Official Report 563KB pdf
The next item of business is evidence on the Restraint and Seclusion in Schools (Scotland) Bill.? I welcome our final panel of witnesses on the bill: Daniel Johnson, who is the member in charge of the bill, and, from the Scottish Parliament, Roz Thomson, who is head of the non-Government bills unit, and Caroline Mair, who is a solicitor. I thank them all for joining us.
Before I invite Daniel Johnson to make an opening statement, I will mention a visit that I and other members made to the Donaldson Trust earlier this week. During the visit, we were able to see the trust’s campus, meet practitioners and some of the people who the trust supports, and find out more about the approaches that the trust uses to help neurodivergent people to access education, build life skills, develop independence and improve their wellbeing. As part of our visit, we discussed the proposed changes to the law on the use of restraint and seclusion. It was interesting for those of us who were there to hear views on the subject and to hear the team at the trust highlighting the approach that they take, which focuses on wellbeing and de-escalation.
I have written formally to thank the Donaldson Trust on behalf of the committee, and I also place on the record our grateful thanks to everyone we met at Donaldson’s for their help with our visit and for contributing their views on the bill.
Having said that, I invite Daniel Johnson to make an opening statement.
I, too, recently visited Donaldson’s, which is a really fascinating place and does excellent work.
I will first thank the committee; I know that you are very busy and looking at multiple pieces of legislation, so I really thank everyone for taking time to look at my bill. I also thank the Scottish Government. This has been a long and engaged process, and I have had a number of constructive meetings with the Cabinet Secretary for Education and Skills. I thank the non-Government bills unit, too, and cannot overemphasise the excellent work that it does and what an excellent aspect of the Scottish Parliament the unit is.
I will speak briefly because I really want to get into the questions. My first point is that the bill arrives at the end of a long process. In 2015, Beth Morrison lodged a petition with the Scottish Parliament, seeking to restrict the use of restraint and seclusion. Then, in 2018, the Children and Young People’s Commissioner Scotland produced an excellent report on the use of restraint and seclusion in schools, looking particularly at data. The subsequent “in safe hands?” report from Enable Scotland came to similar conclusions, which resulted in a meeting with the Government that led to a five-point plan in 2019 that called for urgent issuing of guidance. However, the guidance was produced only last year. There was also guidance in 2011, which was updated in 2017, but, as part of the 2019 meeting, the Equality and Human Rights Commission wrote to the Government saying that, in its view, the 2017 guidance was not compliant with human rights and that there was the prospect of judicial review. The bill is not something that has just come about; it is part of a long process.
It is worth highlighting the findings of the report from the Children and Young People’s Commissioner. It found that there were 2,674 instances of restraint but that only 18 local authorities were reporting on that. Only 18 authorities—but not the same 18—were able to provide data; only 13 of those 18 could actually provide the number of children restrained and only 12 could provide any insight into the use of restraint for pupils with additional support needs.
The issue affects hundreds of children but we do not have sufficient data or clarity, so that is what my bill seeks to address. It would provide guidance about something that, however you seek to look at it, is a serious intervention that can occur at school, and it would put that guidance on a statutory footing so that it must be complied with. Importantly, there would also be recording so that we can understand the situation; parents and guardians would be informed; and there would be a reporting mechanism so that we can have a national understanding of restraint and seclusion.
However, over and above the bill, or the numbers, there is a fundamental insight. I took the time to read every single one of the submissions to my consultation—it was, I have to say, a very difficult thing to do. Through the testimony of people reporting what happened to their child, I read about their anguish and about the sheer frustration that they went through just to find out what happened to their child at school and why they came home with bruises. It had often taken them weeks, if not months, to find out precisely what happened. That is not something that any parent would want anyone to go through.
It is also, ultimately, about this point. Everyone around this table who is a parent or who has children in their extended family will be familiar with the little slip of paper that comes home from school with a child when they graze their knee after falling down in the playground, and which has to be countersigned and handed back. That is the level of recording and reporting that goes on when things happen at school that are a matter of accident. Why is it not the case that the same is required when injuries happen as a result of deliberate intervention? I think that that should be required.
With that, I am happy to take questions.
Thank you for that opening statement, Mr Johnson.
I will start there, because I asked a number of our witnesses about the very point that you ended on: why do I, as a father of two young boys, constantly get updates that they have tripped in the playground and so on, while we have witnesses and written testimony—through both your own, and the committee’s, calls for evidence—telling us that parents whose children have been restrained or secluded are never informed?
Quite often, parents know that something has happened, because their child’s behaviour has changed significantly between their going to school in the morning and their coming home. However, because of some of their own problems, the child cannot express that themselves. For those children, it is even more important that interventions are recorded and reported and that parents are informed.
Why is that not happening? In your deliberations on the bill, have you found any reason why that is not happening at the moment?
I struggle to answer that question, because I do not know. I do not really understand why that is not happening, because these are very serious situations.
I take the view that schools act in loco parentis. There is a bond of trust between parents and schools, and parents trust that schools will tell them when things happen to their child. Given the level of recording, reporting and acknowledgement that is already required, I do not understand the argument that it is somehow burdensome to ask for that when it is a result of direct intervention.
The only thing that I can interpret—we see this in some of the responses—is perhaps an anxiety that reporting deliberate action might result in further action. However, that is an argument for putting in the guardrails, with clear processes in place so that that is not the case.
We all understand, especially in relation to children with profound needs, that there might well be a need to intervene physically. However, it is important that we are very clear about how and when that happens. Critically, because schools act in loco parentis, it is also really vital that parents are told. Ultimately, schools act on behalf of parents, so parents must be informed, and as quickly as possible.
You detail very well the history of getting to this point. You also call restraint and seclusion a very serious intervention. Given how serious this is and how much history there is, including the campaigning by Beth Morrison, Kate Sanger and others, why has it taken so long, and a member who is not in Government, to introduce this bill? Should we have been at this point before now? Why are we here in 2025 and not years earlier?
The fundamental reason why I have introduced a member’s bill is that I do not believe that we have seen the urgency of action that was called for back in 2019.
I understand the complexities. I also understand some of the concerns about the burdens that it might place on practitioners. However, at the end of the day, in the most serious instances, we are talking about things that, in any other setting, we would consider assault and, certainly, use of force. In any situation where organisations or, especially, the state are using those things, we need to give it very careful consideration. I am, quite simply, frustrated that we have not seen more urgent action.
