Local Government and Communities Committee

Meeting date: Wednesday, January 8, 2020

Official Report 729KB pdf

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Period Products (Free Provision) (Scotland) Bill: Stage 1

Agenda item 2 is an evidence session on the Period Products (Free Provision) (Scotland) Bill. I welcome Aileen Campbell, the Cabinet Secretary for Communities and Local Government, and Dr Elaine Moir, who is the Scottish Government’s team leader on access to sanitary products and social innovation partnerships. I also welcome Monica Lennon MSP, who introduced the member’s bill. She will have the opportunity to ask a couple of brief questions once committee members have finished asking theirs.

I invite the cabinet secretary to make a brief opening statement.

Thank you, convener. Good morning and happy new year, everyone. I welcome the opportunity to set out the Government’s views on the bill. The Scottish ministers fully believe in the principle of ensuring that everyone who needs to access period products can do so. I am proud that we have taken significant—world-leading—action on the issue in the past two years, and that other countries, both within and outwith the United Kingdom, have sought our advice and what we have learned in considering their own actions.

It is clear that we are in the early stages of policy delivery and that we are in a rapidly developing situation. Innovative practices across sectors are evolving and, as a result, we are learning and changing what we and delivery partners do.

We need to remember that passing the bill would mean that the responsibility for the provision of period products would fall entirely to the state, which would make such products the only material item that the Scottish Government had a legal obligation to provide. We must consider carefully whether legislation is the best way of achieving the desired benefits.

I believe—and many of those who responded to the committee’s call for written evidence agree—that, before we consider whether legislation is needed, we should fully assess the outcomes, successes and shortfalls relating to current activity. That is one of the reasons why, when the opportunity was there in March last year, we did not commit to introducing our own legislation on the policy.

Throughout the bill and the wider supporting documents, Monica Lennon points out that she has given the Government flexibility in how to deliver on the requirements of the bill. However, the result of building in that flexibility is, unfortunately, a bill that contains little detail or clarity on the true policy intent, which makes it difficult for Parliament to assess. I know that many of those who support the principle of legislation are strongly opposed to the preliminary procedure for delivery that is proposed in section 3. Had the Scottish Government introduced a bill with such a provision, Opposition parties would have criticised the lack of clarity. Due to the vagueness of the provision, it would have been almost impossible to undertake our duty to carry out a statutory impact assessment, which is a task that members are not required to undertake for their bills.

We consider that it would be extremely challenging to meet the timeframes for putting in place a universal scheme, particularly given that there is little detail about how that could be done within 12 months of the bill receiving royal assent. As committee members noted in the first evidence session on the bill, the Scottish Government would have to conduct extensive consultation and planning before regulations could be drafted, let alone before any scheme could be implemented. All those things have not been done already because the bill provides that the detail of the universal scheme be set out in regulations rather than in the bill.

We consider that the proposed costs are underestimated. That is based on our estimation of the costs of the products that would be used, the delivery of a rights-based scheme and the uptake. I covered some of those issues in my letter to the committee, and I know that the committee raised some of the issues when it took evidence on the bill last month.

If Parliament passes the bill at stage 1, the Scottish ministers will be expected to introduce a financial resolution that commits to meeting the costs of implementation. I would have to introduce the financial resolution before the scheme was set out in regulation, but it is clear that the nature of the scheme would fundamentally impact on the cost. The lack of clarity poses significant challenges to understanding the likely cost to the public purse and, by extension, the level of future spend to which the Scottish ministers would be committed by introducing such a resolution. Although stage 1 is primarily for consideration of the principles of the bill, which we think are underdeveloped, the committee and the wider Parliament should consider the potential cost at this point.

To be clear, it is not that the Government disagrees with the need to ensure that period products are available to all women who need them; in fact, we have made huge progress in the past few years in meeting that aim. Around the country, almost 400,000 school pupils and college and university students are now benefiting from products that we fund, as are almost 60,000 people who are on low incomes. Products are being made available—again, through our action—by more than 20 public bodies and in public spaces such as libraries, community centres and sports clubs. The private sector is also beginning to act—without the need for legislation—with football clubs, pubs and even construction companies making products available for staff and visitors.

Guided by the principle of dignity, we have focused our efforts on those who would struggle to access products if we did not make them available. As a minister with responsibility for poverty, I consider that that is hugely important.

We know that there are still improvements to be made, and the policy continues to evolve, but we are beginning to see a culture change. There is a risk that introducing legislation now would encourage people to meet only minimum standards, when organisations in the public, private and third sectors are going above and beyond such standards.

Let me be clear: championing the need to ensure that period dignity exists across the country are not just warm words from me or the Government. We are delivering and investing in that right now without legislation. Through existing means, we can get further faster and achieve better outcomes for those who most need our help.

I look forward to your questions.

To a great extent, you have answered my question about whether there is a need for the bill. Is there nothing in the bill that the Scottish Government needs to achieve in the near future, or is it more appropriate that you wait to see how the existing provisions work?

Over the past couple of years, policies have adapted and become much more reflective of needs. They now respond to the needs of pupils in schools, for instance. You might suppose that the best way to deliver the policy would be to make products available in school toilets, but some children and young people said that they would rather not have that. Over the past two years, we have had to adapt and evolve what we do and how we do it.

There is more to do, and the Young Scot report that came out today points to areas in which we need to make improvements. We are not saying that what we have done is the end point or that we have finished making improvements. We continue to adapt, push and promote the policy.

Forby all the things that I have outlined today, we are engaging and working with international partners, including in Malawi and Rwanda. We are trying to do much more than the bill sets out as we meet the needs of women around the country and follow the principle of dignity.

You mentioned that flexibility is at the heart of what you are doing. If the bill was passed, there would be lots of different methods for getting access to the products. Would that add hugely to the cost?

As the bill is drafted, the c:card is a potential option, but it would end up being far too prescriptive. There has been benefit in our working with partners to develop, co-produce and see what works. That flexibility has been valued, which can be seen in the submissions to the committee and from the evidence that you have taken from folk. Flexibility is fundamental and underpins how we are working on this issue. We want the policy—underpinned by the principle of dignity—to meet the needs of the people who require the products, and for it to be delivered flexibly and without barriers. We have co-produced the guiding principles so that we have a framework that ensures all that.

