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Building the scaffolding – an enabling legislative landscape

29/11/2024

Image shows heart with scaffolding

 By Fiona Duncan - Independent Strategic Advisor to the promise

Building the scaffolding – an enabling legislative landscape

Scotland must build the scaffolding to enable the wholesale change demanded by the Independent Care Review.

This means making sure that Scotland’s systems and structures operate in ways that support all children to grow up loved, safe and respected. 

Major planks of Scotland’s scaffolding are policy and legislation.

Plan 24-30 identifies the systemic issues getting in the way of the promise being kept, these include: policy, money, data, scrutiny and risk. Each impacts the other, and all impact nationally and locally.

For example, decisions within a cluttered, siloed policy landscape result in fragmented allocation of money and resources. Then, lots of different data sets are collected and counted, demanding huge amounts of bureaucracy… signalling what changes are most ‘valued’ – often with little or no relation to real life.

Cross-party support to #KeepThePromise in full by 2030, was reaffirmed at the recent Scottish Parliament debate. The discussion also surfaced frustration at the pace and scale of change, with calls for both to be increased.

During the debate, the Minister for Children, Young People and The Promise, Natalie Don-Innes reiterated the Scottish Government’s commitment to introduce a Promise Bill within this Parliamentary term. This is very welcome and it was good to see the Minister’s continuing personal commitment to #KeepingThePromise.

In February 2020, when the Independent Care Review concluded, the promise stated:

The current system is underpinned by 44 pieces of legislation, 19 pieces of secondary legislation and 3 international conventions and straddles 6 out of 9 Scottish policy areas making cohesive operation impossible - and creates disconnects into which children, young adults and their families can fall. Scotland must create a clear legislative, enabling environment that supports families to stay together and protects and allows relationships to flourish.”

page 112, the promise

Since then, if anything, the legislative environment has become more complex. So, for the Promise Bill to realise in full the conclusions of the Independent Care Review, it must be broad in scope, clearing and streamlining legislation so the ‘care system’ can support families to stay together, children in care to flourish and care experienced adults to thrive, based on listening and relationships.

The existing legislative landscape can have devastating real-life consequences for children, young people and families.

The rules report, published as part of the Independent Care Review’s conclusions, described a “labyrinth of legislation, policy and practice” that does not reflect the needs of Scotland’s children, or their journeys into adulthood, and creates complexity for those working alongside them.

Policy incoherence burdens the workforce.

There are numerous national frameworks and policies that all rely on the same workforce for implementation and reporting – with alignment between them not always clear.  I hear stories all the time of members of the workforce having to navigate an often complex landscape of legislation and regulation, as they focus on nurturing meaningful and long-lasting relationships.

Additionally, existing legislative duties and entitlements are not implemented consistently across Scotland. Limited funding and resources, as well as the capacity of the workforce, are often cited as the main reasons.

The Promise Bill must address the complexity of existing rules and regulations. And make sure that in the future, legislation does not get in the way of change, instead supporting and accelerating it. For example, as long as age is used an arbitrary indicator of development and readiness, instead of birthdays being a time to celebrate, they become cliff-edges that are dreaded.

Realising the potential and ambition for the Promise Bill will be critical in making sure Scotland keeps the promise in full, everywhere, every day and to everyone by 2030.

The work to develop a genuinely impactful Promise Bill is urgent.

Almost five years on since the Independent Care Review concluded, time is now short to do all the work required in this parliamentary term deliver a fit-for-purpose Bill.

This must include:

•       Decluttering and streamlining the legislative landscape, and being clear about where the key legislation that directly relates to the promise should sit (whether it is in the Promise Bill or another piece of legislation).

•       Using legislation to build bridges and remove barriers to change, as highlighted in Plan 24-30. This will involve mapping the intended and the unintended consequences, from a human perspective, and taking account of risk.

•       Modelling the vision for a smaller, more specialised ‘care system’.

•       Robust financial modelling.

In addition, areas of existing legislation which haven’t yet been implemented consistently or in full need to be. All of this must be accompanied by a plan for sequenced and thoughtful implementation of The Promise Bill.

Scottish Government is consulting on important areas that will inform the development of the Bill – including ‘Moving on’ from care into adulthood (closed 3rd Oct), ’Children’s hearings redesign’ (closed 28th Oct), ‘Developing a universal definition of ‘care experience’’ (closing 8th Jan 2025) and the ‘Future of foster care’ (closing 6th February 2025).

My concerns are focused on the need to make sure that the voices of the care community are heard as this legislation is shaped.

The Promise Scotland will continue to publish briefings and responses – here are links to the two recent ones: Children’s Hearings Redesign and ‘Moving On’ from care into adulthood.  

These responses – and everything else that The Promise Scotland does – are firmly focused on realising in full the conclusions of the Independent Care Review and making sure that Scotland achieves its collective ambition to #KeepThePromise.