We certainly need clear recording so that we understand the situation, and that must be on the basis of law. Whenever someone’s liberty is restrained, whenever someone is put in seclusion or whenever force is used against another individual, we need careful scrutiny of that. Fundamentally, that is what it boils down to.
We have had guidance, of one sort or another, for well over a decade now. It is time to have it on a statutory footing.
Will you explain to the committee, and to those who are watching, what the material changes for children, young people and their families would be if your bill passes? What is not being delivered at the moment?
In a word: clarity. Although we would wish such instances to be avoided, we all understand that they will occur. When they do occur, from a parental perspective, it is important that parents are informed promptly so that they understand what has happened to their child and do not have to piece it together or try to figure out why a bruise has occurred. It is also about parents having clarity, more than retrospectively, about the sorts of things that might be going on at school and that might form part of their child’s care.
As a country, we need clarity on the pattern of how restraint and seclusion occur and in what circumstances, so that we have some oversight.
Clarity is important for practitioners, too. At the moment, there is a lack of statutory guidance, and there has been criticism of the current guidance from some quarters about the lack of practical help that it provides. If there are situations where practitioners need to use restraint or seclusion, it is really important that they have clarity about when it is appropriate to do so and, critically, what form that should take. That is why we need the training element.
In essence, all those things boil down to clarity: for the individuals, for parents, for practitioners and for all of us as a country.
With regard to clarity around the number of instances that occur, I had a discussion with the Cabinet Secretary for Education and Skills, when she was in front of us giving evidence on the bill, about how that should be reported, publicly or otherwise. There is some unease in local authorities and perhaps the Convention of Scottish Local Authorities that we will end up with league tables showing that a certain school or local authority uses restraint far more than others. What is your view on that? On the one hand, we want to be as open and as transparent as possible. On the other hand, it is about how people might use those figures if they are publicly available.
My bill is not prescriptive on precisely how those figures would be reported. It is important to point out that collection would take place at local authority level. Local authorities would be required to provide those figures to Scottish ministers, and it would be up to Scottish ministers how the data would be provided.
Do you have a personal view on that?
I believe that it should be reported on at local authority level, because reporting in more detail than that would be problematic for two reasons. First, we would not want school-by-school information, for exactly the reasons that have been outlined. Secondly, I hope that the numbers either would be or would become small. In that case, if we were to report at school level, we would run the risk of jigsaw identification. That would be a real concern, particularly in certain school settings with small numbers of children or young people attending. Reporting at local authority level would allow issues to be identified at that level, which would allow further questions to be asked by both ministers and parliamentarians.
It is important to acknowledge that the collection process would not provide the level of detail that would allow for league tables. It would be a matter for the Government to decide precisely how to report those figures.
I am sure that we will get into definitions. However, I note that the bill as it stands would enable the definitions to be elaborated on and thus more precision and categorisation of different types of intervention and the collection of such data. I am very open to tightening up the definitions, especially around the reporting requirements, to make that more precise.
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We will get into some of those other issues.
I have a final question. You have Government support, which you must welcome as the member in charge of a bill at stage 1, but there is some opposition to it and concerns have been raised, particularly by the teaching unions. What do you say to union members who are watching today and have concerns about what the bill would mean for teachers, classroom assistants and others in school settings?
I understand their concerns, and I understand the overall pressures on the teaching profession and on all practitioners working in classrooms, but I find myself struggling somewhat with some of those arguments, for two primary reasons.
First, it is contended that the guidance is already being followed. If so, I do not understand why putting that guidance on a statutory footing is problematic. If the guidance is being followed, and because I do not foresee a huge change in the substance of that guidance, which would be revised but would not be altogether different, I do not understand why putting it on a statutory footing would be problematic.
Secondly, there is the more fundamental point that I outlined in my previous answers. We are talking about the use of force and the deprivation of liberty. Those things are very serious when they occur, so we need the most robust levels of oversight and recording; if anyone thinks that that is not the case, I would really like them to explain why they think those things should just be a matter of routine and should not require what I think is a not terribly onerous level of oversight. We are just asking for those things to be recorded. I have not specified exactly how, but that might simply be a matter of recording in an electronic journal. I have not specified how the informing should occur but, in most instances, that would probably mean just a phone call.
Regarding the training requirements, if physical intervention is to be applied, especially if that is foreseeable and regular, it is clear that people will need training.
I have not heard an explanation of why any of those elements is problematic.
Thank you. We move to questions from Pam Duncan-Glancy.
Thank you for answering the questions so far and for your passion and commitment to this issue. I know that many young people, parents and carers across the country take the issue seriously and will be grateful for the committee’s attention to it, which you have occasioned.
We have heard debate about the use of restraint and seclusion with disabled pupils, those with complex needs and care-experienced pupils. Is the bill equally applicable across all settings? Should there be additional protection for disabled pupils, pupils with complex needs and pupils who are care experienced?
The member raises an interesting point, which goes to the heart of the matter. The most profound concern probably comes from people with those needs. I am not clear about any need for particular provision, primarily because the bulk of such incidents involve children with additional support needs, which means that it would be impossible to look at guidance in that area of practice without keeping additional support needs absolutely front and centre, as they very much are in the current guidance.
The question is interesting from another perspective, and I would be interested to follow up informally with committee members about their visit to Donaldson’s. When we talk to practitioners working in such settings, they have the fewest issues or concerns about the bill, because they understand the need for sensitivity. When I spoke to people at Donaldson’s, they almost questioned the need for the bill because they do not use restrictive practices.
I absolutely think that, when we look at the bill and develop guidance, we must have young people with additional support needs or disabilities at the forefront of our minds. I do not think that that means there is a need for more specific provision within the bill, but I am focusing precisely on that.
It is often said that, if we get it right for those children, we can lift others at the same time, which is the approach that the member is setting out. Throughout the committee’s evidence sessions, we have heard quite a lot from third sector organisations. Are you in a position to set out the sort of engagement that you have had with third sector organisations and where you see their role in the guidance and implementation of the bill?