Do you want to make any comments on—

The official reporters have asked for my speaking notes, but I would like to make sure that I can refer back to them. I will keep hold of them for now and make sure that they get my notes at the end, if that is okay.

We want you to do it without any speaking notes at all. [Laughter.]

I just want to have my record of what I said, in case somebody asks me a question about that.

Do you have any comments on the letter that Monica Lennon sent in response to your submission?

I met Monica Lennon to discuss the bill, and we were in agreement about a lot of it. As I said in my opening remarks, we agree that we should ensure that all people who are currently unable to access such products can do so. We are continuing to evolve and adapt our approach, and we are working on and co-producing our policy with groups, organisations and individuals, but the bill would not enable us to continue on that basis. We have been flexible, innovative and imaginative in developing our existing policy and there is a risk that that would be lost.

Obviously, the committee must decide how to proceed, but I point out that the costs of Monica Lennon’s approach are significant. We need to be mindful of that if we are to change our approach and adopt the proposed universal system. Our system has not been designed to be universal. We have already invested in putting products into schools and education settings, which is an approach that has been rolled out and is universally accessible by students in schools. We have also done work on targeting provision at people who require additional support. Again, I stress that the proposed legislative approach risks losing that flexibility and costs would increase.

However, I do not want to rule out the possibility of there being appropriate legislation in the future. At the moment, we consider that the bill is a bit premature, coming as it does at a time when we are continuing to adapt and evolve our policy. There is momentum behind that and the culture is changing. The danger is that, by imposing legislation, such progress would retreat, resulting in a lesser offer than we currently have.

I have one last question, after which a couple of my colleagues want to come in. Why is there such a huge discrepancy between the sets of costings?

Our assumptions have been made on the basis of there being a higher product cost, which is a much truer reflection of the current actual cost. Another reason for there being increased costs is the fact that our age range is wider than that which is used in Monica Lennon’s assumptions. Also, for education settings such as schools, our calculations have not been done on the basis of school terms or on the day lasting from 9 o’clock till 3 o’clock; instead, they are on the basis of ensuring that young people have access to such products 24 hours a day, seven days a week, over the course of a year. Our current approach, which is low on bureaucracy, is about ensuring that people can have direct access to products; it does not have additional bureaucratic or postage costs attached.

Taken together, those factors start to make the costs creep up, which is why they suddenly escalate in the way that we have pointed out. As a Government, we have to work through the costs and financial implications of any piece of legislation by making assessments and assumptions. Such an approach has formed the basis of our submission to the committee and that is why we have said that the costs stand to be much higher than those included in the financial memorandum attached to Monica Lennon’s bill.

I just want some clarification. We all know where you are going with this policy, cabinet secretary. Do you consider the bill to be unnecessary because of all the innovations that are taking place at the moment? Alternatively, is it premature? Perhaps it would be inappropriate to progress legislation at this time and the matter should be delayed for a couple of years. In addition, is the bill too rigid in its approach, or does it lack detail or focus?

At this point, the bill is premature. Over the past two years, a lot has been quickly gained though our existing policy approach, which has involved working in partnership, co-producing, and listening and responding to the needs of individuals. The flexibility, momentum, drive and innovation that has come out of that good work are at risk.

Also, our policy is continually evolving, so people are still adapting what they do in order to respond to need. The risk is that the bill’s approach would be far too rigid. We would lose the flexibility that I have mentioned and the bill would not deliver on its aims, many of which Monica Lennon and I ultimately share. I do not want to rule out legislation in the future. However, at this point, we are better to continue to test, innovate and adapt what we do so that we can be surer of what works for people across the country. We can also ensure that we do that with the principles of dignity on which we have worked with partners to produce.

10:00  

On the issue of the financial memorandum, there is a disparity between the suggested costs for the products. If the costs associated with the bill were at the higher end—the £25 million or so that your submission suggests—what impact would that have on other budget areas in your portfolio?

That is the risk. It is also important to remember that they are not one-off costs; they are recurring costs that could increase over time. Young women and girls coming through school would be used to having access to the products and the associated promotion could lead to increased uptake. That is not wrong, but we have to take those considerations into account.

As we have outlined to the committee, given our assumptions and costings, which are a truer reflection of the current costs, the risk is that the bill costs could increase significantly. The money has to come from somewhere. We would need to make tough choices in the budget decisions that we take as a Government.

That is a difficult issue for us in Government. The work that Monica Lennon has done on her member’s bill and its principles—some of which we share—are to be welcomed. However, as the Government minister, I have to make budget choices; I have to make the budget stack up. I need to make sure that committee members are clear that we consider that there is a risk that the costs of the bill will increase significantly.

One of the suggestions in the bill is that people can receive the products on demand by post. How concerned are you about that proposal? It seems open ended. What might the costs be in relation to that? Conversely, if people are getting the products by post on demand, will there be an impact on, for example, small retailers who sell the products?

The Government has to take account of such matters. Before introducing legislation, we have to do business impact assessments. We would need to make sure that we factored in that aspect. We consider that the postage costs would be significant.

Again, we currently have a system with a low level of bureaucracy that delivers products directly in places where people can access them. It does so with innovation and flexibility and it meets the needs of many women. That does not lose sight of the fact of our need to make improvements and make sure that women, girls and anyone who requires the products can access them.

The cost of postage costs is another financial consideration that we need to factor in and we need to determine whether they are proportionate. That is especially true given that the proposal is for a rights-based universal scheme and the current system is not designed to deliver products on that basis.

That is point that I was going to make. Paragraph 5 of the bill’s policy memorandum states that one of the three underlying policy aims is

“to ensure that period products are made available free of charge on a universal basis”.

My original understanding was that it was a period poverty bill, to help people who could not afford to buy the products. There seems to be confusion over whether the bill is to provide for anyone and everyone to get the products as required or whether it is to assist people who are in period poverty. What is your view?

The lack of clarity makes it difficult for us to think about how we would implement it in the ways proposed, given that we know from practice that those are not how people want things to be delivered.

Again, I do not dispute Monica Lennon’s ambitions to make sure that people can access products with dignity—I share those, too—but there are problems with the legislation as drafted and we need to understand the financial implications. The big risk is that we would lose the good practice that we have quickly developed with partners over the past two years. That would be a big loss.

