 I welcome everyone to the 21st meeting of the Education and Skills Committee in 2017. Can I please remind everyone present to turn their mobile phones and other devices on to silent for the duration of the meeting? I've received apologies from Tavish Scott for this morning. Agenda item 1 is a declaration of interest from Oliver Mundell to the committee. Can I welcome Oliver and give him the opportunity now to declare any relevant interests? I'm delighted to be joining the committee, and I can confirm that I've got no relevant interests to declare. Thank you very much. Agenda item 2 is a decision on whether to take items of business in private. Firstly, is everyone content that item 5 of this meeting be taken in private? Secondly, do members agree to consider any future discussions of evidence on the children and young people information Scotland bill in private? The specific nature of that, because it's not clear as to whether you mean all evidence. It's discussions of evidence. The discussions of evidence? Yes, that's right. Agenda item 3, subordinate legislation, with two statutory instruments in front of us that are listed in the agenda. We consider these instruments in June and agreed to write to the Scottish Government a response that was received over the summer and relevant extract of that response is included in members' papers. We also agreed that once we receive the response we would decide whether to hear more from Government officials on these instruments. No member has asked that officials attend today. Do members have any additional comments on either of these instruments? That question will move on to the next item of business, which is a briefing from Scottish Government officials on the children and young people information Scotland bill. I welcome to the meeting Ellen Burt, team leader, bill team leader and John Paterson, and the divisional solicitor at the Scottish Government. This is our first session on the bill, so I invite officials to brief the committee on the detail of the bill itself, its financial implications and its delegated powers. Yes, I'm happy to do that. My intention this morning is to provide a bit of background to the bill, which is before the committee, and an explanation of what its provisions do. I'll also address the financial memorandum in delegated powers within the bill, as you've just said. The Children and Young People Act 2014 provides the statutory underpinning for the Getting It Right for Every Child approach, which is our national approach in Scotland to improving outcomes and supporting the wellbeing of children and young people by offering the right help at the right time from the right people. The named person service and the child's plan are central to the Getting It Right for Every Child approach, putting the wellbeing of every child and young person at the centre and ensuring that services work together to support children and young people and their families. The policy was developed in response to real-life experiences and expert advice that a timely and early offer of advice and help can prevent troubles from becoming crises. It was developed in response to the ask from parents for a clear point of contact for children, young people and parents, should they wish to seek support, information or advice. The Scottish Government is committed to ensuring that all children and young people, irrespective of where they live in Scotland, remains committed to the provision of a universal named person service for all children and young people up to the age of 18. It is against the backdrop that the 2014 act was passed. The 2014 act, as you know, was challenged in the case of the Christian Institute and others against the Lord Advocate as being outside the legislative competence of the Scottish Parliament. The grounds of that challenge were that part four of the act, which related to the named person service, related to reserved matters, was incompatible with the European Convention on Human Rights and that it was incompatible with EU law. The Supreme Court gave its decision in July 2016. The Supreme Court dismissed the challenges in relation to reserved matters and EU law. On the human rights challenge, the Supreme Court found that the provision of a named person service was unquestionably legitimate and benign. It went on to find, however, that the information-sharing provisions in part four were not in accordance with the law. In brief, that was because of the very serious difficulties in accessing the relevant legal rules and the lack of safeguards, which would enable the proportionality of an interference with article 8 rights to be examined. What has happened since the Supreme Court case? The Scottish Government held an intense period of extensive engagement between September and December 2016. That involved over 50 meetings with some 250 organisations and groups that were involved. We heard from around 700 young people, parents and carers, practitioners, professionals and leaders from education, health, local authorities, the police, faith communities, unions and charities. Through that engagement, we also listened to those who had raised concerns about the named person policy, including Care Scotland, clan child law, Together and the Scottish Parent Teacher Council, among others. That bill seeks to address the points raised by the Supreme Court and ensure that decisions around the sharing of information are taken in partnership with children and young people and their parents. That is something that children and young people, parents and practitioners expressed as a key issue for them and core to the getting it right for every child approach. The bill makes changes to parts four and five of the act. Those are the parts in relation to the names person service and the child's plan. The bill makes changes in relation to information sharing only. It seeks to clarify the provisions around information sharing and ensure that proper safeguards are in place. In relation to part four of the act, in relation to the name person service, the bill substitutes a new section 26 and inserts a new section 26A. Those relate to the provision of information by or to a named person service provider. The previous duty to share information under the 2014 act is removed and is placed with a new duty to consider sharing information. Firstly, the named person or other information holder seeking to share information with the name person service provider must consider whether providing the information could, in its opinion, promote, support or safeguard the wellbeing of the child. Secondly, they must consider whether the relevant information could be shared in accordance with the law. That includes data protection law, human rights law and the law of confidentiality. The third thing that the bill does is to provide a power to share information. That means that there is no longer a duty to share information but that named persons and others seeking to share information with the named person can continue to exercise their professional discretion. Section 1 of the bill amends section 23 of the 2014 act, which is in relation to communication in relation to the movement of children and young people. It makes similar changes to ensure that information may be shared where information could promote, support or safeguard the wellbeing of a child or young person. It contains similar provision, making