didn't actually consult anyone in education on that but it is perfectly possible at the moment with current situation that you could have that situation arising and it's obviously not going to make good decisions for Scotland you know for Scottish kids if you don't have someone in there in the local authority who actually knows about education that helping local authorities actually it's the conversations that come out of data that matter and in those conversations you want to make sure you've got a good voice for education and not just a voice from social work from Malaysia from all the other sorts of positions that you could have who could form the entire committee that looks at the education data but coming back to the point made about the organisational changes clearly there's mixed views as to who would be most appropriate for this role one council suggesting that the education officer wouldn't need an education background which clearly seems to me a little odd anyway but there's other people who are carrying out these sort of heads of service and so on without any educational qualifications or experience isn't this legislation sort of filling a gap making sure that we have a certain degree of expertise available at least for advice and reference purposes within the local authority I have considerable concerns about the capacity of local authorities to deliver what has traditionally been the role of that middle tier of governance in education and there is no question that has been exacerbated by the financial circumstances that we've been in in recent years very few authorities can now afford to have what we would have traditionally regarded as a direct education so you have got much larger agglomerations of services under the control of a single director but these are difficulties that seem to me to require to be addressed in a much more fundamental way I mean I would have thought that this parliament sooner or later has got to look at the position and organisation of local government in the post devolution circumstances because of course the setup that we have now predates the setting up of the Scottish Parliament by well the legislation by five years and the implementation by three and looking at that in looking at it in that kind of a fundamental way seems to me to be far more appropriate than what is really a kind of tokenistic action I mean as far as I understand it in a sense what you're saying confirms it the job has no powers no established qualifications no established role and yet it's held to be a good thing I mean I find that a little difficult to understand well I think that the point is that the qualifications will be laid down by the Scottish ministers and regulations yes but I would have thought that if there was a clearly established problem to be resolved there would be a good deal more clarity at this stage about how it is to be resolved than appears to be the case can I thank you all very much for attending this morning and we are most grateful for your time I'm going to suspend briefly so we can change over the panel thank you very much can I welcome our second panel this morning which will cover issues relating to ASL rights and the section 70 complaints of the bill can I welcome to the education committee this morning Sally Cavers from Children's Scotland Irene Henry Quality and Human Rights Commission Scotland Jim Martin Scottish Public Service Ombudsman and Ian Smith Inclusion Scotland can I welcome all of you to the committee this morning as with our first panel I'm going to move straight to questions from members and can I start with Liam McArthur thank you community good morning to you if I could maybe touch on the issue of the definition of capacity I've seen the written evidence we've had concerns raised by a number of witnesses including the faculty of advocates that suggest the definition of capacity is not consistent with the current law or the quality act 2010 and I think thereby perhaps giving rise to potential for confusion the faculty goes on to propose that the bill be amended so that a child of any age who understands the issues may access legal remedies with either a bottle presumption that a child age 12 understands i.e. it is assumed the child is capable and unless shown not to be and the possibility of showing that a child under 12 has capacity I wonder if witnesses might be able to offer their views on the potential for confusion here and if there is that potential what the potential remedy ought to be no reason is given in this bill to move away from the age of legal capacity Scotland acts 1991 which deals with the question of capacity of children and that's what works in relation to disability discrimination claims that are heard before the additional sport needs tribunal as well so this proposal in terms of the bill would be to apply a different test no reasons given nor are we aware of any reason to deviate from the principles of the age of legal capacity Scotland act the equality act the change that was made in that which came into effect in 2011 simply transferred the jurisdiction the place where claims under the disability discrimination claims would be heard from the share of court where they were in previously as where other discrimination claims remain so the equality act provision changed that so that from 2011 those claims were then heard in the additional sport needs tribunal it's the age of legal capacity that deals with the principles as to whether a child is considered to have capacity and we too feel as the faculty of advocates did that this is the these principles should apply equally here there's no reason to move away from that so that the age of legal capacity act provides that a child who's 12 or over is presumed to have capacity so that means they're taken to have capacity unless there's evidence that or that challenges that children under 12 may have capacity if they have sufficient understanding sorry to interrupt but you would also then have concerns about the inclusion specifically of references to disability would you you would see that as already covered by the legislation that currently exists and that there's not a case for moving away from that or referencing it specifically in this piece of legislation so our position is that the age of legal capacity covers what's needed here in terms of the definition that's within the additional sport needs act at the moment and which is about the establishing of children's views and the proposal that that would be the test that would apply for whether a child is right to make a reference to a tribunal there is that further difficulty with that which is the does it stands the definition is one which runs the risk of not complying with the United Nations convention that writes of persons with disability because rather than focusing on the question of understanding which is the first part of the test it adds a second part which is problematic because that then in terms of section 3 2 is proposed because I want to say that a child or young person lacks capacity if they don't have sufficient maturity or understanding by reason of mental illness learning disability development to disorder and so on the test should be about the understanding and not whether that arises from a mental illness or a disability is that in the same position for the inclusion part the concern is that sadly legislation has proposed although we welcome in the policy to extend the rights to children with capacity in relation of additional sport needs but we are concerned that the proposed legislation in the schedule is not compatible with United Nations conventions both on the rights of the child but also specifically on the United Nations Convention on the Rights of Disabled People article 7 3 of the UNCRPD states that state parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them