Chamber and committees

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.