it clear that information can only be shared where this is in accordance with the law, which includes data protection law, human rights law and the law of confidentiality. The new section 26A makes it clear that information cannot be shared under part 4 unless the data protection act and other relevant law can be complied with. It also ensures that information cannot be shared where this would prejudice the conduct of criminal investigation or the prosecution of an offence. With regard to delegated powers, the bill introduces a new section 26B, placing a duty on ministers to issue a code of practice about the provision of information under part 4, so by or with the named person service providers. The bill provides for this code to be binding and that it must provide for safeguards applicable to the sharing of information. The bill sets out the procedure that must be followed before issuing a code of practice, which is akin to an affirmative procedure, placing obligations on ministers to consult relevant persons, to lay a draft before the Parliament for 40 days and to take account of any views expressed by the Parliament. Whilst the Supreme Court focused on part 4 of the act in relation to the named person service, the bill makes similar changes to the information sharing provisions in part 5 of the 2014 act, which is in relation to the child's plan. In particular, it brings those provisions into alignment with the new provisions in information sharing under part 4, making clear that information can only be shared where this is in compliance with the law and where it would not prejudice the conduct of a criminal investigation or prosecution of an offence. The new section 40, B of the bill, places a duty on ministers to issue a code of practice in relation to the sharing of information under part 5, in the same way that section 26B does in respect of the named person service. As you will be aware, the committee has also been provided with an illustrative draft code of practice. This is intended to assist the committee in understanding how the power to issue a code of practice could be used. It is intended to be an illustration only and shows how a code of practice could provide for additional safeguards in relation to information sharing. As it is an illustration, it was drafted with regard to the laws that presently applies. The illustrative code is set out in two parts. Firstly, in relation to safeguards and secondly, it provides a description of the relevant law. Those are both things that the Supreme Court focused on. The code sets out the steps that the named person service provider or relevant authority seeking to share information with a named person must follow in order for the information sharing to be in compliance with the law. It sets out the responsibilities to inform the person to whom the information relates and the need to seek consent, which will be applicable in most circumstances. Practically, that is likely to require the consent of the child, young person or their parents. It sets out the responsibilities that apply in the limited circumstances where the law permits consent not to be required, including steps to inform the person who is affected before or after sharing. Importantly, the code does not change the law on data sharing or human rights but it sets out the safeguards that must be followed to ensure that information sharing is in compliance with the law. It also contains requirements to record decisions, which is an important part of good decision making. The second part of the code, as I said, provides a description of the relevant law. Again, that is because of the importance that the Supreme Court placed on that matter in its decision. As I said, the draft that has been published is for illustrative purposes only, and any code will require to be subject to consultation and the procedure set out in the bill before you. Before taking questions, I will address the financial memorandum. The Scottish Government has supported local implementation of the Getting It Right for Every Child approach by providing £10.2 million to local authorities to prepare for the commencement of parts 4 and 5 of the act. Prior to the planned implementation date in August 2016, local authorities, health boards, Police Scotland and other organisations had confirmed that they were ready and prepared to be compliant with those parts of the 2014 act on commencement. The financial memorandum sets out the additional costs of £1.2 million, which will be required to develop training and learning materials to support national consistency and the backfill of staff undergoing training on the new duties on information sharing only that are set out in the bill. The financial memorandum is based on the same modelling that was agreed with stakeholders and the Parliament during the passage of the 2014 act. The expectation is that the training will complement and become part of the regular supervision and CPD requirements that professionals undertaking the name person role and child plans responsibilities already undertake. That will be supported by revised statutory guidance under the 2014 act and information and practice materials that The Getting It Right for Every Child policy team will be developing in collaboration with children, young people and practitioners in advance of implementation. I hope that that summary has been of assistance to the committee and myself and my colleague are happy to take any questions. Thank you very much for that. I might have a couple of questions later on, but I will start off by asking Liz Smith, if she would like to. Thank you, convener, and thank you for your information provided there. When we debated the Children and Young People's Bill several years ago, one of the concerns that was expressed by witnesses at the time, specifically people like the Faculty of Advocates, Clan Child Law and Professor Norrie, who gave a legal interpretation of some aspects to assist the committee, the concerns that they raised then was that there had not been sufficient consultation on the implications of data sharing and some of the legal interpretations of specific terms, which I will come to in a minute. Could you tell us what consultations have taken place in preparation for this new bill about the specific issues? First, what consultation has taken place with the Office of the Information Commissioner? We have, as officials, been engaging very closely with the Information Commissioner. As I said, there was an intensive three-month period of engagement on the back of the Supreme Court decision, which was intended to look critically at what the issues that that decision had raised and how best we move forward to ensure that the objective of an in-person service could be fulfilled, because we know that practitioners and parents of families have told us that when they are getting it right for every child approach is working that it is of support to them. Most recently, when that period of intensive engagement closed, we have continued to work through our close stakeholder groups. We have a national implementation group and a GERFEC lead officers group, which we have discussed the intricacies of the plans that the Government was intending to put forward. Just recently, in the past couple of weeks, we have, as officials, sat down again with the Information Commissioner's office, particularly recognising that