 I welcome members to the 25th meeting in 2017 of the Delegated Powers and Law Reform Committee. David Torrance has submitted his apologies and I would like to welcome Colin Beattie to his first meeting. In accordance with section 3 of the code of conduct, can I invite Colin Beattie to declare any interests relevant to the remit of the committee? I would like to be here and I would direct members to my interests that I have got on record declared. Agender item 2, decision on taking business in private. It is proposed that the committee takes item 7 in private. This item is consideration of the evidence heard from the Deputy First Minister and Cabinet Secretary for Education and Skills on the Children and Young People Information Sharing Scotland Bill. Does the committee agree to take item 7 in private? We move on to agenda item 3, children and young people information sharing Scotland Bill. The item is to consider that. The committee's role in scrutinising this bill is to consider the delegated powers in new sections 26B and 40B to be inserted into the children and young people Scotland Act 2014. Those sections impose a duty on the Scottish ministers to issue a code of practice about the sharing of information under the 2014 act. The bill is the Scottish Government's response to the judgment of the Supreme Court in the case of the Christian Institute and others versus the Lord Advocate, which held that the information sharing provisions of the Children and Young People Scotland Act 2014 in relation to named persons are incompatible with the rights of children, young people and parents under article 8 of the European Convention on Human Rights, the right to respect for private and family life. The committee's role is to consider the delegated powers in the bill, specifically whether the correct balance has been struck between what is set out on the face of the bill and what will be addressed in the code of practice and whether the appropriate level of parliamentary scrutiny is provided for in respect of the code. I welcome the Deputy First Minister and Cabinet Secretary for Education and Skills to the meeting and his officials, Ellen Burt, Bill Team Leader and John Patterson, divisional solicitor. I don't know if you had any opening statements that you wanted to make. I don't have an opening statement. I'm very happy to answer the committee's questions. In that case, we will move straight to questions. I'll start off. Can you explain why the Scottish Government is confident that the new bill addresses the concerns of the Supreme Court when that does not appear to be a view widely shared by legal witnesses who have presented evidence to the Education and Skills Committee? I take that view based on the fact that we have considered in great depth the analysis that the judgment that was made by the Supreme Court and have focused on very specifically the issues that the Supreme Court came to a conclusion about as you have just narrated to the committee. The conclusions of the Supreme Court were very clear that the information sharing provisions within the Children and Young People's Act 2014 were incompatible with article 8 of the ECHR. We had to identify how directly we could address that and how we could address the issues that were raised by the Supreme Court in relation to the provision of clarity around the interaction between the terms of the Children and Young People's Act 2014 and other legal instruments that are relevant in that respect. We have given that careful consideration. I am aware of the views and comments that expressed by a variety of parties on that point, but in my view and the view of the consideration that I have given to the question, we fully and adequately addressed the issues raised by the Supreme Court in that respect. The faculty of advocates said that some of the criticisms of the Supreme Court will continue to apply if the bill is drafted is passed. Are they wrong? I disagree with the faculty of advocates, yes. Okay. I will come back in with other questions, but I will move to other members of the committee. Monica Lennon. Thank you, convener. Good morning, cabinet secretary. I am interested to hear from you in what way the bill seeks to respond to the Supreme Court's concerns about the lack of clarity surrounding the rules on information sharing under the 2014 act and how it will interact with wider data protection legislation? There are essentially two critical elements of our response to the Supreme Court judgment. The first is to put into law the duty to consider the arguments and issues relevant to the sharing of information and the circumstances in which that may be permissible. What the Supreme Court said was that we had not adequately set out in accordance with law in the 2014 legislation exactly how that interaction would take place. We have established within the bill that duty to consider the question of information sharing. We have also addressed the Supreme Court's judgment by applying the approach of establishing a binding code of practice, which is there to inform individuals who will be in a position to exercise those responsibilities. That code of practice is designed to address the conclusions of the Supreme Court that the arrangements that we had made previously were not in accordance with law in the words of the Supreme Court. The code of practice will be obligatory. It will be binding on any individual exercising those responsibilities. We give the interaction between the existing legislation and the wider field of legislation that exists in this respect the clarity that was sought by the Supreme Court in the judgment that it arrived at. It is fair to say that