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SP Paper 458

ED/S2/05/R10

10th Report, 2005 (Session 2)

Stage 1 Report on the Joint Inspections of Children's Services and Inspection of
Social Work Services (Scotland) Bill

CONTENTS

REMIT AND MEMBERSHIP

REPORT

ANNEXE A – REPORT FROM SUBORDINATE LEGISLATION COMMITTEE

ANNEXE B – EXTRACTS FROM MINUTES AND ASSOCIATED ORAL EVIDENCE

Remit and Membership

Remit:

To consider and report on matters relating to school and pre-school education, young people and social work and such other matters as fall within the responsibility of the Minister for Education and Young People.

Membership:
Iain Smith (Convener)
Wendy Alexander
Rosemary Byrne
Lord James Douglas-Hamilton (Deputy Convener)
Fiona Hyslop
Mr Adam Ingram
Mr Kenneth Macintosh
Mr Frank McAveety
Dr Elaine Murray

Committee Clerking Team:

Clerk to the Committee
Eugene Windsor

Senior Assistant Clerk
Mark Roberts

Assistant Clerk
Ian Cowan

Stage 1 Report on the Joint Inspections of Children's Services and Inspection of
Social Work Services (Scotland) Bill

The Committee reports to the Parliament as follows—

  1. The Joint Inspections of Children’s Services and Inspection of Social Work Services (Scotland) Bill was introduced to the Parliament on 28 October 2005. The Education Committee was designated as the lead Committee at stage 1, and this report presents the views of the Committee on the general principles of the Bill as required under Rules 9.6.1, 9.6.2 and 9.6.3 of the Parliament’s Standing Orders. At its meeting of 16 November 2005, the Parliamentary Bureau agreed that Stage One consideration of the Bill should be completed by 7 December 2005, within six weeks of its introduction.

  2. The Joint Inspections of Children’s Services and Inspection of Social Work Services (Scotland) Bill comprises two discrete parts.

  3. Part One provides for Scottish Ministers to have powers to require certain public bodies (HM Inspectorate of Education, the Social Work Inspectorate Agency, Scottish Commission for the Regulation of Care, HM Inspectorate of Constabulary and HM Inspectorate of Prisons and special health boards constituted under the National Health Service (Scotland) Act 1978) to conduct joint inspections of children’s services. These inspections can examine all children’s services in an area, certain kinds of children’s services or focus on the services provided for individual children. The Bill, if passed, will enable Scottish Ministers to add to the list of public bodies by means of regulation. Part One also contains the provisions for the Scottish Ministers to have powers to make regulations (subject to affirmative procedure) to enable the sharing, explanation and holding of information relevant to a joint inspection, to provide for power of entry in pursuit of a joint inspection and to create offences relating to the enforcement of the regulations.

  4. Part Two provides for Scottish Ministers to have powers to appoint social work inspectors to inspect social work services. These provisions replace section 6 of the Social Work (Scotland) Act 1968 and provide the Social Work Inspection Agency with powers to carry out inspections of all aspects of social work services in exactly the same way that it currently can carry out inspections of specific social work services under the Social Work (Scotland) Act 1968. The precise definition of social work services will be made by regulation but will include services provided by or for local authorities. In a similar way to the powers in Part One in relation to children’s services, Part Two, if passed, will provide social work inspectors with powers to examine, share and hold information relevant to their inspections and powers of entry to relevant premises. Scottish Ministers will also gain powers in relation to the creation of related offences. Regulations in respect of the exercise of these powers will be subject to affirmative procedure.

  5. the need for legislative change

  6. As noted in paragraph 1, the timescale for Stage 1 consideration of this Bill is highly compressed. The Minister for Education and Young People outlined the need for this accelerated timescale to the Committee at its meeting on 9 November 2005.

  7. The development of joint inspections is one element of the Scottish Executive’s wider policy drive to reform child protection and improve the integration of all services that support children. In 2001, the report It’s everyone’s job to make sure I’m alright recommended a national implementation team to take forward the recommendations in the review, and a further national review of child protection to be undertaken by a multi-disciplinary inspection team using the report as a baseline against which progress can be assessed.

  8. In its 2004 inquiry into child protection, the Education Committee acknowledged the complexity of the task of multidisciplinary inspections but expressed its disappointment that a complete multidisciplinary inspection of children's services and child protection would only be completed seven years after the publication of It's Everyone's Job To Make Sure I'm Alright and recommended that the Scottish Executive consider whether legislative change could accelerate this timetable.

  9. In March 2004, Scottish Ministers announced that HM Inspectorate of Education would lead a programme of joint inspections of child protection services in all 32 local authorities and establish fully integrated inspections of all children’s services by 2008. The proposed approach to joint inspection was trialled in the Tayside Health Board area during 2004 and subject to public consultation over the following winter.

  10. During May 2005, two pilot joint inspections were conducted in Highland and East Dunbartonshire to test the robustness of the proposed methodology. These pilots were largely successful. However, they generated one area of fundamental concern. This was the question of whether it was lawful for health boards to permit inspectors to have access to the health records of individual children and whether those records could be discussed with health professionals.

  11. As a consequence, HM Senior Chief Inspector of Education, who had been given responsibility by Ministers to put in place a child protection inspection process, was not in a position in which he could confidently say that the process, operating within the existing legislation, would give assurance about whether children in a particular area were being protected. HMIe therefore approached Scottish Ministers with the advice that in order to proceed, there was a need for legislation to resolve the issue of access at the specific interface between health and the other services.

  12. This legislation had to ensure that such information for individual children could be accessed, shared and discussed in a way that was compliant with European Convention on Human Rights (Human Rights Act 1998) and Data Protection Act 1998 requirements.

  13. In its monitoring of the Scottish Executive’s child protection reform programme over the last two years, the Committee has frequently reiterated its belief that the momentum of change towards a more child-centred approach to child protection must be maintained and preferably accelerated, and expressed concern in its child protection inquiry report that there had been delay in implementing joint inspections. The Committee therefore continues to support the recommended joint inspections as an essential step to ensure initially better child protection and, ultimately higher quality children’s services.

  14. The Committee understands and appreciates the need for part 2 of the Bill. The Committee heard evidence from Social Work Inspection Agency that it would not have been able to undertake the recent Western Isles investigation without the consent of the local authority.

  15. Evidence

  16. The Committee regrets that the Parliament has had to fast-track legislation required to resume the implementation of joint inspections, but understands the practical reasons for this. The Committee thanks all those who were able to provide oral and written evidence on the general principles of the Bill at extremely short notice.

  17. The Committee took oral evidence on the Bill at its meetings on 9, 16 and 23 November 2005. The Committee called for written evidence on 10 November 2005 and by the closing date of 18 November 2005 had received a total of 35 submissions.

  18. The Committee notes and appreciates the Scottish Executive’s efforts to assist its scrutiny of the general principles of the Bill by making draft regulations and a draft protocol on Access to Health Information available to it.

  19. Oral evidence

  20. On 9 November 2005, Peter Peacock MSP, the Minister for Education and Young People, Graham Donaldson, HM Senior Chief Inspector of Education and Maureen Verrall and Jackie Brock, Education Department, Scottish Executive gave evidence to the Committee. The purpose of this evidence session was to outline the need for the compressed timescale sought by the Executive for the Bill’s passage through Parliament.

  21. On 16 November 2005, the Committee took evidence from Graham Donaldson and Neil McKechnie of HM Inspectorate of Education, Jan Warner of NHS Quality Improvement Scotland and Gill Ottley and Alastair Gaw of the Social Work Inspection Agency.

