Committee members will recall that Ken Macintosh lodged amendments at stage 2 that sought to replace all instances of "employment" with "work" in both schedules that define regulated work. The effect of these amendments was to reduce the scope of regulated work so as to exclude from regulated work individuals who work alongside children and protected adults who are themselves volunteers.
At stage 2, we agreed with the principle of making that change to paragraphs 2 and 3 of schedule 2 and to consider changes elsewhere in that schedule. Although I supported the amendments to paragraphs 2 and 3 in principle, they were pre-empted by Executive amendments so we agreed to lodge amendments with a similar effect at stage 3.
Executive amendments 20, 21 and 22 make the changes to paragraphs 2 and 3 as promised. Amendments 23 and 24, read with amendment 20, similarly reduce the scope of regulated work in respect of paragraphs 4 and 5 when the activity is carried out in relation to children aged 16 or 17 in the course of the children's work. We have not exempted work with children under the age of 16 who are doing unpaid work, because we consider that there is a strong case for that remaining within the scope of the scheme.
Amendment 34 makes a minor adjustment to schedule 3, "Regulated work with adults". The amendment removes paragraph 5(a), which Ken Macintosh's amendment at stage 2 sought to modify. I am grateful to Ken for highlighting that provision because we have discovered that paragraph 5(a) is largely redundant, which is why we have introduced the amendment to remove it. We believe that scenarios caught by paragraph 5(a) will also be caught by paragraph 5(b). The practical effect is to make paragraph 5 easier to read, which is worth while.
I move amendment 20.
The minister will be aware that, as far back as stage 1, I raised issues about young people aged 16 and 17 who are volunteering with people who may be vulnerable adults or who may have other difficulties and need support. There may be issues about police records for any one of those people.
I welcomed the stage 2 amendments that recognised that many young people volunteer. We should not create extra bureaucracy that may prevent people from encouraging young people aged 16 and 17 to work with them. We may reflect on the debate about the position of the young person who volunteers to take minutes for a community council, the main purpose of which is not necessarily to provide services to children, but we cannot get into the ridiculous situation in which young people are prevented from volunteering because of the legislation. I therefore welcome the spirit of amendment 20 and the amendments that were lodged at stage 2 to address the issue.
Common sense and practical considerations must have a role in our approach to child protection. We must also acknowledge that another issue is setting the age of majority at 16. Indeed, Iain Smith lodged amendments at stage 2 that suggested that we should consider a child to be someone under 16, but at that point we accepted the minister's arguments for keeping the age bar at 18. Amendment 20 goes some way towards recognising the particular responsibilities of young people aged 16 and 17 who are volunteering and it addresses the need not to introduce unnecessary bureaucracy for those who provide volunteering opportunities or paid employment opportunities for young people aged 16 and 17.
I add that the amendments that I lodged on behalf of the voluntary sector at stage 2 were designed to ensure that we do not create an artificial barrier between paid employment and work in the voluntary sector and by implication diminish the contribution made by our voluntary sector. I thank the minister for lodging the amendments today.
Amendment 20 agreed to.
Amendments 21 to 24 moved—[Robert Brown]—and agreed to.
I thank Ken Macintosh for moving an amendment at stage 2 that clarified the scope of the scheme in respect of unsupervised contact with children. Committee members will
Ken Macintosh's amendment at stage 2 gave children's parents and guardians the right to agree that a friend can supervise their child's contact with a worker and, by so doing, take that work out of the scope of regulated work. We had no difficulty with that, since it seems entirely reasonable for a parent to have the power to do that. We ought to recognise the central importance of the rights of parents in this context.
We noted at committee that Ken Macintosh's amendment should make it easier for those seeking to organise very informal voluntary activity. Amendment 25 extends the scope of his amendment by including not only personal relationships but family relationships. For consistency, amendment 26 ties the definition of family and personal relationships in amendment 25 to those used in section 95, which provides the definition of work.
I move amendment 25.
I again thank the minister for lodging the amendments. The issue is to make it easier for decisions to be made at the margins about what is voluntary work and to clarify what decisions it is appropriate for adults, and for parents in particular, to make. I thank the minister for recognising the strength of the amendments.
Amendment 25 agreed to.
Amendment 27 narrows the scope of paragraph 6 of schedule 2 so that the provision of advice or guidance to children is only regulated work if it is not incidental to the provision of advice or guidance to adults, which echoes Ken Macintosh's comments in the previous debate. The amendment brings the provision into line with paragraphs 2 and 3 of schedule 2, which deal with caring, teaching, instructing, training or supervising children, and which also have an "incidental" qualification.
