Hansard

It is obvious that amendments 8 and 9 are aimed at encouraging the commissioner to work with others to minimise duplication and overlap. Neither amendment is necessary, as neither brings anything new to the bill. Beginning on a mischievous note, I suggest that we refer to amendment 8 as the Martini amendment—any time, any place, anywhere. Its ambiguity adds nothing to the existing provision in paragraph 6(1) of schedule 1, which says:"The Commissioner has a general power to do anything necessary or expedient for the purposes of, or in connection with, the exercise of the Commissioner's functions."That will vest the commissioner with a general power that is ancillary to the main functions as detailed from section 4 onwards. It will ensure that the commissioner can carry out his or her functions effectively. The minister talked about partnership and, although the bill is already drafted, perhaps co-operation is a better word than collaboration to describe how the bill will lead the commissioner to work with others.I refer colleagues to sections 4(1), 4(2)(a) to 4(2)(d), 5(3)(a) and 5(3)(b), 6, 7(2)(b), 8(1)(b), and 11(3). The ethos of the commissioner's work is to promote children's rights and encourage change rather than enforce it. The commissioner will not require a statutory power to communicate with others to do his or her job. Amendment 9 is similarly unnecessary. There is already a duty in section 6(2)(c) for the commissioner to "consult organisations working with and for children and young people on the work to be undertaken by the Commissioner."That duty reflects what is said in the Education, Culture and Sport Committee's report on the bill, which states:"The Commissioner will seek to minimise overlap and duplication with others by co-ordinating the work of the office, and establishing good working relationships with other relevant parties. These might include inter alia other commissioners and ombudsman, statutory organisations including the Parliament and the Executive, and children's organisations."Furthermore, the mainstreaming approach that is outlined in the report and which is implicit in the bill and explicit in the explanatory notes, suggests that the commissioner can establish relationships with existing organisations to use networks that are already in place.It is obvious that the commissioner cannot and will not operate in a vacuum. There is a complex structure of various regulatory inspection and promotion agencies that are relevant to children's rights. It would be inappropriate for the commissioner to replicate those, and the bill does not seek to do so. The bill will create a commissioner who can take an overview of issues, adopt an independent approach and focus on children and young people. In other words, there should be a mainstreaming approach.Such an approach may mean that the commissioner's work potentially overlaps with that of others. However, the breadth of his or her remit is offset by the fact that there is no existing body in Scotland that focuses solely on the rights of children and young people. In that respect, the commissioner will be unique. The commissioner will have no coercive powers under the non-investigative functions, and common sense will require him or her to adopt a co-operative approach with others in the field.The commissioner will essentially ensure that existing bodies work better for children and young people. In so doing, it is envisaged that the commissioner will make efficient use of resources, information and existing networks by co-operating with other bodies where appropriate. That will avoid duplication, minimise overlap and enable the commissioner to perform effectively. Co-operation is of course a two-way process, and although the commissioner may initially draw on existing expertise and experience, he or she will undoubtedly become a source of knowledge and advice for others.Clearly, co-operative working arrangements with other bodies are desirable and necessary. The Education, Culture and Sport Committee takes the approach that such aspects of the commissioner's work should be non-statutory, non-list based, discretionary and informal. They should be developed by the commissioner and other relevant bodies and should be set out through mutually agreed working arrangements, protocols, concordats and the like rather than being placed in the bill.It is curious that amendment 9 does not require consultation per se, but merely asks that it occur "from time to time". That will avoid duplication, but only "so far as practicable". I also suggest that the requirement to exchange information, which would be provided for by subsection (1)(b) of the proposed new section, would be part of any consultation required by subsection (1)(a), and would probably therefore be superfluous.Amendment 9 would require the commissioner to consult persons whom he or she reasonably believes to have similar functions or who exercise similar functions. The functions of the commissioner are set out throughout the bill and in section 4(1) in particular, which states: "The general function of the Commissioner is to promote and safeguard the rights of children and young people."It is because nobody else has that function that the commissioner for children and young people is being created. I accept that others have duties that include the promotion and safeguarding of such rights. However, other than other children's commissioners, it is difficult to identify who might fall within subsection (2)(a) of the proposed new section.I accept that the intention that underlies amendment 9 is to make the requirement to consult explicit. I hope that I have addressed the issues on which the minister wanted me to elaborate and that I have shown that the implicit references throughout the bill, coupled with the explicit material in the explanatory notes, make amendment 9 unnecessary. I therefore invite the minister to withdraw amendment 8 and not to move amendment 9.