Meeting of the Parliament [Draft]

Meeting date: Wednesday, February 28, 2024

Official Report 1084KB pdf

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National Care Service (Scotland) Bill: Referral Back to Lead Committee at Stage 1

The next item of business is a debate on motion S6M-12317, in the name of Jackie Baillie, on the National Care Service (Scotland) Bill: referral back to the lead committee at stage 1.

15:20  

I come to the chamber more in sorrow than in anger to move a motion to ask the Parliament to send the National Care Service (Scotland) Bill back to the Health, Social Care and Sport Committee for further evidence taking and consideration before stage 1. This is only the second time that such a motion has been brought before the chamber—such is the seriousness with which this action is taken.

Members will know that I first proposed a national care service over a decade ago. That was in response to Clostridioides difficile, which ripped through our hospitals and care homes and caused deaths as a result. People were transferred from hospitals to care homes without testing, care staff were without adequate personal protective equipment, standards were variable, and there was little oversight at the time. That sounds all too familiar.

Although Nicola Sturgeon said no to a national care service 10 years ago, the Scottish National Party has changed its mind. I welcome all converts, no matter how late in the day.

I have long believed in a national care service, so I do not take this step lightly. Let me set out why I think that the Parliament needs to send the bill back to the committee. At this point, I record my thanks to the Health, Social Care and Sport Committee, the Finance and Public Administration Committee, the Education, Children and Young People Committee and many other committees besides, and all the clerks for their diligent work on this piece of legislation. That work has not been easy. However, my beef is not with them; it is with the Scottish Government.

Members should read the report from the Health, Social Care and Sport Committee. It contains page after page of criticism, requests for clarity, and areas that are identified as requiring substantial improvement. The Finance and Public Administration Committee looked at the bill twice, and it was still highly dubious about the budget.

However, the real problem arises with a backroom deal that was done with the Convention of Scottish Local Authorities. That deal changes the fundamental governance structures of the national care service. Some might agree that the deal is a welcome change, but there are many in the independent sector and the voluntary sector and many people with lived experience of care who do not think that it is right. However, whether people agree or disagree is not the point; the point is that the committee has been unable to scrutinise the bill, as the Scottish Government has been unwilling to share its amendments before stage 2. Despite polite requests from the committee, the minister kept saying no. Despite an SNP member of the committee asking to see the target operating model, which would have given us a clue about the direction of travel, the minister still said no.

The Parliament’s history has too many examples of pieces of legislation that lie on the statute books and are simply incapable of being enacted because they are such a mess. The Hate Crime and Public Order (Scotland) Act 2021 has not yet been enacted. Legislation has, sadly, been challenged in the courts because there was insufficient scrutiny of evidence.

Frankly, the national care service is too important to get wrong. The Government has already indicated that it will not be up and running until 2028-29, so there is time to take an extra few weeks to scrutinise the Government’s amendments, which will fundamentally change the governance arrangements. That should be properly considered at stage 1.

There is precedent. I will cite a recent example. The Rural Affairs and Islands Committee successfully argued that it should see amendments during stage 1 of the Wildlife Management and Muirburn (Scotland) Bill. It got sight of amendments before stage 1 was completed.

Many members have noted in the past that stage 2 is, in any event, too short a process. Amendments are dealt with and dispatched at pace. If the changes have not been considered by the committee at stage 1, that makes for poor scrutiny and, ultimately, bad legislation.

The second issue is the lack of an expert bill advisory group. Every bill that I have ever worked on in the past has had an expert advisory group, because such groups help the Government to shape bills and ensure that they are capable of implementation.

I am entirely in agreement with what Jackie Baillie is saying.

That is a surprise.

Actually, it is not a surprise, because I think that we both have exactly the same views about the importance of scrutiny in the Parliament.

Does Jackie Baillie agree that we seem to have a tradition in the Parliament of having too many framework bills, which means that we do not have enough time to scrutinise, because we do not have the necessary detail?

I absolutely do. The Delegated Powers and Law Reform Committee made the point that it is not good legislative practice to stick substantive decisions on spending into secondary legislation.

An expert bill advisory group simply does not exist for the National Care Service (Scotland) Bill, so there is a genuine lack of confidence that the proposed changes will work, and promises of co-production after the bill is passed are not enough. Witness after witness described the bill as “vague”, as lacking in vision and as failing to articulate a set of general principles.