It is difficult to set that out, because the engagement has been extensive. I have had a huge amount of engagement with a huge number of organisations at various stages and in various forms, including Enable and the National Autistic Society Scotland, and I have mentioned that I have visited Donaldson’s. I have also engaged with Children First and Children in Scotland. I do not think that it can be overstated how important they have been in shining a light on the topic. They have brought to light what is happening in our schools, the sorts of practices that are sometimes employed and the need for action. Frankly, we would not be here without their engagement and diligent work, and I think that they will play an important role.
As the convener pointed out, a number of children who are impacted by those practices are not able to express themselves. They may be non-verbal or, if they are verbal, they may not have the full range of expression. Therefore, organisations that are able to provide advocacy and insight are really important. Their role is invaluable and my engagement with them has been extensive, not only throughout the development of the bill. As members may be aware, I sat on the Education and Skills Committee during the previous session of the Parliament, and my engagement stems back to the start of my time in the Parliament in 2016.
Have they suggested any changes to the bill, or have they encouraged you to look at any different approaches during the next stage of the bill?
If there has been criticism from that quarter, it is that they would like me to go further and do more to increase scope and to look at other areas. The existing law on additional support needs is a complex web of different bits of legislation, starting with the Education (Scotland) Act 1980, extending to the Education (Additional Support for Learning) (Scotland) Act 2004, and beyond. I recognise that there is a real need to provide some clarity on the different rights that those acts embody, as well as the recourse. If I had time and resource, I think that there would be a lot of merit in an education bill that resolved those issues.
Likewise, there would be a lot of merit in looking at other contexts in which young people find themselves when they are in the care of people other than their parents, guardians or carers, whether that is transport or overnight accommodation. Quite simply, my bill is a members’ bill; it has to have clear scope. The complexity of tackling those additional issues would require a level of resource that is not available to me. There is an election next year, and I think that the new Government should look at those issues very seriously.
Good morning, Mr Johnson. You said that you understood the difficulties and challenges that teachers deal with in a classroom environment. However, many of them have been asking when seclusion becomes seclusion after a child has been disruptive in class and, I dare say, needs classroom management. Teachers have said that your bill would not make a difference as it does not make the definition of seclusion clear to them. The environment is challenging, and things happen in the classroom in the moment. How can your bill make teachers feel better about that?
Let us be clear about what the definitions would and would not do. It would not be appropriate to put that level of specificity in the bill. The definitions are there to provide a scope of behaviours within which we must have guidance, and it is for the guidance to provide such level of clarity about when seclusion is seclusion and when it is not.
Let us also be clear about what the definition specifies. Seclusion is about putting a child in a space that is separate from other children in such a way that they do not have the choice as to whether to stay in that space. The definition makes that relatively clear. It is not just about a child being brought to the front of a class or put to a corner; it is about separating them from other children and putting them in a separate room from which they cannot remove themselves. That may not be natural language, but it is pretty clear. As a matter of practice, the guidance needs to start zooming in and narrowing in not just on how a decision gets made but on what is the appropriate form of seclusion.
Let us also be clear that seclusion is quite serious. If any of us were to be placed in a room that we could not remove ourselves from and where we were separated from other people, it would be clear that that would be a deprivation of liberty. We know that that practice is going on. From the various reports that the various organisations have provided, we know that there are children who have found themselves, on more than one occasion, put in cupboards, and in such a way that they cannot remove themselves.
Does the wording in the bill provide absolute precision? No, it does not, nor should it. The definition is a matter for guidance, and I would absolutely expect there to be such guidance. However, what is specified in the bill is something that we would all agree is quite a serious situation.
How would the bill support teachers to make sure that they are aware of what they can and cannot do in that scenario? That is still a major concern—we just received some details from the Educational Institute of Scotland with regard to the bill. How can teachers feel secure that they are still in a safe place to be able to manage their classes?
Let us again be clear about what the bill would and would not do, and what the definitions would and would not do. The definitions are simply about providing the scope of practice around which there needs to be guidance from the Government. The bill does not state that anything would be prohibited, nor does it provide for any penalties. The bill literally states that the Government must provide guidance for actions that fall within that scope of practice. It is then for the guidance to provide the sort of clarity that the member quite rightly seeks.
That is a normal way for the Parliament to proceed. Jackie Dunbar is here—we had a similar discussion yesterday about the Assisted Dying for Terminally Ill Adults (Scotland) Bill. There is a balance between the boundaries that we create in legislation and the things that we leave as a matter for guidance. What I am saying is that there is a scope of activities that need to be regulated by guidance. It is then for the guidance to specify precisely what those activities look like.
Thank you.
You scared me a bit there, Mr Johnson—I wondered what you were going to come away with.
Apologies for that.
I add my thanks to the Donaldson Trust for facilitating our visit on Monday. I found the visit to be very informative. I give a special thanks to the amazing young people who spoke to me—they were brilliant.
The Scottish Government’s current non-statutory guidance was published just last November. At the evidence session that we recently had with the Cabinet Secretary for Education and Skills, she said that the Scottish Government plans to review the impact that the guidance has had. Given that we do not know how effective the current guidance is, because it has not yet had a review, is the timing of the bill appropriate? I realise that we are getting short on time until the end of the parliamentary session, but do you think that it is right to introduce the bill now?
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I do. I note that it has now been more than a year since the guidance was issued. It is more than possible to consider its effect, but that guidance does not stand in isolation. It is not the case that there was no guidance before that guidance was issued; guidance was issued in 2011 and in 2017. The most critical point for me is that, although the guidance that you mentioned was issued only a year ago, we have been discussing this topic in the Parliament for more than a decade. If the current guidance has not been out for a sufficiently long enough time for us to contemplate its effect, that is a question for the Government rather than for me.
In 2019, a commitment was made to take urgent action and to provide written guidance. Five years ago, it was observed that it was likely that that guidance would need statutory underpinnings. We are now a whole parliamentary session on from that, so, if now is not the time to legislate, when will be? I am perhaps slightly forcing the pace, but I worry that, if I do not do that, nothing further will happen.
I understand what you are saying, but will we get everything right in the bill if the guidance has not yet been reviewed?