their views are being given due weight in accordance with their age maturity on a equal basis with other children and to be provided with disability and age-appropriate assistance to realise that right what concerns us here is that rather than being given the same rights as children who don't have disabilities that children with who have additional sport needs will have to jump through an additional hoop or proving they have capacity before they are able to access their rights it seems to be the wrong way round the legislation as it's framed seems to be about trying to make a situation where children have to prove they have capacity if they have additional sport needs rather than a presumption that they have capacity as was said by Irene if they're over age of 12 and indeed if they're under the age of 12 they can can be shown they have the maturity to make the decision that is a major concern to us we don't think it's compatible with the legislation in addition to that I don't know that we'll talk a bit more about the best interest part but we then feel that in addition to having to then prove they have got capacity the local authority may then just say well you've got the capacity but you still can't make the decision because we don't think it's your best interest so you're given the right to be participated and then refuse the right to use that right so in our view the legislation as put out in the schedule is not compatible with the United Nations conventions and we think the bill needs to be amended I think a key part of this is that there is no consultation on the issue of capacity when the question about extending the rights on additional sport needs was consulted on last year the issue about a definition of capacity was not part of that consultation and we feel that this legislation goes way beyond what is reasonable to put forward this legislation with that proper consultation of the consequences of it. If I were to make a suggestion as to how this might be resolved it would be simply to stop the issue on capacity on the proposed schedule 3-1 and not include schedule 3-2 or 3-A. It's possible that we then include a right to make regulations or statutory guidance which can then be further consulted on on the process for assessing capacity where there is a doubt as to whether childless capacity but at present I don't think the legislation is compatible. Just two things really to say on that. The first is an agreement with Jim that we don't want to introduce the extension of these rights to children and then put unnecessary barriers in place to them being able to access their rights. However, in our written evidence we haven't particularly said very much on the capacity issue we absolutely support what the Equality and Human Rights Commission have said in terms of the guidance that would be required to local authorities about the assessment on capacity and we would like to see it minimised any likelihood that disputes are going to come around with the introduction of this proposed legislation so we would say that that guidance would have to be quite detailed and really ensure that local authorities were able to demonstrate impartiality in their consideration of capacity. It's interesting that Ian, you mentioned the lack of consultation on the definition of capacity and certainly with the previous panel there were a couple of areas where I think similar concerns had arisen. Is there any indication from the discussions that you were having in the lead-up to the bill as to why that consultation didn't take place originally of why there is suddenly there was felt to be a need to define capacity within this legislation or is it really come out of left field for everybody? Certainly we were not involved in any discussions about capacity and we made a submission to the original consultation document last year but there was nothing in that as I said that although children with capacity would have these rights it did not actually indicate that it would then seek to redefine capacity. The assumption I think would have been that the existing definitions of capacity, as was mentioned by Irene, would apply to the legislation rather than a new definition of capacity that has been brought in, which is exactly what the legislation is doing. It is quite a significant change to the definition and it is discriminatory because people who do not have the ASN do not have to prove their capacity but people with the ASN will have to prove their capacity and I think that that is quite clear discriminatory. Can I move on to a connected question to the one that we are just dealing with on capacity, which is affected by the best interest tests that you mentioned in one of your earlier responses? Obviously, the bill introduces a test of best interests applied to both children and young people. Obviously, there have been concerns expressed in some of the written submissions that we have received from, including Inclusion Scotland and some others, but others have been more supportive of the introduction of the test and, indeed, the Scottish Government on 28 April, the officials provided an explanation of why the best interest test should be included. I just wondered whether, for example—let me start with your self-iring—whether EHRC could expand on their views that the best interest test is not compliant with the convention, which is what you submitted to the committee? We welcome the aim of the bill, which is to extend the rights of children. That is an aim that is consistent with human rights in line with the United Nations Convention on the Rights of Children and the Rights of Persons with Disability. We are concerned that the way the bill is framed—in particular, the preliminary assessment of capacity that we have just discussed there for both children and young people—and the preliminary best interest test combined to undermine the purpose of the bill, in particular where both assessments are proposed to be carried out by the Education Authority, which would be challenged by any reference as being the body with the duty in relation to additional support needs. It is that concern. The way in which it is proposed to work—there are these two preliminary hurdles—a child, if a child wants to exercise the rights that are proposed, then they must notify the Education Authority of the intention to exercise those rights. It is at that point, that very early point, that the Education Authority assesses capacity—that is the proposal. If the view is reached that the child does not have capacity, the child cannot make the reference. The child does not have the right to make a reference. Equally, imposing the best interest test at that early point, where the child has the intention to exercise the right, means that if the Education Authority is of the view that it is not the child's best interest, the child cannot exercise the right. It is not giving the child the right to make a reference, but it is letting someone else decide whether the child gets to exercise the right to make a reference. That someone else is the Education Authority, which is the Education Authority who would be the party being challenged by any reference. Is your complaint on both parts, effectively, the fundamental part about the assessment itself, or the fact that it is the Education Authority or both? Having a best interest test at this stage where there is an intention to exercise the right is something that is not there, for example in disability discrimination claims, which are heard by the additional support needs tribunal as well. It is important to look at what capacity is. It is distinct from best interest. Capacity means that you have sufficient maturity and understanding. You understand enough to be able to take the decisions to understand the risks. The spice briefing that accompanied the bills gave a very