Seòmar agus comataidhean

Right, okay. Thank you for putting that on the record.

I am building on my colleague Pam Gosal’s questions in terms of justice. I talked to the EHRC about the short-life working group—I looked at it on the website last night, but it seems to have stalled. It was supposed to meet every two weeks, then it met every month, and then nothing. The minutes have not been shared since August. What is your role on that short-life working group, minister? Have you met it? No.

On justice and the overlap with the PSED, minister, have you met the Cabinet Secretary for Justice in relation to the requirements of the PSED? Have you had separate meetings with Angela Constance about this? No. Okay, thank you.

I want to talk about justice, but first I want to mention the swimming pools and leisure centres example and focus on that. We covered it at some length earlier, and I am assuming that you have watched the session this morning. I quoted Stonehaven swimming pool as an example. Women and girls self-exclude from swimming when they cannot access single-sex spaces. I gave an example from Stonehaven. This disproportionately affects women—

12:30

Minister, I would like to say on the record that we have not been given sufficient time. I have some key questions that I want to raise with you but that I have not been able to raise, about the balance of rights—the fact that one person’s rights are outweighing another person’s rights. I would like to say for the record that I told the committee that it was not enough time. I asked the committee if we could have a follow-up, and I think that this item has been squeezed in, which is disrespectful to the inquiry that we did. I would like to register my complete dissatisfaction that I have not been able to ask you, the minister, the questions that I want to ask. Sending them to you in writing is just not good enough.

John, should I address you as John or as Mr Wilkes?

Thank you. Is it the same for you, Jennifer?

Thank you.

This has been a long-awaited evidence session—we have been waiting for almost a year—so thank you for coming this morning.

What is the EHRC doing to help public authorities to focus on outcomes rather than processes? You talked about having good-quality leadership, but why is it so difficult for public bodies to deliver on their duties?

Thank you. This report is bringing it to your attention. We will leave it with you and we do expect follow-up.

Thank you, convener. Thank you again for coming today, John and Jennifer; it is appreciated.

A huge amount of work and feedback—I think that there were 58 submissions—went into the report.

My final question is this: if the EHRC is truly independent, and if it is the duty of all public bodies—I have given the example of some in my own region—to comply with the Supreme Court ruling, why is the EHRC not telling the Scottish Government to just get on with it? You have mentioned the lack of leadership.

I speak on behalf of Stephen Kerr. Amendment 53 would introduce a duty on public authorities to publish a clear statement whenever they relied on the exemption that section 2 of the bill sets out. That duty would require authorities to identify the statutory provision that compelled the incompatible act and to set out the reasons why no reasonable alternative existed.

The intention behind amendment 53 is to ensure that reliance on the exemption is open, accountable and justified. It would prevent situations in which an exemption was applied without explanation or in which a public authority quietly assumed that it had to act incompatibly without testing whether another route existed. The amendment would also ensure that the exemption was used only when necessary and that its use could be understood and examined by the Parliament, stakeholders and the public.

Amendment 54 would complement those provisions by placing a duty on ministers to review and report on the operation of the exemption within three years of its commencement. The committee heard during stage 1 evidence that the Government had difficulty in articulating the circumstances in which section 2 of the bill would be needed. The explanatory material did not provide examples and the policy case was not fully set out. Against that background, it is only sensible that the Parliament should revisit the question once the provision is in force and it is able to see how often the exemption has been used and for what reasons.

The review requirement would help to ensure that section 2 did not drift into becoming a broad or routine mechanism for avoiding compatibility duties. It would give the Parliament the tools to assess whether the exemption remained proportionate and whether adjustments, tightening or even repeal might be appropriate in the light of experience. It would turn a theoretical exemption into a practical, monitored and evidence-based one.

The amendments would not frustrate the Government’s policy intention; they would assist it by ensuring that public authorities had clear expectations and by protecting the credibility of the compatibility framework. They would strengthen the overall legislative scheme and provide reassurance that the exemption was not being misapplied or misunderstood.

Cabinet secretary, you can see that Stephen Kerr is passionate and views the issue as really important. Will you consider meeting him to discuss it in advance of stage 3?

We are still perplexed and scratching our heads. We just cannot understand why part 2 of the bill is included. Clarity is required, so I will press amendment 45.

My amendments are about ensuring that the process that follows a withdrawal request is clear, fair and workable for families and schools. At stage 1, we heard strong concerns that the bill as drafted will place schools in the middle of very sensitive family decisions, without enough clarity or support. The group of amendments responds directly to that evidence.

Amendment 21 would require schools to provide parents with written information setting out the steps that will be followed once a withdrawal request is made. At the moment, parents might not know what will happen next or how decisions will be taken. The amendment would provide clarity from the start and help to manage expectations.

Amendment 22 seeks to ensure that, where possible, all those with parental rights and responsibilities are informed and involved in the process. That is particularly important in cases of separation or shared care, and it would help to avoid situations in which one parent is excluded from decisions about their child without good reason.

Amendments 23 and 24 would make it clearer what schools will have to actively consider by requiring them to take account of the child’s circumstances and the likely impacts of the request on their emotional wellbeing. That would help to ensure that decisions are thoughtful and child-centred, instead of there being a simple tick-box exercise, which the amendments aim to prevent.

Amendments 26 and 27 deal with the issue of capacity. The bill as drafted assumes that children of any age are capable of forming a view, unless proven otherwise. My amendments would introduce a presumption that children under the age of 16 do not have the maturity to form a view and that a pupil who is aged 16 and over does, unless the contrary is shown.