 Good morning and welcome to the 22nd meeting of 2023 in session 6 of the Equalities, Human Rights and Civil Justice Committee. We have received no apologies this morning. Our first agenda item is to agree to take item 5, which is consideration of today's evidence in private. Are we all agreed? Thank you members. Our second agenda item is consideration of one negative Scottish statutory instrument, SSI 2023-266, the marriage between persons of different sexes, prescribed bodies, Scotland, amendment regulations 2023. I refer members to paper 1. Do members have any comments to make on the instrument? No member has indicated that they have any comments to make. That being the case, are members content to formally not to make any comment to the Parliament on this instrument? Thank you. That concludes consideration of the instrument. Our third agenda item is our second evidence session on the Regulation of Legal Services, Scotland Bill. I welcome to the meeting Brian Inkster, who is the CEO of Inkster's Solicitors. Chris Kenney, former chief executive of the legal services board of England and Wales and currently the CEO of the medical and dental defence union of Scotland. Also, Professor Stephen Mason from University College London and Naeema Yaqoub-Sajid, solicitor and director of diversity plus, welcome to you all. I refer members to papers 2 and 3 and note also that the Delegated Power and Law Reform Committee is this morning taking evidence on the bill from the minister for victims and community safety. I will invite each of the witnesses to make some brief opening remarks should they wish to do so. I will start with Brian Inkster, please. Thank you for inviting me along today to give evidence. As you introduced me, I'm the chief executive officer of Inkster. It's a law firm I formed in 1999. We operate what I call a plug play law model, where we have consultant solicitors who are self-employed and who work under our umbrella with us providing them with back office support and services. We have offices in 13 locations around Scotland, from the Highlands and Islands to the central belt. I've been following regulatory reform very closely over the years, especially since the Roberton review was published. I've written quite extensively on it on my blog, which is the time blog. I very much support the principle recommendation of Esther Robertson in her review. I think that there is a great need for one independent regulator that is independent from the member bodies. I think that there is a clear conflict of interest between a regulatory body also representing its members. I think that conflict should be removed, and the current bill does not seek to do that in any way at all. I also trust that, in due course, the committee will call Esther Robertson to give evidence, because I think it will be very important for the committee to hear what she has to say on the matter given the passage of years and the fact that we now have a bill that does not follow her recommendations. I'm also a strong advocate of alternative business structures. I think that it is disgraceful that the legal services Scotland Act 2010 has taken 13 years to be implemented in so far as ABS is concerned, and still 13 years later has not been fully implemented, and we do not have the first ABS as yet in Scotland. I think that the committee should make inquiry as to why that has taken so long to happen and why there has been a delay basically on the part of the Law Society of Scotland and the Scottish Government in implementing that legislation over a period of 13 years. I do not believe that there is any reason to have a percentage ownership, a solicitor percentage ownership in ABSs at the moment. Whenever we have the first ABS, it is 51 per cent, the bill suggests 10 per cent, and there is simply, as far as I can see, no good argument for having any percentage there. In the last session where you took evidence, Sharon Horwitz gave very good reasons, I believe, for why ABSs should be allowed to be and have no percentage restriction. Thanks, Brian. Chris. Thank you, and again, thank you for the invitation. Let me first associate myself with everything that Brian had said, which I would wholeheartedly agree with. I wanted to give evidence really to share experience from England and Wales, where the model there offers, I think, some very strong learnings, both positive and negative, positive about the benefits that alternative business structures can bring in terms of consumer service and innovation. I absolutely share the great frustration that Scottish users of legal services have been denied that for a considerable period. There is still a restriction at the heart of the bill, which actually is not only nonsensical in policy terms, but, dare I say it, it is actually rather offensive to the 99.5 per cent of the population who are not lawyers. So, there is a flaw there in terms of achieving benefits which have been achieved south of the border. But the benefits that could have been achieved south of the border have been actually far less than they might have been because of a failure to deal with the complications of the regulatory architecture. The continuation of representative bodies being the ultimate regulator, even if there are Chinese walls, even if there are intervention powers for government or for a regulator, means that far too much energy is given to arguments which, dare I say it, appeal to regulatory anoracks like those on this side of the table, but actually do little or nothing for the public interest. There was a really compelling vision set out in the Roberton report. I am getting beyond that of creating a lean regulator able to look at all legal services in their entirety, having no temptation for regulatory capture or conflict of interest. The bill recognises those dangers, but by setting out a raft of intervention powers for government actually produces a cure, which is worse than the disease it is attempting to resolve. A cleaner, more visionary approach as advocated by Roberton gives the real opportunity for a step change in the Scottish legal industry, and I would hope that Parliament will attempt to get back to those first principles rather than live with the quite odd and clumsy compromise that the bill represents at the moment. Professor Stephen. Thank you very much, convener, and thank you to the committee again for inviting me to be with you this morning. For those who don't know my background, I am a member of the English Bar by training Professor of Law at UCL, and I carried out an independent review of legal services regulation in England and Wales between 2018 and 2020 with a follow-up report on consumer harm last year. In carrying out that work, I did talk to Esther Roberton as part of my review and took her views into account as I was looking at what might be a better resolution for the future for England and Wales. Just a few opening comments. Some of the things in the bill I support, like the extension of the commission's powers to unregulated providers and entity regulation. There are some things not in the bill that I would support, a single independent regulator. That is the conclusion that I came to, it is the conclusion that Esther Roberton came to, it is the conclusion that the Competition Markets Authority came to, it is the conclusion that New Zealand has come to. The conflict that Brian referred to between regulatory and representative interests is simply, in my view, untenable in the 21st century. There are some things in the bill that I am very uncomfortable with, at least in its original form, with the powers given to Scottish ministers. I see those as entirely consequential on the decision not to have a single independent regulator, so one flows from the other and both, in my view, are unfortunate. I can see no merit in reducing the 51 per cent threshold for ABSs to 10 per cent. My view should be removed entirely. I do not support the proposition to regulate the title lawyer. I am sure all of those things we can come back to later in this session. Finally, I think the bill misses some opportunities to learn from what we have done or not done in England and Wales, particularly the incomplete separation of regulation and representation. There are, I think, some difficulties with the regulatory objectives that are carried over and still exist in the draft, and the problems of undue complexity and prescription in the legislation, which inhibits flexibility in a first-moving sector in this century. I am a solicitor with over 20 years' experience in the Scottish legal sector, both in the private and public sector. I had an unconventional route into the law. I left school with unsatisfactory results, which would be probably a kind way of putting it at the age of 17, to be married. I studied an SNC in business studies at college, later in H&D in legal studies, before resetting my hires to enable me to gain entry to university to study law. Therefore, if I get quite passionate about the legal sector, it is probably because I have had a really difficult time to get into it. I completed my law degree with two young children and escaped academia for a short period to build up much-needed experience, and I worked as a parliamentary researcher in 1999, when the Scottish Parliament was reconvened. I commenced my legal career as a Procurator Fiscal Depute and later moved into the private sector, where I specialised in child and family law and became a partner in a middle-sized legal firm and then a larger national law firm. As you can tell, my career in the legal sector is really quite varied. I am now an avid campaigner for change, and in particular I am passionate about making improvements in the legal industry, ensuring that it is fit to face future challenges. My specialism lies in diversity, equity and inclusion and the additional barriers that intersectionality can create. I use my lived experience, my interpersonal skills and business insights to navigate positive change to workplace cultures and structures. With that in mind, I created Diversity Plus in 2021. It is a bespoke consultancy firm designed to assist organisations specifically within the legal sector to make improvements. I am also co-founder of the Scottish Ethnic Minority Lawyers Association and a member of the University of Edinburgh's law advancement board. I share what my fellow speakers and witnesses have said today about needing an independent regulator and also about the model for the ABS going forward. Having researched further since providing my written response, I remain firmly of the view that an independent regulator is the best model for our growing and increasingly diverse profession and the public that it seeks to serve. My starting point is that a legal profession and including that, both solicitors and advocates should not be self-regulated. That the bodies that represent them should not be the ones that investigate and discipline them. In my view, to ensure independence, both in theory and in practice, that is what we need. Separational powers is what I would advocate for. The case for this has never been stronger than it is now. I can explain later my reasons for that given the opportunity. Though I appreciate that the bill in its present form does not allow for that, I would hope that today perhaps we can persuade you all to reconsider. Thank you very much to all of you. We have a range of questions from members. If I could just advise our witnesses that you probably will be tempted to stay into other areas, but if I could ask you to focus on the essence of the question being put, because other members will come in on other areas, that would be very helpful. To start us off, I would like to come to Megan. Thank you, convener, and good morning, panel. Thank you very much for joining us today. In my questions, they relate to the separation of powers and the respective roles of the executive and the judiciary. The Law Society's arguments that independent regulation could lead to increased costs and threaten the independence of the legal profession. I wonder what the panel's views are on that and whether they believe that the regulatory committee is a sufficient guarantee of independence. If I could start with Brian Exeter, please. I think that there is a lot more worry about this question at independence than that exists. I think that it is very ironic that the Law Society speaks about wanting to be both the regulatory body and the membership body, where there is no independence or separation of the two, yet they claim that there will be issues and problems with their independence with the current proposals. Clearly, there have been a lot of controversy over the question of powers that the Scottish Government might have and ministers might have. I think that there may be certain concerns there, but I think that there may have been overplayed. Although I believe that recent correspondence from the Minister has suggested that they will be looking at changing those issues within the Bill to overcome the issues that the Law Society is seeing as far as the question of independence between the regulator and the Government. On the whole, it is probably a lot