Seòmar agus comataidhean

Amendment 89 would require that regulations be brought forward on reporting of the tax and ownership status of publicly owned care services, and amendment 90 seeks to extend freedom of information rights to publicly owned care services. The minister and her officials were kind enough to meet me yesterday and offered to have further discussions before stage 3.

I indicated to the minister that I was not planning on pressing either amendment to a vote today and am very open to discussions about their drafting. There are specific issues relating to the definition of care. I advise that the definition that I seek to rely on is the one that is in the Community Care and Health (Scotland) Act 2002. I would, of course, be happy to discuss the matter.

The background is that we have moved away from having a care sector that was dominated by publicly owned and run organisations providing publicly paid-for care. Of the 42,489 registered care home places in March 2022, 77 per cent were in privately run care homes; 80 per cent of staffing in care homes is in the private sector. There is significant market concentration in much of Scotland, with the 10 largest for-profit care home providers accounting for more than a third of registered places.

A significant number of organisations are registered outside the UK and involve private equity and real-estate investment trusts and US-based hedge funds. Across the UK, the five largest chains account for nearly 20 per cent of beds, according to work from 2016.

I will give an example that members might be aware of, or might have been involved in as constituency representatives—namely, the collapse in 2011 of Southern Cross Healthcare, which was owned by Blackstone Group. The consequences of that affected 31,000 care home residents, including in the constituency that I represented at the time. Many of those Southern Cross care homes were sold to Four Seasons Health Care, which is owned by Jersey-based private equity firm, Terra Firma. In April 2017, 220 care homes and 17,000 residents were affected when that organisation, too, became bankrupt.

Four Seasons, like many private equity operations, consisted of complex corporate structures. The Financial Times reported that it consisted of 200 companies, arranged in 12 layers, in at least five jurisdictions, including several offshore territories. Tax avoidance and profit shifting were central to the operations.

Both my amendments are based on the principles of transparency, following the public pound and that, where publicly funded care is provided by organisations other than public authorities, there should be freedom of information rights and transparency in relation to tax and ownership. As the committee will be aware, freedom of information rights do not exist outside public authorities. That was particularly evident during Covid, when information that relatives were able to obtain using rights that they had with local authority providers was not available from other providers.

Jackie Baillie has spoken this morning about the experience of families during Covid. The Freedom of Information (Scotland) Act, which the Scottish Parliament passed in 2002, was designed to be flexible and to enable, under section 5, the addition of named providers or categories. In reality, that power has rarely been used by ministers. Since Covid, families of care home residents and freedom of information campaigners have been frustrated by the lack of progress.

Members of Parliament expressed their frustration in 2013, when updating of designations under the Freedom of Information (Scotland) Act 2002 resulted in an amendment that required reports from ministers every two years, on use of the section 5 power. Despite that, the power has basically been used to report that no action has been taken. There was a Scottish Government consultation in 2019 on use of the section 5 powers, and care was one of the examples that was focused on. That could have resulted in the extension to care services of designations under the act, but the Scottish Government decided not to progress with that.

In May 2022, the Public Audit and Post-legislative Scrutiny Committee of this Parliament reported, in its inquiry on the operation of the Freedom of Information (Scotland) Act 2002, that public sector bodies that deliver public sector services should be subject to freedom of information rights. The Scottish Information Commissioner has consistently called for the designation of providers of health and social care services as subject to the 2002 act, especially following the Covid pandemic. Repeated polling by the commissioner has shown public support for that principle, and the consultation that I held for my proposed member’s bill on freedom of information reform in 2022 showed overwhelming support for the principle.

Cabinet secretary, I appreciate that you said that you are not trying to engineer higher conviction rates; instead, you are trying to modernise the system. However, what is the risk of our having lower conviction rates in rape cases as a result of these changes and the move to two verdicts and a two-thirds majority?

From what you are saying, then, you have come to the conclusion that, if there were to be a change in conviction rates—particularly in rape cases, given, as you have said, the concern about those rates being low—it would be an increase rather than a reduction. I appreciate that that is not necessarily the intent, but it is quite understandable that people will be worried about the risk of the conviction rate being lowered. Are you satisfied that the risk is low in that respect?

Thank you.

I have a question about part 2 of the bill, if that is acceptable, convener.

Cabinet secretary, you will be aware of a concern that the concept of trauma-informed practice might be seen as simply a slogan and words that are used, rather than practice that is embedded in the system. I am sure that you are concerned about that. Can you outline the work that is being done—or that you are thinking would be done if the legislation were passed—to ensure that trauma-informed practice is embedded in the procedures and rules of court? How do you envisage that work being taken forward?

Miscarriage of justice is a different concept to conviction rates. I am particularly focused on conviction rates in rape cases. Clearly, you have spent a huge amount of time considering those issues, so have you concluded that you do not believe that there will be a risk of lower conviction rates in rape cases if part 4 proceeds as you are proposing?

Yes, that is correct. That meeting took place before Christmas. I attended it, along with the petitioners.

I am grateful to have the opportunity to make a contribution. I have met some of the petitioners on a number of occasions, including this week. The lead petitioners are both constituents. One of them has suffered quite severe complications as a result of the hernia mesh procedure; the other is the daughter of a deceased person who was also a constituent and who underwent the hernia mesh procedure. They are working with a range of campaigners across Scotland—and, indeed, the rest of the United Kingdom—who are collating information about the complications.

The submission that I made to the committee very much focuses on data. As the convener said, we had the opportunity to meet the minister and, as a result of that, we had a subsequent meeting with medical advisers and officials. It is clear to the petitioners that there is a lack of data in relation to the extent of the problem.

I have previously advised the committee of freedom of information requests that were submitted to health boards. We did not get information from many health boards, but the information that we got was concerning. The petitioners are concerned about the basis on which work is proceeding. Frankly, the data that we have does not truly reflect the scale of the number of people who have complications. That was the focus of the written representation that I made to the committee.

I wonder whether the committee would be willing to engage further with the Scottish Government on the issue, as it is clearly not an issue that will go away. The petitioners and many others continue to suffer the consequences of the hernia mesh procedure, and the campaign will continue. It would be appropriate for the Scottish Parliament to be engaged with that in order to ensure that an evidence-based approach is taken and that work is undertaken to gather such evidence.

You are saying that, in relation to the proposed legislation, you believe that there is a gap in domestic homicide and suicide reviews, but there might be some cases in which that work has already been done so a review will not be needed, and that will be taken into account in deciding whether a referral is made. I understand the resource points that you are making. I fully understand those and I am more than sympathetic to them. I have listened carefully and I am extremely concerned, as I am sure we all are. However, if there is a gap, the Parliament needs to decide whether to legislate. Emma, will you comment on that?

That suggests that you are asking us to look at the circumstances in which a referral is made. You are saying that there might be situations in which there is no need for a full review process because there have been many multilayered reviews that have already captured much of that information. Are you saying that we need to be aware of that and look at whether the bill delivers on it? Is that fair?