Ultimately, the flexible access to products that 400,000 pupils already have could be eroded and the support that 60,000 people in poverty get could be lost. There are a whole host of ways in which we might backtrack and detract from the good work that has been done so far in pursuit of legislation that might be too rigid.

Cabinet secretary, I am a little confused. You said that the bill is “premature”, but legislation might be required in the future. You did not say it would be required, but that it might be required. Under what circumstances could you envisage it being required?

I said that because we cannot rule out legislation in the future—it might be that it becomes necessary. I was making the point that it is not the principle of legislation that we are against. What we are against is the fact that the way the bill is drafted would not enable us to continue with the flexibility and innovation that we currently have. It could be that we will never need legislation if the current momentum and culture change continue and we continue to adapt provision.

The point is that we are not against legislation per se: rather, we feel that the principles and detail in the bill lack clarity. The bill does not have the right financial assumptions and has universal application, which we think might erode the current flexibility and innovation.

So, you are not against legislation.

I am just not ruling legislation out. I would not want to rule it out; that might not be for me to decide. What I am saying is that we have a system that is developing and evolving, and which is innovative and flexible, and is delivering for people. We would not want to lose that through a bill that could, as drafted, erode that system.

Let me summarise what I think your view is, then you can tell me whether I am right. You think that there is a lot of good work going on, which there is. There is no doubt about that. Given that that good work is going on in the public sector and in the private sector, you think that there is not, at the moment, a need to legislate because things are happening anyway. Is that a fair summary?

Yes—absolutely. There is lots of great work—not just in the public and third sectors, but in the private sector—in terms of culture change and the momentum behind it, and in driving the change forward with innovation, flexibility and responsiveness to individuals’ needs. The work continues to adapt and evolve.

At this point in time, if we lost that flexibility, what would we be legislating for? At the moment, we have to change what we do, so we might have assumed, as I said, that the best way to deliver the initiative is through toilets, but we know that some young people in schools have said that they do not want that. We have to respond to their needs, which is why we continue to test, co-produce and work out better ways to make sure that we get the products to people who require them.

At this point, that would potentially be lost with legislation that could be too rigid and lacking in flexibility. It could, ultimately, cost a lot of money and not deliver as well as we are currently delivering through the good work, partnership and sense of duty that many people are showing in order to ensure that Scotland can claim to be a world leader on the issue.

The bill would get a Government minister to set regulations that would mean that public sector bodies, including councils and schools, would have to operate a scheme. There would be a cost to them that the Government would have to fund, under the bill. Are you aware of any other legislation that has created a cost for public bodies that the Government must fund?

No, I do not think so. That is where we think the financial memorandum is flawed. The assumptions in the financial memorandum are not correct and the cost stands to be significantly higher than what is outlined. We are currently working with our partners across the public and third sectors—we are supporting them financially and delivering for people. The question of proportionality needs to be considered. If we increase the cost and do not deliver the outcomes that we currently deliver, is legislation the right approach to the issue? At this point in time, I do not think so.

I, too, think that the bill is pretty unique.

You mentioned that the drafting of the bill is quite vague in parts: it is. We can explore that with Monica Lennon next week.

Section 8, which is entitled “Payments by Scottish Ministers”, says:

“The Scottish Ministers may make such payments as they think appropriate to the councils, bodies, persons and education providers obliged by or under this Act to make period products available free of charge.”

That is all very vague. It means that any future Government could change its mind about what it thinks is appropriate. I am simply making a point that you can respond to, if you like. As the bill is currently written, a scheme could be set up and the Government could decide not to fund it. Do you agree with that?

Yes.

That is also how I read the bill.

The fundamental point that I have made many times is that we are currently delivering a huge amount; we are delivering positive outcomes. The culture is changing and there is momentum behind that. It would be a real pity were that to be lost in pursuit of legislation that could erode a lot of what has been done and cost a lot more.

Is that about the design or the principle of the bill? You think that the bill is far too tightly designed and far too detailed, but you have made financial comments about the difficulty of predicting how much the bill would cost and its not being detailed enough.

Some of the financial costs are wrong—they do not reflect the current situation. We believe that the 9p unit cost should be 17p, so we can quickly say that that is inaccurate and does not reflect the current cost of delivery.

We can point to other problems. The c:card scheme has been mentioned: people who have given evidence to the committee have said that they would not like to see a similar scheme in place, and submissions that the committee has received say the same.

The bill has come at a time when we are evolving and adapting what we do to respond to needs, and so that we can be much clearer and more certain about delivery mechanisms that respond to individuals’ needs. A scheme has been suggested that probably would not work. In other matters, it is left to the Government to come up with a scheme. There is not the detail on that that is needed in the bill. Under the bill the Government would have to come up with a flexible scheme that delivers, but we are currently doing that. We are delivering products with flexibility and innovation to people who require them in the here and now.

I responded to Graham Simpson’s question about legislation. The bill is not required at this point in time. If there is to be legislation at any point in the future, it would be far better to ensure that we know what we are doing and that we understand clearly what works and where we can ensure that flexibility is maintained, and then—

I am trying to tease things out. It is clear that you think that, in principle, the bill is premature.

Yes. I think that it is unnecessary, at this point in time.

So, the bill is not needed, at the moment. I am trying to tease out the principles relating to the balance of the top line of the bill, and noting the fact that the Scottish Government would be required to regulate and decide the details so that the bill would give the flexibility that you are keen to have in terms of outputs, rather than inputs.

The bill includes a universal scheme, based on rights, so taking away the universal element or some of the other proposals would change the bill dramatically—in fact, it would wreck it. If flexibility in the delivery of products is what is being asked of Government, that is what we are providing.

10:15  

As flexibility is, localism is a key issue—

We are delivering localism, too.

Localism enables various organisations to do work on the issue at different levels. Again, that is up to the current players, so that could stop at any time.

Yes, but what we are seeing at the moment is not a retreat but an expansion, with more organisations doing more than has ever been done before. There is a real drive to deliver products and to do so in a way that meets the needs of individuals, which is long overdue. That is what is at risk of being lost.