the general data protection regulation is obviously on the horizon. The bill and the illustrative draft code of practice that is in front of you have both been drafted in order to be cognisant of that. The way that the bill is set out allows us to be responsive to that changing landscape and ensure that where additional safeguards and explanations are required, once the position of the UK Government is clear on the general data protection regulation, we will be able to do that through the procedure that I set out for you on the code of practice. On a technical level, are you confident that the advice that you are providing to ministers about the legal definitions within the new bill and the advice that has been provided by the Information Commissioner, are you confident that the legal interpretation is clear? I can perhaps defer to my legal colleague here. Yes, that's the answer. I'm just picking up on the answer that Ellen gave me a moment ago. In addition to the consultation that's already taken place, prior to the code of practice being published in draft, there is a proposed requirement for Scottish ministers to be required to consult and I would envisage that consultation would include relevant bodies such as the Information Commissioner's office. The code of practice is a requirement under the bill that is proposed rather than being a power for ministers to issue a code. There is a requirement to issue a code, so that code in the consultation that would take place prior to it being issued is something that forms part of the scheme that is being proposed under the act. Just on two technical points, could I ask you about a point that's been raised by the Faculty of Advocates, which relates to the law of confidentiality? They say that that's derived from common law and it's their understanding that the Scottish Government's interpretation of that is common law, but it says that it is not clear to what this section refers. Could you help us out there? The law of confidentiality from the Scottish Government's perspective is a common law which applies in relation to the provision of information, which has a quality of confidentiality. Reference to various legal texts will illustrate that that duty exists. I think that in the faculty's submission they said that the duty exists only in relation to certain people in certain circumstances and I think that that's correct. They refer to two circumstances, doctors and lawyers, but the Scottish Government's position is that that duty extends more widely than simply to doctors and lawyers and, as I understand from the law society's submission, they recognise that what one might describe as a law of confidentiality. That's helpful up to a point. I think that the question that I have is that they're asking to what section of the new bill does this refer. Taking on board what Ms Burt has said, the new bill, if it's to work well, has to have an understanding amongst named persons and people who are going to implement the law that they have to make a decision about when to share relevant information. That's the change. If they're not clear about specific definitions, would you agree that perhaps the advice should be to the Government to tighten that up? If I can maybe be of assistance there, it's important to highlight that the bill that's in front of the committee is not changing the law on confidentiality or data sharing or human rights law. Those are laws in which public authorities right across Scotland already have to comply with and already grapple with in terms of issues of data sharing. What the bill has clarified on the back of the Supreme Court decision is around the interaction between what the amended 2014 act will be and the law as it stands. I totally accept that. Sorry to labour at this point, but that's not what the Faculty of Advocates is saying. They're saying that they're not clear on the section in which the bill refers to the law of confidentiality. That's the point. So the law of confidentiality generally applies to all powers— To all of the bill? Parts 4 and 5. It applies to any sharing of any information. The question then is whether or not the information question has the quality of being confidential. For example, this exchange isn't confidential because it's taking place in public. On the other hand, an exchange that I have with a minister in relation to legal advice may well carry a quality of confidentiality. If I had a solution in private practice and I was providing legal advice then it certainly would carry that quality. As a faculty of advocates looking for something here that normally wouldn't be required because the confidentiality, as you say, sort of holds across a whole piece. My understanding of what the faculty of advocates was saying was that they were saying that they recognise that there's a duty of confidentiality in certain circumstances, so for example to an adopted patient, but they don't recognise that as being a broader law of confidentiality, if you like. The Scottish Government's position is that there is a broader law of confidentiality of which that duty, as between doctor and patient, forms part. And that's supported by the Law Society. And that's supported by the Law Society. Forgive me, I just come back to the nub of the issue. In the last bill that was controversial, irrespective of what people's views or name persons are, this is not to do with that debate. This is to do with the accuracy and the clarity of the law and specifically the bill. That's what's going to matter. There are a number of submissions that we've received from people who are actually very supportive of the policy, but their concern is that they don't have clarity over specific legal meaning, which is what we didn't have last time, which I would argue raised to a lot of concerns about inaccurate scrutiny of the bill. I suspect that that's one of the reasons why we ended up with such a difficult issue. No, it's a technical point. What I'm asking is whether we have that understanding and clarity now about the specific legal issues. Is it your understanding that on the issue of wellbeing, which is currently defined by the Sharnari indices, has there been any discussion on a technical level about whether that is an adequate definition of wellbeing, given that that was a concern raised by the Supreme Court? If I can perhaps deal with your first point just wrapping up the discussion that we were having, I think that when you were asking about what the faculty of advocates are saying about which provision, which section within the bill or the 2014 act is the law of confidentiality apply to, what the bill is doing is simplifying that relationship between what will be an amended 2014 act and the law. One of the concerns that the Supreme Court raised was how a duty to share information, so a duty that didn't carry any professional discretion, sat alongside the requirements of data protection law, human rights law and the law of confidentiality, what the bill that is before the committee now is doing is removing that tension. There is no longer a requirement to share information, it is creating a legal prompt for named person service providers and others seeking to share information with them to consider whether sharing that information would support, promote or protect the wellbeing needs of a child and then giving them the power to do so. The law of confidentiality