a consistent factor in the complications around the in-person legislation has been the uncertainty and the worry over what the duty to share information means in practice for professionals, i.e. for health visitors and teachers who will have to carry out the in-person scheme. On that basis, I am still not really understanding why the Government chose not to address the issue of consent on the face of the bill. We have said to the convener that we do not agree with the faculty of advocates. The faculty of advocates have been quite clear that a code of practice is not a substitute for legislation. If there is any conflict between the statute and the code of practice, it would be the statute that would prevail. Given the massive concerns, I just do not really understand why the Government is not putting it on the face of the bill. I think that there is a really important distinction here about what is the purpose of a bill and what is the purpose of a code of practice. The purpose of a bill is to make law. The purpose of a code of practice is to explain the legal framework and the legal issues. I am not proposing to change the issues in relation to consent, so I have no reason to change the law. I do not propose on the bill to change the law because I have no desire to change the issue of consent. I accept that the Supreme Court has placed an obligation on us to explain the interaction between the existing legal framework and the legal framework that will be in place here, which will be the duty to consider information sharing. That is precisely why I have taken the decisions that I have taken about what is in primary legislation and what is in a code of practice. Do you have a view on some of the comments that have been made about the code of practice? It needs to be accessible and in a clear language. Do you have any sympathy with what the faculty of advocates say about that? I accept that the code of practice has got to be able to be navigated by individuals. I have put forward an illustrative code of practice because I thought that it would be helpful to the parliamentary process to have sight of that at the time that the bill is being considered by Parliament. We have to get the sequence of events correct here. We are considering a bill that will then be a separate consideration of a code of practice, but what I wanted to do was to try to be helpful to Parliament to see an illustration of what a code of practice would look like. I am not sitting here for a moment saying that is the last word on it. There will have to be consideration about the accessibility of that code of practice. If we have not got all that detail precisely correct at this stage, I am very happy to continue to look at that. Should Parliament agree to the bill that is before Parliament, there is then a separate process that comes forward to consider the contents of the code of practice, which would involve further dialogue with Parliament and other stakeholders in that respect. I think that other colleagues want to ask about the role of Parliament in terms of scrutiny. To go back to the concerns of the Supreme Court, can you explain to the committee how the bill seeks to respond to the concerns about the lack of safeguards in terms of the consideration of consents? That is essentially addressed by the contents of the bill, which contains the duty to consider the question of information sharing and the requirement to follow a code of practice. The purpose of all that is to ensure that a proportionate approach is taken to the consideration of issues in relation to the question of information sharing, as would be faced by any professional practitioner active in the area. I want to continue along the code of practice route. Given that the Supreme Court's focus is on clarity in terms of when information may be shared, I still do not understand why the Government did not choose to specify in the face of the bill that the code of practice must include an explanation of the relevant law on data sharing, with which practitioners must comply with, when they are sharing information. The question that Alison Harris has asked me answers itself. The purpose of a bill is not to explain the law, it is to specify the law. There is a fundamental difference between the specification of the law and the explanation of the law. The bill specifies the law and the code of practice explains the interaction of the law as proposed in the bill and other legal instruments and statutes. The code of practice, because it is called for by the law, essentially has the force of statute behind it. It has to be followed, it has to be addressed by those who are taking these decisions. What I have put into the bill are the elements of the law that I propose to change, and what has gone into the code of practice is the material to explain the interaction between the law and the children and young people's act and wider legal frameworks that I do not propose to change. From what you are saying, am I correct in saying that the users have to really look at the code of practice in order to be able to operate the bill? I just do not understand why it would not have been more clear to have it all included as one, because from what you are saying, and correct me if I am wrong with my understanding, are you telling me now that teachers require a legal degree in order to read the code of practice before they implement the bill? No, I do not think that that would be what I am saying at all. What I responded to Monica Lennon last question to me was about the accessibility of the code, so that code has to be accessible to practitioners and professionals, and I am absolutely committed to