of fuss over very little because, as matters currently stand, there are a lot of checks and balances in the Bill that cover the question of independence and the need for intervention only really in fairly serious circumstances. I do not think that any regulator should not have some form of oversight. It should be independent, but if that regulator is going off the rails and doing something that is completely nonsensical, should there not be some form of oversight, whatever that oversight is, that oversight could still be independent from Government and could still be in the hands of the judiciary or whatever. Clearly, that is something that I think the Government is looking at quite closely at the moment, given the representations that have been made by the Law Society and the Faculty of Advocates and the judiciary, and I am sure that it will be resolved. I saw no evidence at all that having the Legal Services Board as an oversight regulator in any way minimised the independence of the profession. The debates we had with them were full and frank in the normal meaning of those terms quite often, and I would think far less of lawyers as a group if I believed they were going to be overroared by the existence of a new statutory body. I do think, however, that the perception of independence is as important as its reality, and as we've all said, I don't believe the model we've got now of representation and regulation being put together achieves that, nor do I believe that the level of intervention powers proposed by the Government in the current version of the Bill remotely helps the cause of independence. So I would say the Roberton model with the judiciary as the ultimate guarantor of the lawfulness of the regulators decisions and oversight I'd suggest by this committee or another organisation within the Parliament gives guarantees. You asked about costs, it seems to me there is no reason why a new body picking up the functions of a number of different bodies shouldn't benefit from some savings in back office costs, and dare I say it, it becomes easier for members of representative bodies to put pressure on those representative bodies to operate as effectively as they can in cost terms as well. So I would expect a new settlement to be cost neutral, if not rather cheaper, and by definition it follows that I don't believe the regulatory committee is sufficient. The very fact, as I understand it, that the regulatory committee has not submitted evidence in its own right of itself may say something about the extent to which it perceives itself as separate from the law society. I always find it interesting in these conversations that people are invited to justify independent regulation. Nobody ever seems to be called on to justify non-independent regulation, it's just assumed that because it exists it must be all right. So I'll just make that by way of preliminary comment. On the independence point, I echo Brian, it can be overplayed in my view. The interests of justice arguably don't require an independent legal profession. What they require is independent legal representation by individuals who are appropriately qualified. So what's important is the independence of the individual, which is as much about a state of mind or conduct as it is about a regulatory structure. So I get the impression that often this is just something that can be seized on by a professional or regulatory body to resist further change. Again, I echo Chris on the independence of the Law Society of Scotland's regulatory committee. I thought it was very interesting that their response to you did not identify in which of their two capacities they were responding. Indeed, said at one point, there was a coincidence of interest between the two, which I find frankly astonishing. As an external observer and probably as a consumer who has a problem with a member of the profession, I would probably find that position quite disturbing. Thank you. Sorry, just on cost. I think the evidence we have is slightly different. We don't have a single regulator. We have an overarching regulator. We have a multiplicity of bodies, but there are instances of alternative regulation that do appear to be cheaper than the current model. Finally, there is a cost that is not factored into this, which is that the current model is expensive and it excludes people from legal representation. The cost of unmet need to society, to the public purse, is probably a lot greater than even some marginal increase in cost in regulating the sector. Thank you. I support what my fellow witnesses have already said. To avoid duplication, I would add that it is unfortunate that so much of the good changes that would have come about by the Robertin review and if those recommendations had been taken on have been clouded by the whole argument about oversight by the legislator. That seems really unfortunate to me because there was so much more that could ought to be discussed and I think has been missed because so much power and energy has been put into that, which is very unfortunate. I stand by my view that the only independence that we can really have, proper independence of the profession, is to have an independent regulator. If there is any doubt about whether or not what we have just now, particularly in terms of the Law Society's regulatory committee and how independent it is, I would simply ask that the committee members to have a read of the role, remit and duties of the regulatory committee, which is provided for by the Law Society on the website, to see exactly how much arm's length are they really from the society itself and its committee structure. I would argue that it is not, and for that reason I would commend to you to have a read at that and have a look for yourself. I would also say that when we are looking at making changes, these are changes that we are going to, whole-scale changes that we are looking to make and there is an opportunity to do that. The last changes that were made were made over 40 years ago, substantial changes. If we miss this opportunity to get it right, that could be another five generations of solicitors entering the profession that could live with the changes we now decide to do. It takes seven years if you use the conventional route to become a solicitor. In that 40 years, we could be looking at another five generation of solicitors. My recommendation or suggestion is to take a pause and think about what sort of legal profession we want in the future, which best serves not only the profession itself but the people we look to serve. It is really, really important to do that. Independence should be at the core of that thinking. In terms of costing, I share what the other speakers have said. I am not sure whether proper cost analysis has been done. We have been very quick to criticise what has been done in the Roberton review. However, we have really not looked at the cost savings that will be made should the current model be dismantled and a restructuring be made of what we would want to have in an independent regulator. I am not an accountant, I am not an auditor. There are many, many learned, knowledgeable, experienced people that can do that cost analysis for you and I would say that a better, more informative cost analysis should be done for the savings that will be made when we dismantle the current structure. I will just come in on the back of that, if that is all right. Professor Stephen, you have used, obviously, on England and Wales's experience of independent regulation, so I am just going to take a wee bit of time to give you an opportunity to go into that a wee bit further for me. How have the issues of cost of a new regulator and independence of the legal profession been dealt with in England and Wales? I am not sure they have, fully. We have a model of supposed independence in that the professional bodies who are named in the 2007 act as the approved regulators are required to establish their own independent regulator, but those, for the most part, are still attached to the professional body from which they originated and there have been problems over the years, both with the Solicitor's Regulation Authority and the Bar Standards Board, in not being able to demonstrate that their regulatory bodies are fully independent, even though they are supposedly established as such. You might be aware that, at the moment, the Chartered Institute of Legal Executives is looking at its regulatory delegation. At the moment, it has its own dedicated regulator, but it is part of the group and they are looking at moving their regulatory functions to the Solicitor's Regulation Authority. That would, for the Chartered Institute, be completely independent and that is one of the reasons they want to do it. They are finding it difficult to guarantee the independent regulation that they feel their members need and deserve. Part of their logic is also based on cost. They have looked at the relative costs of regulating with their own body and regulation through the Solicitor's Regulation Authority. The early analysis shows that moving to the bigger body will be cheaper because you can get economies of scale. You are not incurring, as Chris said, some of the basic establishment costs that any regulator would need. The costs fall disproportionately on smaller regulators and that, of course, is charged through to consumers. I should declare for the record that I did a little bit of work for the Chartered Institute in relation to the position that Stephen has just described. I am interested in exploring a little bit more about the detail of regulation and that kind of thing. Stephen, if I can come to you first, you said in your written contribution that the difference in the treatment of the law society and the faculty in the proposed new framework is not justified, the category 1 and category 2 regulators. Can you just say a little bit more about that, please? Yes, it is fundamentally based on a concern about regulation by profession, which is what we have and what is proposed moving forward as opposed to regulation by activity. From a consumer's point of view, from the buyer's point of view, I want a particular service. I may choose to have that service from an advocate or from an appropriately qualified solicitor. Depending on the choice that I make under the bill and indeed now, the regulatory consequence that flow from my decision are different. They are different regulators, different rules, different registers, probably different costs. My point is that the underlying risks to the consumer, which is what regulation should ultimately be protecting, are identical, but the regulatory solutions being offered currently and under the bill are not. I can see no public legitimacy or consumer protection argument that justifies that split. That's really helpful setting it out like that, so thank you for that. Neema, you mentioned in yours that it was just unnecessary complexity that this two category regulator system, is it along the same lines or is there something else in there that we're trying to get at? No, I think particularly for service users it's particularly me as a solicitor, I find it difficult to navigate through the complaints procedure and have two separate categories. So imagine what it's going to be like for service users. If you look at the annex to the financial memorandum accompanied with this bill and you see that there's three annex, one with the current regulatory landscape, one with what would be under the Robertson proposals and one with the proposals as they are. Just looking at those for illustration purposes can show you the complexities and I should be to think how anybody, a layperson, would navigate through those complexities to really know if they are getting transparency and really fully understanding the complaints procedure. So I think adding a further category if anything, I mean this bill proposes to simplify the procedure, that's not what it's doing by adding a further layer and further category to it. That's clear. Just in terms of the sort of overarching regulatory objectives that we might choose to bring into place with this legislation, Neame, if I can stay with you, what would you see as the best way of updating the regulatory objectives and the professional principles for legal service providers? Do you see enough of that in this bill or is it just, as you say, it's added complexity, we're not really sticking to the principles of independence, of clarity, of simplicity for consumers or practitioners? I think to add the principles and objectives into the bill is a good thing. What I don't agree with is the mechanisms through which those will be regulated, investigated in those terms because that is highly complicated. So it's not the fact that we've introduced the principles into the bill, that is a good thing. In terms of consumers for service users, I think that's a good thing because they then have the clear principles set out in legislation as to what those principles are. I think the complication comes in how those principles are then in practice applied and whether or not we're adding further complications by the scheme we're looking to introduce. That