Seòmar agus comataidhean

I am delighted that we have had nearly half an hour of consensus, although that might not continue.

I welcome what the Government has proposed, but it leaves a bit of concern about third-party representation. It is often very hard for people to find somebody who will represent them, and much representation is done on a voluntary basis. I am still concerned that the provisions will put people off giving assistance. When CPAG provided evidence to the committee, it said:

“We would not want to discourage people from being representatives”.

I appreciate that the Government is proposing to amend the bill, but I do not think that it has gone far enough.

Glasgow City Council and CPAG pointed out that it might be difficult in practice to disentangle how much liability rests with the individual and how much with the representative. Although there has been movement in that regard, the issue still arises. When will the representative get the benefit and when will the person who is making the claim get it? I am unable to support amendment 29. I ask the Government to think about the matter again and provide greater protection to third-party representatives, otherwise I fear that we will see people who volunteer not being willing to give their time.

For that reason, although amendment 30 is not perfect, we will vote for it in order to allow the Government to reflect again on the issues. I have some concerns about amendment 33 on the liability of a person’s estate.

Perhaps it is my lack of understanding, but I am interested to know for how long a period a claim could be made against someone’s estate. We could end up with families who want to distribute assets to other family members being unable to do so because the assets are held up in some kind of claim from Social Security Scotland. If we are going to include that in the bill, will the Government reflect on having some kind of timescale for it? What protection would be given to residue benefits?

Will the cabinet secretary also clarify that representatives will have a right to review, as individuals have? Amendment 39 removes that right. I think that that is covered by amendment 29, but it would be good to get that on the record.

We all have the same intention, which is that we want people to be represented in a way that we feel would be best for them. There is often representation by a third party who, in practice, is often a volunteer. I am concerned that, as the bill is drafted, people will be put off doing that. I think that there is an opportunity for us to reflect and see whether we can give greater protection to third parties.

With due respect to the cabinet secretary, I disagree with her reasoning. I accept that the First-tier Tribunal can seek guidance in that regard, but that guidance is not binding. It would be helpful if we in Scotland could build up case law that would give certainty to the First-tier Tribunal in making decisions.

I also come to a different view on amendments 118 to 125. I press amendment 116.

Thank you, convener. Good morning, colleagues. I thank the committee for all the work that it has done to date in considering my bill. I have been following the evidence sessions with great interest, and I welcome the views of all who have contributed. I was pleased to hear continued overwhelming support for the bill being expressed during the evidence sessions, particularly by organisations that work with and for disabled people. I think that everyone who has given evidence to the committee, including public bodies and the Minister for Equalities, accepts that the current situation that disabled people face, particularly in the aftermath of the Covid pandemic, is simply not good enough.

There was cross-party consensus that, in relation to understanding, representing and actioning the needs of disabled people in Scotland, change is needed and is needed now. Disabled people cannot wait any longer for a disability commissioner. I introduced the Disability Commissioner (Scotland) Bill in response to such concerns, with the aim of ensuring that disabled people have a champion—someone whose sole focus is on disabled people.

I acknowledge that not everyone thinks that a commissioner is the solution, but I believe that a commissioner can only have a positive impact in improving the lives of disabled people. In developing my bill, I drew inspiration from the work of the Children and Young People’s Commissioner, as that role has shown the positive impact that an advocating rights-based champion can have. I also note the work of the Older People’s Commissioner for Wales and the Commissioner for Older People for Northern Ireland. The commissioner model is popular for a reason—it works. A disability commissioner could play a similar high-profile role to those that I have highlighted by advocating for disabled people at a national level.

I note that some witnesses raised concerns with the committee. For example, there was a view that there are already a number of existing commissioners and public bodies that have a remit in helping disabled people, and that the creation of a disability commissioner might lead to duplication of work and overlap of remits. I firmly disagree.

I acknowledge the important and wide-ranging work of public bodies such as the Scottish Human Rights Commission and the Equalities and Human Rights Commission, but those organisations’ remits are split between multiple protected characteristics and the impact can therefore be diluted. Only a disability commissioner would be able to be laser focused on disabled people, as is urgently needed.

Moreover, I believe that the work of a disability commissioner would complement that of existing bodies. For example, currently, protecting the rights of children in Scotland falls within the remits of the Children and Young People’s Commissioner Scotland, the SHRC and the EHRC, but that has not prevented those organisations from being able to carry out their roles and, as far as I can see, it has not led to any problems or duplication of work.

I note that the majority of those who have raised concerns about the establishment of a disability commissioner, particularly regarding the potential for overlap of remits and the costs involved, are in positions of authority and power, such as politicians and public bodies. Very few, if any, disabled people or third sector organisations have raised those issues as major concerns.

Yes, public bodies that help disabled people already exist at a national level, but we are being told by disabled people that they are not meeting their needs. I will quote Heather Fisken from Inclusion Scotland:

“If the landscape is so busy, why has there been no change so far?”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 11 June 2024; c 8.]