useful example, not directly analogous, because it is in the context of consent to medical treatment. However, the principles are the same. It is a quote from the text by Wilkinson and Norton. It is stressing the importance of how, in relation to consent to medical treatment, once a decision has been taken that a child has capacity to understand, that means that they have the capacity to take decisions that may not necessarily be in their best interests as viewed by someone else. That is logical, because the test of their capacity is based on their understanding, which includes the understanding of those risks. There is a concern, in particular, about the proposal here, because it is introducing the best interest test for 16 and 17-year-olds, which is a retrograde step, because young people at the moment have rights to make references. There is no best interest test at the moment, so that would be a retrograde step. As I said, it is not something that applies in relation to other claims. The concern is that it is not actually giving children the rights, it is letting someone else in particular the education that they make. I will come to you in a second, but just to finish this with Irene. Given what you have said about the medical example that you have just given, the Scottish Government official gave us an example of a speech and language therapist. A child was assessed in the need of a speech and language therapist. The child did not want to engage with that person any more, and that would seem deemed to be acceptable and agreeable, and that would be fine. If they had the right, they could then go on to use that right to remove completely the support, rather than objecting to the individual who could remove completely the support, even though that had been identified as unnecessary and helpful, and it was in their best interests that they had a speech and language therapist. I presume that your view would be the same. That would not change the view that the example that was given by the Scottish Government official. It would still be exactly the same as the one that you gave for the medical example. What would happen is that, if the child has capacity, they should, in our view, have the right to make a reference to their tribunal. If that is on a basis that they are unhappy that their need has been assessed as being one that requires that speech therapy, it would then be for the tribunal to decide, given the child's dissatisfaction with an assessed need. It is not about the individual, it is about the assessed need. It would then be for the tribunal to decide to take into account the evidence whether that was, in fact, an additional support need, which is in the child's best interests, at that stage. It should not be a preliminary decision about whether the child is right to have that heard. That is the key point. I think that there is a misunderstanding, I think, by the Scottish Government officials. I have read the evidence in the official report. The issue is not about whether the child should have the right to make the reference for an assessment, which is that, once they have capacity, they should be able to do that. The best interest here is the question of what that assessment comes up with at the end. There is a confusion about at what point the best interest kicks in. The legislation that is currently framed kicks the best interest test in, not on the basis of the assessment, but on the basis of whether the child has the right to make that assessment, and it is just at the wrong time. It is important to recognise that, again, that this is not compatible with the UNCRPD on article 12, which is on equal recognition before the law. The United Nations Committee on the Rights of Disabled People has made a general comment on the issue of legal capacity and the denial of legal capacity, and about the role of substitute decision makers. One of the points of which is that substitute decision makers make decisions based on what is believed to be in the objective best interest of the person concerned, as opposed to being based on the person's own will and preferences. The view of the United Nations Committee is that substitute decision making is inappropriate and supported decision making is the correct thing to do. What is proposed in terms of the additional support that is being proposed for the service is to give those children who are wishing to access their rights under the additional support for learning act, the support that they need to do that, by introducing its best interest test. You are actually giving them a right by saying that they have got capacity, and then taking that right away by saying that we as an education authority do not think that it is in your best interest. There is also just one other point that I just want to make on this, which I think is quite an interesting one. Given that the education authority has a statutory duty under the Children and Young People's Act to act in the best interest of what they consider to be the best interests of children, it may be quite difficult to say that a child is challenging their decision in their own best interests, because they have already determined what the best interests of the child are. It is a rather strange circular piece of legislation that is being introduced here. I really do not understand why a best interest test is being brought in. It is certainly not compatible with the conventions and the rights of the children that the legislation might be bringing in. I am going to ask a very lame-in question, which is, effectively, surely most of us will understand that those involved in those cases are trying to act in the best interests of the child. In other words, they are suggesting, for example, that a speech and language therapist is necessary even if the child does not want a speech and language therapist. Most of us would think that sometimes children take a view that is not necessarily in their own long-term best interests. The point that I am making is that it is not about the assessment of the needs of that child has. That is about the right of the child to make a reference on that. If the child may wish to make a reference and say that they do not require the service, but the assessment then determines that they still require that service, that the assessment is the bit with which the best interest kicks in, it should not be kicking in at the point of reference. That is the problem. The legislation is actually putting a second best interest test in, and it is saying that, firstly, you can prove your capacity. Nowhere else in the law of Scotland, if you have capacity, does somebody then have a chance to say, we will have to say what is in your best interest or whether you can exercise that or not. Once you have determined that you have capacity, you are entitled to act on what you consider to be your own best interest, but the law of the land then allows decisions to be taken looking at other factors. The problem here is that they are introducing a bloc, a barrier to using a right that the legislation is meant to be introducing. Once the assessment is being made about what needs the child needs, that determines what the co-ordinated sport plan and the sport that is to be given is to be done. If the child does not agree with that, they can challenge that to the tribunal, but at the end of the day, as Irene said, the tribunal will make a decision of what the support should be and will take account of the best interests of the child at that stage, and that is the appropriate stage for it to be taken into account. Be clear. Thank you for that. Sally, do you have anything to add to that? I just think that, in terms of where there is any dispute or disagreement, if a local authority has a role in making an assessment or judgment, what we have seen with the additional sport for learning