That is a pertinent question. In some ways, the issue relates to what I said to George Adam. If there was lots of detail in the bill, I might agree with some of those concerns, but there is not. The bill also does not specify a timeline for the Government to produce guidance; it states only that the Government must produce guidance and ensure that it is updated. It does not say anything about timing. It also does not preclude or pre-empt any reflections; it just requires the Government, as a matter of law, to undertake reflections.
Another key point relates to data. We still do not know the prevalence of some of what we are talking about. I apologise for restating this point, but we are talking about some of the most serious things that can occur in a school setting. Without consistent data, it is hard to have those reflections. As I said, the bill does not pre-empt any reflections. The guidance will be iterative—I do not believe that the guidance that will be produced will be immutable for ever—but we need data in order to have guidance that can be updated.
Thank you.
Good morning. I will follow on from George Adam’s line of questioning in relation to the concerns, particularly about definitions, that the Government expressed in its memorandum on the bill. It is fair to say that quite a lot of the witnesses who have given evidence have also struggled with that issue. As you will be aware, the Government’s concern is that a very broad definition could capture things such as holding on to a child’s hand to cross the road safely and some of the support that is required for children with particularly complex needs. There is always a challenge in balancing how much detail we put in a bill with what we leave to regulations and guidance. I am keen to hear your response to the concerns that the Government has raised about the definition in the bill.
On the point about holding a child’s hand, I contend that that would not constitute restraint on the basis of the definition, but it is an important point.
First, I reiterate that the definitions are literally just about providing scope—there are no prohibitions or prescriptions. Secondly, the definitions are very much in line with the guidance that the Government produced in 2024. I would argue that not only is that compatible with what the Government has already produced, it is narrower. If you read the current Government guidance in its entirety, you will see that it provides for restraint to include physical actions that constitute supporting a child, but the definition of the bill is narrower than that.
There is a real need to look at one area that the Government has raised with me in private and through correspondence and oral evidence with you, which is the relationship with reporting. I spoke about providing a scope for the guidance, which can then be further refined and focused. As it stands, the guidance on reporting may be too expansive, and I am open to narrowing the definitions in the guidance if that would be helpful and, in particular, to providing further clarification about the reporting requirements in the bill. For example, that might focus on the reporting of more sustained uses of physical intervention, such as when a practitioner uses such an intervention over a period of minutes rather than seconds.
I have a final point. The bill certainly does not define all physical contact as restraint. It is about physical intervention that deprives an individual of the ability to act independently. That is why I am not sure about the example of holding a child’s hand because, when you do that, the child can usually withdraw. There might be an issue when that is more forcible. It is important to me that a supportive hand on the shoulder, or perhaps even a hug from a teacher, especially for a younger child, is not restraint—it is physical communication.
There is a final category of interventions that might protect a child, such as the example of pushing a child out of the way of a moving vehicle. We need to look at that, which is why looking at duration might be in order, but there is also another way of looking at that. If my child was on a school trip and had to be pushed out of the way of a moving bus, would I want to be told about that? Yes, I would. Would I want that to be recorded and for there to be some reflection on how that had happened? Yes, I would.
I understand that there are nuances but, overall, those things should be captured and reflected on.
I am reflecting on a member’s bill from the previous session of Parliament: the Children (Equal Protection from Assault) (Scotland) Bill. A lot of the same suggestions were made at that point, particularly regarding holding a child’s hand or pulling them out of the way a moving vehicle if they jumped on to the road.
That was very similar.
The same arguments were made and, as far as I am aware, no parent has been prosecuted for pulling their child out of the way of a moving vehicle.
That being said, you got into some really granular points, such as the distinction between holding a child for seconds or for minutes and the issue of on-going restraint. That all makes sense, but I am immediately struck by the fact that it would be impossible to put that level of detail in the bill and that it will have to be in the guidance and that, in turn, takes us back to the core argument about whether it is necessary to take a statutory approach via a bill when guidance already exists.
Some of the witnesses we heard from, particularly teachers, expressed concerns and fears about the fact that there will be something in law but that what will be in the law will not be specific enough to tell them what they should, or should not do, because that will be covered separately, in the guidance. Can you say a little bit more about how we can provide absolute clarity and confidence, particularly for teachers and other school staff, that they will be acting in compliance with the law even if there is quite a difference between what is in statute and what is in the guidance that is produced as a result of that?
Again, let us be really clear about what the bill will do: the definitions will not create any prohibitions or offences. There is nothing in the bill on individual teacher compliance; it will be for schools and local authorities to oversee. It is not the case that individual teachers will face those questions; the questions are for school leaders and local authorities.
Secondly—apologies if I am repeating myself—creating scope in a bill and providing further detail in guidance is a fairly typical way to legislate. My bill makes particular provision to allow those definitions to be elaborated. I know that there is concern about the use of the word “elaborate”, but let us be clear about what we are talking about: it is not about expanding on but about refining, specifying and clarifying. It is important that the guidance is clear because, ultimately, that is the appropriate place for practical advice so that teachers have clarity about what is appropriate or not.
To bring it back to the fundamentals, if force is being used by an individual against another individual that deprives them of their ability to act, that is serious and I think that there needs to be clarity about how and when that is permissible. All the bill does is state that the Government has to provide that clarity in guidance.
That comes to the nub of it. We already have guidance, so there should be all the clarity that we are looking for. We are talking about putting the guidance on a statutory footing. We have seen that doing that sometimes leads to mission creep and overcaution, with people going further than is required in order to ensure that they are covered and are not flouting the legislation. Is there not a danger that, because of that fear, we will make people much more cautious at critical moments when intervention is required, which could cause mission creep?
The concern is not about recording incidents or what the guidance says about what is appropriate for restraint but about the extra caution that could come from legislating that might endanger children.
Willie Rennie makes an important point, which I understand. The current situation makes it worse; having non-statutory guidance that does not have the precision or the clarity that we might want creates ambiguity in those situations. Having the provisions on a statutory footing, and requiring clarity and engagement on the definitions and, indeed, on recording, would better promote clearer definitions about what we mean by restraint and appropriate responses.
Critically, that is why there is also a training element. If we were just talking about the bill without the other elements, particularly training, I might agree with you. However, the key point is that I am not just seeking to provide a document. I am seeking to provide clarity on training and practice. That will always be an on-going effort. The moment that the Government produces guidance, concerns will be expressed along the lines that Mr Rennie has set out. By making the guidance clearer and more precise, we will minimise the risk.
