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Indeed—they would be the same types of processes. There will be an attempt to achieve consent, but if, for the reasons that we have gone into already, such consent is not appropriate or cannot be given, what we are talking about can still be done.

I have very little to add, convener. To respond to Roz McCall’s point, I note that the set of regulations is an attempt to ensure that the individual remains at the heart of everything that we do. The existence of a threat of harm to an individual is the reason why we would take the approach, which we recognise is a very serious step, of using the regulations. I hope that I can reassure Roz McCall that the intent is to ensure that we protect some of the most vulnerable people in our society, some of whom, simply because of their circumstances, may not be able to give their explicit consent. The reason why we are seeking to make the regulations is very much based on the need to protect those individuals.

It might be best if I give an example. In a situation in which an application is being made for child disability payment, contact will clearly have been made with a parent or carer, and a member of our local delivery team might have genuine concerns not necessarily about the child but about the parent or carer. There might be, say, mental health concerns of whatever kind, or a fear that there is domestic abuse. It is very important that, when we talk about dignity, fairness and respect, we apply those things not just to the client but to everybody whom the agency comes into contact with. In that example, the local delivery staff member will be able to come back and go through the processes that we have talked about in order to assist the carer or parent who might be in difficulty, even though they are not technically the client. Perhaps such examples help to bring out the importance of looking at the situation that presents itself to a member of staff as they are going through a case.

All staff have mandatory data protection training, which is refreshed annually. Staff training on identifying vulnerable people who are at risk of harm has been delivered alongside guidance and a process that ensures that staff can raise concerns quickly and effectively. All concerns that are identified are discussed with a line manager and then forwarded to the safeguarding team that I mentioned in my opening remarks. As I said, that dedicated safeguarding team comprises experienced professionals who are responsible for considering referrals and reporting to the appropriate authority. The team is overseen by the deputy director for health and social care and the chief medical adviser. That experience and knowledge inform the proportionality of the information sharing.

The process has many levels and it involves many checks and balances with a view to ensuring that all staff are trained and that information is shared sensitively within the agency and, in particular, the safeguarding team, which has a great deal of experience.

The primary focus of Social Security Scotland is to ensure that people receive the assistance that they are entitled to, putting the person first and treating them with fairness, dignity and respect, in line with the key principles of the Social Security Scotland charter. However, the Scottish Government recognises that, in undertaking that role, Social Security Scotland engages with some of the most vulnerable people in Scotland. Inevitably, that will lead to instances in which it becomes apparent that a person might be at risk of harm. To adequately support people in that situation, we must have a clear and robust process in place.

As such, and in keeping with our commitment to support the wellbeing of the people whom we engage with, in March 2022 a public consultation was launched seeking views on creating a specific legal gateway for Social Security Scotland to make to the relevant authorities referrals concerning risk of harm. The consultation responses demonstrated overall support for the proposal.

It is important to make a distinction between cases in which a person might be at risk of harm and those in which there is an immediate threat or risk to life. Situations in which immediate threat or endangerment to life are observed are reported to Police Scotland under the common law duty of care. The regulations that we are considering today cover sharing of information when a person is at risk of harm, with harm variously being defined, depending on the sharing, to include significant neglect; physical, mental or emotional harm; or the likelihood of their causing self-harm.

Child and adult protection services in local authorities are governed by legislation that is underpinned by Scottish Government national guidance on child protection and by a code of practice for adult support and protection. Those allow referrals to be made by Government agencies and third sector organisations that engage with vulnerable people and which may have cause to refer concerns of harm. In July 2022, the code of practice was updated to include Social Security Scotland as one of the agencies, in recognition that the agency is a key partner with a role to play in supporting vulnerable people.

Referrals in which a risk of harm has been identified are currently being made by Social Security Scotland under an interim process while the regulations are being considered. The agency has a safeguarding team that is staffed by qualified health and social care professionals, who review all concerns that are raised and, where appropriate, make referrals using a gateway in health legislation.

However, that legislation covers sharing of information that is related only to physical and mental harm and does not cover financial abuse. The regulations will enable the sharing of information relating to harm that is caused by financial abuse.

Furthermore, for the purposes of transparency, I consider it appropriate to create a bespoke and explicit legal gateway to cover safeguarding referrals from the agency. Additionally, in drafting the regulations, officials identified that, where a person is an adult with incapacity under the Adults with Incapacity (Scotland) Act 2000 and has a power of attorney, a legal guardian or is subject to an appropriate order, the public guardian has authority to investigate concerns of financial or property abuse. The drafting therefore includes referrals to the Office of the Public Guardian when that is suspected.

The process of preparing the regulations has involved significant engagement with relevant parties, including the Information Commissioner’s Office, local authorities, health and social care officials, information governance policy leads, social work leads and data protection officials.