framework is that it can be problematic. However, what we did feel was that we were satisfied with, within the bill, the provision for children to be able to appeal to the additional support needs tribunal of Scotland or to be able to request independent adjudication where there was an agreement on capacity and on the best-interest tests. We were satisfied that that would be adequate in those particular cases. Part of what I was going to be asking has already been covered, but let me have another tour of it. I was looking at conflicts of interest and we were very touched on the fact that both capacity and best interests will be assessed by the local authority or the ASNT. How much of an issue is that in terms of conflict of interest? Does the local authority undertaking both those assessments really cause that much of a problem? The education authority will assess capacity. We have already talked about our position, which is that it is not necessary and it is not desirable to have that process. Age of legal capacity principles should be what applies here. There should not be additional hurdle for children in additional support needs references. However, there is concern that there is a potential for perceived conflict of interest because, inevitably, it is going to be the education authority that is the subject of the reference. The education authority has the duties in relation to additional support needs, and it is not appropriate that they should have that say as to whether a child or a young person indeed can exercise their right. One of the panels has already said that they are satisfied that the right of appeal to ASNT is sufficient in terms of the local authority being in conflict of interest. Does the rest of the panel agree? Well, I do not think that it is appropriate to have the capacity assessment and then, particularly, not appropriate to have that done by the education authority. We have already just discussed that it is not appropriate to have the best interest test at this stage. Again, to put that test in the hands of the education authority does raise a concern of potential conflict. I do not think that that either has sufficiently addressed by having a right of appeal. Does the rest of the panel agree? I think that it is a general matter of principle that a party to a decision should not be making decisions about who can challenge their decisions in a sense. In that sense, it seems illogical that the education authority is the person who has been challenged about the assisted support needs should have a right to determine whether the person who is making that challenge has a right to make that challenge. It just does not seem to be part of natural justice. Should it be apportioned? Who should make that decision? I would share the views of Irene. Unless there is a clear case that a child does not have capacity, then they should be presumed to have capacity in terms of the existing legislation. There is a legal framework for determining the capacity of children, and that should apply to an additional sport for learning act, as it does to any other piece of legislation. I do not see that there is a need for an additional test to be included as part of the act to access the rights that the act is meant to be giving. I would like to look at further potential conflict between parents and children on the role of parents. Extending rights to children highlights that parents and children's rights can sometimes be in conflict, and the bill provides that a parent can exercise a right even when the child does not want them to do so. Various councils have raised the issue of tension between the child and the parent. I find that quite complex, but where a parent disagrees with a decision taken by a child, they will have the right to go to the additional support needs tribunal to review the decision by the education authority. Where a child is unhappy with the provision of support that is being provided, they will have a right to make an application to an independent adjudication or appeal. We have had the equality and human rights commission, faculty of advocates and the additional support needs tribunal have all referred to the complexity of the drafting of the part of the bill. I am finding it quite difficult to wade my way through it. Did you find the provisions easy to follow? If not, is it because of the complex area of law or is there scope for simplifying the drafting? I think that if it is complex to the faculty of advocates, I think that for lay people like ourselves and others it is going to be enormously complex. By the way, I did read the Ombudsman's submission. I am not sure if you have something to say on that, but I am just trying to bring it in because you are looking quite lonely sitting there. I am sure that we will. Whoever wants to answer, but I imagine that Ian, Irene and Sally at least want to say something on it. It is easy to follow and what should be done. Legislation is always written in a way that is more complex than I think is necessary, but that is the way of lawyers. However, if the faculty of advocates think that it is too complex, we are rightly in trouble. As I said earlier, part of the problem is that the schedule that brings in the detail of the proposal in relation to extending the rights of children with capacity under the additional support for learning act was not subject to prior consultation on the detail. That is where the problems arise. I suspect that a lot of that is going to be proven to be not fit for purpose. I am not a legal expert and I get very confused with some of that as well, but I think that it is not fit for purpose. I suspect that the best—I would hope that the committee would consider asking the minister whether he would look at not necessarily withdrawing the legislation because we do not want that to happen, but to look at minimising what is in the primary legislation to allow proper consultation on the detail to be carried out before finalising it. If the bill goes through in its present form, I suspect that we are heading for more problems than we are solving. You say in your submission that you are concerned that the proposals in the bill undermine the principles of children with additional support having the same rights as other children. That is quite a serious allegation if you are saying that the bill is undermining that fundamental principle. I want to be in mind. The fundamental principle from the UNCRPD is that children with disabilities should have the same rights as any other child. By bringing in things such as the capacity test and the best interest test, they are not having those same rights. To use the framework of the Age of Legal Capacity Act, you would not require those processes about children having to notify their intention to exercise their rights. You would not need to have assessment of capacity by education authorities and you would not have a best interest test, so you would be simplifying the legislation by taking all of that away. The definition in itself, as I already mentioned, is that there is difficulty with that in terms of compliance with the UN Convention on the Rights of Persons with Disabilities. The opportunity could be taken now to look at that in relation to the provisions for establishing the wishes of children as well. I am not sure whether you have addressed the point about the bill providing that a parent can exercise a right even where a child does not want them to do so. Is that reasonable? Is that fair? Should that remain in the bill? It is the conflict between child and parent. It may be. It is about the conflict of entrance between a parent and a child's rights. It is that aspect of the bill. There are going to be situations where you may find differences of opinion between the child, the parents and the education authority. What the bill does not do