would be my concern because I don't think that has simplified it. Yes, Chris. I would say that it's a very good thing to have the regulatory objectives and the principles in the bill but the fact that they're there actually of itself makes the case for a far cleaner, simpler regulatory structure. It's only at the level looking across the entire profession and industry, and I use both words deliberately, that you're able to deal with cross cutting issues like the level of diversity in the profession, like thinking about the structure of the market, whether consumers are getting the best deals, whether the right incentives are in place for transparency and other things. Just to echo what you said earlier, the very fact of complexity of itself undermines public confidence. If this is a system people feel they can't understand and can't navigate, it will look even if all the protections in the bill work to the best degree as if it's jobs for the poor. The perception of a lack of independence is almost as harmful as the reality of it. Can you just say a little bit more about, you used the two words there, profession and industry, can you just say a little bit more about how you understand that as a practitioner and how you think consumers might, I mean should consumers be worried about that at all, I suppose is one of the questions, or should they just be able to rely on the system, the simple straightforward clean system that you've been talking about? I think there are two levels, consumers will generally interact with an individual practitioner, maybe with his or her firm, but more likely an individual, and they will want reassurance that if that individual turns out to be a rogue, that there will be a way of their immediate issue being resolved, and a further investigation shows that this is a pattern that there is some way of protecting both public and profession by removing him or her. However, I think regulation is more important than that when it comes to what my former opposite number in New South Wales, Steve Mark, used to call the ethical infrastructure of the profession, there will be issues which are not about whether Solicitor X has behaved well or badly, but will be about the way the market operates, the way incentives operate, how far access to justice is or isn't been achieved, which are not really addressable at the level of specified rules of conduct for the individual and rely much more on systemic strategic interventions. Those are hard to do from my former position as an oversight regulator, I'd submit they're almost impossible to do if you're in a representative body, some of whose preconceptions may need to be challenged to achieve those good social outcomes you're looking for. Okay, thanks, that's helpful. Brian, if I can come to you, same sorts of questions around the complexity of regulator and the point of putting the principles in the bill. I don't think I can usefully add much to what my fellow witnesses have said, in my written submission I made it clear that I thought that the two tiers just added unnecessary complexity to the whole thing and that following the principle recommendation of the Roberton review would simplify things and again why are we complicating things when we could be making them more simple. Okay, thank you. My final question, Stephen, if I can come back to you, it's around transparency and I suppose transparency not only for consumers and individuals but more generally for society. Do you think the proposals aimed at increasing transparency, reporting that kind of thing, is that enough? Does the bill have the balance of those kinds of issues right or are there things that we should be thinking about and we're not? One of the conclusions I came to when I did the second part of my review on consumer harm was that I remained almost completely unconvinced that disclosure and transparency gave much benefit to consumers. It does in the abstract, it's a great principle and indeed for those who look having the ability to do that through a register or other forms of comparison are clearly valuable but for the vast majority of individuals who use legal services often in times of distress or vulnerability those things don't actually touch where they need to so I think it's difficult, I could never say don't do it but I would probably question whether the value of doing it is as great as its proponents often. From what you say it's almost like it's at the wrong end of the process isn't it? We need to look upstream and make sure that we don't get to the point where we need to be asking those kinds of questions and do you think that given what you've already said that there are ways of putting in enough upstream stuff around scrutiny, around regulation to ensure that actually nobody needs to worry about transparency because we sorted it? I'm almost inclined to think that support isn't a regulatory issue. It's something that a client or a consumer needs help and support with on their route to legal advice and representation. It may well be that we could train practitioners better to help and support consumers in making the choice and having made the choice and how they can relate better to their own legal adviser but I'd remain unconvinced about the systemic solutions. That's helpful, we've heard about the need for either training but actually just better awareness and societal education and literacy about what's available and what isn't available there. Sorry could I just make an observation on the regulatory objectives? There are a couple of things in bringing order to this. Yes I will allow you to continue Professor. There are a couple of elements of that section of the act that aren't in the English equivalent which I welcome. One is the reference to the interests of justice as well as to access to justice which I take to mean improving the administration of justice which we don't have surprisingly. I think it's part of the public interest but we don't have it and the other is the duty on regulators to work towards consumers being treated fairly at all times. We don't have that either and I think that's important. On the totality of the objectives though I still have a difficulty. They're all there but there is no hierarchy of objectives, there's no overriding objective and what I found down south is that if a regulator or a professional body wants to argue for something it can pick one of the regulatory objectives and justify its proposal. It makes it very difficult for a regulator to make a decision that it can then justify more objectively by reference to the different regulatory objectives to which it might attach priority. So I think it's complexity again, it adds cost and friction. Very small and a very brief answer. How would you determine the hierarchy if you were to determine a hierarchy or overriding objective? For me it's very simple, the government in its policy memorandum referred to the public interest and pleasingly I actually adopted my definition of what the public interest means so clearly I'm going to say that should be the overriding objective. Thank you. Paula Cain, please. Thank you very much convener and good morning to the panel and I suppose following on from that discussion I'm keen to ask questions about government's input and ministerial oversight of much of this. I suppose just to start with to ask views on the powers that are contained within the bill for the government to review the performance of regulators. Just a general view on that first if possible. Chris Kenney first please. Well yes I probably have the have the t-shirt and the experience. If government could do regulation government would do regulation it wouldn't feel the need for independent regulators to exist. Are independent regulators perfect? Absolutely they're not. Do they need a degree of oversight? Yes they do but is that oversight best achieved by micromanagement target set in a whole raft of detailed intervention powers? No I don't think it is. The powers that are in the bill are modeled to some extent on those the legal services board have in relation to individual regulators they are rarely used in practice finding ways of doing that in a proportionate way is fiendishly difficult and the challenges they're specified in such a degree of detail that you may well want to intervene on a couple of legs of them whilst not tackling the main question which might be about the governance and culture of an organisation which is why I would say with the greatest respect to civil servants and I was one for many years they should really keep out of it. They should be involved in taking a policy view on how the framework of the whole operates and every decade, two decades, four decades as they ever said perhaps propose a fundamental policy reform but the oversight ought to come from parliamentarians rather than government legislature rather to the executive and ultimately from the from the judiciary. There's a great danger I think in what in the bill at the moment that it gives fault comfort that if we can intervene on all of these things nothing will ever go wrong well the likelihood is the thing that will go wrong is the one thing you haven't been able to specify in advance. Do you have a supplementary? I do yeah I suppose government have written to this committee to say that they are considering amendments to the bill in order to reduce the influence of ministers and I know that there are concerns across both the legal profession and the bodies to which we've made reference this morning about that ministerial oversight. Do you see that there is adequate scope to amend the bill as it stands to reduce that ministerial oversight just in reference to the contribution you've just made? I think it's quite difficult because of the way the intervention powers are specified those powers don't seem to be ones that lend themselves easily to be transferred to the judiciary and I'm not sure they lend themselves easily to be specified in terms of reference for a parliamentary committee. I think you'd need something rather clear but my worry is we're in a cleft stick at the moment because to withdraw all those powers actually makes the lack of independence within the overall framework of that much more stark but the cure is almost as bad as the disease if not worse so I don't think there is a fine tuning answer I think you probably need more fundamental adjustments to the architecture of the bill. If I can just can you explore that so you know it just did to clarify that point actually the bill needs to be reformed fundamentally rather than just amendment at this stage do the government need to reconsider the approach? I'll defer to the expertise of parliamentary trust people to just work out how fundamental amendment is is possible but certainly I don't think it will be a matter of tweaking who does what transfer and delete Scottish ministers insert the judiciary I don't think would be sufficient to deal with the fundamental tensions in the architecture. I wouldn't conven it if any other panellists may want to comment on this issue more broadly. I'm slightly concerned again that if to adopt Chris's terminology if you delete ministers and insert for instance the Lord President you are turning the judiciary into a direct regulator because of the nature of these powers which I think over the short to medium term will place the judiciary in a rather invidious position as well and so I think the government's boxed itself into a corner it said we can't have independent regulation we can no longer sustain self-regulation we've got to fudge something in whatever this mix is and I'm afraid the fudge is probably not going to work. Thank you. Megan would like to come in. It's on the point that you just raised there Professor Mason on the concerns in relation to the Lord President and the role that Lord President would have with the Government if the bill was to go through as it stands just now because my concern is from the first reading of the bill was that it could draw the two of them into a sort of collaborative administration and I'm just wondering you know what the impact of that could be and also in terms of section 20 of the bill as well it's that term there measures open to the Scottish ministers that concerns me again and it's in relation to the performance targets that could be set potentially imposing penalties I'm just wondering if that is your understanding and what the implications could be there as well. I mean I think potentially it could lead to either perceived collaboration or indeed outright conflict between the two neither of which I would regard as desirable and deeply uncomfortable for the Lord President so I can't see any way in which if you take the public interest as a guiding light that those things are in the public interest it could undermine the position of the Lord President and the judiciary more generally and lead to perceived interference by the judiciary in the regulation of lawyers. For the committee's information situation in England and Wales is that the analogous role of Lord President the powers and place that sets me very constrained and it's really the Lord Chief Justice working with the