If you are specifying that training is required, that should improve clarity and ensure that individuals have greater understanding of the requirements. However, you are not providing any greater clarity about what is permitted in practice and what is not, because the guidance is already established. All that you are talking about is placing the guidance on a statutory footing, so the bill will not provide any more clarity. Is that not the case?
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It perhaps does not provide that clarity by definition, but I hope that it would by process, as it would require the Government to maintain the guidance.
At the end of the day, I cannot legislate for the Government to provide good guidance. I wish that I could, but I cannot. Nor do I think that it would be appropriate to provide that level of clarity in a bill—that would not be sensible. However, I can try to ensure that the guidance is being consistently applied, which is a really important element of placing it on a statutory footing, and I can ensure that it is maintained, updated and reviewed. Without it being on a statutory footing, there would be no compulsion on the Government to produce guidance on the topic ever again.
The recording and reporting elements are useful, not just so that we all gain clarity; they force a requirement for precision. I am familiar with what Mr Rennie is talking about. When things are vague, they are not guided by clarity but driven by speculation. I am doing everything that I can to increase clarity. I would argue that it is the lack of clarity at the moment that is leading to the situation that Mr Rennie is concerned about.
My second point is about the General Teaching Council for Scotland, which, as you will have heard, is almost saying that the bill is piecemeal and that we need to take a broader look at safeguarding and child protection, because most of that is dealt with through guidance and is not on a statutory footing. What is your answer to that?
I think that you might be putting words in the GTCS’s mouth slightly when you say “piecemeal”. I think that the GTCS recognises the value of the bill but considers it to be very specific—“specific” is the word that I would use, rather than “piecemeal”—and it is absolutely right.
As I alluded to earlier, there is a much wider question about safeguarding, the legislation on additional support needs and the rights and recourses that individuals have. That is all really complicated. A broad range of legislation alludes to this area, and that needs to be looked at. However, as I said in my discussions with the GTCS—it acknowledged my point—-as necessary as such an effort is, it goes far beyond the scope of a member’s bill.
I make it clear that, as Mr Johnson knows, I am a supporter of the bill. I just think that it is important to ask difficult questions.
I would expect nothing less of Mr Rennie.
Thanks very much.
I also visited the Donaldson Trust on Monday, which was genuinely interesting and worth while. We spoke with staff about issues similar to those that are covered in your bill—indeed, they were aware of the bill.
However, you get nothing for nothing. The facility is terrific, but it is certainly not dirt cheap. Everything has a cost. What interaction have you had with the Scottish Government on the issues that are raised in its memorandum, such as the implementation costs of the bill? There are variations in the costs of bringing young people through education. Have you identified variations in the implementation costs of your bill in that regard?
I will bring in Roz Thomson to cover the methodology of the bill’s financial memorandum in more detail. I have met the Scottish Government about every six months during the bill process. There has been an extensive level of engagement. It was important for the Government to be aware of the bill, especially given its concurrence with the issuing of its guidance.
Critically, as I said directly to the cabinet secretary, it was really important to me that the bill did not contain any surprises for the Government; that is the approach that I have sought to take. As I understand it, the Government broadly agrees with the numbers that are set out in the financial memorandum. The costs are not overly significant. Mr Kidd is absolutely correct to say that the measures do not add up to nothing. There will be costs of around £3 million in year 1, with similar on-going costs each year, which is not the biggest amount of money in the context of the education budget.
Let us also be clear that we have guidance and that all actors say that the guidance is being complied with. I do not envisage a requirement for any huge alterations to the guidance. There will be a need to revise and reissue the guidance, and there will be some additional implementation costs, but we are taking at face value the assurance from both providers and the Government that there is already compliance.
Roz, do you want to provide some clarity about the more detailed elements of the methodology?
The financial memorandum drafted by the NGBU comes from the context of the current resourcing arrangements. The member asked us to include things such as the underfunding of the presumption of mainstream education and other resource limitations in the education setting. That context is relevant to the committee’s understanding.
For the purposes of drafting a best estimate of costs, the financial memorandum addresses only things that the bill would directly introduce. There are no estimates relating to areas in which the Scottish Government has said that work is already under way. For example, it will be introducing a data set that will capture some of the data that would be required under the bill and it has a working group that is considering training standards, so those aspects are not covered.
The memorandum costs everything else, as far as possible. The biggest cost will come from implementation in schools, whether that means special or mainstream schools or units that are attached to mainstream schools.
In the absence of the baseline data that Mr Johnson referred to, it is impossible to estimate the extent to which each school has implemented the existing guidance and therefore impossible to assess how much money would be required to fully implement the provisions in the bill.
The financial memorandum takes a blanket approach, based on estimates of the number of days that would be required, on a recurring basis, to implement the provisions in the bill. That is based on teacher salary costs, but there is flexibility on the use of the funding. It might be that a combination of staff at different levels will be used in the implementation of the bill, and schools or education authorities might choose to use the funding for training, freeing up staff, putting in place reporting requirements and processes, or any of the other things that the bill requires. That is the basic approach that was taken.
We know that the bill is set against the backdrop of the Scottish Government already working in that general direction. Is it comfortable with those financial changes, given that?
That is my understanding. I set out the pattern of my direct engagement with the Scottish Government, but there has also been engagement between the NGBU and Government officials. The Government also notes that education authorities are currently meeting the costs that are associated with the restraint training that is required by the existing guidance and that those costs are acknowledged in the financial memorandum. In a sense, the Government notes our approach and seems broadly to agree with that.
The Government would be comfortable with that. That is useful to know.
You mentioned your engagement with the Scottish Government a few times. Has it always been in favour, and supportive, of the bill?
I am very glad that it is being as supportive as it is now.
I would usually call that a politician’s answer, but I suppose that that is allowed from a politician. The point that I am trying to get at—I am speaking from the experience of my own member’s bill—is that there is an opportunity here for the Government, in that there is a period when it can take on a non-Government bill if it supports it. Was there any discussion that the Government could take the bill over from you?
Yes. There was discussion from both directions, to be candid. The Government had considered whether there were ways for it to incorporate the provisions in my bill within other legislation.
