Chamber and committees

How much of Education Scotland’s role is about ensuring that the RICs and local authorities are evaluating and feeding back versus doing its own direct evaluation?

I have a question about encouraging that local accountability. It is not for the Scottish Government to tell local elected members what they should have on their agenda, but how do you strike the right balance between giving local authorities the autonomy that they deserve as elected bodies and trying to encourage and support them to do local evaluation work that can collectively be fed up to build the national picture?

I am interested in the potential for a longitudinal study of the impact of the funding so far. I think that it was Jim Thewliss from School Leaders Scotland who first made the point to us that we are at a stage where entire cohorts have gone through the whole of primary or secondary education while the funds have been in place, and that this is an appropriate time to commission a long-term, longitudinal evaluation of the overall impact that the funding has had in specific settings? Is any work under way or likely to take place over the coming months that will fit that description?

If you do not mind, I will start with a daft question, because I am certainly not a lawyer. What do you recommend? Is it that the High Court should be able to make orders only for a maximum of 22 days and then a couple of subsequent—potentially, three months—extensions? That is not directly relevant to the regulations, though, is it? That is either for the proposed bill or more directly for the UK Government and UK-wide legislation.

I recognise that there are ways in which the regulations can be strengthened. However, particularly on restricting the High Court’s ability in terms of the length of orders, it seems to me to be questionable whether we would be able to do that through regulation in Scotland. I assume that any English authority that was seeking to challenge that would at least have a pretty strong case, given that the matter is not in primary legislation in Scotland and is not relevant to the UK-wide legislation—the English legislation, specifically—that applies.

You mentioned a couple of other concerns that I am interested in getting into in a little bit more detail. One of them—it seems to be very reasonable—is that under the regulations the Care Inspectorate will not be obliged to inspect facilities. There is an obligation to notify the inspectorate, but it is not obliged to take any particular action. Given that the regulations are a temporary solution, would you be satisfied if the Care Inspectorate simply made a commitment to inspect, although it would not be required to by regulations, given that what we are talking about will—we hope—be in place for two years? If the Care Inspectorate simply made a commitment to inspect facilities, would that address that specific concern?

To clarify, where does responsibility for trying to reduce that variation lie nationally? Does it lie directly with Government or would Education Scotland take the lead on that?

The concerns in the Care Inspectorate report are widespread; I am certainly not disagreeing with you in principle. I am trying to figure out whether we are in danger of letting the perfect be the enemy of the good, especially given that the measure will be temporary. There are a couple more specific points that you raised that I am interested in getting clarity on. You mentioned that

“There is a real risk that without sufficient legal restrictions, Scotland is opening the door to significant numbers of cross-border placements, and to the possibility that this will be exploited by private, profit-making providers.”

My understanding is that that is exactly what is happening now, and that the regulations do not go far enough—which I think the Scottish Government itself would admit. That is why proposals on a children’s justice bill are out for consultation at the moment. Surely what is proposed in the regulations would not incentivise further use of cross-border placements. It might not reduce them by as much as we want, but it would reduce them.

For example—I recognise that you have specific concerns on this point—the regulations will give the Scottish Government the ability, through the sheriff court, to take action against a placing authority. To me, that is a disincentive. If I was an English local authority seeking to place a young person with a private provider that is based in Scotland, the potential for the Scottish Government to pursue me through the sheriff court would be a disincentive rather than an incentive.

Do you recognise that although perhaps the regulations do not go far enough, they do not incentivise further cross-border placements, but instead disincentivise them?

I am sorry to interrupt. I have huge sympathy with so much of what you have said, but I am trying to drill down and identify each point of concern. Am I right in understanding from what you have just said that you do not believe that the regulations would provide a further incentive?

Part of the question here—not all of it—is whether we will end up in a position in which, for the next two and a half years, we will continue to see a significant increase in the number of placements. Do you believe that the regulations make it more likely that we will continue to see such an increase? That is the bit that I am struggling with here. I accept that it is questionable and that we will end up facing a question of constitutional law, but given the provision that allows the Scottish Government to pursue the placing authority, in my view that is a pretty clear disincentive to an English local authority to try for a placement in Scotland. I am still trying to understand why you think that the process incentivises placement in Scotland.

Thank you—that was quite reassuring.

I have a final, brief question. You mentioned in your written submission that the use of the national outcomes in parliamentary scrutiny in Scotland was an example of good practice. I will be honest—most, if not all, of us did not think that we were doing a good job in that regard. Could you tell us what we were doing right, because we were not aware of that?