Seòmar agus comataidhean

I will not take up too much of the committee’s time.

I thank the minister for her contribution. Contained in it is the challenge that we face in respect of the amendments. Over the past 20 years, as the minster has pointed out, we still have not found out why there is so much delay. We do not know why things take so much longer. The good practice guides will be published next month, which, unfortunately, is after the passage of the bill.

I do not undermine what the minister has said. Throughout the entire process of the bill, we have heard words of good intention about the children’s hearings system in relation to permanence. It is an incredibly challenging question that has to be answered because it is about fracturing a family and re-establishing a future for a young person. We must be grounded in what is right for the young people, and I am not convinced that placing an arbitrary timeline would put us in a worse position than the one that we are in at the moment. There may be situations in which people have to push the decision about permanence to a different venue, because of a timetable. However, we have a system that is not working.

I am mindful of the proposal that the minister has put. We cannot bind future Parliaments or Governments, but if the minister wishes to intervene to talk about lodging an amendment at stage 3 that would indicate an obligation to review the system, I would be more than happy to take that intervention.

I absolutely recognise the narrative that the minister relates about when the issue was raised and whether it has been looked at. At a fundamental level, is the Scottish Government against the concept of having an arm’s-length holder of the register at some time in the future? Can the Scottish Government never envisage having that, even if it came about through consultation and was seen as a way of improving the situation?

I am content with that response.

My apologies, convener. I did not want to move amendment 177.

The challenge that is being expressed is this: there is no misunderstanding of the fact that there will be a limit on such decisions, but the reality is that, if an incorrect decision is taken, that is, in essence, potentially the end of the situation, without the young person, their advocate or anyone else being able to ask for a reconsideration of that view by a whole panel.

In relation to the previous discussion that John Mason prompted, does the minister envisage that interim orders will be made by a single-member panel—the chair—when everyone is in agreement with the interim order, as opposed to when the appropriateness of an interim order is challenged? I am just trying to understand when she envisages interim orders that are not controversial being made, because the problem relates to what happens when decisions are controversial. Does the minister believe that interim orders will be made by a single chair when, in essence, everyone in the room, including the child, is in agreement on the interim order? Is that the sort of area that she is thinking of for such decisions being made, rather than in cases in which there is a conflict?

Like our debates on amendments last week, the debate on this group has been interesting. The discussion about the composition of the panel has opened up areas where I agree with Jeremy Balfour that we are in a different position from where we were before the bill was introduced. However, I see a great deal of agreement among the members who lodged amendments in the group. There is a desire to reach a solution in relation to the role and remuneration of the chair compared with other, wing members of the panel—if I may use that phrase. There is also a great deal of interest—and I think that there is also an ability to reach a decision—on the expectations that will be placed on the chair. The amendments in the group, including mine, speak to that.

The minister talked about taking the matter offline. Given the circumstances, I wonder whether there can be a cross-party discussion to seek an agreed position that the Parliament can get behind at stage 3. Our amendments contain different wording, but I genuinely believe that there is an intent among members to find agreement.

I will not press my amendments 226 and 227, because I have no intention of circumventing the very sensible proposals on the importance of reflecting the expertise and professionalism of those who are involved in the system.

I do not know whether the minister is in a position to intervene or whether she will address this when she sums up but, given what she said about taking the matter offline, I think that it would be sensible for members not to move their amendments in the group, given that we are all in similar places on the matter. I think that we all need some time to consider amendments that the Government and the Opposition could lodge for stage 3.

I understand the position that the minister takes. However, that notwithstanding, if the minister did not move her amendment 30, on a single-member panel discharging a referral, that would be an indication of good faith, and I am quite confident that if it was felt to be necessary, it could be put back in at stage 3.

I am not questioning the good faith of the minister in any way, but that would allow a discussion to happen in an area where the minister wants to make amendments that we can maybe get behind when we have more understanding of them. If the minister was able, as a matter of good faith, not to move the amendments, I would certainly be more than satisfied not to move any of my amendments in this group to allow that discussion to happen.

I think that “disagreement” is far too strong a word; we have too much in common.

I welcome the minister’s contribution. There is a different understanding regarding the term “presumption” and the discussions that take place so that a child has understanding. However, given what the minister has said and the discussions that will be happening, I will be more than happy to make this issue part of those discussions, if that assists.

At a simple level, we can all point to those who have provided suggestions and advice, including the children’s commissioner, on amendments that have not been agreed by the Government. One of the roles of Parliament is to debate what may be two extreme points—by “extreme” I mean where the stance is that it is one thing or the other. Part of our role as elected members is to take such decisions on behalf of those in our wider communities who elect us here. That can be based only on the evidence, the debate that is heard and the conversations that happen.

I go back to my point that an opt-out model is not an imposition on the child; it is an imposition on the system. There have been cases, to which the minister has referred, of individuals who choose to do exactly that—to opt out. We also have a huge amount of both subjective and objective evidence that the challenge of dissent and misunderstanding is greatly reduced when advocates are involved.

The minister has talked about the costs, and she is absolutely right to do so, but she has also talked about her desire to develop advocacy in an iterative way, presumably to the point where every young person has an advocate, albeit that that point would be reached at a different pace compared with the jump that the opt-out model would give.

In essence, we all seem to be talking about the same goal that we wish to achieve, which is that the children are rightly represented by an advocate where the child wants to have one. I think that the opt-out model allows for a sensible discussion, and it allows relationships to be built at a much earlier stage.

The minister also raised the question of the potential tension with the rights of a young person under the general data protection regulation.

The flipside of that is the right to a fair trial and representation, and to be heard. We have ways of balancing challenges where human rights are brought into the context. In this case, the adults who surround the young person are perfectly able to adjudicate as to when GDPR should take precedence over the right to an advocate and the right to have a fair trial or, indeed, when it should be the other way. Some of the assertions that are being made against the opt-out model are unfairly based. In the amendments before us, we have, in essence, two different ways of achieving that. I compliment both Ross Greer and Nicola Sturgeon on managing to do it in a much shorter way than I did. It absolutely needs to be looked at.

With regard to amendment 80 from Jeremy Balfour, I know that the minister pushed back on the fact that it would, in essence, be a backstop. However, I can imagine scenarios where a chair or a panel are confronted with a subject in relation to which they would feel much safer if the young person had an advocate who was separate and distinct from others who had been involved. It might, indeed, be a sign of a disappointment if a case had got that far without the young person having their own advocate. To forgo the last opportunity for that would go against both the professionalism of the chair and the expertise of the panel.

I think that we have disagreement among the lodgers of a number of these amendments in relation to the purpose behind them. I am not sure whether the discussion will draw that together. We will see where it goes. I look forward to the minister’s summing-up.