and the law of data protection and human rights will apply to all of that decision making process. In relation to your point about the definition of wellbeing, it is again important to recognise that what the 2014 act is doing is setting up a named person service, which is about providing help to children and young people and their families when they need it to prevent low-level issues as we know escalating and turning into bigger problems. By its very nature, the wellbeing needs of children will be as different as the number of children. This is a concept that again has been well utilised and well understood among practitioners, families and children that are using it now. The 2014 act, for the first time, puts those wellbeing indicators on a legislative footing. Again, it is important to read those indicators with reference to the wider statutory guidance and practice materials that have and will be redeveloped in relation to the new bill. However, the position of the Government is that wellbeing, unlike welfare concerns, is not a threshold that children have to meet. SPSO consider that there was quite an overlap. Has that been taken into account? Is that going to be adjusted? An overlap in what respect? An overlap, I am quoting from the papers that I have got here, between the complaints process and the existing jurisdiction for complaints. They suggest that the bill is amended to remove those duplications. Yes, I am familiar with the submission that they have made. Thank you for that clarification. The bill that is before the committee is in relation to the information-sharing provisions within section parts 4 and 5 of the act. Obviously, there is a complaints procedure that is set out within the 2014 act and which was agreed upon and passed by the Parliament. My understanding can correct me here that there is a requirement for secondary legislation in relation to that complaints procedure, which will again be developed ahead of implementation. The Parliament will have an opportunity to consider that before full implementation of parts 4 and 5. I guess that the second question that I have got is that there seems to be an awful lot more detail laying down who is responsible for what this time round. Has it been found necessary to do that? I think that, in developing the proposal that the Government has put forward, we have listened very carefully to the concerns that were raised by the Supreme Court and also through the intensive engagement that we had with families and practitioners. As we know from the Supreme Court judgment, that issue of clarity was extremely important. The bill and illustrative code seek to make it very clear the steps that a name person service provider or person seeking to share information with them has to go through in order to fulfil their responsibilities and be compliant with the law. You feel that, as a result of the court judgment, it has been necessary to extend the requirements as to who does what? I am not sure that the bill extends the requirements of who does what, but we would certainly argue that the bill that is in front of the committee makes that clearer. That has been our intention. As you have set out one of the principal changes here, the bill moves from a duty to share information to one that professionals must consider. In that, it is essentially making a judgment between the information being shared where it will promote wellbeing and balance against relevant laws, particularly data protection. What consideration was given to what that will do to the role of professionals and, in particular, in terms of the capacity and capability that those professionals have to make that judgment in their work? Again, I would point to the fact that these are professionals. The people that have these responsibilities are the teachers and health workers who are already engaged with children and families. The intention behind the name person service was that families and children and young people had a single point of contact that they were already familiar with. As I said before, what the bill is requiring in terms of compliance with the law is compliance with the law that already applies. The duty to consider whether sharing the information could promote our support or safeguard the wellbeing needs of a child. In the vast majority of circumstances, what the data protection act would require is that you were doing that with the consent of the child or their family. Those will be needs that they will discuss with the family and that any intervention or proposed move forward would be discussed with the family. I accept that in the majority of the cases, but, obviously, where this becomes controversial is in the extremes. You are right that we are talking about professionals, but they are professionals trained in either healthcare or education, not the law. Was any work carried out to look at both the ability to carry out the work and the capability of undertaking judgments was made in terms of what new implications that change will make? Both during the passage of the 2014 act and in relation to the current bill, we have engaged extensively with stakeholders from both education and health in relation to the impact that this approach would have on the workforce. As I said before, we have a national implementation support group that includes professionals from local authorities and health. We continue to engage very closely with health boards and unions and representatives of the teaching workforce. In relation to what you have talked about there about the difficult or extreme cases, it is really important to underline that this bill and the 2014 act do not in any way alter current child protection mechanisms. The law is clear on what professionals must do when there is a significant risk of harm. Again, professionals working in an education setting or a healthcare setting will be familiar with that. It is also important to highlight that the expectation is not that front-line workers are left on their own to scrutinise the legislation. As we always do, we will be working very closely with partners in health and education to make sure that effective and good quality and accessible training and development materials are available for front-line practitioners and, importantly, for families and children and young people themselves. The responsibilities that are being placed on those individuals training on that will form part of their regular CPD and supervision. Part of the Supreme Court judgment explicitly stated that it remains concerned that it is exceptionally difficult requirement to impose on professionals in respect of every child and that, furthermore, the imposition risk making the professionals' jobs considerably more difficult and undermining the trust of families. Given that that was part of the Supreme Court judgment, what, as you see it, is in the amended legislation that mitigates those points raised by the Supreme Court? I think that it is important that the Supreme Court were considering the previous framework that was in place under the 14 acts of the provisions that hadn't been commenced. The Supreme Court were considering the tension that arose between the duty that the 2014 act placed on the name person service providers or person sharing information with them to share information and the further requirements and responsibilities that were on them under the wider law, so