making sure that that is the case. That is why I have put in front of Parliament an illustrative code of practice to give Parliament a sense of what might be there and to gather feedback and reaction about the issues that we need to address to make sure that it is an accessible code. In that respect, it is vital that individuals find that code of practice to be of use and of value in that respect. Given the Supreme Court's focus on the need for safeguards, specifically in terms of consideration of consent, why did the Government choose not to include on the face of the bill a specific duty in information holders to consider whether the consent of the child or parent should be sought before information is shared? Why does the Government consider it appropriate to address the issue of consent in the code of practice instead of on the face of the bill? I still come back to whether it would not be clear for people to follow and understand if it was written in the bill. For the simple reason that I am not proposing to change the arrangements around consent, and the question of why it is not on the face of the bill, I come back to my fundamental point that the purpose of law is to specify the law, not to explain it. If I am not changing the law, there is no requirement to specify that in the legislation. The code of practice will provide for safeguards applicable for the provision of information under the part of the bill. That will be specified within the bill, that requirement on the code of practice, to ensure that the necessary safeguards are observed by any practitioner in this respect. Have you only published an illustrative code of practice, which might bear little resemblance to the real thing, rather than the actual code of practice, which could be properly scrutinised? We have to get events in the right order. I do not have legal power to issue the final code of practice because Parliament has not approved the bill that contains the legislative empowerment of such a process. What I decided to do in preparing this bill was to try to be as helpful as I could to Parliament by providing the bill, which I have to provide, and all the associated documentation, but also providing an illustrative code of practice to give Parliament a sense of what might be in the document. There is no formal process associated with that illustrative code of practice at this time because the legal force does not exist to adopt that code of practice. Once I hear the views of individuals, stakeholders, members of Parliament and committees of Parliament during this process, I will then be able to reflect on the illustrative code of practice, which is essentially our first attempt at putting this together. Assuming that Parliament approves the bill, the code of practice that would be the subject of the consultation and dialogue that is expected of the bill. Does the Government consider that the process of parliamentary scrutiny of the code set out in the bill is akin to the affirmative procedure, given that there is no formal requirement for the Parliament to approve the final version of the code before it is issued, as there would be for an affirmative procedure? Essentially, because the route that I propose provides an opportunity for extensive dialogue with Parliament around the contents and the substance of the code of practice, and I obviously will have to take account of the views and the points and the issues raised by Parliament as part of that process. The bill puts a requirement on me to take account of any comments that are expressed by Parliament on the draft code, and that is actually a greater obligation than is carried by the affirmative procedure on ministers, where Parliament is essentially given the choice to either accept or reject, whereas what the approach that I have taken here is designed to ensure that I can subject the code of practice to detailed parliamentary scrutiny, can then take away that parliamentary scrutiny and consider the contents of it before moving to the finalisation of a code of practice to be applied in terms of the bill. The Government's delegated powers memorandum notes that the code of practice is an important document, and it is on to explaining that a detailed level of parliamentary scrutiny is appropriate given the binding nature of the code and the significance of the code to the named person service. In light of that, and given the importance of the code in responding to the concerns expressed by the Supreme Court, does the Government consider that it would be more appropriate to make the code subject to the affirmative procedure for parliamentary scrutiny? What would concern me about that is that Parliament's interaction would only be to accept or reject the code of practice, whereas what I am trying to do is to create a mechanism that is appropriate for deeper parliamentary interaction about the terms of the code of practice. I want to be able to produce a mechanism that will enable Parliament to reflect closely and carefully on the contents of the proposed code of practice and then for me to be able to address those as the bill places a duty on me to do so as part of the process. I am actually taking this approach because I want Parliament to be more deeply involved in the question rather than quite simply a take it or leave it question, which is the conclusion of the affirmative procedure. Just for clarity then, the process that you are undertaking is to allow for a greater level of feedback and suggestions from members and committees that you would then consider when producing the final code to go into Parliament. In short, the bill requires me to undertake a public consultation