We are being asked to ensure that the products are delivered flexibly, with localism, in a way that enables organisations to adapt what they do. That is what is happening currently. I guess that the question is this: what is the legislation adding, and is the cost proportionate? At the moment, the bill will cost far more than is set out in the financial memorandum, and much more than we are currently spending, but will not deliver as much as is being delivered at the moment.

Is there anything in the bill that you think would be worth legislating on, or is that a debate that you would rather have in the future?

Again, I go back to the point that, at the moment, we are developing and evolving policy approaches, and we are delivering for individuals here and now, with flexibility. That is at risk of being lost, so I do not think that I can support the bill.

Could you support any aspects of it?

We do not object to some of Monica Lennon’s policy ambitions. We have talked about it and we share much of that aspiration. However, the bill, as drafted, would erode the good work that is happening already.

I have a number of questions on the principles. All the witnesses who have spoken to us support the bill and feel that there is a need for legislation. You will be aware that you are representing the executive branch of the Government and that we are a committee of the legislature, and that our job is to pass laws for the people of Scotland. The work that you are doing is commendable and has been widely welcomed. However, the point of legislation is to guarantee to the people whom we represent that Government will do certain things, and that they have certain rights. Therefore, I want to question you further on the need for legislation.

Everyone who has given oral evidence supports the bill. Do you not therefore see that there is a benefit to be had from underpinning in law the principles under which you are currently delivering, and from guaranteeing that the work that you are doing will continue and will not be abandoned, irrespective of which Government comes in after the 2021 elections? Do you see that there is a case for giving a legal guarantee in that regard, so that young girls will know that, when they leave school in 10 years or whatever, the provision will still exist?

Again, I say that the provisions in the bill risk losing the flexibility that we are delivering at the moment. The danger is that the good work that you have commended—the co-production, our responsiveness to individuals, the fact that our approach is building momentum that is encouraging a culture change across Scotland—will be lost, and we would regress back to a baseline that is not as flexible.

We have committed to baselining the funding to local government. I do not think that the situation that Andy Wightman described is likely to arise. We might have to legislate in the future, but I think that we have, at this point in time, an opportunity to ensure that we can work out the best ways to deliver effectively through working in partnership without the need for legislation. We want to ensure that the policy is something that the country can feel proud of and will continue to deliver.

The fact that all that has been done without legislation is valuable. I do not want to risk losing the flexibility, good will and partnership in order to pursue legislation for legislation’s sake.

No one is pursuing legislation for legislation’s sake. You suggest that that is happening, but I do not think that it is. The purpose of the bill is to give statutory underpinning to a scheme that provides period products to people who need them.

That is an opinion.

However, people do not want the suggested mechanisms.

That is fine: we can talk about how the bill could be amended. You mentioned that you have guaranteed that the funds will be baselined, but you cannot make any guarantees beyond the next election. We have asked ministers who have appeared before the committee to make such guarantees, and they have said that they cannot. Do you not understand how a young woman at school would benefit from the Parliament giving her a guarantee that in 10 years the scheme that currently provides period products will still be in operation? [Interruption.] Excuse me. Otherwise, she must live with the risk that, at the ballot box—when she does not yet have a vote—a Government is returned that does not continue to support the scheme.

Legislation can be repealed, as you well know.

Annabelle!

We have a system that has been developed without legislation, through partnership working, good will, good work and engagement. I believe that that will continue, and that it has fundamentally changed the culture in Scotland. Young people who are coming through school will experience the current access to products. That will continue to grow and will not go the other way that Andy Wightman has described. The legislation will erode the flexibility and destroy some of the localism that members have said is important. I would prefer to work on the basis of partnership—co-producing with women and people across the country, to ensure that what we deliver works for them—than to be wedded to legislation that is too rigid and does not have flexibility.

The non-legislative route delivers better outcomes, quicker and faster. Over the past two years, my focus has been on delivering now to the young people whom Andy Wightman talked about, without the requirement for legislation. In doing so, we are changing culture, attitudes and minds—so much so that people in other countries around the world are looking to Scotland to see whether they can use the same approach.

I will focus on flexibility. You made it clear that you consider that the bill would erode the flexibility that you currently have to deliver the scheme.

Yes.

Given that the bill would mandate ministers to introduce a scheme, there should be plenty of flexibility on how it is designed. The bill would give ministers the power to create a scheme, and they would be free to make that scheme as flexible as they liked, so which bits of the bill would inhibit your flexibility?

Section 2(1) asks us to

“make a scheme .... to set out and regulate”

how period products will be delivered. That would inhibit some of the flexibility that we have.

How?

The bill asks us to set out in regulation what we want to do. If the way in which something is delivered flexibly in a particular area does not meet the needs of the bill, that would inhibit what people might want to do.

Plenty of schemes that are flexible in how they are delivered come through Parliament in secondary legislation.

The bill asks us to set out in regulation what we need to do. Our doing that before we have tested and worked through the different approaches that schools and organisations are taking might stop some of the creativity.

If you are saying that the bill asks you to set the scheme out before you undertake it, that is a separate question.

If we were to prescribe the scheme within regulation, that would limit the actions that we could take.

Yes, but that would also provide a guarantee that users will have a scheme.

Okay—we can agree to differ. If the current ask of the Government is to deliver a scheme flexibly, that is what we are doing.

I understand that.

I want to move on to the question of rights. Do you agree that everyone who needs sanitary products should have access to them as of right?

Everyone understands—as a woman, I understand—that not having access to such products inhibits young people from going to school to get an education, which inhibits their rights to access education and have a decent standard of living. The rights issue is particularly pertinent. The First Minister’s advisory group is trying to look at rights much more strategically and some of this might be more appropriately handled through that approach. At this point in time, we are taking a rights-based approach to working with women and other individuals to understand how we can meet their requirements.

Alongside that, we are also trying to make sure that those who cannot afford to access products are supported and do not have the indignity of going without because of poverty.

I am not clear whether that was a yes or a no. Do you agree that everyone who needs to use period products has the right to have them free of charge? Do you or do you not agree that they should have that right?

At this point in time, we are taking a rights-based approach and focusing—

I know that you are saying that you are taking that approach. What I am asking is whether you believe that people should have that right.