On many of the points that have been asked about—especially with regard to Willie Rennie’s question about the GTCS, as well as on some broader points—I feel that the bill might have been better progressed as a Government bill, in some ways, as part of a more comprehensive package. I had been very open to the Government taking it off my hands, so to speak, and taking its provisions forward in other legislation.
The legislative programme has become more congested as we have gone through the session, as we are all aware, but that was part of the discussions. There would have been merit in the bill becoming a Government bill. I also think that there is merit in it being a member’s bill, because it is a way of ensuring that we are keeping pace.
I will try to explain my previous “politician’s answer”. The Government has fundamentally been of the view that there needs to be guidance and clarity in this area—frankly, the guidance needs to improve. The Government had been wary of confronting some of the things that have been described, from the voices that we have heard, and it had therefore been ambiguous as to whether it wanted to put the guidance on a statutory footing, but that had been part of the dialogue throughout the period that I outlined in my introductory remarks.
I hope that that provides some context about the dialogue, and as to whether I think that the proposals could and should be dealt with through a member’s bill or through a Government bill.
It does, thank you. That is helpful context.
We have heard evidence about different policy frameworks across different services, including schools and care settings. Childcare providers, too, have given evidence about the use of restraint and seclusion. Does the bill present a risk of dual reporting in some settings, such as schools with early learning and childcare classes or residential facilities? We have heard from staff at schools with residential facilities. Is there a reporting issue here? What are your thoughts about that?
There is a really important point here. I have deliberately given the bill a narrow scope. Such considerations need to be context specific. I do not think that it is possible to provide a single set of guidance for all possible settings, particularly when it comes to different age ranges. There have been some calls as to whether the provisions could or should apply to early years settings. For practical reasons, that becomes really complicated. On a commonsense level, we all know that the level of physical interaction that needs to be provided with the youngest children is very different.
On interaction with the existing law, providing a single set of guidance to cover both education settings and care settings is complex. I do not think that double reporting would be required. The Government is also of the view that, if there is double reporting, that can be resolved, at the very least, through clarification and so on. I understand your point but, from my perspective, it is a matter of providing clarity within school settings. To provide something more comprehensive would be beyond the scope of what is achievable or manageable in a member’s bill.
I know that I am slightly moving our discussion beyond the scope of the bill in asking this, but if that area is outwith the bill’s scope, where do you see it falling when it comes to what happens next? We heard evidence from residential schools about that.
Let me clarify that. We are considering the scope of the bill. You have deliberately not widened it to include residential schools, so how do you see that aspect developing? It is something that we should consider.
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Again, it is incumbent on the Government to look at all those things in the round. Even if you go beyond my bill’s scope and look at some of those settings, such as residential schools and early years settings, they have multiple layers of oversight, which my bill does not alter. Likewise, residential schools must have a relationship with the local authority, which my bill, again, does not alter.
How those different things interact needs to be looked at. Frankly, the scope of some of those bodies needs to be considered. I looked at early years when I was a member of the then education committee in the previous parliamentary session. The Scottish Social Services Council, the Care Inspectorate and local authorities all have a view. We need to consider that.
On the question of the scope, I do not think that the bill will require additional or dual reporting because it is about regulating school settings. It is clear when a school setting is a school setting, and those bodies will already have relationships in place. The wider point is important and needs to be addressed, but it simply would not be sensible for me to attempt to do so with this bill.
Good morning. Congratulations on the bill, Mr Johnson. As Edinburgh MSPs, we will have dealt with the same constituents highlighting their concerns. It is very important that the bill makes progress, so I congratulate you on that.
I have two specific questions, which return to an earlier point on informing parents and carers. In regard to the bill’s approach to schools providing information, what should the timescales be, particularly if the parents or carers have welfare concerns? What consideration have you given to that?
That topic requires detailed guidance. A raft of considerations is involved in notifying parents, guardians or carers that an incident has occurred, but those should quite rightly be a function of guidance rather than put in the bill. I simply want to ensure that the notification happens without question, which is what the bill sets out.
I also note that there have been questions about whether 24 hours is too long. It would be perfectly within the gift of the guidance to specify a shorter period than that. I cannot quite come up with an example, but there are circumstances, particularly around the recording of the incident rather than the informing element, in which a period of reflection or bringing together all the perspectives might be required before the recording can be completed. I expect to see context and other considerations properly included as functions of the guidance, but they are certainly not things that can be included in the bill.
Thanks for that. You see the guidance aspect as the main route, then.
Yes.
I have raised this next point several times when we have taken evidence. The committee has been interested to hear about the Care Inspectorate and the reduction that there has been in the use of restraint. That might be around the conversation that your bill has taken forward. The Care Inspectorate can provide support and challenge to care settings shortly after a report of restraint is made. When you were drafting the bill, did you consider a similar role for His Majesty’s Inspectorate of Education in providing support? Do you see it having that proactive role?
Yes. That is a feature of the bill. HMIE would need to consider how restraint and seclusion form part of its inspection regime. I would not want to overspecify that.
In my view, any regulator or provider of oversight is always there to provide support and encourage good practice as well as to stop bad practice. As you outlined, the Care Inspectorate’s role in reducing restraint in care settings is a good example of what we would hope for in the new regime. I would not want to specify precisely how that would work but, clearly, the inspectors should be asking about those topics, particularly in settings where such things might be more likely to happen.
Do you see that proactively taking place? We know that many schools have not been inspected for a long time. In relation to the bill, if incidents are reported on—you have suggested that that reporting would be council-wide, not school-specific—that involves a piece of work proactively taking place. I am not sure that leaving it to be part of a wider school inspection would provide the live support to address incidents and potential training needs.
That reporting would be collated and published by local authorities at that level. The data would exist at a school level. The member is right to flag the changing nature of inspection regimes and the fact that some schools go for long periods between inspections. However, the inspection regime is meant to be responsive so that, when concerns are raised, there can be inspections on that basis.
We are in the realm of speculation here—I would hope that, in conjunction with the guidance, the reporting regime and some consideration by the inspectorate of how it should proceed, we would see that forming part of an inspection regime and that, if there are specific concerns, the inspectorate might reflect and be able to engage on that basis. That is speculating about where this might end up, but it could and should be part of the role that the inspectorate sees for itself.