Lord Chancellor on the appointment of appointments to the overarching regulator which is quite important I think in managing creative tension between the two like Stephen I feel uneasy about a very great degree of both policy and managerial interventions being given to the judiciary which could at worst put the judiciary in a very difficult position should somebody want to challenge either the operation of the framework in practice or a particular element of it on grant for example of disproportionality. Thank you very much thank you happy great um Fulton please and a good morning to the panel I've really just got a very general question which I'm quite happy just to take the panel's view on one at a time and you can give me and it can be not be glad to hear this here you can give me as short or as long an answer as you feel so I'm just wondering I've heard what you've said already including the start and the opening statements at which point I was remote so I think I know where each of you might go with this but to give you a chance to put it on the record do you think that the proposals in the bill will assist in making it easier for people to find a lawyer who can advise them and help them to enforce their rights and I'm happy to go from my left to right. Short answer no I don't see anything in the bill that actually is going to do that because if anything it's just adding complications to a system that we're all trying to make simpler and make easier for service users so my short answer to that would be no I think what is really needed is proper resourcing of services particularly and this won't come as a surprise to any of you here legal aid and the like so no I don't think that what the bill if that is the objective of the bill as it stands I don't think that objective is met I largely agree it looks as though we're going to end up with four different registers and a consumer will need to work out which type of person they're approaching for legal advice and representation before they can go and search the right register or potlock look at a register and then find a find a practitioner it just seems rather illogical to me and I don't see how that makes it easier. The changes of alternative business structure although far less than they need to be may be somewhat helpful at the margin in terms of greater competition diversity but the benefits if any are going to be very marginal. I would agree I don't think the bill doesn't really set out to address that issue in any real shape form or fashion it's really more about regulation and I don't think there's anything in it that would would really answer your question in the affirmative. Can we avoid the risk of stepping on any of the else's toes in terms of where they were going? I'll leave it for that just now but I might come in to the end if that's all right. Yeah please do indicate I'll sort of like continue on that theme actually whether the bill sort of like is achieving its objectives and I'm interested in the complaints system and obviously you know there's huge issues with the current complaint system and I suppose I want to know whether this bill addresses those and I'm asking I suppose from the view of the average person on the street where the system is quite impenetrable already so I've heard many sort of like people that have made representations regarding how their complaints not only is the system difficult to navigate but getting satisfaction out of it has been extremely difficult at the moment and will this bill, it seeks to address that, will it seek to address that and I'm particularly interested in underrepresented sort of like marginalised groups you know people who are the poorest in society or from ethnic minorities for instance so I think I'll direct those areas to Naeema and Brian and I'll take Naeema first please. It's a question that probably requires a little bit more analysis and a little bit thought going into it. My I would say as a brief answer I would say no. I don't think that now you're going to have to repeat the very beginning of your question community I'm so sorry. Yeah no no problem I mean the main thrust of it was basically through this bill will a citizen be able to make a complaint in a least traumatic way as possible can they navigate the system and what is the likelihood of them getting an outcome with some kind of clarity? I think as it stands my answer is no because what we've done is actually added apart from anything else we've added a further category into a system that we already have existing what we're trying to do with this bill is tinker we're not we've not saying the structure is wrong and that we need to scrap it and restart and rebuild what we're trying to do is tinker at the end is to try to improve a system that is far from perfect if anything neither the public user the user service user nor the professionals like the system as it is and instead of saying to ourselves well actually let's look at this deeply and more in more detail and decide that these structures are actually wrong and rebuild with and you specifically asked about marginalised communities and rebuild with marginalised communities at the heart of that what we're going to have is we're not going to have a complete and future proofed system going forward we're only tinkering with the edges that's so that's my personal view we've got to think about where the profession is now the profession itself has never been more diverse if you think about 40 years ago the profession was mainly male we now have majority women the profession is now 57 women the the those that are coming into the profession is two third are women so is the structures the way they are now designed for the diversity we have within the profession and the services we now look to provide because the profession itself the industry itself is becoming ever more diverse so no i don't think by just tinkering and improving on what we already have is going to be enough for that purpose i think the only way you're going to get more clarity the only way the service users are going to be able to have a much more simplified procedure in my view is by having an independent regulator and having a more streamlined approach i think what we're trying to do is improve the processes that we already have because we feel the processes we have at the moment cause delay cause confusion which is correct everybody is saying that but i think by only tinkering with the processes is not enough okay thank you um brine the bill doesn't appear to deal in any real way with the detail of how complaints would be dealt with and indeed it seems to leave that very much uh to in the hands of the new scottish legal services commission which is a renaming effectively of the scottish legal complaints commission and i think that renaming is quite confusing as well to the general public that's suddenly the word complaint has vanished but it's not just a rebranding is it i mean the bill does have in it sort of like a proposal to extend the powers of the slcc it has a power to extend their power but it doesn't really deal with the fundamental question of how they will deal with complaints or how that might be improved the roberton review made it clear that from all angles there was criticism of how the complaints process was dealt with and that there needed to be improvements there but the bill doesn't in any way seek to address how the complaints process might be improved for the benefit of both the consumer and for solicitors in my submission i made a few comments about issues that i thought were uh needing to be addressed whether ultimately they will be or not uh would be in the hands of the new um commission there rather is in the hands of uh of uh parliament or the government in so far as the bill is concerned because that detail is not gone into in any way whether that should go that detail should appear in a bill or not i it is another question um but i think that if we're going if we if we see a need to sort out a problem which the roberton review uh site existed which is the the complaints process isn't fit for purpose um we really should be looking at tackling what are the issues that do not make it fit for purpose and what do we need to do to make it better and that's not something that's really being addressed as such by the bill um in my submissions i um suggested a few uh a few things that need it to be addressed such as the fact that uh a complaint needed to have a definite prescriptive point where you know it couldn't be made after a certain point at the moment the scottish legal complaints commission have given a lot of leeway to allow complaints that are you know many years old um i believe that at the moment the scottish legal complaints commission gives solicitors a very short time to respond to what can be very complex and detailed issues involving a solicitor and go through their files and extract information and compile it and they may be only given a week or two to respond yet the scottish legal complaints commission can then take months to reply back uh and that there's an unfairness and unbalance there um often full disclosure isn't made to both parties that are documents that the the scottish legal complaints commission have before them um they also get involved in what i would class as professional negligence matters where uh basically an administrator within the scottish legal complaints commission is making decisions on points of law and on what would be classed as a professional negligence matter which should really only be dealt with through the courts and through proper evidence proper legal arguments and proper um legal knowledge of of the situation and often i think the the powers that the complaints uh people within the scottish legal complaints commission half are just too overarching and too great for for for what they should be doing and there needs to be some balance there and i think mediation although mediation is offered to both parties if one party doesn't accept mediation it doesn't happen and i think if mediation was made compulsory for complaints we would see a lot of complaints being settled earlier without too much problem and without the expense that the scottish legal complaints commission currently costs okay thank you thank you for that i just have a small i'm mindful of time and i still have two colleagues that i need to bring in but naeema just to come back to yourself in your written evidence you did say regarding the law society's dual role um and there's a risk of conflict and bias as a result of the real possibility of injustices being done both for the professional and the public can you give me an example of what that actually looks like oh gosh well i think um and i would see chris actually predict very very well it's it's a perception is as important as a reality so if i was to go into examples that doesn't really help the committee in that respect it's very much the case of two hats been worn by one organisation to me that is a direct conflict of interest and the and it doesn't matter how we may use our words how we may try to to change where that balance is struck the reality is for one organisation to wear both the hat as a representative and as a hat as a regulator is a direct conflict and that is my starting position i mean if we are a profession that has that is built on principles of rule of law fairness and justice equality how does that fit in with one organisation wearing both hats the law society does its role as a representative of the profession very well i would i would go as far as to say i have many colleagues and friends in the law society i work with them on a number of initiatives but for them to then set the standards and for them to be representative of the profession but then also adjudicate on those on those same people who are seen to have fallen short of the standards to me seems um a direct conflict i can't put it in any more simpler terms um and i know that that's very helpful and it may be that we compare it to other professions and say other professions self-regulate but we've got to but we've got to see each profession in isolation and its role the legal profession has principles that we must adhere to that are different to other professions okay thank you thank you for that um annie please thank you convener good morning panel um i'm just got a couple of small questions which i hope will generate some conversation but um what are your views on the needs for entity regulations proposed in the bill um and i think we'll go to chris first if you've got any thoughts on it i think this is one of the stronger parts of the bill um and one of the things where the introduction of alternative business structures led to benefits for the entire uh the entire sector uh the legislation on alternative business structures far far too complex in england uh possibly too complex in this bill but better i think specified that there needed to be both a senior professional post within um an abs and a senior finance administration post so that you too could take some assurance that this was a robust well managed organisation that wouldn't disappear into bankruptcy overnight