  22. The final evidence session was held on 23 November 2005 and comprised three panels. The Committee took evidence from a panel of witnesses from the medical profession: Morgan Jamieson, National Clinical Lead for Children and Young People's Health in Scotland, David Love, British Medical Association, Jane O’Brien, General Medical Council, Jenny Bennison, Royal College of General Practitioners and Helen Hammond, Royal College of Paediatrics and Child Health. Subsequently, the Committee took evidence from Jacquie Roberts and Ronnie Hill of the Scottish Commission for the Regulation of Care. The Committee concluded its oral evidence sessions with evidence from Peter Peacock MSP, Minister for Education and Young People, Robert Brown MSP, Deputy Minister for Education and Young People and Maureen Verrall and Jackie Brock, Education Department, Scottish Executive and Andrew MacLeod, Health Department, Scottish Executive.

  23. The Committee’s decision to hear views from a range of medical professionals was based on the fact that access to and sharing of individual’s health information was the key area that had generated the requirement for legislative change (see paragraph 10 above) and was the main area of debate surrounding the Bill.

  24. Written evidence

  25. As noted above, the Committee received a total of 35 pieces of written evidence. 32 organisations and three individuals submitted written evidence. The 32 organisations which submitted written evidence are: Aberdeen City Council, Aberdeenshire Council, Aberlour Childcare Trust, Association of Directors of Social Work, Ayrshire and Arran NHS Board, Barnardo’s Scotland, British Association of Social Workers, British Medical Association, Childline Scotland, Children First, COSLA, General Medical Council, HIV Scotland, HM Inspectorate of Constabulary, Information Commissioner, NCH Scotland, NHS Highland, NHS Tayside, Orkney Islands Council, Royal College of General Practitioners, Royal College of Paediatrics and Child Health, Save The Children, Scottish Child Law Centre, Scottish Children’s Reporter Association, Scottish Commission for the Regulation of Care, Scotland’s Commissioner for Children and Young People, Scottish Consumer Council, Scottish Out Of School Network, Scottish Social Services Council, Shetland Islands Council, West Dunbartonshire Council and Youthlink Scotland. The three individuals who submitted written evidence are: Stella Everingham, Gordon McLaren and Lorna Watson.

  26. There was overwhelming support for the principle of multidisciplinary joint inspections to drive forward best practice and improvement and review multi-disciplinary working across children’s services and deliver essential quality assurance. ‘

  27. A significant theme in many of the written responses was concern over the extent and adequacy of the consultation that had taken place prior to the Bill’s introduction and the pace at which it was being progressed through its Parliamentary stages. In contrast, COSLA, the Scottish Children’s Reporters Association and West Dunbartonshire Council believed that there had been adequate consultation. A number of respondents (Aberdeen City Council, Barnardo’s Scotland, British Medical Association, Save The Children and Scotland’s Commissioner for Children and Young People) suggested that consultation on the Bill should have incorporated consideration of the views of children and young people. The Information Commissioner, who regulates the implementation of the Data Protection Act 1998, expressed disappointment at not having been fully consulted during the drafting of the Bill. Given the potential implications of widening access to individual health records, the British Medical Association suggested that a significantly wider public debate should be held.

  28. The dominant area of concern in the written submissions received was over access to individual children and young people’s health records and the potential threat this posed to the confidential relationship between patients and health professionals. Concern over the absence of any requirement to seek explicit consent for access to medical records was expressed in over half of the written submissions. Aberlour Childcare Trust, Barnardo’s Scotland and Scotland’s Commissioner for Children and Young People suggested that the protocol on Access to Health Information should state that seeking of explicit consent should be viewed as best practice. The General Medical Council and the Royal College of Paediatrics and Child Health stated that operating without consent should occur only for very specific reasons and should be the exception rather than the rule but recognised that there may be circumstances where it may not be possible or desirable to seek consent. The British Medical Association also noted that there may be misconceptions about the type of information held in medical records, and it may not be necessary to access individual patient records in order to gain the information required for inspections.

  29. A related concern was how access to children and young people’s health records could be obtained without getting unnecessary and unconsented access to information on third parties’ health records, for example, parents or other adult relatives. However, others (Association of Directors of Social Work, Barnardo’s Scotland) felt that access to third party information was essential as it could provide valuable background to a particular case. The British Association of Social Workers suggested that the Children’s Hearings definition of those "living in the household" and "relevant person" should be adopted in determining whose health records should be available to a joint inspection.

  30. A joint response from seven organisations (Childline Scotland, Children First, Save the Children, Scottish Child Law Centre, Scottish Consumer Council, Scottish Women’s Aid, Who Care? Scotland) was concerned about the implications for police officers acting as inspectors and whether their duty to report evidence of a crime (even in the case of retrospective identification in connection with related or unrelated potential crimes) conflicted with the planned use of information only for inspection process. The Committee notes the comments received in a letter from the Minister, which indicates that ‘further thought’ will be given to this issue.

  31. A number of respondents (Royal College of Paediatrics and Child Health, Scotland’s Commissioner for Children and Young People and Youthlink Scotland) suggested that the Bill should require inspections to take into account the views of children and young people.

  32. Children First argued that legislation alone would be insufficient to ensure partnership working and expressed concern that agencies’ restricted resources were constraining the delivery of their existing remits.

  33. Childline Scotland stressed the unique nature of its service and expressed profound concern that it would be jeopardised by the existence of the joint inspections process, given its foundation on absolute confidentiality and its status as a non-statutory body.

  34. A number of respondents (Aberdeen City Council, Association of Directors of Social Work, HIV Scotland and Gordon McLaren) noted an apparent anomaly between Parts One and Two of the Bill with regards to the medical qualifications of inspectors. In Part One of the Bill, all inspectors involved in a joint inspection would have access to individual health records. In contrast, in Part Two of the Bill, only medically qualified inspectors would have such access.

  35. A range of views was expressed regarding the definition of a "child" and of "children’s services". Aberdeenshire Council noted that in other legislation a married 17 year old would not be treated a child while others over the age of 18 but subject to compulsory supervision via a children’s panel would still have child status. The British Association of Social Workers suggested that the upper age limit should be 21 as throughcare provision for those in public authority care extends the definition of a child to 21. The Scottish Child Law Centre was concerned that the definition of child extended beyond 16 as only children under 16 (except looked after children) can be the subject of child protection. Scotland’s Commissioner for Children and Young People expressed concern that the scope of children’ services was defined in terms of community planning as defined in the Local Government in Scotland Act 2003 rather than from the perspective of children.

  36. PART ONE – Children’s Services

    The process of joint inspection

  37. A joint inspection would be led by HM Inspectorate of Education (HMIe). The Inspectorate would co-opt associate inspectors representing the Social Work Inspection Agency, the Scottish Commission for the Regulation of Care, HM Inspectorate of Constabulary, (likely to be a seconded officer at the level of Inspector) NHS Quality Improvement Scotland into an inspection team. The total numbers of inspectors involved in a joint inspection would depend on the size of the local authority area involved but would typically be five or six. Notification of a joint inspection and a pre-inspection return requesting detailed information about child protection services would be sent out to the relevant agencies and organisations 12 weeks before a joint inspection.

  38. There appeared to be a degree of confusion in the written evidence received as to whether the private and voluntary sectors were to be included in joint inspections. Certain organisations (Association of Directors of Social Work, British Association of Social Workers, Childline Scotland, Children First and Youthlink Scotland) questioned whether the voluntary and private sector providers of children’s services for local authorities would be included within the scope of the inspections. In contrast, NCH Scotland interpreted the Bill as applicable to voluntary and private sector providers. Following evidence from the Minister the Committee on this point, the Committee understands that children’s services which are provided by the private and voluntary sector under contract to local authorities will be subject to joint inspection under the Bill.