on the bill. The bill would require me to consult with Parliament and it requires me to take account of any of the comments expressed by Parliament on the code. I think that that represents a greater sense of interaction with Parliament on the detail and substance of the code that will then be reflected in the consideration that I give to the final contents of the code of conduct. I am trying to recognise the importance of attracting wider confidence around the contents of the code of conduct and I think that the mechanism that I have set out is of assistance in undertaking that task. The issue here is that the code of practice you will merely consider comments. There appears to be no mechanism where Parliament can make amendments to that and make changes to it. It is all in your hands. Is that correct? Ultimately, the final design of the code of conduct would be at my decision-making, but in getting to that point, I am going through an exhaustive level of consultation with the public and with Parliament to gain the widest understanding of the issues of concern and to maximise the accessibility of the code that Monica Lennon raised with me. The measures that I will put in place will be the product of an extensive amount of discussion and dialogue with Parliament and the consideration that I have given to the issues that have been raised. Is there no mechanism for Parliament to change that code of practice? If we look at this as a statutory instrument, there would only be available to Parliament the ability to accept or reject it. Parliament cannot amend statutory instruments. I am trying to find a means of taking forward as engaged in a dialogue as I possibly can do with Parliament to arrive at what will be a helpful design of a code of conduct that can deliver on the expectations that are envisaged within the bill. Practice is not a code of conduct. We are still not getting to the point where Parliament MSPs can change that very important code of practice. The code of practice, as I have already explained, is about setting into context existing legal provisions and weaving them together with the context of the Children and Young People's Scotland Act 2014 and the Children and Young People Information Sharing Scotland Bill. It is an explanatory document that is binding in its nature, but it does not create any new law. It explains to practitioners the basis of interaction around the content of existing law. For that reason, I think that the route that I have set out is appropriate because I am trying to maximise the degree of engagement with Parliament rather than simply saying, here is a code of practice which Parliament can either accept or reject and has no meaningful interaction in formulating. I just want to read you out a couple of quotes from evidence from the Faculty of Advocates. They say, first of all, it should be remembered that code of practice is not a substitute for legislation. A code is not debated and passed by the Parliament. Where there is any conflict between the statute and the code of practice, the statute will prevail. They go on to say, the issue of informing a child or young person or parent, that information is to be shared and the issue of obtaining that person's consent are discussed within the code of practice but are not mentioned within the bill itself. In our view, those issues are sufficiently fundamental to be referred to within the legislation itself rather than simply being dealt with in the code of practice. The Law Society of Scotland says, we support the creation of a code of practice, setting out clarifications and guidance on the operation of the information sharing provisions of the bill. However, the key safeguards and information should be contained within the bill itself and subjected to full parliamentary scrutiny. Those are the top legal bodies in Scotland, and they are saying that the code of practice should be subject to full parliamentary scrutiny, in other words, giving MSPs the ability to amend it. Is that something that you could consider? The provisions of the bill and the approach that I am taking provide the opportunity for members of Parliament to consider the contents of the code of practice and to provide a mechanism for ministers to give further consideration to the issues that have arisen from the Parliament's views being expressed. Fundamentally, the issue comes back to the material that is going to be in the code of practice, and the material in the code of practice is explanatory information. It is information to set out the interaction between different legal instruments. It is not creating any new or different legal instruments. That is where I disagree with the point of view that you put forward by the Faculty of Advocates and the Law Society. I am surprised by their views because the purpose of statute is to define the law, and I am very clearly making steps to change the law in certain respects. However, I am not taking steps to change the law in relation to consent, which was one of the issues that was raised by one of the bodies to which you referred. Therefore, I consider the code of practice approach to be the most appropriate to explain that material to practitioners. What I have tried to do in the bill is to put in place the means by which we can have extensive dialogue around the contents of the code of practice in a way that can be more effective and that can represent deeper engagement than I could do under a statutory instrument, where Parliament would not have the ability to amend it. Parliament would simply have the opportunity to accept it or reject it. I am trying to create as interactive an approach as I possibly can do to