On Mr Briggs’s first question, which was about recording and reporting, one submission in response to our call for evidence suggested that the reporting could be done on the next school day. Do you agree that that risks leaving children and families without information over the weekend, if the incident happened on a Friday, or weeks or months if it happened on the final day before the summer holidays, before the schools return for the autumn term?
Yes. I might put it more strongly than that: that would be inappropriate. I think that it should be 24 hours for good reason. If you were a parent, the very latest that you would want to know is the next day. Your parental responsibilities span the weekend, and the consequences of an incident such as that might be germane, because they might result in your child being distressed and unable to articulate why. The very longest time that a parent should have to wait before knowing that something has occurred is 24 hours. As I indicated in my previous answer, in some cases, that might be too long. That is the very longest that I would want it to be.
Do we need to tighten that up so that an incident should be reported on the day that it happens and, if it takes 24 hours to record it, that is perhaps acceptable? If an incident happened at 3 o’clock on a Thursday, the school would have until 3 o’clock on Friday, but there would still be a period overnight when the child had gone home. Should the timescale not be tighter? Should we say that parents must be informed on the same day as it happens, and then, if the reporting takes 24 hours, the full details should be available within those 24 hours?
That argument has a lot of merit and is compelling. The key question is whether it would be more appropriate for that level of detail to be in the guidance, because I would not want to introduce complexity or difficulties when that might not be possible—for example, it might not be possible to reach a parent before the end of the school day if they do not pick up their phone. I have a small hesitation in saying that it would be appropriate for that to be in the bill but, as a matter of practice, what you have set out is absolutely how things should be done.
On that point, should we aim for reporting either within 24 hours or by the end of the school day, although with room for exceptions, because the point has been made that some parents might react badly if their child has been in trouble?
Yes.
We have touched on some of the issues that I want to raise already, but I would like to pin down what is proposed for reporting. It seems to me that there are three main options: a school reports to the local authority where the children come from, which might or might not be the local authority where the school is; a school reports to the local authority where the school is; or a school reports purely at a national level. Am I right in saying that you are leaning towards a school reporting to the local authority where the school is?
Yes, but that level of detail would require to be resolved. The Government is engaging on that point, but I think that that would be a matter for regulations. Strictly and formally speaking, we are talking about the education authority rather than the local authority—in other words, the council that is acting as the education authority for the school in that area. I think that where the school is situated is the more appropriate consideration. I understand the alternative point of view, but I think that that would be the most appropriate and simplest way for the system to work.
At the moment, an independent or grant-aided school does not have much of a relationship with the local authority where it is located, does it?
The relationship is different, but I think that most of those schools engage with their local education authority.
When we visited Donaldson’s on Monday, we got the impression that, because various local authorities, especially those in the east of Scotland, pay for young people to be sent there, the relationship is primarily with the original authority—
That is as the funder. The Government is looking at whether it would report on that as a subset of the information, so that we do not end up with confusing data. That would be done for the reason that you set out: such institutions have a very different relationship with local authorities, full stop. Local authorities use institutions such as the one that you mentioned as providers of education, rather than local authorities sitting as regulators of such institutions as providers of education, if that makes sense.
The convener has touched on this next point, but it strikes me that, if there is a problem in a particular school but it reports to 10 different local authorities because the kids come from 10 different places, it might be difficult to pick up that problem, whereas, if the school has to report to the local authority where it is located—it might have to be both—that local authority might be able to pick up on the fact that there might be a bigger problem.
That is exactly why there needs to be national reporting, and it is why the bill is not overly specific about the precise arrangements. Ultimately, it is a matter for the Government to resolve. It is for local authorities to collect the data, and it is then for the Scottish ministers to determine how to report the data. The Government would need to resolve that level of detail. As I understand it, the suggestion is that the information relating to such schools would be reported separately. In a sense, all that we would be asking local authorities to do is to collate that information. We might simply ask them to be clear about the nature of each of the schools that Mr Mason has identified and where they are.
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I take your point that we might not want that level of detail to be in the bill. However, the issue of reporting has concerned some grant-aided and independent schools so they have raised that with us.
I will move on to the question of training, which has been touched on already. The idea of there being a list of training providers has also created something of a response. Would councils that already do a lot of in-house training still be able to do that, or would they need to go to an external provider?
The short answer is no, they would not need to do that. The bill does not state that every single teacher would have to receive training. It is up to education authorities to identify the number of practitioners who require specific training. As has been alluded to, it is also not the case that no training is currently taking place.
It is important, especially for the most serious kind of training—for practitioners who are likely to need to use physical restraint regularly—that we maintain some regulation over what it should consist of and who can provide it. One issue is that there are providers out there who currently offer training based on stress holds and techniques that are derived from adult contexts—if I can put it like that—which, in my view, are wholly inappropriate for use in schools.
Through the bill I have sought to enable, in a relatively light-touch way, something of a Scottish Government kitemark. The bill is about saying, “Look, for people who need such training, these are the sorts of training courses and providers that are appropriate.” I do not believe that that would require a huge amount more regulation than. At the moment, the Government signposts to the Restraint Reduction Network, but I would just like to see that aspect go a bit further.
That does not preclude the fact that for some practitioners—in fact, probably most of them—the training that local authorities provide might be appropriate. It goes back to the idea of training the trainer. It would then be for the guidance to start pulling apart the categories.
However, I am clear that it is important that we regulate the use of physical restraint in the legislation.
As well as regulating physical restraint, is it important to regulate the de-escalation that might prevent it?
Yes.
De-escalation has been emphasised in the evidence that we received from some witnesses. For example, a big emphasis was placed on it by Donaldson’s, which seems to have gone to the other extreme of saying, “We will not use physical restraint and it is all about de-escalation.” The fact that it has two adults for every pupil helps with that, though.
The point about de-escalation is interesting. I have seen all the written submissions that questioned why de-escalation did not specifically feature in the bill. However, it is absolutely embedded in the thinking behind the bill and informs its direction of travel. There is also the question of future-proofing the legislation, which I want to do. “De-escalation” is the current terminology, but it does not have a basis in law. Members are all familiar with the fact that terminology will probably have moved on in 10 years’ time.
To be clear, my focus is on physical intervention. The consequences of people getting it wrong when they use de-escalation techniques are of a different order of magnitude from those of getting it wrong when they use physical restraint. That is the target that I have in mind.
