The next group of amendments concerns supporters and advocacy and regulations concerning tribunals.

Amendment 40, in the name of the Minister, is grouped with amendments 40A, 78, 79, 57 and 58.

The purpose of Amendment 40 is to make provision in the bill regarding supporters and advocacy. There was much debate on the subject in committee at stage 2. The amendment will enable parents and young people to take another person, either as a supporter or as an advocate, with them to meetings with the education authority in respect of functions under the bill to support them or to make representations on their behalf. The education authority must comply unless the request is considered to be unreasonable. The amendment also makes it clear that education authorities will not be required to provide or pay for a supporter or advocate.

Following my agreement at stage 2 to consider the wording of paragraph 11(1) of schedule 1, amendment 57 will change the word "may" to "must" to make it quite clear that Scottish ministers will make rules of procedure in relation to tribunals. Similarly, amendment 58 will make it clear that the rules of procedure on the tribunals may make provision as to who may appear on behalf of the parties as their representatives or in support of the parties who are present at the tribunals. That will also apply to witnesses.

I turn now to amendment 40A in Rosemary Byrne's name. I will resist the amendment, which attempts to remove subsection 3 from amendment 40 and to replace it with a duty on education authorities to secure the availability of advocacy services for children, young people and parents. That would mean that the responsibility for ensuring that advocacy services were available would fall to education authorities. I am opposed to that because the right of advocacy, which the amendment seeks to introduce, is not targeted so that there will be no limitation on its use. That is an important point to consider and we must be realistic about the money that will be involved.

An unqualified right to advocacy would establish a demand-led service rather than one that is driven by need, and costs would inevitably be disproportionately high. It would be misconceived to direct more funds towards a comprehensive advocacy service than to the provision of support for children and young people with additional support needs.

Although I appreciate the concern that has given rise to amendment 40A, I believe firmly that the provisions in the bill and those in amendment 40 will help to deliver a new system that parents will be able to trust. The culture that the bill aims to promote is one of collaboration. I ask members to reject amendment 40A.

I will also resist amendment 78 because it would mean that Scottish ministers would have to make additional regulations about tribunals rather than their having the power to make them if so required at some point in the future.

Amendment 57 will make it clear that Scottish ministers will make rules of procedure with reference to the tribunals. Those are fundamental rules that will govern the operation of the tribunals, rather than additional regulation-making powers. I therefore ask Donald Gorrie to consider not moving amendment 78. Likewise, I will resist amendment 79 on the ground that it will be unnecessary in light of amendment 58 and I ask Donald Gorrie not to move amendment 79.

I move amendment 40.

The Minister's Amendment 40 is welcome because advocacy was highlighted by many witnesses to the committee. However, it is not robust enough and, as it stands, it will leave parents and young people to find a suitable supporter and to identify someone who knows the system.

The securing of independent advocacy for children and young people who have additional support needs would go a long way towards helping to minimise problems that will be created by the bill—namely, an adversarial system. Provision of independent advocacy for such children and young people would mean that parents and young people could seek advice regarding assessment, planning and appropriateness of support.

I am concerned that cost should not be an issue because access to advocacy could save money in the long term. I ask the minister to support amendment 40A. I also point out that there are already excellent groups around such as Independent Special Education Advice (Scotland), which have been providing excellent support to parents. Such groups should be supported; that is the approach that we should take towards advocacy.

I move amendment 40A.

Amendment 78 would replace a "may" with a "shall" so that the Executive shall, by regulations, make further provision. The Minister has just spoken to amendment 57, which would cover the same area in schedule 1—it proposes to change a "may" into a "must". Therefore, it would be logical for the minister to accept my amendment because one cannot have a bill that states in one place that the minister "may" do something, but states in Another place that he "must" do the same thing. It would be illogical to have "may" in one place and "must" in another.

On the more substantive point, although amendment 40 proposes a welcome improvement that would help people in respect of supporters and advocacy, it will not provide for specific help with tribunals, which is the aim of amendment 57. Tribunals are difficult for a lot of people because they believe that the rows of experts, lawyers and local council officials—the Opposition, as they see them—are there to bamboozle them. Parents feel that they are set up against a phalanx of alleged experts. Parents need help, so advocacy that is not necessarily paid for directly by the council, but through voluntary organisations such as those that Rosemary Byrne mentioned, would be helpful.

Amendment 78 deals specifically with support at tribunals, which the minister's amendments do not cover. I urge Parliament to support my amendment and I ask the minister at least to indicate that he recognises the problem and will ensure that people at tribunals are given the opportunity to have proper support.

I, too, will support Amendment 40. The amendment is a tribute to those who gave evidence to the committee at stage 1 and to the committee. The arguments for having reference to supporters and advocacy included in the bill were well made by many of them, so I am pleased that such provision will be included in the bill. It is very good that amendment 40 seeks to give legal standing to personal advocacy.