and the proper professional standards were been adhered to the solicitors regulation authority very wisely effectively translated those posts into controls at the level of the individual firm and that seems to be quite important because something may have gone wrong for an individual which you may be able to pull right quickly but the cause may not have been rampant like a professionalism by the individual lawyer it may have been something either about lousy administrative systems within a firm it may have been something harder to grasp around culture uh and find in a way for regulators to be able to get a grip on those kind of issues when they emerge via case work but also providing the right incentives for firms as good businesses to concentrate on both those areas is is really important thank you is anybody that's got something to add to that um then that's grand but if not just in the interest of time um i'm happy to nobody are you happy yeah brilliant one further question i'll put this to professor mason uh originally you mentioned in your opening statement that making an offence to use the title of lawyer with intent to seek bill using the title of lawyer and obviously that would be in connection with to deceive in connection with providing legal services to the public for fee gain or reward and i don't know if you want to expand on your your comments from earlier not greatly but i think the expression lawyer is is for my money too often used in ordinary parlance with with some modifying adjective retired lawyer non-practicing lawyer trainee lawyer academic lawyer all of these people are to some extent legally qualified and to to be able to label oneself as a lawyer in those circumstances seems to me quite reasonable and actually if you look at the bills proposals for allowing the unregulated to come within some form of regulation by the by the commission many of those people might legitimately call themselves and be called lawyers to make it an offence seems to me to to cut across a very good policy objective of regulating the currently unregulated so um i'm not in favour i think the issues really for a consumer is this person competent well that doesn't depend on their title it depends on what they're authorized or accredited to do and is this person regulated which you can pick up from a from a register which again doesn't have to be connected to to a profession and in the future will be the unregulated as well so i think the real consumer issues are already caught by the bill plus the two offences in sections 83 and 84 job done i think that's answering my question perfectly come here thank you very much professor mason thank you panel thank you thanks very much um card madden please thank you convener and good morning to the panel in the interests of time communion i am happy to open this up to whoever has a burning desire to answer um i would like to know what the witnesses views are on the proposals which will allow regulators to supply rules with the aim of allowing new services and legal technologies to be trialled and do you think this would lead to more innovation whoever would love to come in naima no i think i mine on the spot here i think he's probably the best to lead on this and note out the rest of us may follow that's excellent push push your colleagues into brian give it a crack i'm not sure why i'm the best to lead on this but uh i'll give it a crack um the sort of question i think is is linked to this a relaxing regulation to allow things like technology to come into play is that the thing and again i think it's maybe an overstated thing that this may even be necessary because to what extent do we need new technology that we need to relax a regulation to experiment with to see if it's going to work for the public or not and i think it's maybe a bit kind of pine disguise stuff rather is actual necessary needful stuff they speak about these sandboxes where you can play with technology and safety um and and know that you you know the regulation might not apply for it specifically while you're doing so i think it's fair enough to have this but i don't know that there's an actual desperate need for it and how much it'll actually be used um there's no harm in having it in the bill i don't think but um the need for it is maybe very limited i would have thought i wonder whether in practice much will turn on the mindset of innovators been prepared to be open with regulators in the early days to say does this cause any problems and regulators also been open to innovate encourage the measure taken of risks the extent to which it leads to the desapplication of any rules as opposed to a degree of transparency at a level of detail that might not otherwise happen uh perhaps remains to be seen but like Brian i think there's no harm in having the provision there just in case uh there is some great discovery and silicon valley tomorrow that can transform legal services in paisley next week thank you thank you garden um uh 30 seconds it seems to me that innovators and entrepreneurs who are not lawyers and for whom regulation is a current barrier are more likely to go into the unreserved territory and that's why the commission's proposed powers to regulate the unregulated are so welcome and and so so necessary in my view because that's where a lot of consumer harm could be done by innovation and entrepreneurialism that is not otherwise controlled thank you thank you naima would you like your 30 seconds as well no no i actually am very much share the thoughts that have already been expressed by my fellow panelists my only thing would be that um we have to be as inclusive as possible and i would hope that this would add to that as opposed to take it away thank you thank you very much um thank you to all our panelists this morning it's been a very interesting um an enlightening session and it concludes our questions for the panel this morning um i will suspend briefly in order to allow a changeover of witnesses thank you uh thank you and welcome back we will now move into our fourth agenda item which is our final evidence session on the reconsideration stage of the united nations convention on the rights of the child incorporation scotland bill and i welcome to the meeting charlie and summerville msp and cabinet secretary for social justice and her officials which is liz levy is that correct hello there liz um liz is the unit head of children's rights uh uncrc bill lead and i also welcome shona spence who is the uncrc bill team um i think Rachel is online there we are just popped up in front of me welcome to Rachel Nicholson who is a lawyer legal directorate and uh Rachel is joining us remotely this morning so welcome and thank you to you all i would also like to welcome martin whitfield msp who has joined us for this session and depending on time i will be allowing martin to come in with questions as well i refer members to papers four and five and i invite the cabinet secretary to make an opening statement cabinet thank you very much and good morning convener i'm grateful for your careful consideration of this very important bill as committee is well aware the uncrc bill was passed unanimously by the Scottish parliament in 2021 but could not receive royal assent due to a referral to the supreme court by the uk law officers the supreme court judgment has significantly impacted on our ability to legislate for human rights in scotland although i would stress we very much respect the supreme court's judgments in amending the bill to address the judgment i try to balance three considerations protecting children's rights to the maximum effect extent possible minimizing the risk of another supreme court referral and making the law as accessible as possible for users i reached a conclusion that the maximum effective coverage for children's rights in the present devolved context is for compatibility duty to apply only when a public authority is delivering devolved functions conferred under acts of the Scottish parliament or common law powers meaning that it will not apply when powers are delivered under acts of the UK parliament even in devolved areas the duty to read and give effect to legislation in a way that's compatible with the uncrc requirements and the power to strike down incompatible legislation or to issue an incompatibility declarator will apply only in relation to legislation originating from the Scottish parliament the supreme court judgment means that this parliament's power to give the court's remedial powers is limited by the mere fact that existing statutory provision happens to be in an act of the Westminster parliament even when they concern matters on which the Scottish parliament could and frequently does legislate this has resulted in a disappointing loss of coverage for children's rights compared with what we had originally hoped to achieve and while we have taken tried to minimize the complexity in the approach we have taken the supreme court judgment means that the duties will not be straightforward to understand as we would have hoped them to be however the bill will still provide legal protection for children's rights that is not currently available in scotland or indeed in any other part of the UK we should also remember that although the sections of the bill impacted by the supreme court judgment are powerful provisions there are other important provisions in the bill that will mean that children's rights are respected in the first place and to help ensure that our statute book is fully compliant with the uncrc requirements the bill requires Scottish ministers to set out and report on how they are giving further and better effect to children's rights regardless of whether the compatibility duty applies and for listed authorities to prepare and publish similar reports the bill requires the Scottish government to carry out a child rights and wellbeing impact assessment for decisions of a strategic nature and when bringing forward any new Scottish legislation to make a statement about its compatibility with uncrc requirements the more limited scope of the compatibility duty means that it's even more important to create a lasting cultural change about children's rights i'm confident that we can deliver this as a result of the wider spread support that we're putting in place this includes a model child friendly complaints process that can be used regardless of whether the compatibility duty applies and the wide range of support training and guidance for public authorities on how to take a children's rights approach in the context of the current devolution settlement the most straightforward way to give children and young people the human rights protection they deserve is for the UK government to incorporate the uncrc into UK law we have an important opportunity to lead by example by passing this bill thank you thank you very much cabinet secretary um that's very detailed and informative opening statement um and the cabinet secretary will be aware how keen i am to engage with young people and represent their voices um as often as i can so my first question is not my own um it is in fact um from arden who is a member of the children's parliament uh so arden says um i would love to ask how the bill will change things for children and if children are going to help implement the bill and be consulted on thank you community and thank you to arden for for the question it is very important as we have gone through this process and also as we look forward to what comes next after i hope this bill is passed to ensure that children and young people remain very much at the heart of everything that we do and it is very important that we remain very very focused on the dialogue that we're already having with children and young people and keep that going so for example my one of my most recent meetings on this was with two members of the scottish youth parliament not the children's parliament where arden is but the scottish youth parliament to to talk about some of the the issues that are in the bill and also very importantly to talk about the steps about what happens next now we need to ensure that we are giving children and young people a much greater awareness of their rights and we have a number of funding streams to ensure that that's happening at the moment and as i said in my opening remarks that will hopefully help arden and others look at not just where we've had to change this legislation and the reconsideration stage and the compatibility duty but wider about their rights and also how to ensure that their rights are being respected and observed so there is a great deal of work that has gone on and will continue to go on obviously both myself and other cabinet secretaries and ministers meet with the children's parliament and youth parliament representatives and we have the cabinet takeover as well and the UNCRC has for a number of years been one of those issues they've spoken about and it is for them to decide their topics but i would be surprised if that's not a continuing discussion we have with them. Thank you very much. I'd like to move on to my colleague Megan please. Thank you convener and good morning cabinet