  39. Procedures developed to date relate to the inspection of child protection services only, although the Bill, if passed, will enable inspection of children’s services generally. For the purposes of a child protection inspection, the pre-inspection return contains detailed organisational information and anonymised information about all children who have been placed on or removed from the child protection register in the previous 12 months, children who have been referred to social work services, the police or the children’s reporter or have caused concern to health visitors.

  40. Based on the pre-inspection return, a sample of cases is selected and inspectors inspect anonymised case files and interview key individuals. Following this initial general phase, a second, more detailed phase is undertaken which involves interviewing key managers and professionals, interviewing children, young people and their families, observing meetings and visiting relevant voluntary organisations and projects.

  41. One week after this second phase has been completed, verbal feedback is provided to all the relevant agencies and organisations and the draft report is shared with them. The final report is completed 12 weeks after the joint inspection has been completed. It is important to note that recommendations arising from joint inspections are focused on how children can best be protected and therefore may relate to individual services rather than purely how those services interact with each other.

  42. Balancing the need for inspection of children’s services and individual confidentiality

  43. The Committee strongly supports the planned roll-out of joint inspections as a mechanism for improving the quality of all services that affect children and young people and the way in which services work together for the benefit of children and young people. As noted above, the initial focus of the joint inspections regime will be on child protection. The Committee notes that investigations into some of the tragic incidents affecting children that have occurred in the past have revealed profound failures at the interface between organisations.

  44. The dominant focus of concern regarding the provisions of the Bill is the fact that, if passed, it will give inspectors powers to examine individual children’s health records with no requirement to gain consent. From this perspective, Part One of the Bill presents the Committee with the dilemma of identifying the correct balance between the need to secure the highest possible quality children’s services through the joint inspection regime with the need to ensure that patient confidentiality and trust in the relationship with health professionals are not unnecessarily compromised. Ensuring effective, quality services is a particularly strong concern with regard to child protection issues. Furthermore, there is a need to ensure that health professionals themselves are reassured about the process of joint inspection, and in particular that its implications relate only to children’s services and are directed at improving those services. To this end, there is a need for a concerted consultation and communication effort to ensure that all professionals involved, in any way, in the joint inspections process are supportive of its aims and the processes that will be followed.

  45. The Committee notes that the rationale behind the joint inspections process and therefore, for the Bill, is to audit child protection and improve children’s services rather than to review individuals’ health records, although this is a necessary consequence of ensuring effective inspections.

  46. Confidentiality and consent

  47. As noted above in paragraphs 24 and 25, the main area of concern expressed to the Committee was over the confidentiality of individual health records and whether access to them by inspectors should require explicit consent. It should be noted that health professionals already have a responsibility to share information where they consider there is a risk of serious harm to an individual, for example, where a child is believed to be exposed to the risk of abuse. The issue for the Committee is whether examination and discussion of health records during inspection are sufficiently important to outweigh the generally accepted good practice of seeking explicit consent to examine health records. The Committee notes that the balance of the argument may shift when considering child protection issues, but notes that the Bill relates to all children’s services.

  48. The British Medical Association and the Royal College of General Practitioners had serious reservations about the Bill, and told the Committee that passing the Bill quickly would be counterproductive. They were concerned that it would make health professionals defensive and that this would make inspection interviews less helpful. However, the Royal College of Paediatricians considered that there is a need for urgency - a need which paediatricians are particularly aware of due to their involvement in cases that have led to the child protection reform programme.

  49. The British Medical Association was sceptical of the value to the inspection process of information contained in general practitioners' records. On the other hand, the Royal College of Paediatricians emphasised the need to take a '360 degree' look not only at general care of a child but also at communications with other agencies, as child protection inquiries had shown that tracking the chronology of events is critical to showing where systems had failed or, conversely, had worked well. This would be impossible without joint inspections and examination of all relevant records. There was a desire among paediatricians to contribute to the joint inspections process and to make it more effective for children.

  50. Confidentiality

  51. The Committee heard evidence suggesting that there should be a provision in the Bill that expressly places a duty of confidentiality on inspectors with regard to individual health records. The Committee also received submissions arguing that the Bill should provide explicitly that individual health records may only be used for the purposes of particular joint inspections.

  52. The Committee notes that the Health and Social Care (Community Health and Standards) Act 2003 created criminal offences in England and Wales in relation to unlawful disclosure of individual health records. It was suggested to the Committee that provision for similar offences in this Bill would afford some reassurance regarding the seriousness of the need for confidentiality of individual records. The Committee notes that serious disciplinary sanctions already exist against inspectors who do not respect the confidentiality of individual records and notes that the Minister, in a letter to the Committee, has indicated that he does not consider it necessary to create new offences.

  53. The Committee accepts the Minister’s position on this point, but considers that amendment of the Bill to place a duty of confidentiality on inspectors would provide the added reassurance sought. The Committee therefore welcomes the Minister’s commitment to give serious consideration to the proposal.

  54. The Committee further recommends that the Scottish Executive considers whether individual health records should be treated any differently from other individual records considered by a joint inspection.

  55. The Committee notes that the joint inspections process could allow members of joint inspection team retrospective access to information that, conceivably, could indicate the occurrence possible criminal offences. Given that police officers (as members of a joint inspection team) would be obliged to report this, individuals could potentially be liable to prosecution as a result of information revealed by a joint inspection. The Committee invites the Scottish Executive to consider the implications of this possibility.

  56. Consent

  57. A dominant view in the written evidence that the Committee received was that explicit consent for access to children and young people’s health records should, optimally, always be sought. At the very least, it was considered by many that explicit consent should be seen as best practice while acknowledging that, in certain circumstances, it would not be feasible or in the best interests of the individual involved. The Committee heard in evidence that, in child protection cases, revisiting past trauma for the purposes of gaining explicit consent may not be in the interests of the child and that for young children in particular consent would need to be sought from the parent. This could raise difficult issues, in particular with regard to past child protection cases. However, the Committee also heard that the Bill as drafted could mean that 17 year olds would not be asked for consent and that there may be fewer difficulties around consent where child protection was not an issue. In addition, the Committee heard a view that it may not be advisable to have consent in some cases but not in others.

  58. The Committee notes the recently agreed Code of Confidentiality between the Scottish Executive and the Scottish General Practitioners Committee of the British Medical Association. The Committee recommends that the protocol which provides detail on access to health information should adopt a similar approach to the Code of Confidentiality about informing patients about the use of health records, which would mean that their consent had been given unless they specifically indicated otherwise – so-called ‘implied consent.’ The Bill should make provision for an opt-out for patients who do not wish their health records to be accessed.

  59. A number of written submissions noted the apparent discrepancy between Parts One and Two of the Bill regarding the need for medical qualifications for access to health information (see paragraph 30). It was proposed by some of the evidence submissions that only medically qualified members of joint inspection teams should be able to view individual health records (as is the case with social work inspections as specified in Section 5(3)(c) of the Bill). The Committee notes the Minister for Education and Young People’s view that restricting access only to medically qualified members of joint inspection teams would not be helpful in the context of seeking to develop a genuinely multidisciplinary approach to inspection.

  1. The Committee recommends that the Scottish Executive clarifies the justification for the discrepancy regarding the need for medical qualifications between Parts One and Two.

  2. Child protection and wider children’s services

  3. It was suggested by some witnesses that there is a degree of ambiguity over where the boundary between "child protection services" and "children’s services" lies. Much of the justification for the Bill’s urgency has been based on the need to complete the joint inspections of child protection services by 2008. There may be a case for limiting the scope of joint inspections purely to "child protection services" in order to provide reassurance about the focus of joint inspections. However, the Committee believes that it is inappropriate to attempt to set out in statute the boundary between child protection and wider children’s services. This is because it may be the cases of those children who, for some reason, do not appear on the "at risk" register but who nevertheless may be "at risk" which may reveal problems at an institutional or systemic level. The Committee therefore considers that it is essential that Part One of the Bill applies across all children’s services and does not accept the argument that it should be apply only to child protection services.