We are trying to target our work appropriately so that women who cannot access products have the right to access them—

I understand what you are doing, but—

We are going around in circles here. You have asked the same question three times.

I think that I am entitled to an answer.

The ability to interact, to go to work, to be educated and to have a decent standard of living can be inhibited if people are unable to access and purchase products. We are funding and supporting people who are in poverty to get access to these products. We are taking a strategic rights-based approach through the First Minister’s advisory group.

Okay. I do not know whether you believe that people should have the rights that I am asking about. However, I point out that Scottish National Party policy says:

“SNP council therefore believes every woman should have access to sanitary products, as of right.”

At least we know what the SNP position is, even if we do not know what the Scottish Government position is.

You talk about the difficulties of a universal scheme and say that if it a requires a specific opt-in, it is not really universal. What do you mean by that?

That was our response to the potential to deliver the scheme using a c:card-type mechanism. The opt-in would have caused a barrier to universal access. I know that Monica Lennon stepped away from that as a potential mechanism. That was why we said that in our submission.

You believe that, in general, an opt-in scheme is not a universal scheme.

We made that point in relation to the proposed c:card-type mechanism that was outlined in the bill. We did not agree with that because we did not think that a universal scheme could be delivered through an opt-in scheme. That did not make sense to us. Such a scheme would create additional barriers that would inhibit people’s access to products. That was the point that we were making.

Okay, so your point relates only to a c:card-type scheme—that is fine. Is the Scottish Government’s baby box scheme a universal scheme?

Yes.

Is it not the case that that scheme requires a specific opt-in?

People can get a baby box but they do not have to take it.

People are offered it, but some people do not receive the offer because they do not attend antenatal classes, for example, and may miss the opportunity.

Or they do not take up the offer.

10:30  

Indeed. There is an opt-in, so entitlement is universal, but the scheme is not universal. Do you accept that the bill proposes to provide universal access to a scheme that is based on the principle of a universal entitlement to period products?

What is set out is not clear. I go back to the point that the scheme that we are already delivering is not based on universal access. I accept that the bill will provide for universal access. However, we are taking a more targeted approach to deliver universal access to people in education settings with a flexibility that I do not think that the bill provides.

I move on to costs. In response to Graham Simpson, you mentioned that there would be the obvious recurring costs, and that demand may increase those costs over time. However, is that not the case with your scheme? The public sector is incurring costs, and expectations have been created that the products will be available broadly in broadly the same way. No doubt, people will want the products to continue to be available, and uptake might increase. Is there any difference between the existing scheme and the scheme as envisaged in the bill with regard to the fact that costs may increase over time?

Yes, there is a difference. The financial memorandum figures are based on a low unit cost, which does not reflect—

That is a separate point. I am asking about the increase, whatever the costs are now—

And my response is that the costs will increase. They have already increased, because the cost that the financial memorandum sets out is too low—

That is not my question. The answer that you gave to Graham Simpson was that the cost to the Scottish budget is not one-off but recurring. Let us set aside the actual cost—I understand that you have a different view on that point—and look at whether it would increase over years. What is the difference between your scheme and a scheme under the bill? Surely there is the potential for costs to increase over time under both schemes?

Yes. They would increase—

That is fine.

—but we also—

I ask Andy Wightman to draw his questioning to a close, as he has heard more than enough.

There is more to say. When we work in partnership, there is more control. Also, we want women and girls, and anyone who requires products, to be able to access them. The issue is not that we want to limit access.

The committee needs to consider ensuring that uptake is assessed financially, so that the correct assumptions are made in order to meet the costs. The costs are recurring, and the unit costs are a factor because they are currently set too low; they will be higher in comparison with those that have been set out in the financial memorandum. The scheme is universal, so further bureaucracy would be attached to it. There is a host of ways in which the recurring costs, such as postage costs, would increase.

Our scheme involves low levels of bureaucracy. It delivers directly to schools and other areas that are used by the public in a way that responds to what people have told us they require. The costs of what we are doing may increase, but under the scheme in the bill, we would not have the control that we have at the moment. We would need to do a bit more work on that, and the committee would need to give a lot more consideration to the costs.

My final question—

Very briefly.

When you talk about the costs, are you focusing on the costs that are to be placed on the Scottish Government?

Yes.

The bill provides for education providers, for example, to provide free products, but it does not say that the Scottish Government must pay for them.

The evidence to the committee suggested that the costs would have to be fully funded.

The evidence might have suggested that, but I am talking about the bill. As Graham Simpson noted, section 8 states:

“The Scottish Ministers may make such payments as they think appropriate”.

Ministers are not mandated to do so, but the bill places a duty on education providers, for example—[Interruption.] I wish that other members who want to make comments would do so in their own time.

We would, if we had some time.

Can we stop this nonsense and have fewer comments from off-stage, please? I ask Andy Wightman to draw to a close.

I just want some clarification. The bill appears to say that Scottish ministers may provide such payments as they consider appropriate to support the schemes, but it also places a legal duty on education providers, for example, which they will have to pay for if the Scottish Government does not contribute any funding. Do you agree that that is what the bill says?

I think that, in reality, those costs would land on the Government.

I am not asking about the reality—I am asking you what the bill says.

Thank you—that is enough.

I will pick up on some of the issues that have been raised. This morning, Holyrood magazine’s daily news round-up highlighted the report on the Young Scot survey on the availability of period products. It found that almost 84 per cent of the two thirds of young women and girls in Scotland who had received free period products from their school, college or university in the past year said that the initiative had had a “positive impact”. Almost nine in 10 said that, as a result, they were

“less worried about having their period.”

Given that such a response is what we all want—keeping in mind the bigger picture, irrespective of the detail—that is a tremendous accolade for the Scottish Government’s work. It is about delivering for people and not getting bogged down in the process stuff.

However, I turn now to the process stuff, as we must. I raised some of these points in a previous evidence session in December. First, it strikes me that the bill appears to outsource key provisions that we would expect it to contain, such as a proposal for the delivery mechanism or scheme that is to be employed. The bill suggests a voucher scheme, but that is not going down well with stakeholders; that type of scheme seems to be a no-no and has been discredited.