Amendment 27 also responds to concerns that were raised by the Law Society of Scotland about the provision having a disproportionate impact on certain professionals, such as lawyers, as too many people might have been required to join the
Amendment 27 puts beyond doubt that, for example, a lawyer who has a small number of child clients as part of a service to the population more generally should not be considered to be doing regulated work. However, I do not accept the argument that no lawyer should ever be a scheme member because they are regulated by the Law Society of Scotland. Plenty of individuals who will be scheme members will also be regulated by a professional body of one kind or another. Scheme membership and professional body regulation have distinct purposes, which should complement each other, but they are not substitutes for each other. I also highlight that advice or guidance is restricted to that
"which relates to physical or emotional well-being, education or training", therefore a criminal defence lawyer advising a 17-year-old about criminal charges would, in any event, fall outwith the scope of paragraph 6.
I would like to put it on the record that advice or guidance in relation to spiritual matters or spiritual well-being is included within the scope of paragraphs 6 of schedules 2 and 3. For children and adults, such advice on spiritual matters or well-being is considered to be captured by advice on emotional well-being. We had discussions with the Church of Scotland, in particular, on the matter, and it asked me to make the point clear on the record, which I am happy to do.
I believe that Lord James Douglas-Hamilton's amendment 38 is an alternative response to the Law Society's concerns. I hope that he will be reassured by my comments on the lead amendment. As I have said before, I do not agree with the basic tenet that any profession should be exempt from the scope of the bill on the basis that it is regulated in other ways. We should not exclude from the scheme simply because of their chosen profession individuals who have significant contact with children: we need to focus on risk and the level and type of contact that an individual has with vulnerable groups.
I reassure Lord James Douglas-Hamilton that schedule 2 can be amended by order if the provision turns out to have any adverse consequences for the legal profession or for the provision of legal services to children. On the basis of that reassurance, I hope that he will not move amendment 38.
I move amendment 27.
I mention that I am a non-practising Queen's counsel, but I am
Solicitors are considerably regulated with regard to the protection of children in such situations. The society has provided a guidance document entitled "Child Protection and Representation Principles for Children's Lawyers" and it updates information on what is required on its website. That guidance has been tailored to the unique nature of guiding children through complex legal situations and is more appropriate than any general regulatory regime could be.
Amendment 27 goes a considerable way towards assuaging concerns. It will exempt solicitors who give children incidental advice as part of their main job of advising adults, but the core issue remains that solicitors are already sufficiently regulated, as are others whom professional bodies govern.
Under amendment 38, the scheme would still include staff of telephone advice lines and agony aunts in children's magazines. Those are the only roles that are mentioned as examples in the explanatory notes to the bill. Those jobs are not currently regulated. Members of professional bodies, such as solicitors, operate in a different context. Initially, it was unclear whether ministers even intended the provision to extend to them. Amendment 38 would ensure that the provision did not apply to them and that their existing highly tailored regulatory regime would not be overridden by the general regime.
I intend to press amendment 38.
I do not have much to add. I responded to Lord James Douglas-Hamilton's observations when I said that incidental advice and some work would not be covered. There is no reason in principle for exempting lawyers as a category. Teachers, social workers and others are regulated by their own professional bodies, but they nevertheless require to be disclosure checked under present law.
The arrangements that we suggest in amendment 27 and in the power to amend schedule 2 by order if we have got the provisions wrong should reassure the Parliament sufficiently on the points that Lord James Douglas-Hamilton is right to raise.
Amendment 27 agreed to.
Amendment 38 moved—[Lord James Douglas-Hamilton].
Division number 2
For: Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, McGrigor, Mr Jamie, McLetchie, David, Milne, Mrs Nanette, Mitchell, Margaret, Petrie, Dave
Against: Adam, Brian, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Curran, Ms Margaret, Eadie, Helen, Ewing, Fergus, Fabiani, Linda, Finnie, Ross, Gibson, Rob, Gillon, Karen, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Grahame, Christine, Harper, Robin, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, May, Christine, McMahon, Michael, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, 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, Robison, Shona, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stevenson, Stewart, Swinney, Mr John, Turner, Dr Jean, Wallace, Mr Jim, Watt, Ms Maureen, Welsh, Mr Andrew, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Amendments 8 and 9 are designed to allow flexibility in the development of fostering policy and compatibility with the Safeguarding Vulnerable Groups Act 2006 for England, Wales and Northern Ireland. They put beyond doubt ministers' power to create classes of regulated work whereby the individual is a scheme member and is subject to continuous vetting but is not caught by some or all of the barring offences in sections 33 to 36. The power can be used to extend the scheme and therefore to extend protection, but it will avoid the unintended consequences that can sometimes follow from the barring offences. That relates to the fostering matters that we dealt with earlier.
I move amendment 8.
Amendment 8 agreed to.