We must listen to what disabled people are telling us, rather than to the public bodies that are currently not having the necessary impact.

I note that the Finance and Public Administration Committee’s report on the commissioner landscape was published yesterday, as the committee is probably aware. The report calls for

“a moratorium on creating any new SPCB supported bodies, or expanding the remit of existing bodies”

until a review has been undertaken. I understand the instinct to have a review—I would even encourage that to happen—but it should not take place until disabled people have been given the same chance as other groups to benefit from a champion who speaks on their behalf at all levels of government. Pulling up the ladder on disabled people at this point would send a clear message that they are less worthy of an advocate than others. It is also worth noting that the recommended review would conclude by June 2025, which would, in effect, end any chance of further legislation on the proposal for a disability commissioner being introduced in this parliamentary session.

I note that other concerns have been raised about the potential cost of a disability commissioner. I emphasise what I said when I gave evidence to the Finance and Public Administration Committee: I consider the costs that would be incurred in establishing a disability commissioner to be relatively modest in the context of the Scottish Government’s total budget of £30 billion, and those costs should be seen as an investment in disabled people that is long overdue and very much needed.

It is my firm belief that establishing a disability commissioner will ensure that disabled people have a champion who will give them the prioritisation that they need and deserve. The commissioner’s overarching purpose will be to promote and safeguard the rights of disabled people. The bill sets out various functions that will help the commissioner to achieve that goal. Those include promoting awareness and understanding of the rights of disabled people and promoting best practice by service providers. That could be carried out in a multitude of ways, but it is important that the views of disabled people are central to that work.

For that reason, the bill provides that the commissioner must consult disabled people and organisations that work with and for disabled people on the work that the commission is undertaking and must publish a strategy for involving disabled people in their work. The commissioner must ensure that those who have difficulty in making their views known or in accessing information have the means to do so when engaging with the commissioner. That could be done through the provision of information in different formats, such as Braille and easy read.

The recent programme for government was yet another bitter blow for disabled people in Scotland, with the news that the Scottish Government will not be pursuing a human rights bill in this parliamentary session, as was previously planned, and that the proposed bill to create a learning disability, autism and neurodiversity commissioner has been shelved.

On top of that, many disabled people’s organisations believe that the Government’s disability equality plan falls short of its promised intentions. Glasgow Disability Alliance stated that it

“lacks ambition, meaningful actions or commitments needed to improve disabled lives blighted by #Poverty #Trauma #Inequality”.

Inclusion Scotland stated that it was disappointed that the draft plan does not include the actions that it had discussed at a meeting with the First Minister. The Scottish Government’s disability equality plan is therefore not an effective or credible alternative to establishing a disability commissioner, so if a disability commissioner is not the answer, what is?

We know that disabled people need action now. They cannot wait any longer. The bill seeks to make positive changes for disabled people and is in front of the Parliament now. No viable alternative is currently on the table to ensure that disabled people have a champion who will ensure that their rights are respected and enforced. The proposed learning disability, autism and neurodiversity commissioner bill is being dangled in front of us, but, for the foreseeable future, it will remain out of reach. We are being asked to trust existing institutions to provide a voice for disabled people when they previously have not provided that voice, even though they already have that mandate. The reality is that they will never be able to prioritise disabled people because they have such broad remits. Only a disability commissioner will be able to focus their full attention on disabled people.

If the bill falls, we risk this parliamentary session ending without our having passed any meaningful legislation to improve disabled people’s rights, which would be shameful. We know that disabled people need action now. They cannot wait any longer. I therefore urge the committee and the Parliament to ensure that this opportunity is not missed and to support the bill. I am afraid that disabled people will not forgive us if we do not pass it.

I am happy, as always, to answer questions.

We have to look at what powers a commissioner can choose to enforce. Many people who are better legally qualified than I am will tell you that there are restrictions in that regard, even on the powers of commissioners. However, we can probably go further and I am certainly willing to work with the Glasgow Disability Alliance, other charities and MSPs to see how far we can go and still keep on the right side of legality.

I have put forward some powers for the commissioner, and we will just need to make sure that they are legal. If they are, I am certainly happy to have discussions with you and others about that.

Interestingly, there was an argument for a disability commissioner before Covid, but, as a consequence of Covid, disabled people have been left behind by public bodies and funding organisations far more than people with any of the other protected characteristics.

When I was doing my consultation on the bill, one of my big concerns was about how to balance the commissioner’s job in relation to dealing with people in wheelchairs, people with hidden disabilities and people with hearing loss. How would one commissioner be able to do all that? What became very clear to me—all the evidence points to this—is that the same issues relating to education, employment and benefits affect people in wheelchairs, people with hearing or sight loss and people with hidden disabilities. The commissioner would not be spending, say, 20 per cent of their time dealing with people with one type of disability and 10 per cent of their time dealing with people with another type of disability. They would be looking at issues such as education and social care provision.