We have the proposed legislation, but there is no heart to it. That might cause a lot of problems with regard to how we envisage what will happen and estimate the costs—I will come to that in a minute. Cabinet secretary, is it your understanding, from your experience of dealing with all manner of legislation, that we are looking at a bill that has no core because the key provisions are outsourced?

Yes. Again, I highlight that the bill stands to undo some of the good work that we have already done. We can see evidence of the results of that work in the Young Scot report, in which young women talk about the positive impact that it has had on their experience in education and on their mental health, which has allowed them to continue with their day-to-day activities.

The bill would not enable us to deliver as we are currently doing, which raises the question of what its purpose is. We need to think in particular about the costs that are associated with the bill, and about whether it is worthwhile progressing with an approach that involves higher costs and potentially stands to deliver poorer outcomes, as opposed to progressing with our current approach, which is—as has been emerging from studies such as the Young Scot report—delivering positive outcomes for people across the country.

The technical and cost issues arise from the bill’s initial provision, which was referred to earlier. Section 1 states:

“Everyone in Scotland who needs to use period products has the right under this Part to obtain them free of charge.”

In the light of what has been said, it appears that the Scottish Government’s current approach is—as we hear from Young Scot—delivering on the ground, day to day on the broad objective that the bill seeks to achieve. I understand from what the cabinet secretary said that the Scottish Government’s approach targets those who need help with the cost of such products or in accessing them through the school roll-out. That seems be the key difference in approach. The Scottish Government’s approach is to look at those who need help vis-à-vis access or cost.

In contrast, the bill’s approach is to say that, as a matter of law, every person in Scotland who needs to use period products can have free access. There is a fundamental difference between a targeted approach to delivering those products on the ground and a general statement that everyone who wants such products can access them whenever they want to—including, as we have heard, by post; we might come to that in a minute.

Our approach is far more targeted. Free period products are accessible to pupils and students in schools; that provision is not means tested in any way. We also work with local authorities to make period products available in specific public places, on the understanding that they will be accessible to people who need them more. We have invested in the FareShare scheme, which targets people in poverty, to support individuals who struggle with day-to-day costs more generally and those who struggle to meet the cost of buying period products specifically.

Setting out those important parameters leads us to the fundamental issue of the estimated cost. As has been mentioned, the financial memorandum states that the cost is about £9.7 million per annum. Monica Lennon made some revisions to that figure in her recent letter to the committee, but it is in the financial memorandum that is before us. In response, the Scottish Government has said that, taking into account the actual unit cost and the purchase and sourcing of the products, together with other additional costs, it would be looking at a total estimated cost of £24.1 million per annum rather than £9.7 million per annum. There is therefore already a huge divergence in cost.

I would like some clarification. My understanding is that, in addition to the Scottish Government’s estimate, we are looking at set-up costs—we do not know what those are—as well as the on-going cost of postage, which has been mentioned. As a direct result of the language used in section 1 of the bill, which I quoted earlier, there would have to be a mechanism to ensure that that so-called “right” could be enforced. There would also have to be an appeals procedure—I speak as a lawyer; I cannot help it—so that people who felt that their right was not being respected could challenge that. Cost estimates would have to be written in for that process as well.

My understanding—correct me if I am wrong—is that the Government’s estimate of £24.1 million per annum is probably quite a bit lower than the amount that would actually be required, at least during the first few years as the scheme was set up and everything was sorted out. On-going costs are on-going costs, whatever baseline you start from. If we start by underestimating the costs by at least 50 per cent, if not more, the on-going costs will be considerably higher than if we got the baseline right at the outset, Mr Wightman—

I remind members that we should direct our points to the cabinet secretary.

Even the figure of £24.1 million is an underestimate of what the total cost would be.

That could potentially be the case, given the additional factors that you outlined. We certainly believe that the estimated annual running cost of £0.9 million is not an accurate or true reflection of the actual costs. As I have said, our experience of delivering these products in schools has shown that the actual costs are higher than the suggested unit costs. In addition, our assumptions would need to be based on a wider age range, and we would be delivering access 24/7, 365 days a year, rather than limiting provision to school terms. We are delivering far more flexibility that responds far more to people’s needs than the scheme that is envisaged in the legislation. As awareness of the scheme increases, so will uptake, which will increase costs.

In our assessment, if there was a 5 per cent increase over the next session of Parliament, the total cost could be around £80 million.

I am sorry—can you say that again?

The potential cost could be around £80 million, assuming a 5 per cent increase each year. I have to caveat that as only an assessment of the potential cost, based on our estimate of £24.1 million as a reflection of the true cost, but a 5 per cent increase in uptake every year over the next session of Parliament could lead to a cost of £80 million. That is just an example of how the costs could escalate.

10:45  

I want to pick up on some other points that have already been raised. My understanding of the evidence that the committee has received is that the Convention of Scottish Local Authorities has made it clear that it would expect the proposal to be 100 per cent funded by the Scottish Government. Is that your understanding?

I took great notice of what was said in evidence to the committee. It is anticipated that the Government would be expected to meet the costs.

Those costs are already much higher than £9.7 million per annum. Because of the slightly confused approach of the bill, it seems that, at this stage, there is no way of fully estimating what the costs could rack up to be.

Can we have a question, please, Annabelle?

In asking my final question, I want to go back to a point that was raised earlier. Even if we took a figure of £30 million, which we could arrive at by adding to the £24.1 million figure the set-up costs, the cost of an appeal mechanism and so forth, where would that money come from in your budget? Where would money be taken from in the next budget to allow that £30 million to be spent?

My budget is not as big as those of many of my Cabinet colleagues. We have a fairly low resource departmental expenditure limit budget. To put things into context, we have £50 million to deliver the child poverty action plan over the years of that plan. Given that we are talking about a one-off cost of £24 million, that shows the level of ask and demand across my budget and suggests that things might need to be looked at. I am not saying that that is where the money would come from; I am just providing a bit of context by pointing out that £50 million has been attached to the delivery of the child poverty action plan over the years of that plan, and here we are talking about a one-off cost of £24 million, along with recurring costs every year.

So—

That was your last question, Annabelle.

It would be a tough and difficult choice. The money would have to come from somewhere. If the aim of the bill is to deliver local flexibility, we are already doing that.

Given witnesses’ concerns that, without legislation, the current funding could be removed, what are your plans to ensure the longevity of your current policy of free provision?