human rights law, data protection law and the law of confidentiality. What the new bill does is clarify that position by making it clear that there is no duty to share information, that there is a duty to consider whether sharing information could benefit the wellbeing of a child and that there is a power to do so where that professional believes that it could be of benefit to wellbeing. Crucially, what the bill says is that that information can only be shared where doing so would be in compliance with the law as it stands. My final point is that some of the concerns that have been raised may well lead to defensive behaviour around the way that those judgments will be applied. Again, can I ask what kind of consideration from a behavioural standpoint were made when drafting the amended legislation? I think that, as the DFM has said in his previous statements to Parliament and to this committee, it is the Government's responsibility to ensure that we build trust and confidence within the name person service and child plans provisions. As I have said before, it is our intention to work in conjunction with those professionals that we will be delivering, responsibilities and children and families in order to increase their understanding and to build that trust and confidence. The process that we are involved in right now in scrutinising the bill is part of that. On the question of consent, you said that it would be with the consent of the child or the family, and then you spoke about working with the family. Did you accept that there is sometimes a conflict between the two and how would that be resolved? Yes, and again, I think that that is a conflict that arises now. The illustrative code of practice that is in front of you sets out the responsibilities that already apply in relation to capacity. Again, we would expect that the professionals working with children and families would be looking to achieve the best outcome for them. I think that I can perhaps defer to my colleague in terms of that very technical legal point about what happens if there is a— It is not a technical question. It is whether it is possible to get the consent of a child to share information. Do you then have to speak with the family or not? Secondly, what evidence would a worker have to provide that they had considered the question of sharing information or not? They have a duty to consider it. How do you establish why that duty has been carried through? I can perhaps ask my colleague to address the specific point about the law. The illustrative draft at paragraph 5 makes reference to the position under the Data Protection Act, which is that for a child who is 12 years of age or more, they are presumed to be of sufficient age and maturity to have understanding in order to be able to give consent themselves. That would be the starting point for any person who is considering whether or not to seek the— The technical point is whether a child under 12 gives information to somebody about what is happening to them in their own circumstances and that person feels that they should share that with other agencies. Do you then have to go and seek the consent of the family about whom the child is saying it is about their family? Technically, if they are under 12, they would not be deemed to give consent. You would have to speak to the family about something that the child has said about their own family. In relation to somebody under 12, they are presumed to be of sufficient age and maturity in order to be able to give consent. While that presumption will not exist, one could still conclude that a particular child under the age of 12 did have sufficient maturity and understanding in order to give consent. In the event that, for example, they were talking about a child of five, where the person concludes that they do not have the sufficient maturity and understanding, the question would be whether it was necessary to not seek consent because the particular issue relates to, for example, the mother and father. If the person concluded that it was necessary not to seek consent in order to protect the interests of the child, it would be open to them to do that, and, likely, it would be required to do that in order to fulfil their duties. Is it not the case that this happens just now? In relation to the bill, it is relevant that the same sort of safeguards and procedures would be in place to ensure that the information that was required to protect somebody under 12 was in place. It is not addressing the concerns that may be prompt to some of the legislation then, but this is where we are already addressing them. That is not the case at all. Sorry, I will move you on to Ross. That is clear. I have touched on this already, but I am just looking for a bit further clarity around the provisions on consent being in the code of practice rather than in the legislation. What makes you confident that you have met the requirements of the Supreme Court without having put those into the legislation directly? Again, the bill and the illustrative draft code of practice do not seek to change the law on consent. Within the data protection legislation and human rights law, there are limited circumstances right now where information can be shared without consent. The bill is not seeking to create a new law on consent. What the bill requires is that where information is to be shared, that it can only be shared where it is in compliance with the law, what the illustrative code of practice is seeking to do is to respond to what the Supreme Court said about safeguards and ensure that we are not just leaving the interpretation of the laws that stand just to the interpretation of the service providers, but saying that there will be a binding code of practice that sets out the steps that a named person service provider or others seeking to share information with them would have to go through in order to demonstrate that they were in compliance with the law on data protection and therefore the law on consent. I would like to take that a little bit further and explore the decision not to put the safeguarding guidance into primary legislation. It says in the Delegated Powers memorandum that it was impractical to do that. I wondered how far that was explored before you reached that conclusion. By its very nature, primary legislation has to be precise and technical in considering the options that the Government might have taken going forward. We were very clear that responding to the concerns of the Supreme Court about safeguards and ensuring that clear and accessible guidance was available to practitioners undertaking those responsibilities was required. Again, the intention behind providing the committee with an illustration of what that code might look like was to demonstrate how the additional contextual information that was required in order to put those safeguards in place had a different nature to the provisions that are in the bill. The bill provides for that code of practice to be binding, so it is not optional, it is not statutory guidance that professionals will just have to have regard to. They will require to comply with the steps that are set out in any code of practice. Therefore, the approach that the Government set out was the best way to balance what we felt that we were hearing from the Supreme Court in terms of providing clarity about the relationship between the act and the