is perhaps provide a mechanism for resolving that in a way that does not require going through formal procedures. One of the concerns that we have is that I know that it is not shared by many other organisations, although it is by the faculty of advocates at least, that the children will not be able to exercise the right on using mediation services, because we would have thought that mediation services might be the most appropriate way of dealing with situations where there is a conflict between parents, children and the education authority about the right way forward. I am not entirely clear. In fact, I totally fail to understand the reasoning behind that, because my understanding of mediation is that it is an independent facilitator who tries to remove the issues about the differences of power between the different parties and tries to reach a common agreement on the way forward. The children would have support if they required it from the support services that the bill proposes, so I thought that mediation would be a way forward. Family mediation services that are operated by charities such as Children First already provide considerable support to families where there is internal conflict within the family. That might be a way of addressing the issues that you propose without requiring a complex legislative framework that the bill proposes. The first question is easy to follow, not necessarily but not unusually. In terms of conflict within families, I think that the bill is right to include this. We are talking about children between the ages of 12 and 15, a period in children's lives where there is quite often conflict disagreements and differing opinions within families. However, in terms of the support service—the children's service that is being proposed—we would expect that the four elements of that service would do the job required in terms of raising awareness and support of children about how to access their rights and some of the implications of them. There is advocacy provision within the proposed children's service. It is also suggested in terms of the role of the named person that the named person would pass on details of the children's service to all children who were wishing to exercise some of those rights. We believe that that is a very important and strong role for the named person, and obviously every child will have an allocated named person able to fulfil that role. I think that the problem with me— Sorry, I was just going to bring in an Irene before you do it. I was just going to say that we did not comment specifically on mediation, but I would agree that there would need to be a good reason, which I do not think has been established to exclude children from that right as well. I would agree, too, that mediation can often avoid the need for a matter to be heard by the tribunal. I would have thought with appropriate support that children would be able to participate effectively if they have capacity. In relation to conflict between parent and child in disability discrimination claims, before the additional support needs to tribunal, either a parent or a child can make a claim. It is then for the tribunal to listen to evidence and make an assessment again to see the evidence into account and resolve any conflict of use as part of that, the tribunal hearing the claim. In relation to conflict between parent and children, one issue that we have not mentioned so far is looked after children. I think that there is a particular concern for looked after children. In fact, Government Law Centre has recently done some research to look after children with additional support needs. I have said that more than 12,500 looked after children in Scotland. With additional support needs, almost half of them, according to their research, have not been assessed for a co-ordinated support plan. Of those who have a co-ordinated support plan, none of them have ever been appealed to tribunal. The very few cases heard by the additional support needs tribunal dealing with references in relation to looked after children. I think that that is an issue of concern. Who decides the capacity of the parent or indeed the education authority? Life-looking at the competence of local authorities, I am probably the wrong person to ask. I ask the question seriously. I know that there is a tribunal and the balance, but at the end of the day it is a reasonable question, in some cases, not in every case, as to what the capacity of the parent is, particularly. In some cases, what the capacity of the education authority is. Law is that adults are presumed to have capacity, if you are a mentor. We have that presumption for children. Well, under the age of legal capacity act, that is the position in relation to children, they are 12 or over. There is a presumption that they have capacity. Okay, thank you very much for that. Mark Griffin. Touched on the complexity of the provisions, I just wanted to ask to clarify that, because the area of law is complex and so on, the bill has drafted as necessarily complex or as a scope to simplify. To simplify it, that will be achieved by removing the provisions in relation to assessment of capacity by the education authority, which is what we would suggest is necessary to be compliant with conventions. The age of legal capacity act deals with those principles. It works elsewhere, there is no reason to deviate from that. It would take away all of that area, and equally, the best interest test should not be there either, and that too could be removed. Anybody else? Maybe just to go back to my first response. We do not want to put any unnecessary barriers up in terms of children being able to exercise those rights. Children in Scotland absolutely welcomed the proposal to extend children's rights, and we want that to be a positive experience for children and there not to be barriers in place. Some of the discussion this morning has illustrated some of those barriers, so my only comment would be that if simplification removes some barriers, then that would be a good thing. I want to ask a question regarding the complaints part of the legislation and maybe this is where Mr Martin comes in. I do not think that it will be hard to follow the question, but it is really in the evidence that we have got back from people, there seems to be some disagreement about whether the respect of all those of the Scottish ministers and the additional supports needs tribunal in dealing with the complaints are clear. I wonder if you consider that further qualification should be provided on that. I do not think that it should be a difficult thing to do, and I do not think that it needs to be complex. I do not think that it is appropriate for ministers to reconsider decisions that have been made by a tribunal. I think that that should be absolutely clear. I think that the system has to be very transparent, and I think that the current vagueness in section 70, where ministers can act, if they are satisfied there may be failings and duties relating to education provision, would have been met by a tribunal decision. Does anyone else have comments on this? In the paragraph 8, in particular, in your submission, Mr Martin, you speak about how you yourself as a body are restricted by law. How do you see that in the compatibility of what you already do, what tribunals do and what Scottish ministers would be proposing? I think that it is perfectly clear that there is a route to tribunals' mediation or adjudication for people. I think that that is pretty clear. I think that where the confusion may come in is that ministers and the ombudsmen have similar powers on complaints. Section 70 is not primarily a complaints section. It is about where ministers can act if they believe that someone is not carrying out a duty or may not be carrying out a duty. That may come to their attention by a