  4. Definition of "child"

  5. As noted in paragraph 31 above, written evidence suggested some possible ambiguity regarding the definition of a "child" as being a person below the age of 18. The Committee recommend that the Scottish Executive clarifies why the Bill specifies the age of 18 in the light of the written evidence received.

  6. Retrospective reviews of past cases during a joint inspection could also mean that an individual’s status had changed from child (however defined) to adult during the time that had elapsed between the individual’s contact with the child protection system and the date of the joint inspection. The inspectors would therefore be able to access the medical records of an adult in respect of events that occurred when he or she was a child. The Committee recommends that the Scottish Executive considers the implications of such a situation prior to Stage Two.

  7. The Committee heard some evidence that questioned whether it may also be beneficial to allow similar inspections of services for vulnerable adults. However, the Committee also heard strong views that it would not be advisable to extend joint inspections powers in this way. The Minister for Education and Young People was clear that he had no immediate intention of extending the joint inspections approach beyond children’s services.

  8. Recommendations arising from a joint inspection

  9. As drafted, the Bill contains no provisions under which Scottish Ministers may require the implementation by the relevant agencies of any recommendations contained within a joint inspection report. The Committee noted that the Minister considered that he had most of the powers required in this respect and did not consider that it was necessary to take new powers at present.

  10. The Committee notes this position but considers that there remains a lack of clarity on whether or not the full range of required powers is available to Ministers. The Committee therefore calls on the Scottish Executive to clarify the situation more fully before the full roll-out of the programme of joint inspections.

  11. Terminology

  12. Within the Bill and its associated draft regulations and protocol, there are a range of references to "medical records", "relevant medical records", "health information" and "relevant health information". The Committee notes the explanation provided by the Minister in a letter to the Committee of why such variations in terminology are required Nevertheless the Committee considers that it remains unclear what records are being referred to in different sections of the Bill. The Committee would ask the Minister to clarify whether or not ‘medical records’ includes those records kept by non-medically qualified professionals, for example health visitors.

  13. Review of joint inspections regime

  14. As noted in paragraph 8, the aim of is to complete joint inspections of all child protection services by 2008. The Committee recommends that prior to the extension of the joint inspections approach to all children’s services a review is conducted of the practice of the joint inspections process, the protocols that govern it and the primary and secondary legislation.

  15. PART TWO – SOCIAL WORK SERVICES

  16. The Social Work Inspection Agency came into existence on 1 April 2005. Its aim is to promote excellent social work services and generate improvements in standards and quality. Its existing legislative framework is based on the Social Work (Scotland) Act 1968 which provides it with powers to inspect specific aspects of social work services. It has may carry out general inspections of local authorities’ social work services but these may only be conducted with consent. Part Two of the Bill contains provisions to equip the Social Work Inspection Agency with statutory powers to conduct general inspections currently conducted with the consent of the relevant local authority.

  17. Although the responsibilities and spheres of operation of the Scottish Commission for the Regulation of Care and the Social Work Inspection Agency are related, there are very distinct differences. The Scottish Commission for the Regulation of Care focuses on the inspection of individual services—for example children’s homes and residential care homes—provided by the private, voluntary and local authority sectors. The Social Work Inspection Agency inspects the social work services provided by local authorities. An analogy can be drawn with the dual inspection roles performed by HM Inspectorate of Education which has responsibilities both for inspecting individual schools and the strategic function of local authorities as education authorities.

  18. The Social Work Inspection Agency and the Scottish Commission for the Regulation of Care have developed a memorandum of understanding to ensure that their respective inspection programmes complement each other, and are using the existing model of joint HM Inspectorate of Education / Scottish Commission for the Regulation of Care as a basis for future coordination.

  19. SUBORDINATE LEGISLATION

  20. Under Rule 9.6.2, the Committee is required to report on provisions conferring powers to make subordinate legislation. The Committee thanks the Subordinate Legislation Committee for its thorough scrutiny of the delegated powers in the Bill and notes its recommendations.

  21. The Subordinate Legislation Committee’s first recommendation relates to Section 2 of the Bill which confers a power on Scottish Ministers to direct any person or body not listed or specified in an Order under Section 1 to participate in the conduct an inspection. The Committee endorses the Subordinate Legislation Committee’s concerns over the breadth of this power and recommends that the Scottish Executive justify fully the need for it prior to Stage Two consideration.

  22. The Subordinate Legislation Committee’s second recommendation relates to Section 3 of the Bill which provides for the power to create new offences through regulations. The Committee supports the Subordinate Legislation Committee’s view that offences should be created within primary legislation and recommends that the Scottish Executive seeks to amend the Bill to address this concern.

  23. The Subordinate Legislation Committee’s third recommendation relates to the definition of "social work services" in Section 7 of the Bill, which is left to subordinate legislation in the Bill. Although the regulations, will be subject to affirmative procedure, the Committee shares the Subordinate Legislation Committee’s concerns and looks forward to the Scottish Executive’s response prior to Stage Two.

  24. The Subordinate Legislation Committee’s fourth recommendation refers to the absence of any transitional arrangements arising from repeals of primary legislation. The Committee welcomes the Scottish Executive’s commitment to consider the need for transitional arrangements before Stage Two.

  25. Finally, the Subordinate Legislation Committee noted its concern that there was no provision relating to confidentiality in Bill. The Committee fully endorses the concern regarding the absence of a provision in relation to confidentiality, and calls on the Scottish Executive to consider seeking to amend the Bill to provide for a duty of confidentiality with regard to individual health records. (see paragraph 45).

  26. PROTOCOL ON ACCESS TO HEALTH INFORMATION

  27. As noted above, access to health information will be governed by a protocol. The Committee recommends that this protocol is subject to parliamentary scrutiny following public consultation and calls on the Scottish Executive to amend the Bill to provide for such scrutiny.

  28. FINANCIAL MEMORANDUM

  29. The Finance Committee adopted its lowest level of scrutiny for the Bill as it considered the financial implications of the Bill to be minimal. The Finance Committee sent its standard questionnaire to organisations on whom costs would fall. The Finance Committee received responses from HM Inspectorate of Education, HM Inspectorate of Constabulary, Social Work Inspection Agency and the Scottish Commission for the Regulation of Care. These responses were considered by the Committee.

  30. The Committee was satisfied by the Bill’s Financial Memorandum.

  31. POLICY MEMORANDUM

  32. Rule 9.6.3 requires the Committee to report on the Bill’s Policy Memorandum. The Committee is, overall, satisfied with the Bill’s Policy Memorandum in terms of Rule 9.3.3(c). However, the Committee notes that the impression given by paragraph 11 of that document on consultation that the Scottish Executive undertook prior to the Bill’s introduction is not entirely supported by the written evidence that the Committee received (see paragraph 23 above).

  33. CONCLUSION

  34. In considering the general principles of the Joint Inspections of Children’s Services and Inspection of Social Work Services (Scotland) Bill, the Committee has been mindful of the need to balance the right of individuals to a confidential relationship with health professionals with a need to ensure that the most vulnerable children in society are effectively protected.

  35. The Committee hopes that the areas that it has identified in this report will serve to alleviate some of the concerns that have arisen regarding the extent of the powers available under this legislation and the proposed joint inspections regime. On the basis that its recommendations are fully considered, the Committee recommends that the Parliament agrees that the general principles of the Joint Inspections of Children’s Services and Inspection of Social Work Services (Scotland) Bill be approved.