Interestingly, the City of Edinburgh Council has still not introduced the care measures for the parents of disabled children that were available before Covid. In fact, based on a meeting that I had with the council a number of months ago, it has no intention of introducing those measures again. That is true not just of the City of Edinburgh Council but of many local authorities. Who is advocating for those people? Who is telling MSPs that that is happening? Who is putting the message out there? Frankly, at the moment, no one is, so local authorities and other public bodies are getting away with it. That is why disabled people need a voice and why the bill is so important.

At the moment, it is the only thing on the table. I am not convinced that the model of having each disability covered by a different individual or by a sub-group works. Disability issues overlap, and there are pan-disability issues, so I think that one individual can do it. With the right person in post, they can advocate loudly. I am not concerned about having one individual. It is probably still the best model that pulls everybody together, and it can work in practice. We have seen that with the older people’s commissioners in Wales and Northern Ireland, and we have certainly seen it with the children’s commissioner in Scotland. I think that it can work. In the landscape at the moment, disabled people’s voices are not heard at all, so we need someone to do this work.

It is pretty hard, to be honest. I am not being rude about the commission, but it has a massive remit. One of the things that has become very clear to me, not just with the bill but through contacting disabled people, is how difficult disabled people find any form of going to officialdom. One of the real challenges for the commission would be to make sure that it was absolutely open and had lots of different ways for people to communicate with it.

A few years ago, I said to somebody, “Why are you not out campaigning on this?” Their voice came back and said, “It takes 90 per cent of my energy to get out of bed in the morning.” With respect, I think that that is different from other protected characteristics, where you do not have the same physical difficulty of simply getting out of bed and being heard.

Perhaps I can give you a personal story here. A few years after I was born, somebody came to my late father and said, “We have just had a disabled child. What one piece of advice would you give me?” He said, “Don’t take no as the first answer.” However, for many disabled people, getting that no has taken so much effort that they do not have the energy to go on. Most people are not like my father, who was a bit like a Rottweiler with a bone—he would just keep going. That allowed me access to mainstream schooling and many other mainstream things that so many other people with a disability do not get.

Please do not take this in a patronising way, but unless you have lived with, experienced or been with somebody with a disability for a long time, it is almost impossible to explain what it is like. My wife worked with disabled people before we were married, but if you were to speak to her now, she would say that, after 19 years of marriage—and, okay, we are talking about marriage to me; I accept that—her view of disability is very different, having lived with it day in, day out. Until you have that experience, it is very difficult to explain it.

My gut feeling is that they will still remain to be heard. Again, I do not see where those reforms are coming from; there is no legislation coming down the road that will change that remit.

I genuinely welcome the statement from the Finance and Public Administration Committee that there should be a full review. I think that that should take place, and that we should then have an open debate among ourselves about what the landscape should look like over the next five to 10 years. However, it will take time—years—for us to get to that place, and in all that time, the disabled voice will not have been heard.

I am not saying that we could not get to that place at some point. My point is that we are not there now, it is going to be a long time before we get there, and many disabled people are going to suffer in that interim period.

Clearly, it is not ideal timing for that report to come out, but it raises an important issue that we need to explore.

In the past two and a half years, all members round the table voted for a patient commissioner and, at stage 1 of the Victims, Witnesses, and Justice Reform (Scotland) Bill, we voted for a commissioner for those who have been victims of crime. The proposal is still in that bill and I would be interested to know whether, at stage 2 or 3, we are going to say that that commissioner should go away. I suspect that the answer will be no, because the Scottish Government is very keen to see that commissioner. Within this session, the Parliament has already voted for one commissioner and has agreed in principle to another.

I fully agree that, if we were starting with a blank piece of paper, a full review would be important, but I am not sure that disabilities can wait. Even if a review sticks to the timetable of a year, that will take us to the autumn of next year, which means that, realistically, nothing will happen in this session. There will have to be a cross-party discussion on that, and legislation would have to be introduced, if we ever wanted to do it, in the next session of Parliament. That legislation may take two or three years to happen. Therefore, we would be saying that, for the next four to five years, disabled people will be left behind again. Why are we drawing the line or pulling up the ropes here?

My request, my suggestion and my plea is that we get the disability commissioner in place, have a full review and see where we go. Do we genuinely want to say to disabled people, “It’s okay—everything is going to happen, but it will be seven years before anything changes for your lives”? That is a long time, particularly for those who are struggling at the moment.

Well, you know me, Annie—I always have a few ideas.

I think that enforcement and investigation powers are interesting issues. As far as stage 2 is concerned, I was interested in some of the comments that were made about how you define disability, so I have come up with a definition. I would probably want to pursue that definition with others to ensure that it is as inclusive as possible and that people feel that it is so. Ultimately, we will have to come to a decision on that, but I am interested to hear what other voices have to say.

The issue came up a wee bit in my initial consultation. It was probably not highlighted as much then as it has been to you since, so it would be interesting to explore that further.