secretary and panellists. The committee heard from panellists last week that they felt some frustration that it's taken over two years for the amendments to come back to Parliament and for discussions on the UNCRC to restart so i'm wondering why did it take this length of time to bring the bill back for reconsideration and what was the processes taken place during this time before lodging the amendments. It has been a very complex process that we've looked into and one of the reasons for that again as i've said in my opening remarks is very much our wish our desire to ensure that we still had the maximum coverage possible and that is why we looked at a number of avenues to see the different ways that the bill could be amended and those provided for example further coverage but increased the level of complexity within the legislation which again committee heard was a concern as well so we did try very much to hold to the intentions of the original UNCRC bill that was passed to try and seek as much coverage as possible so during those the intervening period there's been a very careful obvious line by line scrutiny within the Scottish government about the supreme court judgment there's been a great deal of engagement with the UK government that initially obviously included engagement with the secretary of state for Scotland to explore to see if there's any willingness to do this in another way for example to actually change the devolution settlement to allow the bill to remain as it was originally passed but that was not something the secretary of state was willing to look at we've had a number of periods of stakeholder engagement where we as I say went through the options that we could provide and then obviously then the drafting came in there's been very very close working at a lawyer's lawyer to lawyer level with the office of the advocate general then about the specifics of this because we were keen to get as much assurance as possible that what we were doing would give the maximum coverage but would not have the risk of another supreme court referral and once I had taken a policy decision on where we wanted to go with the different options that were available obviously then those were tested again with stakeholders and the detailed amendments were very much shared with the office of the advocate general now that was I think very important work that the two governments lawyer to lawyer level were doing because I wanted to have the maximum impact with this bill but also to reduce the risk of another supreme court referral so I hope that talks committee through the process but again happy to go into further detail of any of those steps if committee would find it useful thank you cabinet secretary would you like to bring Rachel Nicholson in at this point you're happy to Rachel has indicated she may wish to speak but it is up to you certainly yeah Rachel thank you thank you committee thanks cabinet secretary I was actually coming in on on the last question the first question as well just to point out that there's a number of parts visions in the bill which will allow for children to be consulted on a statutory basis as the bill comes to pass so those particular provisions are in relation to the children's rights scheme and in relation to guidance and in relation to reporting as well so I just kind of wanted to add that in as well to answer the first question about how children will be involved in in the development of the bill and the provisions when they come into law and I think really I think cabinet secretary has covered the question about what was happening during the two years following the judgment ultimately we had to look at the the finding of the supreme court judgment which focused around section 287 of the scotland act which says this section does not affect the power of the parliament of the united kingdom to make laws for Scotland so in the sense that that's not just an affirmation of the doctrine of the sovereignty of the UK parliament but also seem to impose a limit on devolved competence and of course it's very very important to kind of work out the exact detail and implications of that in order that we could try and retain as much as much coverage as possible and as the cabinet secretary has touched on as well it's got further we try to go in terms of coverage the more complexity was layered into the different drafting iterations that we developed okay thank you thank you Rachel I'll move straight on to Fulton please good morning cabinet secretary and to the officials the committee's already heard through written evidence and oral evidence last week a lot of support for the approach that you've taken as it does aim to minimise the risk of referral to the supreme court as you've said but you did indicate to us in your letter the potential to have gone further i'm wondering if you are able to elaborate on this and why in the end you've chose to keep the approach that's outlined thanks so we did explore what could be done to achieve more coverage for UK acts in devolved areas within the compatibility duty and one of the ways that we sought to do that was for example taking an approach that would have differentiated between existing and future acts in devolved areas so that for example the compatibility duty would have applied to existing but not future legislation so we did very much look at that as as one example we also tried to identify ways where those future acts in devolved areas could be included by adding in a regulation making power under which Scottish ministers could with the approval of parliament extend the compatibility duty to devolved functions created under UK acts in the future even if it was by a case by case basis the reason that we have chosen not to do that does very much go back to the complexity that the legislation would therefore have now it's it's already a complex piece of legislation it will be more complex if these amendments are passed and the bill becomes an act but if you look at the complexity issue alongside assessing the risk of another referral to the supreme court we did as a government then come to the view that Gator coverage would in effect make the provisions too complex for users to to actually use we did that with some internal testing within the Scottish Government and realised that we were in danger of having a piece of legislation that was too complex to use whether that's by children and young people or representatives or indeed by the public bodies we also considered that the compatibility could have applied when public authorities are delivering their duties under powers conferred by amendments to the UK acts that have been made by an act of the Scottish parliament we didn't feel there was a legislative competence barrier to doing that but again the provisions that came from that were extremely complex so it is due to that complexity and that balance of the risk of complexity and coverage and the risk of a supreme court referral that led me to take the decision that I have done. Thanks cabinet secretary for that very full answer and I suppose building on from that as I said earlier the approach that you have taken does seem to have quite widespread support amongst the sector particularly children's organisations many of whom we heard from last week and I think that support is based on a real feeling amongst them there is no alternative way given the supreme court a decision to achieve the incorporation at this point can I say that do you agree with that as well? Were there any other realistic alternatives? Well the alternative way would have been for when the supreme judgment came through and when the Scottish government reached out to the secretary of state for Scotland to look into whether the current devolution setup could be changed for this bill itself to allow the bill to proceed as the parliament had voted for that would have been an alternative but that wasn't something that the secretary of state for Scotland was willing to consider and on that basis we therefore needed to adapt the bill now that's clearly disappointing but given that's the state of play that we were in then we are where we are the other obvious area where we could achieve a greater UNCRC incorporation is of course for the UK government to do what we are doing with an hour limited powers and also put a UNCRC on the UK statute books too so those are two alternatives but they're not alternatives that were open to the Scottish government they needed the UK government to take action. Paul, please. Thank you very much, convener and good morning to cabinet secretary and officials. I'm keen to just understand some of the issues around the complexities that have been or the concerns that have been raised to us by certainly COSLA, Social Work Scotland and others I mean Social Work Scotland I think described you do these amendments as potentially impossible to kind of navigate in the landscape and there have been calls I think from frontline workers who have to kind of interpret and work through the legislation for sector specific guidance so I wonder if I can ask firstly what work is being done on guidance that outlined in the bill in general and secondly as a cabinet secretary open to the development of sector specific guidance for practitioners. I very much recognise the evidence that was given last week those are the types of discussions that I've been having myself and my officials have been having with public bodies and I recognise as I've said previously this is a complex piece of legislation and will become more complex if these amendments are passed. So when the evidence was given last week I'm assuming the request for detailed sector specific guidance is a request for us to set out how policy and practice in particular area needs to change to become UNCRC compliant but I think that the evidence from Andrew Tidkell was very pertinent in this where he himself described this as as something the UNCRC not lending itself to a list of rules but it's more a list of principles that need to be interpreted so that does make sector specific guidance difficult and obviously it's for the Scottish courts to decide when cases are brought to them what constitutes a breach in the context in which the services are being delivered however I do recognise that we do need to support public authorities so some of the ways that that will be done is that there will be non statutory guidance on taking a children's human rights approach and that will be available by the end of the year for those involved in public service delivery in Scotland we're updating external child rights and wellbeing impact assessment templates and external guidance we've got the UNCRC innovation fund that is available and by summer 2024 we'll have a national child rights skills and knowledge framework in place that will provide a single point through which access to access new and existing resources on training on children's rights for a wide range of sectors there's also the statutory guidance that's in the bill the bill requires Scottish ministers to issue guidance to support public authorities to comply with the combatability duty and promote children's rights and respecting practice so there's a group that's been convened to look at the development of that statutory guidance and that will include a framework for reviewing combatability now we can't consult on that draft guidance until the bill is finalised but clearly that's something that we are keen to move on at speed afterwards so we have some of the the non statutory guidance the statutory guidance and also some of the work we're funding for example in the improvement service to try and assist local authorities so i do very much recognise the concern about the complexity as it stands and we are very very keen to work with COSLA with SWS and others to see what more can be done in that area it may not be sector specific guidance as they talked about but we recognise the concern and we're very keen to work with everybody to deal with that I wonder if I can yet obviously want to welcome the cabinet secretary's undertaking to do that further work I wonder would she recognise the concerns that have also been raised around general resourcing challenges that this work will involve a demand on capacity and on resource which is already quite stretched I think particularly again coming back to that point about front line practitioners and what discussions is she having with ministerial colleagues around future budget planning around the need for an increased capacity essentially so we do recognise and have recognised that to to put this bill into practice once it becomes an act is very important that piece of legislation is just that piece of legislation and it's how we support children and young people and support public bodies for this to become genuinely meaningful that is the important part I talked through in my my previous answer Mr O'Kane about some of the the work that's already gone in the funding work that's already gone in in place to support that obviously we have an implementation working that will need to continue once this becomes an active Parliament sees fit to pass these amendments