Section 7 — Carrying out investigations

Commissioner for Children and Young People (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:30 pm on 26 March 2003.

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Photo of Karen Gillon Karen Gillon Labour

Section 7 provides the commissioner with power to

"carry out an investigation into whether, by what means and to what extent, a service provider has regard to the rights, interests and views of children and young people in making decisions or taking actions that affect those children and young people."

I have deliberately quoted the opening subsection, as it describes the limit of the power. The power is not—as has been suggested in some quarters—open ended.

The section also limits the areas and matters that are subject to investigation. In particular, it prevents investigations into matters that relate to a particular child or young person.

Photo of Brian Monteith Brian Monteith Conservative

I was intrigued by the member's comment, "as has been suggested in some quarters". Will the member be more explicit and tell the chamber in which quarters that has been suggested?

Photo of Karen Gillon Karen Gillon Labour

Some people outside the Parliament have suggested that the provision makes the bill much more open ended. I want to make it clear for the Official Report what the intention of the bill is, to avoid confusion and the need for clarification in the future. As I have said, section 7 limits investigations and prevents them when such an investigation is the proper function of another person. It is intended to avoid duplication of effort and investigation into individual cases.

The amendment, which was first suggested by the Executive at stage 2, seeks to ensure that the policy that I have set out prevents any investigation by the commissioner into matters that are before a court or tribunal. The amendment will prevent the commissioner from investigating decisions and actions taken in court or tribunal proceedings. It will also prevent the commissioner from investigating any matters that relate to proceedings currently before a court or tribunal. However, the amendment does not prevent the commissioner from investigating infrastructure matters: for example, the availability of various ways for children to give evidence to court.

I am grateful to the Minister for Education and Young People and to the Deputy Minister for Education and Young People and their officials for their assistance with the amendment.

I move amendment 3.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

I would like clarification of the new section 7(c)(ii) that the amendment proposes, which would prevent the commissioner from investigating

"a matter which is the subject of legal proceedings before a court or tribunal."

We can all recollect occasions on which MPs, MSPs or newspapers have made efforts to find out information about something and have been told, "It is sub judice; there is a law case." The law case might, in a Dickensian manner, take years to start, and civil actions, once they start, can dribble on endlessly. I would not like the bill to include a provision that enables people who fear investigation by the commissioner to drum up a spurious civil action or to prolong an existing civil action merely to prevent an investigation.

I hope that Karen Gillon can give us some satisfaction and clarification on that point. I see what the amendment aims at, but I am worried about the provision being misused.

Photo of Karen Gillon Karen Gillon Labour

I will clarify the matter for the member as best I can. I would not want someone to pursue a spurious legal case for the sake of usurping the role of the commissioner either, but it would be inconceivable for the Parliament to pass a bill that would undermine the legal process in this country. I hope that the member will understand that the commissioner is not above the law and so will require to work within the parameters that exist. That means that if a case is before the court, it should be allowed to proceed and seek its rightful conclusion through the process to allow us to move on. To do anything else would lead us into a dangerous situation and would set a dangerous precedent.

Amendment 3 agreed to.