complaint, and it may come by other means. It could come from this committee, individual members, the media, or any source that ministers choose. It is not purely a complaints procedure, but I think that it would be possible for someone to bring something to my office which I can look at, which would be equally competent for the minister to look at. That is clear, but the other members have a view of whether the bill could go further in making the complaints landscape a bit simpler for people and how parents and children engage with that. How do they become involved in that? I am watching with interest the way that the committee has been grappling over the last few weeks with overlaps, confusions and so on. Douglas Sinkler put Scotland ahead of the rest of the United Kingdom in his report in 2008, when he argued for simplifying the landscape and removing complaints bodies and trying to make it as easy as possible for people to make complaints and run with complaints. We removed the Prison Complaints Commissioner, we removed Water Watch. I have taken on the responsibilities that ministers previously had for prison health complaints. The direction of travel in Scotland is to reduce complexity to make it as easy as possible for people using the system to complain. Do you have that complaint resolved as quickly and as well as possible? That should be the theme that underpins everything that we do in this area and in all the other areas of public service. The way to come at this, I do not think that the normal way that we do is having proposed legislation and then discussing it as a group as to how best to administer it. I think that it is best to look at it from the user up. What will be the simplest and easiest way for the user to get a fair hearing? If we present them with a complex landscape, then people will go to their own place, they will go around in circles, they will get tired, they will drop out, they will not pursue their rights. I think that the job of this committee and other committees, in my view, is to make it as simple as possible for users to find the right route to the right people who can give them the right solution. I think that what is important in relation to education complaints is that everyone should have a right to an impartial tribunal or hearing or complaint system that has to be clear what that system is and who to make the complaint to. There is also an issue of speed that needs to be involved in that. If a complaint is about a child's education, we cannot afford to delay for months and months while we go through endless formal processes before it reaches a final conclusion. Whatever system is brought in place, it has to be one that is clear, simple, impartial and speedy. On that, the speedy and the timescales in our evidence that we have received back a near unanimous view was that the proposed deadlines were at least reasonable. However, if we streamline the complaints process with reduced timescales, as children in Scotland argued the welfare and wellbeing of the child caught in the middle of the dispute, it should always be the primary consideration. Should there be any redress if timescales for resolution of complaints are not met, do you have views on that? Maybe just to go back to your first question as well. In terms of the inquire service, what we do is try to simplify information for parents, for children and young people and for practitioners about the additional support for learning framework. A lot of the questions that we get is about the dispute resolution mechanisms and about the complexity of those mechanisms. On behalf of the Scottish Government, we produce information that is in an accessible way and see that as absolutely critical in terms of families being able to access the correct information about how to use those mechanisms. I think that I have just lost your second question. Just about the timescales and the redress, would that be lost if we streamline them? In terms of the timescales proposed, if there was an investigation required, so it is looking at approximately six months at the moment. I think that that is necessary given the volume of evidence that is sometimes accompanied in a case. However, just as Jim Smith said, the impact of being involved in dispute and making a complaint on everybody involved is really significant. We are satisfied with the proposed timescale, but if there was any opportunity to reduce that in practice, that would be welcome. Timescales should not be seen as the amount of time that it takes to deal with something. They should be outriders. The factors that you need to take into account—this is my business, really—is the complexity of the issue, the volume of complaints that you are going to be dealing with, the availability of evidence and how long it takes to gather it, the availability of expertise and the resource that you have in order to tackle them. If ministers and civil servants have looked at all those and factored that into their thinking—that is, it is a practical set of numbers—then that is fine. On the face of it, they look reasonable to me. When I, the committee and I had a member of the Government in front of me, I think that I would be asking them, how did you arrive at those numbers? Have you factored in volume resource experts' expertise or are these numbers like to have? When you deal with complaints like this, Ian is right that it is very important that there is an issue that requires speedy resolution that you are able to fast-track things. That means having those things on hand and not starting from scratch in every single case. I know that the number of cases is small, which probably means that the resource and experience will probably take a long time to accumulate as time over happens. Those are the kind of questions that I ask ministers when they come to justify those numbers. I was interested in your comments earlier on the appeal to ministers. You may have observed that in the earlier session, the appetite of ministers to get involved in things that they should not be getting involved in was coming under scrutiny. To be fair to them, the Government's policy memorandum had looked at repealing section 70 and introducing alternative provision that would have allowed complaints to be made to the ombudsman rather than to ministers. However, that received limited support. I find it intriguing that we have a dual-running mechanism for complaints, where you would pick and choose what referee you had and whether or not you thought that additional pressure could be applied to ministers who may have half an eye to how that plays with the wider public rather than necessarily the objectivity of the criteria. It may be tempting. Is it your view that we are setting up problems that may need to be resolved in due course? To get back to that streamlined landscape that you were talking about, there is really where we should be heading and we should be trying to deal with that through the legislation now. I have never sought more powers or brother jurisdiction from my office. I have always believed that that is a matter for Parliament and the Government. I have seen my roles commenting on that. When I child or a parent at the moment, I would be confused as to where I go. To me, that cannot be right. Either we need to have clear signposting about where we go for what or we have to have a simplified system. However, section 70, as I said at the beginning, is not purely a complaints provision. It does give the minister power to intervene if he becomes aware that there may be a breach of a duty by whatever means, one of which might be a complaint. That is an important thing to have and an important thing to keep. However, I see that as a kind of own initiative power for the minister in lots of ways. The complaint being the only initiative power of the user, the child, the