laws that it stands and providing detail on safeguards and the relevant law. I appreciate that it might be difficult to put all of the guidance into primary legislation, but was any consideration given to a hybrid in effect where some of the guiding principles were enshrined in the legislation? As I said, the points that the Supreme Court raised were something that we gave very careful consideration to. We used the intensive three-month period to try to listen to what professionals, families and children and young people themselves were telling us. That was important to them about the name person service and getting it right for every child policy. The approach that is before the committee is the approach in which the Government felt best addressed the concerns of the Supreme Court. Were any other drafting work done before that decision was taken, or was that a decision taken in principle because it was just too difficult, or was it worked through in order to arrive at that conclusion? As you would expect, we as officials work through any issues in the drafting process, that is a normal part of the drafting process before a bill is put before the committee. So, whilst it was deemed practically difficult to put it into the legislation, it was not deemed legally impossible when it was being drafted? Yes. As Ellen said, detailed consideration was given to just exactly how to approach this. One of the issues is, for example, people said, why don't you say that consent is required up front on the face of the bill? Clearly, it would have been possible to do that. The thing is, it would only have been possible to do that, saying that consent is required except in particular circumstances, except in certain circumstances. You then have had to set out much in the way that the code does those particular circumstances, except that you would have to do it with the level of precision that is required of primary legislation. So, it is okay legally for guidance to be imprecise that primary legislation has to be? Well, I think that that is not quite what I was saying. The specific bill here, Oliver, you are now talking about drafting bills. I do not think that I am. Well, I think that you are. You are now talking about how bills are drafted as a whole, so are you suggesting that every single thing should be in the face of every bill? No, I am talking about what specifically should be in this one and whether or not. I think that other committee members are about to come on to some questions around how this bill sits in terms of whether it is akin to affirmative procedure, and I am trying to understand what we decided. I think that I have answered you about five times, but feel free to draw it to a conclusion. Okay, dope. Can I just ask one further question round the need to take into consideration what Parliament says and what the kind of legal standing of that is? What is the requirement of the Government to take into consideration what Parliament says? What does that mean in practice? Well, really just what it says, and if Parliament makes an expressive view in relation to the draft code, I think that we are talking about the draft code here, then the Government is required to take that into account in producing a final version of the code. So, what does take it into account mean in practice? Do they have to listen to it, or do they just have to take the information on board? There is no requirement to take any action as a result of concerns. There is no legal duty. Well, the legal duty is to take it into account so that if the Government failed to take it into account, then it would have failed in that legal duty. That would have to be challenged in the courts. It could not be challenged in the Parliament itself, because it is just a subject of parliamentary debate. All law is ultimately subject to interpretation by the courts and enforcement by the courts, so it is no different to any other law in that respect. If I may, just going back to the point that you were making about the code of practice, you mentioned guidance. It is not guidance that would be issued under section 26b and 40b. It is a code of practice. The Supreme Court in paragraph 107 of its judgment recommends that as one of the possible ways in which to address the matter, and it also, in an earlier paragraph of its judgment, refers with approval to a code of practice issued in relation to policing. It is fair to say that that consideration by the Supreme Court did influence our thinking. I want to continue the whole question of the code of practice. Do you talk about illustrative code of practice? Is this something that has ever been done in legislation in the Parliament before? Not to my understanding. I think that you can correct me if I'm wrong, John. There have been instances where, during the parliamentary process, drafts of subordinate legislation, which bills are providing powers to produce the early drafts of those that have been provided for the Parliament for their assistance. The reason that Mr Swinney has taken the decision to provide an illustration at this time is in recognition of the significant interest that there has been in those matters. What is an illustration of? It is an illustration of how the power that the bill sets out in relation to the provision of a code of practice could be used. It is important to recognise that, should the Parliament approve the provision in the bill that places ministers under the obligation to issue a code of practice, the procedure that is set out in the bill would have to be complied with. It is not intended to be the code of practice that would be in place when those provisions are implemented. The code of practice itself could be very different from an illustration. It is giving us no real indication or no guarantee of what that code of practice could look like. I think that we cannot presume what the parliamentary consideration of the bill is going to be at this stage. What would you accept, technically, that our view of the bill will in large part be shaped by our capacity to deliver the intent of the bill through the code of practice and that it is there for a gap between us? What seems to be said is that you should look at the legislation, to agree the legislation. There will then be a code of practice, which might not be like the illustrative code of practice, but the code of practice itself, the same scrutiny, will not apply to the legislation that delivers the requirement to have the code of practice. The process that we are engaged in right now is the scrutiny of the bill in the normal way that legislation is scrutinised by the Parliament. It is not our submission that the illustrative code of practice is required in order for the Parliament to pass in its view. Would it be reasonable for the Parliament to expect that the core bit of the legislation, which is the delivery of the code of practice, should have the same scrutiny by the Parliament as the legislation itself? I am not sure why. I may be missing something technical here, but it feels to me that the Parliament has been asked to confirm that we require the code of practice, but the code of practice itself could be something very different from the illustration. However, we will not have the same capacity to scrutinise that as the bit of legislation that has insisted the code of practice as to come into being. Do you see that there is an issue there