ANNEXE A

Subordinate Legislation Committee Report

Remit and membership

Remit:

1. The remit of the Subordinate Legislation Committee is to consider and report on-

(a) any-

(i) subordinate legislation laid before the Parliament;

(ii) Scottish Statutory Instrument not laid before the Parliament but classified as general according to its subject matter,

and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation; and

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation.

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Dr Sylvia Jackson (Convener)
Mr Adam Ingram
Gordon Jackson (Deputy Convener)
Mr Kenneth Macintosh
Mr Stewart Maxwell
Murray Tosh

Committee Clerking Team:

Clerk to the Committee

Ruth Cooper

Senior Assistant Clerk

David McLaren

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Catherine Fergusson

Subordinate Legislation Committee

Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill at stage 1

The Committee reports to the lead Committee as follows—

Introduction

The Committee considered the delegated powers in the Joint Inspection of Children’s Services and Inspection of Social Work Services (Scotland) Bill at its meetings of 8 and 15 November 2005. The Committee submits this report to the Education Committee, as the lead committee for the Bill, under Rule 9.6.2 of Standing Orders.

The Executive provided the Committee with a delegated powers memorandum (a "DPM") for the Bill, which is reproduced at Annex 1.

The Committee’s correspondence to the Executive and the Executive’s response to points raised are reproduced at Annex 2.

Delegated Powers Provisions

The Committee considered each of the delegated powers provisions in the Bill and reports as follows—

Section 1(6)(g) – Joint inspection of children’s services

This provision allows the Scottish Ministers to specify in an order persons or bodies, other than those listed in section 1(6)(a) to (f), to which section 1 of the bill applies. The Committee noted that the DPM states that "the power to amend the list by order will allow the list to be updated as required without recourse to primary legislation". The power as drafted allows for the addition of persons or bodies but does not allow for the removal of those previously specified and the Committee therefore sought clarification. The Executive explained that it did not wish to take a power to remove persons or bodies from the list as, given the nature of the specified persons and bodies, this would only arise in the context of new primary legislation. Amendment of the list would therefore be dealt with by way of consequential amendment in new legislation. The Executive acknowledged that the DPM was misleading in this respect. The Committee was content with the Executive’s explanation of this matter.

Section 2 – Participation in inspections

The Committee noted that, under section 2, the bill confers power on Ministers to direct any person or body not listed or specified in an Order under section 1 to participate in the conduct of an inspection. The Committee considered this a very wide power to modify the inspection provisions of the bill.

In response to the Committee’s concerns, the Executive explained that the powers granted under this provision would be no greater than those available to the persons and bodies specified under section 1(6)(a) to (g). The Executive also pointed out that under section 2(2) Ministers may further limit the powers available.

The Committee remained concerned at the width of this power and in the absence of clarification from the Executive as to its use, agreed to draw it to the attention of the lead Committee for its consideration. The Committee considered that there may be policy considerations involved and that the lead Committee may wish to satisfy itself that the Executive’s has adequate reasons for taking this wide power.

Section 3(1) – Regulations for purposes of joint inspection

Section 5(3) – Functions of inspectors

The Committee was concerned at the level of delegation at these sections of the bill, where regulations will set out substantive parts of the legislation. The Committee noted the Executive’s justification that this was due to the evolving nature of the regulations and the need for flexibility as the joint inspection programme matures. The Committee, however, agreed to report on two points. Firstly, the Committee was concerned that the power to create offences for the enforcement of provisions of the regulations should be delegated to the regulations themselves, as provided for at sections 3(1)(f) and 5(3)(g) of the bill. The Committee considers it preferable for offences to be created in an Act itself and whilst accepting that there may be an argument for delegation, agreed that as a minimum, a limit to the extent of the penalties that can be imposed should be included on the face of the bill. The Committee therefore draws the attention of the lead Committee to these provisions.

Secondly, the Committee was concerned to note that there is not provision to cover matters of confidentiality at these sections of the bill. Whilst it may be possible for issues to be covered by existing Data Protection legislation, this has not been made clear. The Committee considered that the lack of a confidentiality provision was linked to its concerns on the level of delegation, and considered it a matter for its own report. However, the policy implications and how this might fit with the policy intention of the bill, the Committee considered a matter for the lead Committee. The Committee therefore draws this to the attention of the lead Committee as a matter that may require further clarification from the Executive.

The Committee wished to report to the lead Committee on areas of concern in advance of its evidence session with the Minister but due to the short timescales has also raised the above points in correspondence with the Executive. The Committee has requested a response from the Executive in advance of the stage 2 debate on the bill.

Section 7 – Interpretation

The Committee was concerned that the definition of "social work services functions" at section 7 was entirely left to subordinate legislation. The Executive clarified that this power relates to local authority functions and is therefore not unlimited. The policy intention is to catch a wide range of local authority functions and the Executive pointed out that any regulations will be subject to Parliamentary scrutiny under affirmative procedure. However, the Committee again remained concerned at this level of delegation and has issued correspondence to the Executive proposing that a definition is included on the face of the bill, with a power to amend via subordinate legislation.

The Committee has also requested a response on this point in advance of stage 2 of the bill and draws the matter to the attention of the lead Committee.

Section 8 – Consequential amendment and repeals

The Committee noted that section 8 of the bill makes a number of consequential repeals of other primary legislation that will be superseded by the bill but that there was no provision for consequential or transitional arrangements as a result of these repeals. The Executive is content that a transitional provision is not required but is currently considering whether to include a provision for the making of further consequential amendments. The Committee draws this to the attention of the lead Committee for its information.

Joint Inspection of Children’s Services and Inspection of Social Work Services (Scotland) Bill

Purpose

1. This Memorandum has been prepared by the Scottish Executive to assist the Subordinate Legislation Committee in its consideration, in accordance with Rule 9.6.2 of the Parliament’s Standing Orders, of the Joint Inspection of Children’s Services and Inspection of Social Work Services (Scotland) Bill. It describes the purpose of those provisions conferring power to make subordinate legislation. The Memorandum explains why the matter is to be left to subordinate legislation and gives the reason for seeking the powers proposed.

Background to the Bill

Joint inspection of children’s services

2. The Scottish Executive set out in its Partnership Agreement of 2003 that it intends "to protect our most vulnerable children through a tough new inspection system for child protection services". In March 2004 Ministers announced there would be a new multi-disciplinary children’s services inspection team led by Her Majesty’s Inspectorate of Education (HMIE). Its first tasks would be to undertake inspections of child protection services in all 32 local authority areas and to put in place integrated inspections for all services for children, both by 2008. The inspectorates and agencies involved are HMIE, Social Work Inspection Agency (SWIA), the Scottish Commission for the Regulation of Care (Care Commission), Her Majesty’s Inspector of Constabulary (HMIC), the NHS Quality Improvement Scotland; (NHS QIS) and, to a lesser extent, Her Majesty’s Chief Inspector of Prisons for Scotland (HMIP).

3. There are three levels of inspection: strategic, operational, and individual (at the level of the service user). At this latter level, information that can be drawn from records held on the individual will be a key source of evidence in the evaluation of the effectiveness of children’s services. The Executive considers that it is essential therefore for the success of the planned programme of child protection inspections that the joint inspection team can access individual records from appropriate agencies (including health records) and that the holders of individual records are empowered to release them. Primary legislation is required to allow inspectorates to obtain and share all information about individuals which may be relevant to the particular inspection in question.

Inspection of social work services

4. The Social Work (Scotland) Act 1968 gives SWIA extensive powers in relation to inspection of certain types of residential setting for looked after children, and a power of inquiry into the functions of a local authority. However, SWIA does not have an express power to inspect social work services generally. It is proposed that this Bill gives SWIA specific powers of inspection for all social work services.