parent, whoever that may be. If we are going to keep things the way they are, I think that we need better signposting. I say that inquiry is excellent for that, absolutely excellent. However, my advice to the committee would be to think from the parent, the child, up rather than from the administration down when you come to decide what is the best process. I just want to check a couple of things that I wanted to ask of yourself, Jim. Are we clear what the underlying key principles are? If we are going to streamline the system and we have discussed briefly about the possibility of reduced timescales because, in examples that we are giving, we do not want months and months of of a child's education to be interrupted, what are the key principles that need to be addressed irrespective of what system we come up with? In terms of how a complaint is handled. The first thing that we do is that if someone comes to us and we think that it is a support issue and the local authority, for example, has not acted on it, we try to find it first why so somebody that presents on paper as one thing might actually be far more complex and what have you, so that has to be determined and at that stage we will probably direct people as appropriate, either the tribunal route or to the local authorities. In fact, we issued one in March this year to Highland Council, I think, where we said that their signposting of people on this area was not great and we asked that all local authorities in Scotland look at how they signpost people. When it comes to my office, we will take a view as to whether or not this is something where I should use my discretion to fast-track something. We will do that in some education cases, very rarely have I done it in that, more commonly we will do that in a health case, for example, where someone may be facing a terminal illness, so we do have the power to fast-track that and I think when we look at what ministers are doing, again one of the questions if I were you, I'd be asking is what are you going to do about that fast-track element? If you want to put in place a complaints procedure that looks good on paper, that's one thing, but as soon as you start dealing with people it's quite another and you have to be taking a human approach to how you approach these things. Okay, thank you very much. I just wondered whether you had any view on the how we could best make sure that anybody who wants to come in, whether it's parents or children, how we could best inform them of their rights in this area. You mentioned yourself a case of poor signposting by local authorities, but how can all parties affect if they are properly informed of their rights and where they should go? I think that it should be at the point of contact whether that be with the school, with looked after children, where they are being looked after, wherever that is, at that initial point of contact it should be there. I think that what tends to happen is that people get themselves into a process and my experience not just in this area but in other areas is that public bodies decide which part of the process you can enter when and for what. It's very rarely that an individual controls that, so it's important that people are educated about what rights they have, what the routes they have if they believe their rights are not being met. I think that that should be happening for most young people at the level of the school and for looked after children where they've been looked after. We have you here. Obviously, we had a discussion that you mentioned briefly earlier about the discussion that we had with the commissioner for children and young people about overlap. I just wondered what your view was. I know that you submitted some views in writing earlier on, but I just wondered if you could expand on your views as to whether or not you see problems with the possibility of overlap between the new investigatory powers of the commissioner and the powers of your own office? The short answer is yes, but that is true of a number of organisations and we find ways to manage those downs so that incidents where something falls between the cracks is kept to a minimum. I think that the processes that I've heard described will take a bit of time to put in place. I think that they'll take a bit of time to bed in. I think that the anticipated volumes will need to be watched closely. I read somewhere about the number of investigations between one and four and the likely number of approaches to the office being in the region of 8900. I think that that will have to be managed very carefully. I will do anything that I can to try to help young people to access routes to get things resolved where they think they need them to be resolved. The Government and Parliament have decided that one of these routes should be through the Children's Commissioner and my office is committed to trying to help them to make it work, but it looks to me as if there are a number of complexities in it that will need to be ironed out. Given that you have just said that, how confident are you that it can be worked out to—there are always overlaps, as you say, in difficulties sometimes, but how confident are you that those complexities can be dealt with in a harmonious way? It's more important that it's clear for the users of the system as to who deals with their complaint. We are all public servants, so we all have a duty to make this work. We've spent, maybe, in the past 18 months of non-talking with the commissioner about what an investigation looks like, what a complaint looks like, what a front-of-office, a house office looks like, what a process looks like, what you do when you have to disappoint people, which we do at least 50 per cent of the time. The difference between having a part of your office that is there to make decisions about things that children bring to you and another part being an advocate for children and how to keep these separate and those kinds of things. I'm confident that we can all work together and try to make this work, but I think that it will have to be resourced and there will have to be a lot of goodwill, and there will have to be a lot of patience, because I don't think that this will be up and running on day one. I think that it will take a bit of time, and it might be something that you want to think about reviewing at some point. I thank you very much for that. I know that that wasn't entirely on topic, but see it as you were here. I'm glad that you said that. Can I just check one final thing with Sally? The support service, you've referenced that a couple of times in your answers. For children, I wondered whether, if you're content with the Scottish Government's proposals for the service and whether the extension of rates would become available to them under the bill, are you content with any plans or proposals to raise awareness about the support service that are adequate? I think that they're adequate. As many people have said in response to the bill, there's no point in extending rights to children under the legislation unless they know about it, and they have support to access and exercise those rights. We've already talked about the complexity of the dispute resolution framework in additional support for learning. We consider it absolutely essential to have a children's service as the one that's been described with four elements—information and advice advocacy, legal representation and a service that can gather children's views. We think that those four elements are comprehensive enough to allow children to know about those new rights. We also think that it's an opportunity, as others have commented, to continue to raise awareness of the additional support for learning framework, which gives further rights to children and young people. We think that the bill is an opportunity to extend the information that is