But if you do not get the de-escalation right, are you not more likely to get into a physical situation?
That is why training does not exist on its own. It would be for the guidance to set out good practice and the point at which someone would need to use the training from training providers. That is not to say that it would be the only training available to help people who were dealing with such situations.
Should that training become part of initial teacher training?
In broad terms, yes. I have thought for a long time that initial teacher education should focus far more explicitly on additional support needs. Within that, there should be real clarity about elements of cognition and executive function and, by extension, de-escalation. It should be a core topic for anyone embarking on a teaching career.
If I heard you correctly, you said that it would be for the local education authority to decide what training teachers need, but the cabinet secretary, speaking as a teacher, seemed to suggest that each individual teacher should decide what they need. I presume that the middle ground would be to have headteachers deciding on the training that their staff need. What are your thoughts on that?
The bill says that it is for education authorities to determine.
That will vary quite a lot. There are specialist schools—one like Donaldson’s being the gold standard—and special needs schools, but there are also mainstream schools where you might end up with two kids hitting each other, or a kid hitting a teacher. Any teacher in any school could end up in a confrontation where there is a need for physical intervention, which implies that every teacher needs training in that area.
I will bring in Roz Thomson in a moment, but I do not think that it does suggest that. The bill sets out when restraint would be likely and provides for training for people who might need it in that context.
Mr Mason is absolutely right that that need could vary according to context, which is why it is really important for local authorities to take the lead. However, that does not mean that every instance of physical interaction is an example of restraint. If two children are fighting, a teacher might have to intervene, but that would be a one-off. The bill targets the times when practitioners have to use prolonged force to restrict a child’s freedom of movement or liberty—for example, by using holds and doing more than just separating children—at which point there absolutely is a need for training.
I am not saying that there is no need for thought. It is quite the reverse, because there is a need for detailed thought about how teachers intervene to separate pupils, but I do not think that that needs the same level of training as would be required for someone who might need to use particular forms of physical intervention. There would be a need for clarity, nuance and some teasing apart in the guidance. However the focus of training should be on the most serious physical interventions that absolutely can—and, to be frank, do—result in children being injured. That is what we must try to minimise, if not prevent.
I will bring in Roz Thomson.
I can add something about education authorities’ understanding of the need for training. The committee received evidence from Ben Higgins of the Restraint Reduction Network, who talked about training needs analysis being done at school level. As Mr Mason said, schools differ enormously in function. Such analysis would inform the extent to which lower-level de-escalation training, such as training someone to be a trainer within a school, could be used.
Regarding training on restraint, paragraph 113 of the Scottish Government guidance already states:
“Where restraint is a foreseeable possibility, schools should use restraint training that is certified as complying with Restraint Reduction Network (RRN) training standards.”
Therefore, to an extent those standards have already been established by the Government, so the training provisions in the bill would sit within those existing provisions.
The committee heard the suggestion that, because they are unsure about what they can and cannot do, some teachers hold back and do not get involved in situations when they feel that perhaps they should, and that giving training on physical techniques and so on might encourage teachers to get more involved physically, so we could see an increase in physical interventions.
It boils down to the need for clarity. That suggestion works both ways, in that people not intervening when they should is not necessarily something that one would want, but neither is overuse of physical interventions. That is why it is really important, especially in the context of children with additional support needs, that those people who are likely to need to intervene absolutely have a level of training over and above what we might normally expect. However, we also need clarity about what is and is not appropriate. The danger lies where there is ambiguity.
We touched earlier on the wider issues in schools and the impact of those. Daniel Johnson will be aware that some people have been a bit worried about the bill in relation to resources and the implications for schools. I note that the policy memorandum states that the member is alive to the issues. Based on what we have heard this morning, I do not doubt that. A number of people have said that a lack of resource could contribute to the unnecessary use of restraint and seclusion in schools in Scotland, particularly given the rising concerns about poor behaviour. What is the member’s response to that?
I can respond in a number of ways. In essence, my bill does not alter that situation. If those things are occurring, we want to know about them. If people are making interventions, we want them to happen when the people concerned have already been properly informed and appropriately trained.
In a sense, there is a tension here for me, in that I almost do not know who to believe. On one hand, I am being told that everyone is already complying with the guidance. If that is the case, I would say, “Great, so what is the issue with putting it on a statutory basis?” On the other hand, people tell me that the bill will have massive resource implications. In that case, I would say, “I thought you said that everyone was already complying with the guidance.” You cannot have both going on.
Most fundamentally, let us be clear that there are different cohorts and different dynamics. Overall, when looking at education policy, you have to consider everything all at once. What I am looking at is the situation for children with additional support needs, who are often of primary-school age and often have quite profound needs. The wider issues of behaviour and violence in schools are a much bigger topic, which extends through the age range, and that is reflected in the evidence that we have had from people working in education. That was also quite clear from Lynne Binnie’s contributions.
The fact that there are other issues and problems—and even ones that are connected—does not mean that we should do nothing. The bill can provide clarity and will provide support and training to practitioners who really need them. Ultimately, it is also about providing clarity for parents.
My other response, especially on the point about violence in schools, is that that is a different situation, but that, as a parent, if my child is involved in an altercation in school, I would want to know. I would want to know if they were on the receiving end of that; I would want to know if they were the instigator. If that situation involved a teacher, I would want to know, and I would also want schools to have a clear understanding of such situations and what they are doing about them and to have a clear plan to deal with that. My bill does not detract from that; in fact, it might even help.
That is much appreciated, thank you.
Thank you. We have come to the end of the committee’s questions. Mr Johnson, is there anything else that you want to put on the record ahead of our stage 1 report?
I just want to thank the committee. I hope that I have provided all the answers that you need, but please come back to me if you require any further clarification. Above all else, I want to repeat what I said at the beginning: thank you very much for taking this time—I know that the committee is very busy. This has been a pretty extended endeavour for me, so I appreciate members taking the time and effort to look at my bill.
We appreciate your time and your answers today as well as the work of the non-Government bills unit and the Parliament team. We thank you and the officials who have been here today.
That concludes the public part of our proceedings. We now move into private session.
10:45 Meeting continued in private until 11:48.