I want to reflect on some of the other amendments in the group. With amendment 40A, Rosemary Byrne makes an important point about the need for financial support for independent advocacy; if we do not have such support, we will have an exclusive system that is based on people's bank balances rather than on their needs.

With amendment 78, Donald Gorrie has highlighted a fundamental part of the bill. If access to a co-ordinated support plan is defined very narrowly, the ability to have one's case about eligibility argued at the tribunal becomes crucial. If we agree to the principle of independent advocacy and support, I agree with Donald Gorrie that that principle should also apply to the tribunal. It is important that the bill should say that Scottish ministers "shall" have powers to make relevant regulations. Amendment 78 reflects the amendment on the issue that Robert Brown lodged at stage 2. He, too, was in favour of ministers being able to use their powers to ensure that access to tribunals could be expanded.

The amendments in the group are important. I welcome the inclusion in the bill of a reference to advocacy. It will be not be a step forward only for the bill, but for Parliament. I hope that Parliament will support advocacy in many other Bills in the future.

We strongly support Amendment 40—we argued for such advocacy in committee. I do not think that I need to declare an interest, because the advocacy concerned need not be provided by a Scots advocate—in any case, I am not a practising Queen's counsel. We are happy that the Minister listened to our representations and we are similarly content with amendments 57 and 58.

There is a good case to be made for the other amendments in the group. Amendments 78 and 79 ask that the Executive "shall" make regulations and that the subject of regulations include the provision of independent advocacy at tribunals. The amendments have the support of the National Autistic Society.

On amendment 40A, I understand the minister's argument that the provision of such advocacy could be demand led but, in committee, significant arguments were made in favour of more informality, which it was thought could lead to a saving of costs because it would avoid disputes having to go through a far more adversarial system.

I hope that the minister will consider the amendments sympathetically when he has listened to the arguments.

I welcome Amendment 40, which I think reflects the committee's consideration of the need for reference to advocacy to be included in the bill. Amendment 40 is successful in that respect.

With respect, I do not agree with Donald Gorrie's point about "may" and "shall". In different parts of the bill, those words refer to different things. As I read the bill, the "shall" that he wants to add refers to a broad issue, whereas the Minister's "shall" refers specifically to the need for rules of procedure. It is clear that, if the tribunal is to operate, it must have rules of procedure, but it does not necessarily follow that other regulations must be made—although it is reasonably clear that, in that connection, further regulations will be made. It is a bit tautological to say that ministers "may" or "must" make regulations as they see fit.

My more substantive point relates to the requirement in amendment 40A, which in my view goes too far. Although I understand where Rosemary Byrne is coming from, her amendment does not reflect where we are at on the bill, because it would place an obligation on an education authority to make available independent advocacy to children and young people who have additional support needs. The proposed provision does not relate only to people with CSPs or to those who would be going before tribunals; it is much broader than that. I think that amendment 40A goes far too far beyond what is required.

The Administration is right to have had an eye to the resource implications of such matters, with a view to not having the whole thing sucked into the arrangements in question. The ethos of the bill is to concentrate on sorting out the problems at an early stage.

I join colleagues in warmly welcoming the Executive for having lodged Amendment 40. The point about advocates and supporters was well made by witnesses and I thank them for that. Thanks should also go to the Executive for showing us that it has listened to the evidence and arguments, as it did throughout the bill, and that it will amend the bill where necessary.

The subject of amendment 40 was flagged up in particular by young people who gave evidence to the committee. I was conscious that the most crucial element in the bill for them was that they would be able to have a supporter who would help them at the different stages of the decision-making process. The issue was also flagged up by parents. Clearly, given the absence of legal aid at the tribunal, advocacy is of particular concern at the tribunal stage. The point of having advocacy and support throughout the process is that it could reduce the chances of a dispute's reaching the tribunal stage.

I was slightly concerned to read in proposed new subsection (3) that

"Nothing in subsection (1) is to be read as requiring an education authority to provide or pay for a supporter or advocate."

That is a rather bald statement, which some local authorities might interpret as meaning that they should not pay in any circumstances. I hope that that will not be the case. That said, Rosemary Byrne has gone slightly too far in her prescriptive amendment 40A.

As I argued in committee, there will always be limited resources. Despite the fact that we have had an increase in resources, that will always be the case. We should not divert resources from front-line services. I give a warm welcome to the Executive's amendment 40.

I support amendments 40, 40A, 78 and 79 in the group. I will speak to Amendment 40A and the issue of resources, in particular. It is welcome to see the recognition of the importance of advocacy for parents who find themselves in situations of stress and difficulty against professionals.