enable me to take account of the views of Parliament in this important area of activity. I do not want to hog this, but I have to press you on this. You have used this phrase extensive dialogue. Can we get to a point where you agree that MSPs, as part of that extensive dialogue, as you describe it, can have the ability to change this code of practice? That is not in the proposal that I have before Parliament today. No, but could it be? I will obviously reflect on anything that a committee says to me, but my proposal is not to do that. Okay. Any other committee members? Colin, do you want? I continue to look at the scrutiny of the code. Given that the code is not subject to any formal scrutiny process beyond the 40-day laying requirement and the requirement to take account of any comments expressed by the Parliament in that period, can you explain why the Government chose not to frame the code as subordinate legislation? For the simple reason that subordinate legislation creates new law and the contents of the code of practice will not create new law. There are examples where subordinate legislation has been used as a vehicle for bringing a code of practice into force, for example the letting agent code of practice. Why is this code different? For the simple reason that the code of practice that I am proposing will be an explanatory document that sets out the ways in which the bill interacts with other legal instruments, and as a consequence of that, it is not creating new legal provisions. Any other members? Given the circumstances and background to the bill and the concerns expressed by the Supreme Court, does the Government consider that it could be merit in applying an enhanced form of affirmative procedure to the bill, which would allow the Parliament an opportunity both to shape and to approve the code before it is issued? I have been mindful of the Supreme Court's judgment when I came to the conclusions that I came to around the code of practice. What the Supreme Court said at paragraph 81 of its judgment was that the court can look not only at formal legislation but also at published official guidance and codes of conduct when determining the proportionality of any interference with article 8 rights. At paragraph 107, the Supreme Court identified that a number of approaches could be adopted, including the provision of binding guidance, which is exactly the advice that I have followed in bringing forward the provisions that I have brought forward. In addition to that, the Supreme Court references a particular case involving the Metropolitan Police and their operating procedures, which in the judgment of the Supreme Court provided adequate safeguards in respect of proportionality, which is exactly the framework that we have used within the bill. The measures that I have taken have been designed to create as much opportunity as I possibly can do for Parliament to interact around the formulation of the code of practice and for it then to have the status that is envisaged within the legislation and have the effect that we want it to have in the form of binding guidance. I was quite struck by your earlier answer to Stuart McMillan. I felt quite reassured when you said that you want Parliament to have a deep involvement in that. I still feel unsure about why the Government is choosing not to address the issues around consent on the face of the bill, because that would give Parliament the fullest involvement possible. Can you explain to me why that has been dismissed? It is purely and simply because I am not changing the legislative provisions around consent. If I were changing the arrangements around consent, I would have to put that into primary legislation, and I am not doing that. The issues around consent are so fundamental to the operation of the law, should they not be on the face of the bill? They are on the face of other legislation. They are specified by other instruments of legislation, such as data protection, the rules around confidentiality, and I do not propose to change them. I propose to explain in a code of practice the interrelationship between the legislation and those existing parts of the law that I do not intend to change. Can I finish by asking in the face of some very serious stakeholders saying that there is a better way of doing this? Can you explain why the Scottish Government is so confident that this is the correct approach? I do not follow the rationale of some of what has been put to the committee by other stakeholders, because I do not intend to change the law on consent. I suppose that there is no reason to put that on the face of the bill. I have an obligation to address the issues that arise out of the Supreme Court's consideration. One of their issues was about the legal puzzle that exists between the legislation and other legislation. I am directly addressing that by the contents of the code of practice and to make that as accessible as possible. The question that Monica Lennon raised with me earlier about the accessibility of the code of practice is absolutely fundamental to the discussion, which is why I want to make sure that we get that right, which is why I am committed to what I have given an illustrative code of practice much earlier in the process than I should have done. It is why I am committed to the extensive dialogue with Parliament about it so that we can get that correct, that we can undertake the necessary public consultation and that we can have a set of instruments that are clearly understandable by members of the public. Go on back to your phrase, extensive dialogue. What do you think that means? What does that mean to you? It means that the committee is