Rachel Cackett, of the Coalition of Care and Support Providers in Scotland, encapsulated the problem. She said:

“I do not know what the bill will look like ... For me, there is a question about what principles are being agreed at stage 1 and also what exactly those amendments will look like.”

Dr Jim Elder-Woodward, from Inclusion Scotland, rightly complained that the Scottish Government’s deal with COSLA

“did not take any cognisance of the co-design process and ... was made without reference to any stakeholder”.—[Official Report, Health, Social Care and Sport Committee, 31 October 2023; c 28, 23.]

This Parliament is a relatively young institution, and we do not have a second revising chamber. It is therefore important that we take the time to get things right.

I want to support the bill, but it is currently a mess. We are in danger of making bad legislation because the Government has not allowed appropriate scrutiny. This is about the integrity of the Parliament and the integrity of us as members. Every party that is represented in the chamber, aside from the SNP and the Greens, has expressed disquiet. Parliament matters, and I ask back-bench members of the Government parties not to railroad the bill through.

I move,

That the Parliament agrees that the National Care Service (Scotland) Bill be referred back to the Health, Social Care and Sport Committee for a further report on the general principles of the Bill.

15:26  

I refer members to my entry in the register of members’ interests. I am a practising general practitioner in the national health service. I am also a member of the Parliament’s Health, Social Care and Sport Committee.

The lead committee charged with scrutinising the National Care Service (Scotland) Bill had four evidence sessions with COSLA, and we now know that every single one was a waste of time. That is not COSLA’s fault, and it is not MSPs’ fault; it is because the Scottish Government eventually came to the conclusion that Humza Yousaf’s original version of the bill simply would not work. It therefore pulled the bill, and it changed much of what had been focused upon and scrutinised for the past 18 months. We were unable—and we are still unable—to ask appropriate questions, due to unseen changes that the Government is making. Why not just let us see the bill in its full detail? Is it not ready? Does the Government even know what it wants? There is a secret group creating secret changes, with a secretive SNP Government at the helm.

When it comes to the latest SNP rebrand of its NCS bill, members of the Health, Social Care and Sport Committee are well aware that there is a dearth of detail, and there are so many unanswered questions, including about money. It is not just Opposition members who are shaking their heads. The Parliament’s Finance and Public Administration Committee has repeatedly raised concerns about how the proposals would be funded and has pointed out that costings did not and could not reflect the actual costs of the provisions of the bill. The SNP-Green Government is already spending over £800,000 every month on civil servants to get the NCS up and running. We are told by the Minister for Social Care, Mental Wellbeing and Sport, Maree Todd, to expect a total spend of £2.2 billion. However, it is all very unclear, given the many iterations of the financial memorandum.

The bill is far from ready for a stage 1 debate and vote, and the lead committee has simply not been able to properly examine what is now on the table, because we do not know what is on the table. Despite the warnings, the SNP-Green Government says that it is unable to articulate and communicate how its national care service would actually work in practice. The Parliament is being asked to support a bill on the basis that, come stage 2, all will be revealed. Really? That is not how scrutiny of legislation is supposed to work. We are not here just to give the Government the benefit of the doubt. All of us are here to scrutinise the Government’s plans and the decisions that are made to ensure that the people of Scotland get a good deal, not the best guess.

The only reason why the bill is going on the agenda tomorrow is that the Health, Social Care and Sport Committee voted along party lines. To be clear, MSPs on the Health, Social Care and Sport Committee who are not in government are united in our thinking that the bill must be sent back for proper scrutiny. The four committee members who are not SNP or Green members dissented on up to 46 of the report’s 110 recommendations, including support for the bill’s general principles. SNP-Green ministers might well respond by saying, “Well, this is a framework bill. At this stage, we only need to agree the principles.” That is not good enough. It is not right to push through a bill that the Government itself cannot even articulate.

If the current bill were a car, we would not know what make, what model or even what colour it is, but the Government is suggesting that we put down hundreds of millions of pounds in a deposit anyway.

There has been much talk from the Opposition about a framework bill. I remind members that the national health service was established in the United Kingdom using a framework bill. Thank goodness that those folk back in the day had the radical view of doing it that way—

Mr Stewart—

—to create an institution that works for all—

Mr Stewart, do you have some kind of question for the member?