However, we have an example in Independent Special Educational Advice (Scotland). The Minister has received a letter that was signed by Donald Gorrie, Margo MacDonald, Dennis Canavan, Lord James Douglas-Hamilton, Rosemary Byrne and me, which asked him to examine that parent-led advocacy service, which is essential to the very work that is covered in the bill. I hear the cries about funding and resources that have been made in the chamber today; but for the want of £20,000, however, ISEA could have continued in the job that it does at present. I ask the minister when the group of members who signed the letter will receive a substantive reply. I point out that ISEA ran out of funds yesterday.

Like many other colleagues, I congratulate the Executive for including advocacy in the bill. That it has done so moves us towards the position that the committee took in its scrutiny of the bill. We know that legislation in this area can be complex and that it is difficult for parents and young people to negotiate their way through the system. The bill is predicated on finding solutions to barriers to learning. The bill will put in place mediation, advocacy and dispute resolution, all of which are important. They represent recognition of some of the difficulties that can be faced by parents and young people in making their cases. I urge colleagues to support Amendment 40 and to vote against amendment 40A, which is simply not practicable.

I congratulate the Executive on Amendment 40, which I will support and I want to talk briefly to Rosemary Byrne's amendment 40A. The purpose of amendment 40A is to provide a level playing field for advocacy: it would fulfil that purpose. What it suggests is infinitely preferable to proposed new subsection (3), as set out in amendment 40. It is important that we give amendment 40A all due consideration. If the Minister cannot assure us that there will be a level playing field for advocacy, I urge the chamber to vote in support of amendment 40A.

I will try to pick up on all the points that have been made. I welcome members' general support for the Executive's Amendment 40. As Ken Macintosh rightly said, advocates and supporters are to be available during the process to support young people and their parents in getting across their points in the circumstances in which they find themselves. The measure will also try to ensure that a number of difficult matters might not necessarily have to progress to tribunal because of the Intervention of the advocate or the supporter.

There has been some misunderstanding, however, about amendment 40 because, as far as the Executive is concerned, amendment 40 would allow advocates and supporters to go to the tribunal. Amendment 40A would restrict local authorities too much. It says that they "must" provide advocacy, and there is therefore a loss of flexibility. Ken Macintosh made an important point about the fact that proposed new subsection (3) exists so that an education authority does not need to provide or pay for a supporter or advocate. It is there precisely because of the point that Ken made at stage 2, which is that the Executive wants to ensure that resources are put in to the services rather than advocacy.

I turn briefly to the point that Christine Grahame made about ISEA. As we announced at stage 2, the Executive has made—and will make—extra resources available for advocacy. On the letter about ISEA, I will check to see where that has got to; however, ISEA can apply for some of the new funds that will be made available. On Donald Gorrie's point about alleged inconsistency between "must" and "may", Robert Brown hit the nail on the head perfectly in that there are different points in the bill where the words apply. Ministers must make rules for the procedure of the tribunal, but there may not be circumstances in which we need go further and make regulations in the context of amendment 78. Therefore "may" is used, rather than "must", because the suggested circumstance may not arise.

The Minister is missing the point regarding cost, and is getting too tied up in the idea that authorities must provide. As Christine Grahame said, £20,000 a year for ISEA is not a huge amount of money and such practice could be mirrored in different local authorities. A small amount would provide support to many parents who might struggle to get the support that they require. Good advocacy is what witnesses at the Education Committee wanted—it is what many organisations want. The minister needs to listen. I hope that members will support Amendment 40A, because it is important for parents, organisations and others.

The question is, that Amendment 40A be agreed to. Are we agreed?

Members:

No.

There will be a Division.

Division number 16

For: Adam, Brian, Aitken, Bill, Baird, Shiona, Ballance, Chris, Ballard, Mark, Brocklebank, Mr Ted, Byrne, Ms Rosemary, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Curran, Frances, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Fergusson, Alex, Fox, Colin, Fraser, Murdo, Gallie, Phil, Gibson, Rob, Goldie, Miss Annabel, Grahame, Christine, Harper, Robin, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Kane, Rosie, Leckie, Carolyn, Lochhead, Richard, MacAskill, Mr Kenny, Martin, Campbell, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, McFee, Mr Bruce, McGrigor, Mr Jamie, Milne, Mrs Nanette, Mitchell, Margaret, Monteith, Mr Brian, Mundell, David, Neil, Alex, Robison, Shona, Scanlon, Mary, Scott, Eleanor, Scott, John, Stevenson, Stewart, Sturgeon, Nicola, Swinburne, John, Swinney, Mr John, Turner, Dr Jean, Welsh, Mr Andrew
Against: Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Gillon, Karen, Glen, Marlyn, Godman, Trish, Gorrie, Donald, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAveety, Mr Frank, McConnell, Mr Jack, McMahon, Michael, McNeil, Mr Duncan, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan

The result of the Division is: For 53, Against 60, Abstentions 0.

Amendment 40A disagreed to.

[Amendment 40 agreed to.]