looking at the code of practice, having adequate time to engage with relevant stakeholders on that question. It involves the Government undertaking a public consultation and having the appropriate opportunity to reflect on those issues before moving to the finalisation of the code of practice. What it does not mean is that Parliament is able to amend or change the code of practice at the moment, but you have said that you will consider comments. It is not, just so that we are absolutely crystal clear, it is not my proposal to do that. Yeah, we are clear on that. Any other members? So confused, sorry cabinet secretary, when you go on about the code of practice, it is binding, it is obligatory on the individual, but because you are not changing the law and consent, you are not going to put it on the face of the bill, but the fact that it is so binding and obligatory, I do not see why you do not make the bill more clear and open to Parliament. You scrutiny by putting it on the face of the bill, I still do not understand despite hearing what you have said this morning why you just are not going that step further for us. For the very simple reason that a bill is designed to make the law, not to explain it. So are you telling me then that the code of practice is binding obligatory but it is not the law? If it is binding, it has the force of statute but the law is defined by what is in primary and secondary legislation and the code of practice will be, the requirements in the bill will require individuals to follow that code of practice. What that code of practice does is it explains the interaction of law. It does not create new law. I understand what you are trying to say there but I still think that if it is a code of practice, it is obligatory, it is binding, it is not making new law but it could help to surely clarify the law that you are looking to make by putting it on the face. I would have exactly the opposite effect of the one that Alison Harris seeks because the law must be crystal clear and the purpose of law is not to have sort of wide discussion about its applicability. The purpose of law is to specify what is the law so that it can be judged by the courts as to whether it is being pursued or not. The purpose of guidance and the purpose of the code of practice is to explain the interaction of different legal instruments but to place an obligation on individuals to follow it. It comes back to my original point that perhaps in the future teachers might need slightly more legal teaching. No, because I will address the issue that Monica Lennon raises about the accessibility of the code of practice. I am not sure that we can agree on that but never mind. Thank you for your answer. At that point, I thank you for your time this morning. Mr Swinney, Mr Patterson and Ms Burt. I will suspend the meeting briefly. Back in session, we move on to agenda item 4, instruments subject to affirmative procedure. No points have been raised by our legal advisers on the draft international organisations, Immunities and Privilege Scotland amendment 2, order 2017. Is the committee content with this instrument? Agenda item 5, instruments subject to negative procedure and no points have been raised by our advisers on 2017, 282, 284, 285, 287 and 289. Is the committee content with these instruments? Agenda item 6, islands Scotland Bill stage 1. The purpose of this item is for the committee to consider its approach to the scrutiny of the delegated powers in the islands Scotland Bill at stage 1. Specifically, this is an opportunity to identify matters that the committee may wish to raise with the Scottish Government. The purposes of the bill are to make provision for a national islands plan to impose a duty on certain public authorities to have regard to island communities, to make provision about the electoral representation of island communities and to establish a licensing scheme in respect to marine development adjacent to islands. It suggests that the committee raises questions on two of the delegated powers in the bill. Section 73 provides the Scottish ministers made by regulations amend the schedule which lists the bodies, office holders and other persons which are subject to the duty to have regard to island communities in carrying out their functions. However, other acts include a power to modify a list of authorities contained in the schedule by modifying an entry in the list. For example, section 6 of the British Sign Language Scotland Act 2015, section 8 of the Gender Representation on Public Board Scotland Bill, presently before the Parliament, contains powers by regulations to modify the list of authorities in schedule 1 so as to add an entry vary the description of an entry or remove an entry. Does the committee agree to ask the Scottish Government why it has been considered appropriate not to extend the power to modify an entry in the schedule in addition to the power to add or remove an entry? In regard to the power in section 21 to add supplementary, incidental or consequential provisions to the regulations under section 73 or 18, the delegated powers memorandum provides no explanation of why those powers are necessary or appropriate. Does the committee agree to ask the Scottish Government in relation to the ancillary powers in section 21a for explanation why those powers are considered to be necessary or appropriate? In particular, why are those powers appropriate in addition to the powers to make ancillary provisions by regulations in section 22 and why is the power to add supplementary provision appropriate in respect of both regulations under section 73 and section 18? I'll now move the meeting into private.