It is a pity that Dr Gulhane and others do not have the radical edge that Nye Bevan and others did—

Mr Stewart!

Dr Gulhane, please continue.

Well, there was no question. If Mr Stewart wanted to speak, he should have put his name forward to do a speech.

I ask members across the chamber to vote not along party lines but on the principle that committees and scrutiny of legislation are important.

I move amendment S6M-12317.1, to insert at end:

“, and, in so doing, expresses severe concern about the viability of the Bill, its related costings and its handling by the Scottish Government.”

15:31  

The National Care Service (Scotland) Bill is our opportunity to reform the social care system in Scotland. I welcome the Parliament’s consideration of such an important issue, but the fact that I am here to prevent what is essentially a delay in delivering that much-needed change is disappointing.

Will the minister take an intervention?

I have five minutes. I will not be taking interventions.

People across the country deserve better, and that is what the bill will bring. Most important, it will put the people who access social care services right at the heart of our system. We are already working hard to make the changes that are needed in the social care system in Scotland, but the reality is that we need longer-term, widespread reform to fix some of the issues that are ingrained in the system.

I do not intend today to set out fully the Government’s approach to the national care service and the bill. The stage 1 debate, which is already scheduled for tomorrow, will provide the right opportunity for that. That debate has been a long time coming.

I have welcomed the scrutiny that the Scottish Parliament has given to the bill. Seven committees have reviewed the bill in the 20 months since it was introduced, and my officials and I have met thousands of people to discuss the national care service. It is surely one of the most extensively scrutinised bills ever to go through the Scottish Parliament.

We have worked hard to ensure that all the committees have been provided with everything that they have asked for to help their considerations, often at short notice. I will continue to do everything that I can to ensure that the important business of parliamentary scrutiny continues to be respected.

I am grateful to the Health, Social Care and Sport Committee for the substantial stage 1 report that it published last week. That report makes more than 100 recommendations, and my officials and I are currently considering them. Although it is important to take due time to consider all those recommendations fully, I have already written to the convener of the committee to welcome the report and signal my agreement to provide further information to the committee.

I previously committed to providing to the committee a summary target operating model for the national care service, and I have shared that today. This week, I have also shared with all members a fact sheet that provides an overview of our plans for the national care service. That summarises the material that was previously provided to the Health, Social Care and Sport Committee and the Finance and Public Administration Committee. In brief, it describes our intention to create a national care service board to oversee social work, social care support and community health services, to drive transparency and consistency, and to reform local integration joint boards. Officials have already arranged to discuss stage 2 arrangements with the committee clerks to ensure that sufficient time is built into the timetable to allow for thorough scrutiny and, if necessary, for more evidence to be taken. That is a key priority, should the general principles of the bill be agreed to after the stage 1 debate tomorrow.

We need to listen to the different views that I have heard from so many stakeholders, to the perspectives that seven committees of the Parliament have already heard in evidence, to the voices of thousands of people who rely on social care provision and who have taken part in our co-design work, and to carers, who provide essential support.

People need change, and they are telling us that they need it now. Of the many thousands of people to whom we have spoken who are trying to access social care in Scotland now, none of them are telling me to slow down—everyone is telling me to speed up.

We will ensure that the parliamentary process is robust, but we will let people down if we spend our time in Parliament getting tangled up in procedural delay instead of talking about the substantive issues that impact on people’s lives. Focusing on the parliamentary process is not helping those people who really need it. Delaying this vital work means that hugely significant policies, such as our rights to breaks for carers and Anne’s law, will be delayed in their introduction.

There is an important debate to be had about how we demonstrate the value of social care in Scotland, how we ensure that people who require social care get access to the help that they need wherever they live, and how we embed human rights in social care provision. I look forward to that debate tomorrow.

I call Clare Haughey to speak on behalf of the Health, Social Care and Sport Committee.

15:37  

The Health, Social Care and Sport Committee has undertaken extensive scrutiny of the National Care Service (Scotland) Bill since its introduction in June 2022. That has included two calls for written evidence, 18 panels of witnesses, three oral evidence sessions and multiple exchanges of correspondence with the responsible minister. The committee held a number of informal engagement sessions with a range of people with lived experience and different experiences. To inform its scrutiny further, the committee commissioned a literature review of international models of social care, including a combination of different models in UK countries, European Union countries, Nordic countries, Switzerland, Alaska, the USA, Canada, Japan, Australia and New Zealand.