and we're very clear that that work will have to continue now budget discussions will take part as part of the normal discussions that we do within the budgets but we have done and do recognise that we're keen to work with local authorities and indeed other public bodies to ensure that we are getting the maximum effect out of this once it becomes an act to ensure it's genuinely meaningful so I do recognise the fact that this doesn't stop if and when this bill is passed thank you thank you thank you thank you thank you very much co-capt good morning cabinet secretary and good morning to your officials thank you for being here today I've got a few a few questions on a couple of different areas but I also want to give voice to one of the young people who has been involved in discussions around this so this question comes from ellie who's an msyp and ellie asks if the Scottish government are going to be working out what laws are and aren't within scope of the bill when thinking about over time bringing some laws into scope how will they be involving children and young people from the very beginning in ensuring they prioritise the most important laws so I think this may be one of the members of the youth parliament I met last week forgive me if it wasn't but I think that that is not two ellies that are involved in this and we talked about this issue last week and it is a really really important aspect because we do recognise that there's some bills some acts that aren't in scope and some bills that are not in scope what we talked about at that time and I was very keen to to kind of pick up on their suggested ways forward is looking at what's most important for children and young people because there will be a myriad of acts that are out with scope and how do we best take that work forward and what are the priorities for children and young people because it will not be in any way a small time period if we're looking at moving acts into into the Scottish parliamentary debate and therefore becoming within scope so what I said last week and what we'll continue to do is our suggestion that we work together to for example look at where there is a potential for greater inequalities to take place if we have some of the acts that are out with scope and where their priorities are so we're very keen to start the work in this area I'm sure we might go on to further questions about audits etc in due course but as part of that work right from the start we need to involve children and young people and find out what their priorities are because it will take some time and it will take much longer still after that to then implement that and I would be very keen to work on their priorities and put that front and centre of what we're doing. I suppose I hear your very very clear intent to continue to keep young people involved in this process and that is that is very very welcome. Linked to that I suppose there's something around the three-year implementation programme that it has been has been talked about and some of the work as part of that has already started but we heard very very clearly last week by comments from Together and others that the implementation programme should continue to help develop resources for children and their families and others to help understand their rights and to just grow understanding and literacy in in this area there's also the important issue around funding and capacity building to increase the number of specialist children's lawyers is this something you are considering and can you commit to this at the stage to supporting the continuation of the implementation programme? So as I think I mentioned to Mr O'Kane the decisions about future funding are of course a matter for the budget process as we go forward and I look forward to committee and indeed all political parties coming forward with suggestions costed preferably to see if we can move on this area and on others because I think they do raise a very important point. I won't repeat myself because I think I touched on some of this to my answers to Mr O'Kane but that recognition of the fact that just because the act has passed doesn't mean that this is over and initially I think it was explained to me yesterday last week when I met with the members of the Scottish Youth Parliament that in many ways this is only the beginning it might not feel like that to some of us that have been around this process for some time but this is only the beginning so we are very keen to look at the range of support that has been in place to ensure that that is working effectively and also to work with children and young people and public bodies to make sure that we are looking at what more needs to be done. I mentioned the UNCRC implementation programme earlier and that will clearly need to continue as the provisions in the bill commence hopefully next year and will continue to work with public bodies, children and young people and their representatives to build on the comprehensive support that's already been provided for example through that rights respecting schools awards, the funding for plan child law and that funding for the improvement services as well. Thanks and I heard your responses to Paul O'Kane earlier but I suppose there's something about it's not just about funding it's about using what funding has already been allocated or will be allocated in the most effective ways and ensuring that young people's voices are a part of the discussions around that and I got reassurance from you in that. My third question is around reporting periods. Section 15 of the bill sets out the reporting duties of listed authorities and the timings of reporting cycles. The first period indicated in the bill was 31 March 2023 which has obviously been gone and I just wondered in the amendments that you have submitted none of the amendments dealt with this and would you be supportive of a mechanism to fix this in later stages or do you have an intention to bring an amendment to that to that end? Yes, this is an issue that is a consequence of the bill being referred to the Supreme Court so yes to clarify to committee that I do intend to lodge an amendment to change the reporting dates so that listed authorities have clarity on the timing of their duties is of course for the Presiding Officer to determine whether that amendment is admissible understanding orders for a reconsideration stage which of course Parliament has not gone through before but it certainly is my intention to lodge and then it will be for the Presiding Officer to take a view obviously on that. I might pick up on the consequences of the referral and things that have had to be missing I'll come to that but I'm going to ask about sort of like it's been suggested that duty bearers should be acting compatibly with the UNCRC requirements regardless of the bill however some people have raised that there is a risk that say for instance local authorities may only comply with the areas that open to litigation so what are the cabinet secretary's thoughts on how you're going to address those concerns? Yeah so I would be very very concerned if public authority stopped taking a children's rights approach when they're delivering duties just because they're not in scope for the compatibility duty. There is clearly as I said in my opening remarks a real desire that's been expressed yes by this Parliament but I think more importantly by children and young people that this should be something which they are seeing regardless of whether the legal compatibility duty comes into effect or not. Regardless of the scopes of those legal duties in the bill UNCRC is already at the heart of GERFIC as the convener will be well aware and it is very very important that we look at this in the entirety so we're very keen to work with local authorities to take a children's human rights approach in the delivery of their services regardless of the source of their powers that is what I think children which I know children and young people want us to do as legislators and I think it's important that our services are delivered in that way that's exactly why when we've been speaking earlier about some of the funding that's in place not to differentiate between just doing this for when the legal compatibility duty arises and then somehow leaving aside as if their lesser rights the rights of children and young people that are impacted by for example a UK Act. We are very keen to work with public bodies to ensure that we are still looking at this in the round regardless of the legal compatibility duty because it's the right thing to do and that's why I get stressed in my opening remarks although we're disappointed about the changes we've had to make there is still a lot in this bill that requires that wider look to be had not just about whether something will end up in court or not. You referred in one of your earlier answers about the consequences of the referral to the Supreme Court so apologies for taking you back a little bit but I just wanted to make sure that you had every opportunity to put on the record any other consequences obviously we've talked about coverage we've talked about the delay but we also heard from the voices of young people last week who understand somewhat the delay in getting it right they've waited this long so they're generally supportive so are there frustrations around this that you would like to share with us just now and how have those frustrations been mitigated with regards to the amendments? So I absolutely appreciate that particularly children and young people and I think we were told this at the cabinet takeover they wanted us to just get on with this and I have kept that absolutely in my head as we've looked at this to try and make sure we're covering the maximum coverage but to do so in a way where this is a piece of living and breathing legislation that will make a difference to children and young people so yes there has been frustration within government that we've not been able to move faster than we have and that's very much I know being felt by children and young people and the representatives as well I still do think it was important that we did take the time to look at this and that work lawyer to lawyer level between the governments did take time but I certainly felt that it was important that we did try to have the maximum coverage possible so there has been frustration what we've tried to do I suppose to try and mitigate some of that is to ensure that we are involving children and young people the representatives and others as we've looked at the options that's came through now clearly we can't go into the legal advice we receive within Scottish government or the lawyer to lawyer discussions that have happened between the two governments but we take the conclusions of those and are trying to discuss those with stakeholders as this has progressed to try and keep them up to speed with that and also again as I've mentioned to continue to work on the implementation because not everything had to wait for the bill to be passed for us to look at what more we could do for example in the education field to ensure that children have a much greater understanding of their rights and I don't know if committee members have had the opportunity either as constituency members as cabinet to visit their local schools and have children and young people talk to them about their understanding about their rights and how they can take that forward and certainly it's been one of the most inspirational parts I've had of my time both as CABSEC education in this post but listening to children and young people express with passion as well as a wee bit of frustration what this can and should be meaning for them and I think I want to thank all the children and young people for their patience as we've gone through this process but also for their work and I hope as getting this bill is right as it can be under the settlement that we have thank you very much I'd like to move on to captain please thank you convener and good morning cabinet secretary and officials and just on that point I had 19 primary school children in my constituency office on Friday and it was very inspiring and I think we should be listening more to the clarity of children's words cabinet secretary some of the witnesses have suggested that over time more legislation could be brought within the scope of the UNCRC bill and have suggested ways to address that such as applying UNCRC requirements to future legislation like the promise bill and committing to minimising future Scottish Parliament amendments to UK acts what is the Scottish Government's long-term plan on UNCRC incorporation given the narrow scope that it now has so if I take the example of the avoiding making amendments to UK acts first of all clearly this does have and will have an impact on what the government thinks about as it moves forward to the plan legislation in the future when we're deciding whether a change of law should be expressed as a free standing provision or as an amendment clearly we look at Parliament resource implications accessibility to law and now we will as a government look to see about the implications