Policy objectives

5. Our objectives in giving inspectorates the powers to work together jointly and to access and share information, for the purpose of inspecting children’s services, are to support the improvement of children’s services; to enable a joint inspection team to focus on the outcomes achieved for children and to respect the confidentiality of individual children and their families. Our objective in relation to SWIA is to give the inspection agency the full range of powers to inspect social work services provided by or on behalf of local authorities.

Summary of legislative provisions

6. Part 1 of the Bill makes provision to enable the inspection of children’s services jointly by any two or more of the persons or bodies which are either listed in section 1(6) of the Bill or directed to participate under section 2(1).

7. Part 1 provides in particular for:

The inspection to be of all children’s services or such children’s services as are specified; the inspection to cover services in the whole of Scotland or in whatever part of Scotland is specified; and for it to be in respect of the provision of those services generally or of how those services were provided to an individual child or group of children.

The purpose of the inspection which is to review and evaluate the effectiveness of the provision of the services being inspected.

A regulation making power to give powers for the purpose of the inspection.

8. Part 2 of the Bill makes provision in relation to persons to be appointed by the Scottish Ministers as social work inspectors to carry out inspections of social work services.

9. Part 2 provides in particular for:

A power to Scottish Ministers to appoint social work inspectors.

Giving such inspectors the functions of conducting inspections of and investigations into the provision of social work services and encouraging improvements in those services.

A regulation making power to make further provision concerning the exercise of the inspection functions.

10. Part 3 of the Bill makes provision in relation to regulations to be made under the Bill, amendment and repeals of certain enactments consequent on the provisions of Part 2 of the Bill, interpretation and commencement.

Provisions conferring power to make subordinate legislation

Part 1 – Children’s services

Section 1(6) (g) – power to specify a person or body as one to which section 1 of the Bill applies

Power conferred on: the Scottish Ministers

Power exercisable by: order made by statutory instrument

Parliamentary procedure: negative resolution of the Scottish Parliament

11. This provision allows the Scottish Ministers to specify in an order persons or bodies other than those listed in section 1(6)(a) to (f) as persons or bodies to which section 1 of the Bill applies. The effect of being so specified is that the person or body can then be required by the Scottish Ministers to conduct an inspection, jointly with another such person or body, relating to the provision of children’s services.

Reason for taking power

12. The Bill lists what are considered at present to be the appropriate persons and bodies to conduct the child protection inspections. This list may, however, need to be changed both to take account of changes in the constitution of the persons and bodies presently listed and as a result of developments in the way that possible joint inspections of children’s services may be delivered in future. The power to add to the list is also included in case it becomes apparent that we have omitted to include a body or person which should have been included.

13. The power to amend the list by order will allow the list to be updated as required without having to have recourse to primary legislation. We consider that this is a matter more appropriately dealt with by subordinate legislation.

Reason for choice of procedure

14. The power is subject to the negative resolution procedure. The addition of a particular person or body to the list in section 1(6) has only the reasonably limited effect of enabling Ministers to require that person or body to take part in conducting a joint inspection. The basic nature of joint inspections, or of the powers available to any joint inspection team, will not change in consequence and the negative resolution procedure is accordingly considered by the Executive to be appropriate.

Section 3(1) – power to make regulations for the purpose of a joint inspection

Power conferred on: the Scottish Ministers

Power exercisable by: regulations made by statutory instrument

Parliamentary procedure: draft regulations to be laid and approved by affirmative resolution of the Scottish Parliament

15. Section 3 provides that regulations can be made for the following matters:

Requiring or facilitating the sharing or production of information (including medical records) for the purpose of an inspection under section 1 of the Bill. The term "medical records" is defined in section 7 of the Bill to mean "records relating to the physical or mental health of an individual". The inclusion of the reference to "medical records" is intended to be an indication of the intention to use this regulation making power to allow access to this type of information. It is considered necessary to avoid criticism of such use being an unexpected use of the power.

Requiring any person to provide an authorised person with an explanation of information produced to the authorised person. This is intended to enable provision which will require persons with information to meet and discuss it with those conducting the joint inspection.

Requiring information produced to an authorised person to be held in compliance with prescribed conditions and further disclosures to be made in compliance with such conditions. It is anticipated that provision will be made here in particular in relation to medical records. What is set down in regulations will have to be consistent with the terms of the Data Protection Act 1998. Such conditions as might be prescribed under this power will be relevant to this.

Empowering an authorised person to enter any premises for the purposes of an inspection under section 1 of the Bill.

Empowering an authorised person to disclose to a person prescribed any information of a prescribed nature which the authorised person holds in consequence of a joint inspection. It in anticipated that this will be used to enable information gathered in the joint inspection to be passed on to a relevant agency for further action if the joint inspection team uncovers (e.g.) evidence of abuse or misconduct in relation to which it considers that further action is required.

Creating offences for enforcing any provision of the regulations.

Reason for taking power

16. This power is required to allow Scottish Ministers to provide those conducting the inspections with sufficient powers to enable them to do so. We have given further explanation of the individual provisions at paragraph 15 above. In addition the Executive will provide during the Parliamentary stages of the Bill a draft of the regulations which it is proposed to make under this power.

17. It is considered that these powers should be set out in subordinate legislation rather than being set out in the Bill. The reason for this is that while we can set out in general terms the kinds of powers which we anticipate will be required, we consider that the exact detail of the powers is best left to subordinate legislation. The Bill introduces a new type of inspection in terms both of the joint working and the range of services being inspected. In view of this, we consider that the conduct of such inspections will inform the detail of the powers required. While the methodology for the joint inspection of child protection services has been consulted on, a further round of consultation is planned over 2006 for the joint inspection of children’s services which is due to begin in 2008. Accordingly, we consider that the powers may have to be refined as the inspections proceed and it would be preferable to have the capacity to do this without having to have recourse to primary legislation.

Reason for choice of procedure

18. Regulations under section 3(1) may contain provisions concerning the obtaining and handling of sensitive information about individuals. The Executive therefore considers it appropriate that affirmative resolution procedure should apply to these regulations.

Part 2 – Social work services

Section 5(3) – power to make regulations for the exercise of functions under section 5(1) of the Bill

Power conferred on: the Scottish Ministers

Power exercisable by: regulations made by statutory instrument

Parliamentary procedure: draft regulations to be laid and approved by affirmative resolution of the Scottish Parliament

19. Section 5(3) provides that regulations can be made for the following matters:

As to the types of inspection or investigation which may be conducted.

Requiring or facilitating the production by a social work service provider to an inspector of information (other than "relevant medical records"). The provision in paragraph (b) is limited to information held by a social work service provider and cannot enable production of "relevant medical records" which are defined in section 7 to mean medical records which have been prepared by a registered medical practitioner (within the meaning of section 2 of the Medical Act 1983) who is or has been, responsible for the clinical care of the individual to whom the records relate. Provision can only be made (under paragraph (c)) requiring or facilitating the production of such "relevant medical records" to a medically qualified inspector.

Requiring an explanation of information to be provided to an inspector. Our comments in relation to the similar provision in section 3 are relevant here.

Empowering an inspector to enter any premises.

Empowering an inspector to disclose to a person prescribed for the purposes of this paragraph any information of a prescribed nature which the inspector holds in consequence of conducting an inspection or investigation under section 5(1). Again our comments in relation to the similar provision under section 3 are relevant.

Creating offences for enforcing any provision of the regulations.

Reason for taking power

20. This power is required to allow Scottish Ministers to provide those carrying out the functions under section 5(1) with sufficient powers to enable them to do so. We have given further explanation of the individual provisions at paragraph 19 above. In addition the Executive will provide during the Parliamentary stages of the Bill a draft of the regulations which it is proposed to make under this power.