The committee also went to Aberdeen, where members met representatives of the Granite Care Consortium and visited the Camphill community to engage with staff and service users. We visited Dumfries, where members had informal discussions with Stewartry Care and other organisations that represent registered care homes and that provide registered care-at-home services, as well as with wider community and third sector organisations. On a visit to Glasgow, committee members met representatives from the Coalition of Care and Support Providers in Scotland and service users and front-line staff from the organisation Key, before holding a formal meeting at the William Quarrier conference centre.

Meanwhile, six other committees have undertaken their own scrutiny of aspects of the bill that are relevant to their remit.

On 12 July last year, the Scottish Government wrote to inform the committee that it had reached an initial consensus agreement with COSLA on a partnership approach that will provide for shared legal accountability with respect to the proposed national care service. On 20 September, the Government confirmed its intention to lodge amendments to the bill to reflect the changes that were required as a result of the consensus agreement with COSLA. My committee subsequently wrote to the Government on 7 November requesting additional information regarding the precise implications of the consensus agreement for the bill, and we received a detailed response from the minister on 6 December.

The committee’s stage 1 report, which was published last week, sets out in detail the conclusions and recommendations that we have reached as a consequence of our exhaustive scrutiny. The consensus agreement with COSLA on the shared legal accountability means that a number of key aspects of the bill will need to change. Accountability for social care will no longer be transferred from local authorities to Scottish ministers. Integration joint boards will no longer be replaced by local care boards. Instead, a national care service board is proposed, and local government will now retain social care functions, staff and assets.

The Scottish Government has made clear its intention to bring about those changes to the bill through amendments at stage 2. On that basis, a majority of the committee has recommended that the general principles of the bill be agreed to. However, we have done so on the understanding that further scrutiny of the changes that the Scottish Government now proposes to make to the bill should take place as part of an elongated stage 2 process. That would include a further written call for evidence and the gathering of additional oral evidence before we progress to the formal part of stage 2, which is the consideration and disposal of amendments to the bill.

I regret that it was not possible for the committee to reach a consensus position on the general principles of the bill at stage 1. However, I underline my commitment to ensuring that substantial further scrutiny takes place at stage 2, as I have outlined.

15:40  

I rise to support the motion in the name of Jackie Baillie.

Presiding Officer, there is an element of ministerial cosplay at work here. If you listen to the minister and her predecessor, Kevin Bevan—that is, Kevin Stewart, who evoked the name of Nye Bevan—you would be forgiven for thinking that they imagine themselves in the rubble and poverty of 1940s Britain, in which the NHS, our much loved national institution, was first forged.

However, we are not in 1946. Apart from the nomenclature, that is where the similarities end with the reality of the national care service. The bill will not give care free at the point of delivery. It is, in fact, a ministerial power grab. What lies before the Parliament to debate on Thursday, if the motion to defer it is not successful, is merely a framework, but it is one that will cost in the order of £2 billion. For what? It will be for a vast and unnecessary ministerial bureaucracy that strips power from our communities and gives it to the centre.

Let me be clear from the outset that my preference would be not just to defer the bill but to scrap it entirely. The Liberal Democrats are clear that it represents little more than a mammoth bureaucratic exercise that would waste time and money that would be far better spent elsewhere.

However, I support the bill being referred back to the committee today, because the call for stakeholder evidence went out and responses came back more than a year ago. That evidence was geared towards the first iteration of the proposed legislation, but what is being put before the Parliament this week is a different version of the bill altogether. Indeed, there was a lot of instances of “This is no longer happening” in the convener’s remarks. That should surely give us cause to think and say that the parliamentary process has been derailed and must be started again, if it must continue at all.

The landscape around the legislation has fundamentally changed, and so, too, have the proposals in the bill. During its consideration of the bill, the committee did not have the full detail of what has been proposed—we just heard in the convener’s remarks what the so-called national care service would look like, and stakeholders have not seen that detail, either. The committee’s report says:

“One of the challenges the Committee has faced with this Bill has been the lack of available detail at the start of our scrutiny.”