in terms of scrutiny and indeed building confidence around the outcomes from the bill itself? It will obviously be for members to express their views in relation to the proposal that the Government has put forward. The proposal that is in the bill is that a binding code of practice would be required to be published by ministers and that a procedure that required consultation and that draft code of practice would be laid in front of Parliament would apply to that. Obviously, we are in a process right now where the provisions of the bill are being scrutinised. You accept. For example, I completely accept the sake of argument that there should be a code of practice. If the code of practice that comes out at the end of the process is one of which I have got some concerns in terms of the ability to deliver in the intent of the bill, I have not got the same place to scrutinise that. This committee, more importantly, has not got the opportunity to scrutinise that as we have agreed that the requirement should be there. Do you not think that there should be some clarity around a part, given particularly the contention around the bill? Was there even consideration given to how you could build into the process full parliamentary scrutiny of the code of practice as of the bill itself? As I have previously said, we are in a process of scrutiny right now. With respect, we are scrutinising illustrative code of practice, not the code of practice. No, I meant that we are in a process of scrutinising the power. The illustrative code of practice, if you were not giving us this illustrative code of practice just now, what would you have been giving us in its place? The decision that the Deputy First Minister took was to provide the committee and the public with an illustration of code of practice on the basis that that would be of assistance. That was the decision that he took and what he felt would be most helpful. What I would try to get is that, if that decision had not been made, what normally would come to us about the code of practice at this stage, just that we were going to have one? As would normally be the case, there would be discussion and information about how the Government intended to use the powers that the bill before it were placing on ministers. Given the nature of the bill, the Deputy First Minister took the decision that it would be of assistance to the committee and the public in general to be able to see what a code of practice might look like. Obviously, that will also be of assistance to us as Scottish Government officials because we are hopeful that the discussion that takes place through this parliamentary process, assuming that, at the end of the process, the Parliament confers that responsibility on ministers to issue a code of practice, that the discussion and debate around the illustrative draft that is before you will help us to ensure that a draft that is later consulted on has already been cognisant of the views that have been shared. Let me clarify one other point on the illustrative code of practice. If we are having a look at it and we think that there are two or three things wrong with it, we do not like the way it is and we feed that in, do you think that that would get fed back to what the code of practice would eventually look like? I know that you cannot speak for the minister and that is an answer to that question. Again, I would just underline the point that I made earlier that we cannot, as the Government, presume the powers that the Parliament or the duties that the Parliament are going to confer on ministers. As I have said, the Deputy First Minister took the view that sharing an illustration of how the power that is set out in the bill, that sharing an illustration of how that could be used, would be of benefit to the parliamentary consideration of the bill. Assuming that the provision that we are talking about is approved by the Parliament, the procedure that is set out in the bill would have to be complied with. There will be a full and proper consultation of the relevant persons affected, there will be a requirement to lay a draft of the code of practice in front of the Parliament for 40 days, and then there will be duty on ministers to consider any views that the Parliament has expressed. I am slightly struggling to follow that. Is it correct to say that the bill as introduced could have been introduced just the same without any amendments whatsoever and no illustrative code of practice provided the legislation? I am not sure that I understand your question in relation to could it have been submitted without amendment. As introduced at the moment? Yes. The normal process would be that a bill was laid without any supporting materials in terms of illustrations of how subordinate powers might be used. In this specific case, the legislation would remain exactly the same whether or not the code was there or not. The provisions of the bill are not affected by the illustrative code of practice that has been provided for you. It has no legal standing in terms of the bill. The illustration does not. If the powers or the duties that are set out in the bill are duly conferred on ministers, there will be a requirement on them to issue a binding code of practice. I want to draw that to a close. We wrote to the cabinet secretary about this and he gave back to us and he said that he was having an illustrative draft code of practice to accompany the bill just to show us how the powers could possibly be operated once it was on practice. I think that we are getting caught on something that was meant to be helpful if we find it or not when there are probably more important issues to discuss around about the bill. Can we move on and go back to Joanne? Please do not go back to the code of practice. I want that to be something that we can raise with the cabinet secretary himself. I wondered just a couple of final points. Has there been a change in the policy intention of this area of work, given that we are now saying—because it feels that there is a very long way from the real world—that the real world is not just about families who are seeking help. They are families who resist seeking help and children who are vulnerable. Does the legislation still address that question? Secondly, the problem is that we know the stories ourselves of large people who are engaged in a child's life. Information was not shared or the story was not told and the child suffered as a consequence and often with tragic consequences. If we are in a position where there is no duty to share information, you still think to tell me what it would look like if somebody could prove that they have considered sharing information, that we are in a place still where, if people do not share information, if they do not go back and say, we notice this, we notice that, we are still in the same place that we are with every tragic case and how are we going to address that if there is not going to be a duty to share, which I think that the Government, in policy terms, has moved back from. How are we addressing that question that is really what has prompted all the legislation, in my view, of vulnerable children being let down by a system that hasn't noticed the signs of vulnerability? How is this legislation going to help that? How is it going to address that policy? I am right in saying that the policy intent has had to change. Again, I refer to