21. As is the case with joint inspections, we consider that the powers in connection with the functions of social work inspectors under Part 2 of the Bill may have to be refined from time to time. Again, it would be preferable to have the capacity to do this without having to have recourse to primary legislation. We therefore consider that subordinate legislation is also appropriate here. Subordinate legislation under Part 2 will also be subject to affirmative resolution procedure.

Reason for choice of procedure

22. As with regulations under section 3(1), section 5 regulations may contain provisions concerning the obtaining and handling of sensitive information about individuals. Once again, the Executive therefore considers affirmative resolution procedure to be appropriate.

Part 3 – General

Section 7 (definition of "social work services functions") – power to make regulations defining which local authority functions are to constitute "social work services functions"

Power conferred on : the Scottish Ministers

Power exercisable by: regulations made by statutory instrument

Parliamentary procedure: draft regulations to be laid and approved by affirmative resolution of the Scottish Parliament

23. The definition of "social work services functions" in section 7 contains within it power to prescribe in regulations which local authority functions are to be constitute social work services functions. Part 2 of the Bill is concerned with inspections of, and investigations into, the provision of social work services. A service is a social work service if provided by a local authority in the exercise of any of their social work services functions or provided by another person in terms of arrangements made by an authority in exercise of those functions.

Reason for taking power

24. Leaving the definition of what is to constitute a social work service function to be set out in regulations allows suitable flexibility so that, as the exact nature of, and the statutory basis for, relevant local authority functions develops in future, the regulations can be amended and the appropriate definition readily kept in line with changes. This will ensure that the coverage of Part 2 inspections can be readily kept in line with developments in the social work services field.

Reason for choice of procedure

25. This power is subject to the affirmative resolution procedure. This is considered appropriate since the definition of what functions are to be social work services functions is central to determining the scope of inspections and investigations under Part 2 of the Bill and the consequent scope of any compulsory powers provided by way of regulations under section 5(3).

SUBORDINATE LEGISLATION COMMITTEE CORRESPONDENCE

8 November 2005

Joint Inspection of Children’s Services and Inspection of Social Work Services (Scotland) Bill at Stage 1

The Subordinate Legislation Committee today considered the above bill and asks the Executive for explanation of the following matters.

Section 1(6)(g) – power to specify a person or body as one to which section 1 of the Bill applies

The Committee noted that according to the Memorandum, this power is required to update the list without having recourse to primary legislation. However, the Committee noted that the power is not a power to amend the list but to add to it and therefore seeks clarification on the Executive’s policy intention in relation to this power. The Executive is asked to comment.

Section 2 – power to specify a person or body as one to which section 1 of the Bill applies

The Committee noted that section 2 of the bill confers power on Ministers to direct any person or body not listed in or specified in an Order made under section 1 to participate in the conduct of an inspection. It appears to the Committee that there is no limit on the powers that can be exercised by such a person, and therefore that this section seems to confer a very wide power to modify the provisions of the bill, albeit in relation to a particular inspection. The Executive is asked to clarify this power.

Section 3(1) – power to make regulations for the purpose of a joint inspection

Section 5(3) – power to make regulations for the exercise of functions under section 5(1) of the Bill

The Committee examined whether the correct balance between primary and subordinate legislation has been achieved at these sections, given that the regulations will set out substantive parts of the legislation. The Committee seeks explanation from the Executive as to why it was decided that so much of the legislation would be laid out in these regulations, rather than on the face of the bill. The Executive is asked for clarification.

The Committee’s attention was also drawn to 3(1)(f), which permits the regulations to create offences without any limitation on the penalties that may be imposed. The Committee considers it preferable for offences in relation to breaches of regulations under an Act to be created in the Act itself and the Executive is asked to comment.

Section 7 (definition of "social work services functions") – power to make regulations defining which local authority functions are to constitute "social work services functions"

The Committee considered that the definition of "social work services functions" is a key provision of the bill and questioned whether it is acceptable to leave this matter entirely to subordinate legislation without any limitation. The Committee considered that such a definition should be on the face of the bill, as it considered that that there was scope for the regulations to go beyond the intention of the Bill. The Executive is asked to comment.

Section 8

The Committee noted that Section 8 of the Bill makes a number of consequential repeals of other primary legislation that will be superseded by the bill, but that there is no provision for transitional arrangements or consequential amendments in relation to those repeals. The Committee therefore asks the Executive if it is content that no such power is needed in this instance.

SCOTTISH EXECUTIVE RESPONSE

11 November 2005

Joint Inspection of Services for Children and Inspection of Social Work Services Bill

Thank you for your letter of 8 November and for the opportunity to comment on the Committee’s consideration of the above Bill.

Taking the Committee’s points in order:

Section 1(6)(g) – power to specify a person or body as one to which section 1 of the Bill applies

Para 2: Section 1(6)(g) provides for the addition to the list of persons or bodies that may be requested to carry out joint inspections of any other person or body specified by Scottish Ministers. The persons and bodies currently listed in section 1(6) (a) to (f) are all established in terms of primary legislation. In the case of Her Majesty’s inspectors of schools, social work inspectors and special Health Boards the primary legislation is referred to. The Scottish Commission for the Regulation of Care is constituted under section 1 of the Regulation of Care (Scotland) Act 2001. Her Majesty’s Chief Inspectors of Constabulary and of Prisons for Scotland are respectively appointed in terms of sections 33 of the Police Scotland Act 1967 and in terms of sections 4(1) and 7 of the Prisons (Scotland) Act 1989. Any amendment or alteration to the list arising by reason of a change of name or the abolition of one of the persons or bodies listed, or from the creation of a relevant new person or body, could accordingly only arise in the context of new primary legislation. Amendment of the list in such circumstances would invariably be dealt with by way of consequential amendment in the new legislation. It is not envisaged that there will be circumstances in which it will be necessary to amend the list by removal from it. In the event that a listed person or body is no longer considered as appropriate for participation in joint inspections that person or body will not be requested by Ministers to participate in joint inspections.

While the Executive is grateful to the Committee for drawing this matter to its attention (and apologises for the fact that the Memorandum on Delegated Powers was misleading as to the reasons for taking this power) it is considered that the provision as drafted is appropriate in the circumstances.

Section 2 – power to specify a person or body as one to which section 1 of the Bill applies

Para 3: The powers to be potentially available to authorised persons participating in joint inspections will be those specified in terms of regulations to be made under section 3 to which the affirmative procedure will be applicable. Section 2 (2) clarifies that an "authorised person" for that purpose includes an individual directed to participate in an inspection under section 2(1). The powers available to a person or body appointed under section 2(1) will accordingly be no greater than those available to the persons and bodies listed under section 1(6)(a) to (g). Those powers are however subject to the additional constraint in terms of section 2(2) that Ministers, when making a direction to such a person or body to participate in a particular joint inspection, may further limit the powers available. It accordingly does not appear to the Executive that it can be said that there is "no limit" to the powers that can be exercised by such a person or that the powers potentially available are inappropriate.

Section 3(1) – power to make regulations for the purpose of a joint inspection

Section 5(3) – power to make regulations for the exercise of functions under section 5(1) of the Bill

Paras 4: The reasons why the Executive has decided on the current balance between primary and secondary legislation at S. 3(1) is that the arrangements for the Joint Inspection of Children’s Services by 2008 will need to evolve as the consultation and the pilot inspections are completed. The draft regulations, supported by the draft protocol, will be fit for purpose for the 2006-2008 joint inspection programme of child protection services. However some flexibility to return to Parliament to modify these regulations by affirmative resolution is required as the joint inspection programme matures.

Similarly, at S. 5 (3), SWIA has just embarked on a pilot Social Work Inspection programme. Some flexibility to modify these regulations is required to ensure that any lessons from the pilots can be introduced, if this would lead to a more effective inspection programme.