That is a fundamental problem with any piece of legislation going through a democratically elected Parliament. Members of the Finance and Public Administration Committee, who said publicly last year that the numbers did not stack up, still say today that they harbour grave concerns. That is just not the way that we should be doing business in the Scottish Parliament. It is absurd that we should begin the legislative process in this context.

The minister was clear that people are telling her that we need change. They are right—we need change in our social care system, but not the kind of change that she has in mind. When people talk about reform and change of the care sector, they want to be sure that, when their gran needs help, she will get it, it will be cheaper than it has been and it will be given by reliable staff and that we can all access it in every part of the country. People are not imagining a ministerial power grab that will asset-strip our communities and put power in the hands of ministers—rather than social care partnerships—to direct their care entirely. That is a bureaucracy, and it will cost a lot of money.

The reason why Liberals oppose the plan in its entirety is that we fundamentally believe that power always works best when it is closest to the people that it serves. Nothing about the bill will deliver that, and nothing about it resembles in any way the national health service, of which we should all be rightly proud.

15:44  

The minister said that focus on the parliamentary process was not needed, but this is not obtuse process—this is scrutiny. It is clear that this secretive Scottish National Party Government does not want scrutiny. The convener of the Health, Social Care and Sport Committee was right to say that extensive scrutiny was performed, but, when secret fundamental changes happened, we were unable to perform proper scrutiny—for example, we took no evidence from COSLA regarding the consensus agreement. Does the minister not think that that might be important?

What are the facts? The National Care Service (Scotland) Bill was introduced on 20 June 2022, and the health committee started taking public evidence in October that year. Humza Yousaf realised that the bill was not going to work and pulled it. We had four delays that were instigated by the Government. With all that dither and delay, why are we rushing through stage 1, when we have no idea what the Government is doing?

Simply put, are the amendments ready, and, if they are, why the secrecy? If they are not, the Government simply needs to stop making it up as it goes along. The lead committee could not take appropriate evidence or ask appropriate questions, because we had not seen the bill due to massive and fundamental changes being made.

Our job is to scrutinise bills, and we cannot allow this precedent to be set or the role of committees will be undermined.

15:46  

The establishment of a national care service gives the Parliament the chance to be bold, ambitious and innovative. I am clear that it is not Scottish Labour that is delaying it; I fear that it is the Government. The bill could have been introduced 10 years ago. The Scottish Government has chosen to force a bill through to stage 2 despite it falling seriously short of the mark. The convener is correct to say that we took hours of evidence. The report includes page after page of criticism and a major change in the deal with COSLA.

At the last minute, the minister has chosen to send a letter to the Parliament rather than to engage with the committee. I have only three minutes to respond to that, but, if the minister would come to the committee, the committee would be able to undertake proper scrutiny.

Time and again, trade unions, the third sector, carers and people who receive care came to the committee, or spoke to members individually, to express serious concerns about the way that the bill was progressing, but the Government’s conclusion has been to ignore that and push on anyway. The minister might have spoken to hundreds and hundreds of people, but she has not listened to them, and, as we have heard through their stakeholders, hundreds and hundreds of people are still very confused.

Labour has called for a national care service for years, because, if delivered properly, it would deliver much-needed parity between health and social care. It is challenging to fully understand the SNP’s motives when it comes to its stubborn position on the national care service. It is widely acknowledged that the bill as introduced has changed direction significantly, is unclear and needs further scrutiny at stage 1, and the Government agrees. Members of the Health, Social Care and Sport Committee agree, and other committees have expressed extensive concern about the bill. Stakeholders continue to express extensive concerns.

I want to address the minister’s notion that we are delaying things. Extensive evidence was given to the committee about the things that we can already take forward at this point. Fair work principles, the work with the trade unions and the work on Anne’s law do not require the bill, so will not be delayed, but that is not what the Government chooses to tell people about the National Care Service (Scotland) Bill.

As members have heard from my colleague Jackie Baillie, Labour wants a national care service. My colleague and I tried hard on the committee to fight for an expert advisory group, but that was rejected. We asked for amendments at stage 1, but that was rejected. Eventually, we had to ask for the general principles of the bill, which are completely unclear, to be rejected. The committee chose not to reject the general principles, although there was a significant division.

I must close now, but I hope that members—particularly back benchers—choose to send the bill back to the Health, Social Care and Sport Committee for proper scrutiny.