provided to children generally. What we'd want to see with the children's service is that we consult with the target audience of 12 to 15-year-olds and talk about how they'd like to access the different elements of the service and their views on delivery. We would consider that essential before anything else happens in terms of planning or the detail of the service. Thank you very much for that. I thank everybody for their time this morning. We do, as I say, appreciate you taking the time to come and speak to the committee. We find it invaluable in our work in examining the bill, and I briefly suspend to allow the witnesses to leave. Item 5 on our agenda this morning is to consider a draft memorandum of understanding on the BBC and its future engagement with the Scottish Parliament. A paper has been circulated by the clerks, and we have also received a letter from the Scottish Government yesterday from the Cabinet Secretary. I presume that everybody has had an opportunity to read those papers and indeed the letter from Fiona Hyslop, so I am just going to throw open and invite comments from the members. The purpose of the item, though, is to allow the committee to consider the draft memorandum of understanding and agree any comments that we want to pass to the Devolution Further Powers Committee, who will report to the Parliament thereafter to inform a subsequent chamber debate. They are the lead committee on this item, but with those comments can I ask members what views they have on that particular item? It is really from the point of view that the draft memorandum is concerned with how the BBC engages in consults with the Parliament and government, and not with the subject matter of programming and activities, and really looking from the point of view of editorial and operational independence. I would like to ask that there is a commitment from the BBC to send its annual reports and accounts to the Scottish Government and a commitment from the Government to lay these before the Parliament. The accounts are fine, but I have not got any problem with that. However, if the annual report is not quite to the liking of the Scottish Government and the Parliament, is it possible that that could stray into programming or activities by editorial or operational independence? If we are being sent an annual report—I understand the accounts—that is not a problem. However, if we are being sent an annual report, what is it reporting on and what are we scrutinising on? If we are not happy with how much has gone to religious broadcasting, educational broadcasting, political broadcasting or how it has been done, is there the opportunity for the—I hope that there is not—is it likely that the Parliament could say, well, we do not like the way you are doing this, that or the other? It is just the report that I am not sure about. In the memorandum of understanding, it talks about the report with reference to covering areas such as the finance administration and the work of the BBC. It is the work of the administration that I am okay with. That is what I am not sure about. If we go back to the original Smith commission agreement, it says that it should be the same for the Scottish Parliament and the Government as it is for the UK Parliament. It is just about laying the report. There is a clear view about the separation here. A protection of independence and territorial independence of the BBC. I appreciate that and I bow to your superior knowledge being a member of the other committee. Paragraph 2, annual report and accounts. To comply with any directions, after consulting the BBC by the Secretary of State or the Foreign Secretary, is there the information to be given in the report about finance administration and work? What I am saying for the BBC Scotland is that it will presumably consult with the Parliament and the Government to decide what will be included in that report. I am just asking if there is the potential for that to stray into the work and operations of the BBC. That is all. I can only give you my understanding. My understanding is that that is not the case. It is nice to hear evidence from the convener. It is not the case. It is just about the input of the report as opposed to not about the actual editorial independence and decision making processes of the BBC. It is more about what ends up in the report rather than that. It may be a fine divining line, but it is not supposed to be about the editorial independence of the organisation. I think that it is an important issue at this time of the charter coming under review and moving further to the world. Obviously, that is for the charter. I appreciate that. The charter deals with that area, and it is not for the Government either. The further devolution is important to clarify those issues at this time. I thought that the paper was helpful and the letter from the cabinet secretary. I thought that the draft MOU was a fairly reasonable reflection of what emanated from the Smith commission. Obviously, the lead committee will take its own view on that. I was not quite clear why Fiona Hemslock was saying in her letter that, although the present draft presents some detail on how consultation on the terms of reference for the charter will be agreed, it does not currently provide for a role in determining the content of the charter. The process of consultation seems to be reasonably clear. Some of those things in practice do not necessarily work out as intended, but I did not see the problem that Fiona Hemslock was identifying in her letter. Obviously, the lead committee will have gone into this in more depth and will be able to cross-reference it with the work that it has already done in relation to the Smith commission, but, as it stands, the MOU, to me, looked at a reasonable reflection of what emanated from that. The one thing that I would certainly say is that I have some sympathy with the letter from the cabinet secretary. It is on the basis of the work of the devolution further powers committee that has been on the principle of trying to ensure that everything that comes out of the Smith commission agreement is followed up either through memorandums of understanding or through the legislation. It meets what was in Smith, if I can put it that way. It has been taken forward on a unanimous basis in terms of the report of the devolution further powers committee to try and make sure. I know that we all have different views on going beyond Smith or not, but the idea is to try and bring the Parliament the opportunity to examine exactly what is being proposed and whether or not it meets the original Smith recommendations. For me, that is the core point of the letter from the cabinet secretary, where she says that, in her view, the current draft of the memorandum of understanding does not yet fully deliver the role that the Smith commission outlined. She makes reference in her letter to a particular point about it being the governance of the BBC in the same way as for the UK Parliament. The Scottish Parliament should play the same role. There is a question mark, if nothing else, or it may be a question of clarity. It may be nothing more than that, but at the very least we should, when we are writing to the devolution further powers committee, point out the correspondence that we have had from the cabinet secretary, although I know that she has copied in the convener of that committee. In my view, I think that the principle would be to ensure that there is a unanimous fear of this committee that, whatever is agreed, it should meet the spirit and the substance of the Smith commission. Is that agreeable? And we agreed to write on that basis then? Okay, we'll do that then. Thank you very much. I think that we did create an item 1 that we would now move into private session for item 6, so I'll only move the committee into private session.