The regulations make provision for Social Security Scotland to make referrals only where there is concern about risk of harm. That is to ensure that there is no interference with the investigating powers or decision-making processes of local authorities. It remains for local authorities to make risk assessments and to evaluate additional help that is required by the individual.

For the avoidance of doubt, the sharing for which the regulations provide will ensure that such a referral will have no impact on the assessment of a person’s application for assistance; that only information that is relevant to the risk of harm that has been observed will be shared; that consent from the individual who is being referred will be sought in most instances—although I have included provisions for cases to be referred in which consent cannot reasonably be obtained; that no information concerning a referral of concern of a risk of harm will be held on a person’s file relating to their application for assistance; and that such a referral will be stored in a separate restricted access file, in line with data protection laws.

The aim of the regulations is to support vulnerable people who are identified as being at risk of harm by referring them to the appropriate authority for help and support, which—as I am sure the committee will agree—is a positive action for the people who need it most.

I thought that I had lost you halfway through my answer, Mr Doris, but that is fine. I have met and visited the offices of the project that you mentioned. I noticed that you had that event and I had hoped to come down to meet them again. I was impressed by the work that the project does and I am pleased to see it recognised in the Parliament.

While I was on that visit, we spoke in great detail about the real concern that we should all have to ensure that abuse is seen in the widest sense, including financial abuse. That is why I was clear in my opening remarks about the need for us to recognise all abuse, including financial abuse. It is a clear concern for many different demographics. The committee will be aware that particular concerns have been raised about older clients and financial abuse towards them. Mr Doris rightly mentioned aspects around domestic abuse and financial control being part of that. I hope that the regulations will be able to assist those women in those types of situations, if agency staff come across that.

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We explored what could be done to achieve more coverage for UK acts in devolved areas within the compatibility duty. One example of how we sought to do that was by looking at an approach that would have differentiated between existing and future acts in devolved areas, so that, for example, the compatibility duty would have applied to existing, but not future, legislation.

We also tried to identify ways in which future acts in devolved areas could be included by adding in a regulation-making power under which Scottish ministers could, with the approval of Parliament, extend the compatibility duty to devolved functions that are created under UK acts in the future, even if that were to be done on a case-by-case basis. The reason why we chose not to do that goes back to the complexity that the bill would then have had. It is already a complex piece of legislation, but it will be more complex if those amendments are passed and the bill becomes an act.

When we looked at the complexity issue alongside our assessment of the risk of another referral to the Supreme Court, we, as a Government, came to the view that greater coverage would, in effect, make the provisions too complex for users. We did some testing within the Scottish Government and realised that we were in danger of producing legislation that would be too complex to use, whether by children and young people, their representatives or the public bodies.

We also considered that compatibility could have applied when public authorities are delivering their duties under powers that are conferred by amendments to UK acts that are made by acts of the Scottish Parliament. We do not feel that there is a legislative competence barrier to doing that but, again, the provisions that would come from that would be extremely complex. That balance of the risk of complexity in coverage, and the risk of a Supreme Court referral led me to take the decision that I have taken.

When the Supreme Court judgment came through, the Scottish Government asked the Secretary of State for Scotland to look into whether the current devolution set-up could be changed to allow the bill to proceed, as the Parliament had voted for. That would have been an alternative, but the Secretary of State for Scotland was not willing to consider it. On that basis, we needed to adapt the bill. That was clearly disappointing, but that was the state of play, so we are where we are.

The other obvious way to achieve greater UNCRC incorporation is, of course, for the UK Government to do what we are doing within our limited powers, and put the UNCRC on the UK statute book.

Those are two alternatives, but they were not open to the Scottish Government; they needed the UK Government to take action.

The question has been an interesting part of the discussions that we have had with stakeholders as we have prepared for the reconsideration stage. It is not only about the amendments but about how we deal with the implications of the bill as it stands.

The UNCRC strategic implementation board was informed at its last meeting that I have asked officials to commission a review of UK acts in devolved areas. I make it clear that that review is not to identify whole UK acts that would be worth converting into Scottish Parliament acts but to identify provisions in UK acts that could be converted.

As the committee is well aware from its own discussions on legislation, an entire UK act could have hundreds of provisions in it. The Scottish Government might wish to amend such legislation, as might the Scottish Parliament—I am sure that members might wish to make amendments. That will take time to go through the parliamentary process. As I mentioned in my answer to Maggie Chapman, we are also keen to look at the priorities of children and young people as we consider the audit.

I have already made a commitment to such work. At this point, I cannot give a timescale for it, because we need to scope out exactly what it will entail, but I am keen to get it initiated as soon as is practically possible. As I said, it is very important to involve children, young people and others who are impacted in how we can generate findings in a phased way and how we can take them forward.

We are keen to see what the Government can do to respond to requests in relation to an audit and to see how we can work together with stakeholders on how we do that, which is also important.