the previous statements that the Deputy First Minister has made in this regard, that the policy in relation to getting it right for every child approach, the named person service and child's plans has not changed. That policy and the aims of the 2014 act were determined by the Supreme Court to be legitimate and benign. What the Supreme Court has required the Government to consider again is how the information sharing provisions operate and how we can provide clarity to ensure that information sharing happens in compliance with the law. It is absolutely the intention of the named person's service that seeks to improve the position that we are in right now. As you have identified the issues that we have heard many times before about different services holding bits of information, if they had been seen together, it could have told us an important story. That is why the requirements in the 2014 act for the provision of a universal service have not changed. It is the policy intention of the Government that a named person service is available for all children and young people in Scotland. There is obviously that exception in relation to children in the armed forces. The provisions that are set out in the bill ensure that professionals working in that service understand and have clarity about the responsibilities that are being placed on them. The bill will, for the first time, place a duty on all named person service providers to be having regard to the wellbeing needs of children. The care inspectorate evidence that I think has been submitted to the committee highlights that, while good progress has been made over a number of years, there are still gaps and issues. The bill will place that duty, and that is a duty that we have considered. You are saying that, rather than somebody having a duty to share information, they have a duty to consider sharing. What evidence do they have? Otherwise, it does not feel very different from good practice currently. They require to provide. The illustrative draft code of practice that is before you includes a requirement that professionals would have to record their decision making. That is a requirement of good decision making already, but it will ensure that, through the binding nature of that code of practice, the named person service and approach in relation to child's plans— They have to record that they have decided not to share information. Yes, they will be required to do that. The last point that I want to ask is that I am missing this completely, but what consideration has been given of the impact of the change in governance for schools on the responsibility of a local authority towards a child and their named person? You go through the list of who is responsible at different ages and stages, and what it says is that the local authority is the responsibility, but you will accept that, through the Government's proposals, a lot of powers and local government over schools are changing. Has that been factored into the legislation? At an official level—that is obviously the level that I can represent today—we are working very closely with our colleagues who have responsibility for delivering the Government's policy objectives on school governance. The bill and the 2014 act do not change the responsibilities of local authorities. It will still be the case that the duty to provide the named person service will rest at local authority level. Despite the fact that more powers are going in autonomy to the headteachers in individual schools, has there been some consideration of shifting that responsibility to schools and to headteachers? Has there been a conversation about whether it would be a good idea or not? We, as officials, have been having discussions around the impact, as you would expect us to do, about the impact of our respective policies on each other, but the Government's policy intention has not changed. This is clearly an issue that the Joanne will be raising with the cabinet secretary when he comes here in the cabinet. The question is about the financial memorandum. You referred to that earlier when you said that, obviously, there has to be a satisfaction that there is sufficient resources and money available to ensure that those who are delivering the named person service are professionally competent. Can I ask about what plans you have for that on an on-going basis in terms of the costs that you see accruing as a result of this policy? As I understand it, those professionals are now going to be in a position of having to make a judgment about whether to share information, rather than having a duty of requirement to put on them. That means that, to make that judgment, I believe that they have to have a knowledge of the law, and they will have to be very competent when it comes to weighing up the merits under the wellbeing concern of whether to share that information or not. That is quite substantial training. Given that people are very busy and not necessarily trained as lawyers, what financial consideration has been given to that training? So, as I said in my opening statement, £10.2 million has already been invested in supporting those who will have responsibilities for the named person service ready themselves for implementation. Again, as I said, those organisations had confirmed with the Government ahead of August 2016 that they were ready to be compliant with the law, as it was, under the 2014 act. As I have set out today, the bill makes changes in relation to information sharing only. It clarifies the relationship between what would be an amended 2014 act and the current law on data sharing, human rights and the law of confidentiality. On the basis of using the similar modelling that was used during the progress of the 2014 act, the Government has identified a further £1.2 million that will be invested in the year 2018-19 to develop that training. To ensure that it becomes embedded within the normal CPD and supervision requirements, persons who are taking on new responsibilities will already undertake it. Our expectation is that it will be a one-off investment and that training will become part of the regular and ordinary professional development and supervision. Can I clarify why it would be a one-off investment given that new named persons would require to have on-going training? That is the case in relation to how services deal with a turnover of their staff now. The additional funds that are being invested are to ensure that the training methodology and the practice materials that we will require to support that training are in place. Is there no financial predictions for the on-going costs beyond 2018-19 with the additional £1.2 million? As I have said, we have utilised the same methodology that was applied for the 2014 act and we will be putting in place the finances that are required to ensure that that training and that backfill can be made in 2018-19. However, as the financial memorandum sets out, the expectation is that that will be a one-off investment with that training becoming part of the normal professional development and supervision requirements that those professionals engage with already. In that case, can I draw the session to closing to thank Mr Burton and Mr Patterson for their attendance and for fairness? We now move into private session and allow a few months for the witnesses in the gallery to leave and we will also have a five-minute break.