As I said, we have baselined that into the funding for local government.

You said that it was your preference for the bill not to proceed and that you could continue to develop your current programme through innovation and flexibility. Rolling forward from the work that you have done so far, what are your current plans for the next phase of analysis over the next few years? Have you identified any particular groups of people who are not getting access to period products because of cost and so on? Where are the gaps in the current provision?

We intend to do analysis and assessment work in March to understand what impact the community element of the work that we are doing is having and how that is developing. That will give us a far better understanding of what more we need to do. Today’s Young Scot report talks about some of the improvements that are required and some of the areas that we need to concentrate on.

On developing the policy more generally, we are working with Hey Girls to develop an app to ensure that people understand where they can access products. We will also launch a campaign very shortly that is about tackling the stigma around periods. Those are illustrations of what we are doing.

We are proud of what we are doing, but it is not the end point. We continue to push on what we can do on the issue of poverty and use that as a hook to articulate some of the challenges around the stigma associated with poverty. That is why we are undertaking the campaign and why we are continuing to work with Hey Girls on the app to ensure that people can access the products.

A key issue in the evidence that has been given to us is that, although there is lots of innovative work and lots of provision in schools and in further and higher education, there are still major challenges for people on low incomes.

That is why we have provided funding for local authorities, to ensure that people can access the products in public places such as libraries. The products have also started to be made available in workplaces, and we have engaged with our public bodies to ensure that they meet the requirements of the policy intent. However, I accept that more work is required. That is why we will assess the position in March, why we continue to look at the impact in education settings and will publish a report on that, why we continue to work with Hey Girls to ensure that people have a keener sense of where they can access products, and why we will undertake a campaign around period stigma.

Another element of that work is that, along with Marine Scotland, we funded Zero Waste Scotland to do work on reusable products to ensure that they are available, accessible and understood. I think that I mentioned that we are also working in Malawi and Rwanda, with which we have international development relationships, to ensure that women there can access products, too. The issue is therefore far bigger and broader than the legislation. In any case, regardless of the outcome of the discussion on the legislation, we will share the assessment and reporting with the committee.

Thank you.

Cabinet secretary, although lots of matters have been discussed this morning, the opening gambit was about where we are, what we want to achieve and how the bill might or might not support us to create the provision that we want. You talked about your current scheme’s accessibility and flexibility, but you also talked in your opening statement about the risk of “minimum standards” compared to the current scheme’s provision of a range of quality products, with which the majority of people are happy. We have discussed the likelihood of costs changing and the possible effects on the quality of products if the scheme had a larger scope. If the bill ensured universal provision, do you envisage cost increases affecting the quality of products?

There is every chance of that happening, which would be regrettable. When I visited the University of Edinburgh, I saw a variety of well-known brands of products alongside reusable products that are new to the market. The intent of that provision is to ensure that people can shift towards those newer products—for example, Mooncups and reusable pads—although they have higher, one-off costs. That variety of products is already being distributed across many different institutions. In many respects, it would be a pity if that variety was lost because of the cost issue.

The variety could well suffer as an incidental consequence of our trying to broaden the horizons and create more access. None of us wants to see that, because we want the quality and the process to be there. When we took evidence from Hey Girls and others, they talked about the reusable products and told us that, although there is not a high uptake at present, if and when people start to use them that dimension will change and they will be content to deal with that.

Nevertheless, there needs to be some kind of process to ensure that there is an understanding across the piece, so that individuals feel comfortable in moving to such products. You have identified that some people are trying to do that through sharing experience, for example, or through a scheme that provides some understanding. Although the provision that is available may continue to cause barriers, changing and trying to enhance the provision might also jeopardise some of the process.

I think I recognise the risk that you are pointing out, and the committee will need to consider that risk when it deliberates on the legislation. As I said, we are working with Marine Scotland and Zero Waste Scotland to amplify the messages around the reusable products and the need to think more sustainably about which products are used. That is good work, although it sometimes jars for people who are living in poverty, for whom that might not be an immediate consideration. We are having to do a number of things at the moment. We are trying different things, working with various partners and really exploring what more we can do, which is why the flexibility that we currently have and the culture change that we are beginning to see are really valuable. We can start to share that good practice and understand that knowledge.

Are you saying that elements of the bill jeopardise some of that?

I would say so, yes. Potentially, the flexibility and all of those things could be undermined. I do not think that that is the intention, but that is what could happen.

That could be a consequence. Okay. Thank you.

Cabinet secretary, if the delivery of period products to those people who most need them could best be secured through legislation, would the Scottish Government, with the resources that are available to it, not have introduced its own bill, given its continuing work in the area?

As I said in my opening remarks, we decided not to adopt the bill because at the time we thought that it was better to work through some of the delivery models and different partners that we could work with, to ensure that we have the flexibility to use different products and to work through the range of different policy areas in terms of sustainability, dignity and all those things. We decided not to adopt the bill because we felt that the flexibility—the parameters that we can work within at the moment—is far more valuable.

So, legislation is inappropriate at this point, whether it comes from the Scottish Government or from anyone else.

I would say so, given the risks that I have outlined and the cost implications, which are significant and will not necessarily deliver better outcomes. I think that we all share Monica Lennon’s aspiration and recognise the huge amount of work that has been done by so many organisations and individuals across the country, which enables Scotland to say that it is currently a world leader in this policy area. However, we have done that without legislation and we have delivered positive results, as has been articulated through the Young Scot report today. That does not take anything away from the fact that we need to do more and that there are other areas that we need to work on. Nevertheless, in a short space of time we have delivered a huge amount and have achieved a great deal with investment, and we are tackling some issues that other countries have not faced up to.

Monica Lennon would like to ask a couple of questions.

11:00  

Thank you, convener. It has been a helpful session. I have a couple of questions and then some remarks for the cabinet secretary.

Although there has been fantastic progress—I am glad that the cabinet secretary is committed to that continuing—other members have touched on the fact that there are gaps out there and people still find themselves in period poverty.

I will pick up on the education settings, because what we have heard about today is universal access for anyone in education. We know from the evidence that we have heard that not only pupils and students but staff and visitors to campuses can access the products. The cabinet secretary said that she intends that access to be provided on a 24/7 basis—we know that there are holiday packs and that people can get products outwith term time. Is it fair to say that what we have currently in the education sector is a universal scheme?