of making those types of decisions on UNCRC scope so that will be something that will be now be built into how we look at things in the future there are of course bills that are will go through Parliament that that issues could be attached to ministers I'm open ministers are open to that but I think we need to be kind of careful and I won't give a kind of overall commitment to this because it's important we look at it on a case by case basis so for example you know what are the provisions that would benefit from being in an act of the Scottish Parliament and what would happen to the scope and the timetable for a bill if it's already progressing what level of consultation would have to be undertaken if we were to move something and to put it into a bill as it goes through does that delay a bill would the members feel that that is a reasonable way forward if it wasn't something that was at the bill at stage one evidence hasn't been taken on for example and people may have concerns if we don't consult properly so we just need to look at it on a case by case basis I think it's a really interesting proposal and suggesting but it's just something we'll need to look at each time we're looking at those provisions so I think my encouragement to stakeholders and others is to absolutely if they feel that there's an opportunity to reach out to officials to reach out to the ministers responsible for those bills to see what can be done in in these areas and to have that type of conversation because clearly this is not as simple as lifting something from a UK act and putting it over here because government opposition members may want to to change to update to modernise law as we go forward so we just need to be mindful of that so certainly not something we're closing down but we'll need to look at it on a case by case basis that's a lot of money convener just stain on the theme of incorporation looking ahead i'm sure you're aware the scottish government plans to introduce a human rights bill incorporating four international human rights treaties into scott's law we had one witness dr tekel and he has said that the difficulties facing the UNCRC bill apply just as powerfully to further incorporation can i ask what the scottish government is doing to prepare for that such as considering what would be in scope and what the impact would be on the ability to make sure that the bill includes provision for enforcement i think dr tekel races are a very important point the human rights bill that consultation has been had on is already i would say one of the most complex pieces of legislation that this parliament will have had to look at since being reconvened and therefore we absolutely have to learn the lessons from UNCRC about the scope and how we deal with that and also we need to learn lessons about that that real difficulty about complexity so stakeholders will wish to have many things in the human rights bill and my ask all along as we've gone through the human rights bill consultation is if stakeholders don't think we've gone about things in the right way in our suggestions then very much encouraging them to come forward with alternative proposals not just to say they would like something in or they'd like it done in a different way but genuinely how do we work together within the devolved settlement to make this happen because i think this bill has been an example of the limitations of the devolved settlement and the willingness of the UK government to seek supreme court judgments etc so we need to be really really cautious about that because i do not want to get into the same position with what i think is an even more complex piece of legislation in the human rights so yeah to say to say the human rights bill is complicated i think is an understatement and that really does throw into sharp focus as we discuss this some of the discussions that we will inevitably come back to in the human rights bill particularly when stakeholders are asking us to go further where the government or others may have concerns about scope and the particular legislative competence of a bill thank you all right i'm just going to come back in here it's regarding the audit review i think it's sort of loosely fits in here so we have heard from witnesses as well about an audit review so what can you tell me uh or what can you tell the committee cabinet secretary about calls for a legislative audit review and are you a are you considering at all um a review of what legislation is incompatible um and have you sort of committed to undertake that work what would be involved and are there unintended consequences of that i know that causula for instance have made a suggestion around that and together as the reply offered a model as well thank you so this has been a really interesting part of the discussions we've had with stakeholders as we've gone through this preparation for reconsideration stage and how it's not just about the amendments but then what do we deal how do we deal with implications of the bill as it stands so the UNCRC strategic implementation board i they were informed at their last meeting that i've asked officials to commission a review of UK acts in devolved areas now to be clear about this it's not to identify whole UK acts that would be worth converting into Scottish parliament acts but intended to identify what provisions in those acts would be converted clearly as committee is well aware for my own discussions around legislation an entire UK act could have hundreds of provisions within it the Scottish Government may wish to amend the Scottish Parliament i'm sure members may wish to amend it and that will take a degree of time as we go through the parliamentary process but we are very much keen as i mentioned earlier and i think it was to to to Maggie Chapman to look at children young people's priorities within that as well as we look into the audit so i've already made that commitment i can't at this point make give a timescale for that work because we'll need to scope out exactly what that will entail but i am keen to get that initiated as soon as practically possible and very importantly as i said to involve children young people and others that are impacted on this about how we could generate findings in a phased way to see how we can can take that forward so very keen to see what the government can do to respond to those requests around such an audit and to see how we can work together with stakeholders on how we do that importantly as well we would welcome sir just being kept informed of you know when you are in a position to be able to issue timescales and things please do right to the committee and sort of let us know of that i'd like to bring in Annie please my colleague thank you convener good morning cabinet secretary and your officials the committee has heard repeated calls to get the message and write on the UNCRC bill to fully explain it to not only rights holders but duty bearers as well and i would just wonder if the cabinet secretary could tell us what plans does the Scottish government have in place in order to do this so i wrote an open letter to children and young people on 18 october providing an update in the bill explaining why we've amended it or why we seek to amend it as we have and how that will apply and we're also very keen to continue to work on communication directly with children young people and obviously with the stakeholders we've touched i think on previous answers about communication with stakeholders and working with them although i've misspells would like further information again self from official skin go into further detail the the real need for us to work with children and young people and to ensure that that communication is done in a child friendly fashion is is very important that's one of the reasons why we've got the rights respecting schools award that's available to all state schools in scotland and we've also got a communications group that are helping develop our approach an example of this is how we've got young scot involved working on a social media campaign for young people and we're grant funding the children's parliament to help raise awareness of children's rights among children and young people we've got a guide for parents carers and family members it will be updated after the bill is passed with the bill of parliament and we've i think already i've mentioned the clan child law funding as well the final point i would make around this is is obviously the children's commissioner will play a central part in this as well but that will of course very much be up to the children's commissioner to decide how they'll take that forward thanks given her because the cabinet secretary did answer some of the some of my question and mr okayn to answer as well so thank you thank you thanks very much um i do have an opportunity um ahead of you there mr wittfield please do come in at this point i'm very grateful convener for the invite to the the committee for the opportunity today and um still good morning cabinet secretary and press it's really just to pick up a couple of small points more by way of clarification with regard to going forward you talked about the u n c r c forming one of the questions that will be asked about whether the legislation is compliant but you couldn't give that reassurance with the existing legislation that's going through because of obviously in some cases you've already reached out for discussions with the parties and the example was the promise bill so are you envisaging a specific date after which all legislation will have to go through a quote u n c r c consideration or are you anticipating it will be an individual discussion for every piece of legislation going forward so once the the bill becomes an act this will become a more you know a legalised process but clearly as we're working through legislation at this stage even without the bill being in past this is something which we take into consideration as we go through to ensure that legislation is u n c r c compliant clearly other members may wish to amend bills in various different ways as they go through it's not an issue for for government but that's certainly something that government can and does already look at and this bill brings that into legal focus I'm grateful okay all right with that we're just coming to the end I just have a final question it was regard to our evidence last week and it was the police in particular and when you mentioned moving from a bill to an act and I think that there was that six month period of when it was going to be inactive so the concern that was raised by the police was regarding the practical implications and whether there was going to be a cliff edge or if there's a longer phase in and the example they gave was regarding custody suites for children for instance and that would require a complete reconfiguration of the sort of like the custody facilities that they had and children would have to be separated so that's going to take a bit of time so I suppose they were looking for reassurance that you know on day one after that six months they wouldn't be in breach straight away and what supports are available and guidance thanks convener of course if this bill is passed by the end of the year which the timetable is obviously up to parliament it'll commence by mid 2024 by then public authorities will have had an extra two and a half years to get ready for the compatibility duty during which time they have had to access a growing range of national training and support so I hope that the six month commencement date is not unreasonable but it is very important that we continue to work with public bodies to ensure that we support them in that process to ensure that we look very carefully at concerns that they have and the implications of that now obviously this the bill was introduced it didn't have a commencement date in it but it was included at a stage 2 it's my understanding my memory serves me correct i think it was stage 2 we can't amend that commencement date or it's unlikely that we could amend that commencement date as part of the reconsideration stage because that's not something which is directly to do with the supreme court judgment which is what amendments are to do although obviously again it's up to the president officer to decide the the issue around that but given that that's already in the bill um then the pieces of legislation that the parts of the legislation that are we're not seeking to amend because the supreme court judgment will stand thank you that's helpful um i mean it has been uh around for a long time and i know that the young people are in particular um they're wanting to uh sort of the goodwill winds are behind it in that sense but obviously as a committee we have a duty also to look underneath the detail of that and all work together so um on that note i would like to thank the cabinet secretary um for her um sort of extensive contribution this morning um and also like to thank her officials for appearing in front of the committee as a well um and on that note that concludes the formal business of this morning and once again thank you to everyone and good afternoon