We recognise the concerns that the Committee may have but we suggest that the requirement to ensure that regulations are subject to affirmative resolution provides reassurance to Parliament that any changes will be subject to Parliamentary scrutiny.

Para 5 – Policy is not for every conceivable breach of whatever regulations may be made under section 3 in the future necessarily to constitute a criminal offence. The Executive therefore considers it appropriate that the details of criminal offences should appear within the regulations rather than in the Bill itself and of course the regulations are subject to affirmative resolution.

Section 7 (definition of "social work services functions") – power to make regulations defining which local authority functions are to constitute "social work services functions"

Para 6. The regulations do not extend the powers of Social Work services in any way and there is no intention to extend the powers beyond those set out in regulations. The power relates to local authority functions and is therefore not unlimited and our policy intention is to catch a wide range of local authority functions. The Executive therefore considers that such a power is appropriate. As mentioned at Para 4, any modification would in any event be subject to Parliamentary scrutiny.

Section 8

Para 7: The Executive confirms that it is satisfied that, as the only substantive provision being repealed is section 6 of the Social Work (Scotland) Act 1968, there is no requirement for a transitional provision. The Bill does not currently include provision for the making of further consequential amendments by way of subordinate legislation and consideration is being given to a possible amendment in this respect. The Executive is grateful to the committee for drawing this point to its attention.

SUBORDINATE LEGISLATION COMMITTEE

15 November 2005

Joint Inspection of Children’s Services and Inspection of Social Work Services (Scotland) Bill at Stage 1

The Subordinate Legislation Committee today considered the above bill and agreed the terms of its report to the lead Committee. In addition to matters it wishes to highlight in its report to the Education Committee, the SLC agreed to raise issues with the Executive, given the truncated timescale for this bill.

Section 3(1) – power to make regulations for the purpose of a joint inspection

The Committee raised in previous correspondence its concern in relation to 3(1)(f), which permits regulations to create offences without any limitation on the penalties that may be imposed. The Committee noted the Executive’s response in relation to this matter but remained concerned about this departure from usual practice. The Committee draws the Executive’s attention to a similar provision contained at section 54 of the Fire (Scotland) Bill at stage 1, which was withdrawn at stage 2 of the bill. The Committee asks for further comment in advance of stage 2.

Section 7 (definition of "social work services functions") – power to make regulations defining which local authority functions are to constitute "social work services functions"

The Committee remained concerned that the definition of "social work services functions", which is a key provision of the bill, has been left entirely to subordinate legislation. The Committee puts to the Executive the proposal that a definition of "social work services functions" should be included on the face of the bill, with the power to amend the definition delegated to subordinate legislation. The Executive is asked to comment.

The Committee would wish to consider the Executive’s views on these matters in advance of stage 2. I would therefore request that a response be submitted to the Committee by 1 December 2005.

ANNEXE B

EDUCATION COMMITTEE
EXTRACT FROM MINUTES

19th Meeting, 2005 (Session 2)

Wednesday 9 November 2005

Present:

 

Ms Wendy Alexander

Lord James Douglas-Hamilton (Deputy Convener)

Fiona Hyslop

Adam Ingram

Mr Kenneth Macintosh

Mr Frank McAveety

Dr Elaine Murray

Iain Smith (Convener)

Apologies were received from Ms Rosemary Byrne.

The meeting opened at 11.02 am.

Joint Inspections of Children’s Services and Inspection of Social Work Services (Scotland) Bill: The Committee took evidence from—

Peter Peacock MSP, Minister for Education and Young People

Graham Donaldson, HM Senior Chief Inspector of Education

Maureen Verrall, Head of Children and Families Division, Education Department, Scottish Executive

Jackie Brock, Head of the Inspection and Quality Improvement Branch, Children and Families Division, Education Department, Scottish Executive

Joint Inspections of Children’s Services and Inspection of Social Work Services (Scotland) Bill (in private): The Committee agreed its approach to Stage 1 scrutiny of the Bill.

The meeting closed at 12.54 pm.

19th Meeting, 2005 (Session 2) Oral Evidence

EDUCATION COMMITTEE
EXTRACT FROM MINUTES

20th Meeting, 2005 (Session 2)

Wednesday 16 November 2005

Present:

 

Ms Rosemary Byrne

Lord James Douglas-Hamilton (Deputy Convener)

Fiona Hyslop

Adam Ingram

Mr Kenneth Macintosh

Mr Frank McAveety

Dr Elaine Murray

Iain Smith (Convener)

Apologies were received from Ms Wendy Alexander.

The meeting opened at 10.02 am.

Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill: The Committee took evidence at Stage 1 from—

Panel 1
Graham Donaldson, HM Senior Chief Inspector, HM Inspectorate of Education
Neil McKechnie, Director, Services for Children Unit, HM Inspectorate of Education
Jan Warner, Director of Performance Assessment and Practice Development, NHS Quality and Improvement Scotland

Panel 2
Gill Ottley, Depute Chief Social Work Inspector, Social Work Inspection Agency
Alistair Gaw, Depute Chief Social Work Inspector, Social Work Inspection Agency

Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill: The Committee considered issues arising from the evidence.

The meeting closed at 11.45 am.

20th Meeting, 2005 (Session 2) Oral Evidence

EDUCATION COMMITTEE
EXTRACT FROM MINUTES

21st Meeting, 2005 (Session 2)

Wednesday 23 November 2005

Present:

 

Ms Wendy Alexander

Ms Rosemary Byrne

Lord James Douglas-Hamilton (Deputy Convener)

Fiona Hyslop

Adam Ingram

Mr Kenneth Macintosh

Mr Frank McAveety

Dr Elaine Murray

Iain Smith (Convener)

The meeting opened at 9.30 am.

Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill: The Committee took evidence at Stage 1 from—

Panel 1
Morgan Jamieson, National Clinical Lead for Children and Young People’s Health in Scotland
Dr David Love, British Medical Association (Scotland)
Ms Jane O’Brien, Head of Standards and Ethics, General Medical Council
Dr Jenny Bennison, Deputy Chair (Policy), Royal College of General Practitioners (Scotland)
Dr Helen Hammond, Royal College of Paediatrics and Child Health

Panel 2
Jacquie Roberts, Chief Executive, Scottish Commission for the Regulation of Care
Ronnie Hill, Director of Children’s Service Regulation, Scottish Commission for the Regulation of Care

Panel 3
Peter Peacock MSP, Minister for Education and Young People
Robert Brown MSP, Deputy Minister for Education and Young People
Maureen Verrall, Head of Children and Families Division, Education Department, Scottish Executive
Jackie Brock, Head of the Inspection and Quality Improvement Branch, Children and Families Division, Education Department, Scottish Executive
Andrew MacLeod, Head of Division, Health Planning and Quality Division, Scottish Executive

Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill: The Committee considered issues arising from the evidence and agreed to consider its draft report in private at its next meeting.

The meeting closed at 12.52 pm.

21st Meeting, 2005 (Session 2) Oral Evidence

EDUCATION COMMITTEE
EXTRACT FROM MINUTES

22nd Meeting, 2005 (Session 2)

Wednesday 30 November 2005

Present:

 

Ms Wendy Alexander

Ms Rosemary Byrne

Lord James Douglas-Hamilton (Deputy Convener)

Fiona Hyslop

Adam Ingram

Mr Kenneth Macintosh

Mr Frank McAveety

Dr Elaine Murray

Iain Smith (Convener)

The meeting opened in private at 10.03 am.

Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill (in private): The Committee considered a draft Stage 1 report

Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill (in private): The Committee considered a draft Stage 1 report. The Report as amended was agreed to.

The meeting closed at 12.21 pm.