In an education setting.

So, anyone in school, college or university benefits from universal entitlement.

Yes, they can access the products if they want to.

Thank you.

We know that there are probably schools that require more support, which is why there is a requirement for us to continue to share good practice and to work with authorities in school settings to make sure that all young people are able to have that access.

Does anyone in Scotland benefit from a legal right to access period products?

There is provision in prison settings. There is legislation for that, which I think the committee discussed at one of its sessions.

You are correct in saying that prisoners have a legal right of access to period products. If that is well established in the prison setting, why would a transition from the current scheme for people in education to a scheme that gives them the same legal right not work at this time?

I do not think that the bill is necessarily about that; it is about universal provision beyond education settings. I think there is provision in the bill—

I am referring to the part of the bill that deals with education. The universal scheme is different from the duty in education settings.

Sure, but there is provision at this point without legislation, through flexibility.

The bill also talks about having products in toilets. We know from some pupils that they do not want to have access to products through toilets at this point, although that situation might change as cultures change and awareness develops. I understand the point that you are trying to make.

You have also underestimated the cost implications. We understand the intent, and we know that it is sometimes tough to draft members’ bills, but the costs that you have put estimated are not reflective of the actual costs.

At the moment, we are delivering access to pupils and students in education settings without the need for legislation. We are delivering positive outcomes, as outlined in the Young Scot report that was published today. We are doing all of that in partnership and in co-production with young people, education partners and local authorities.

Do you accept that the bill is trying to future proof that right and to lock in all that good work for the future?

Potentially, it would lock in an inflexible system.

I did not say that the current system is inflexible.

No, but the bill could potentially erode some of its flexibility, such that it could lock in and future proof an inflexible system that would not deliver the outcomes that we are delivering within the current cost envelope. We are delivering a huge amount without the bureaucracy and red tape that the bill could end up delivering.

We do not dispute the aspiration of the proposed legislation, but I do not think that it would deliver what you have articulated, and I think that it has the potential to lock in a system that is inflexible.

I do not have a lot of time in which to ask questions, so I will move on.

The bill is meant to alleviate period poverty not just for people in education but for anyone in Scotland who experiences financial barriers or is affected by period poverty. Evidence was taken from people who have health conditions such as endometriosis. Some women find that their need for products changes during the perimenopausal phase, so they might need temporary assistance and not just a monthly supply. How do current schemes help women in that situation?

That goes back to the point that, when we assess the community part of our actions, we can assess good practice. Some authorities are delivering block supplies, so people can access more than a couple of products at a time. There is really good practice that shows that that is working. Again, we might need to do a bit more work on that, but that is why, in March, we are carrying out an assessment of the community element of what we are delivering. We want to understand and share good practice so that we continue to meet the needs of individuals who might require more products at particular times.

Does the Government intend to do more to ensure that people who need a monthly supply can be provided with one, whether it is just some of the time or more frequently? Are you working towards that as part of the Government’s commitment?

There are good examples of local authorities providing that service already, and we might need to share that good practice. Women and other people are being supported in accessing more than just a couple of products now and again, because there is an understanding that there is sometimes a requirement to access more than that.

There has been a lot of discussion about what people perceive the bill to do and not do, and about the desire for maximum flexibility. Does the cabinet secretary agree that the bill would give ministers maximum flexibility in how they would set up the statutory scheme? The voucher scheme has been talked about as an s:card scheme or as being based on the c:card model, which Andy Wightman pointed out was SNP policy from 2016. Do you agree that the bill does not mandate such a scheme? That idea was put forward as an option, but it could easily be taken out of the bill by amendment.

We have been asked to deliver flexibility and to allow for local discretion in how that might look, and that is what we are doing currently. I understand what you are saying: that the c:card scheme—or whatever we want to call the voucher scheme—could be taken out of, or amended in, the bill. However, fundamentally, that is what the legislation that is before us articulates, and it is not what folk want.

I have one final, very brief question—

The SNP might have passed a motion a number of years ago with good intent, but that might have been done without the experience and knowledge of working and co-producing with women and without understanding the barriers that might be put up. That is why that is not our chosen route and why we have not done that. It is regrettable that the bill includes that provision, which women do not want. I do not think that there is any dispute about the aspiration and vision, but, ultimately, because of the way in which the bill has been drafted, it will not necessarily deliver in the way that we are delivering for people across the country in the here and now.

I have one last question—I know that the committee needs to move on. I note the shift away from universalism, but are there any circumstances in which the Scottish Government could support the bill following further amendments and discussion? We are trying to get to the same place, as we want to alleviate period poverty and improve access to period products.

I do not think that we disagree on the aspiration and on what we want to achieve. However, the bill would not deliver the outcomes that we are currently delivering for people across the country. There are real risks that we would undo some of the good work and that the costs are likely to increase significantly. Such decisions will be for the committee to consider, but those are real risks.

I need to decide whether to support a bill that would cost us more and not deliver the outcomes that we are currently delivering or to continue to progress with the action that we are taking and the investment that is delivering results, as is outlined in the Young Scot report. On balance, I do not support the bill, because we are delivering better outcomes for people across the country.

Cabinet secretary, I have one question and one ask for you. You talked about a 5 per cent increase perhaps leading to a cost of £80 million—

I would caveat that. If there was a 5 per cent increase in uptake, year on year, over the next parliamentary session, that would—

I was just wondering whether we could see those workings.

Yes.

If you could send them to the committee, that would be helpful.

You talked about period products being made available in places such as libraries and community centres. What sort of publicity will go with that? Are you intending to ramp that up?

We are going to run a more general campaign to tackle stigma. That is the premise of our working with Hey Girls to develop the app so that people can understand where they can access products. There will be lots of local work. For example, I am aware that, in my constituency, the local authority is promoting and highlighting where things are happening. That is why we are going to embark on work with Hey Girls around the app so that people can understand where they can access products.

Okay. Cabinet secretary and Dr Moir, thank you very much for attending today’s evidence session on the bill.

I suspend the meeting to allow a changeover of witnesses.

11:11 Meeting suspended.  

11:15 On resuming—