Health Boards (Membership and Elections) (Scotland) Bill: Stage 2
This is the first day of the committee's consideration of the Health Boards (Membership and Elections) (Scotland) Bill at stage 2. I welcome to the committee the Cabinet Secretary for Health and Wellbeing and her team. By way of a preamble, I remind members that use of a convener's casting vote—I hope that I will not have to use it—is very different from use of the Presiding Officer's casting vote. There is no protocol—the conveners liaison group was unanimously of the view that use of the casting vote should be at the discretion of each convener.
Section 1—Constitution of Health Boards
Group 1 is on the composition of health boards. Amendment 25, in the name of Ross Finnie, is grouped with amendments 26, 27, 17, 28, 29, 31 and 32.
Many and several aspects of health board governance were highlighted during stage 1 and in the committee's stage 1 report. I have become somewhat exercised about the fact that there has been a bit of a drift—in some places, the position of chairman of the board has morphed with that of other board members. That is not true of all boards, but it is a drift.
From the evidence that we took at stage 1, it is clear to me that chairmen of boards should be seen to be independent and not representative of the executive. It should be set out in statute that chairmen are apart from the executive, and it should be demonstrable that they are among the non-executives on boards.
The first purpose of my amendments to section 1 is to ensure that the chairman is separated out and is not lumped in with other members of the board. My contention is that the chairman should be seen to be part of the independent vote on the board and should count as part of that.
If we leave the chairman to be counted along with the executive members and others, we will give completely the wrong signal about his position on the board. I accept that simply defining the position of the chairman in statute will not guarantee his independence. However, if we say in statute that he is to be counted among the executive members, we will create confusion about his role and independent position. It would be helpful if the bill, in addition to the other measures that it contains, were to set out clearly that the chairman of the board is intended to head the non-executive directors, who hold the executive directors to account. To do otherwise is to blur the distinction between executive and non-executive directors; I believe that to be undesirable.
My amendments would provide for the chairman to be included with those who are more properly regarded as non-executive directors when it comes to deciding what constitutes a majority on the board. That is in stark contrast to the position of Bill Butler, which I respect. He has been entirely consistent on the matter and wishes only those who are elected to constitute a majority. That creates difficulties in the bill. Splitting the governance of the board between those who are elected and those who are not elected will add to the confusion about where the chairman of the board stands. If the chairman is counted as part of the executive, it is not clear to me what purpose he serves. In proper governance, the chairman should head the non-executive directors and hold the executive directors to account, so not including him on the non-executive side would be a mistake. On those grounds, I have pleasure in commending my amendments to the committee.
I move amendment 25.
Before I speak to amendment 17, I will make a couple of points about Ross Finnie's comments. I see the logic behind his proposals, but I fail to be convinced by it. It is not really appropriate simply to state in statute that the chairperson should be part of what Mr Finnie has described as the independent or non-executive part of the board. After all, we are talking not about one independent element, but about three different elements. The bill's explanatory notes make it clear that in section 1(2), which replaces schedule 2 to the National Health Service (Scotland) Act 1978, paragraph 2(1) of the new schedule sets out the
"three different types of member"
that will sit on a health board.
"These are:
• "appointed members" (a chairman and other members appointed by the Scottish Ministers);
• "councillor members" (councillors appointed by the Scottish Ministers following nomination by local authorities … ); and
• "elected members" (individuals elected as members of the Health Board at an election)."
The description of the categories that Mr Finnie set out do not relate to the three categories that are set out in the bill. As amendment 17 makes clear, we are talking about the injection of a directly elected element that is not independent in some theoretical way but takes part in the board's work, as well as two other categories of appointed members.
That kind of injection is a good thing. One should never quote oneself, but as I said in my submission to the Government's consultation on its proposed local health care bill, I think that
"Direct public elections would allow the public a mechanism to influence service delivery in their area".
I also believe that the public are clearly saying that
"there must be greater openness and transparency, and there must be direct accountability".
After all, this is all about transparency and direct democratic accountability.
In my response to the consultation, I also said:
"I have yet to hear a convincing argument as to why the make-up of regional NHS boards should not contain a strong"
direct democratic element. Accordingly, as amendment 17 sets out,
"I believe that 50 per cent, plus one, of the members of each health board—"
or, depending on the arithmetic,
"a simple majority—be directly elected to represent the local communities affected by its decisions. Boards must have a proper balance between those with expertise, knowledge and experience from working in the health service"—
something that we should not lose—
"and those who are most directly affected by changes—the public.
I feel that the blend of experience and direct accountability"
offered by amendment 17, which suggests simply that there be a simple majority
"is about right."
Again, I emphasise that, as I said before:
"I support the retention of local authority members on NHS boards".
That innovation by the previous Liberal-Labour coalition Executive was a good thing. However, I then said in my response that:
"Unhappily, I believe that even with the inclusion of local authority members on each NHS board, the feeling remains that boards have failed to engage effectively with the communities they serve."
The bill can deal with that kind of corrosive and negative perception.
As I went on to say in my earlier submission:
"I hope that direct public elections will succeed in making health boards work harder at explaining their proposals to the communities they represent and at engaging the public more directly, explaining the pros and cons of any changes to local health services clearly and openly. Only when that greater level of direct accountability and transparency has been achieved will communities feel in any way reassured that health boards really listen to their"
members'
"views."
I was going to finish on that point, but I must not forget the cabinet secretary and a document in which, I am sure, she had a great deal of say—the Scottish National Party manifesto for the 2007 elections. Under the heading "Accountable healthcare", on page 36, appears the following quotation. It is not the whole paragraph, but I do not think that I am wrenching it out of context.
"Sometimes difficult decisions must be made and local people should always be at the heart of the process. To ensure this is the case we will introduce direct elections to health boards. At least half of health board members will be elected by the public."
I could not agree more with the cabinet secretary and the manifesto; I emphasise that I mean on that one specific element. It seems to me to be an unequivocal commitment that does not preclude the possibility of what amendment 17 suggests, which is a simple majority. I hope that colleagues will support amendment 17 and, of course, Mr Finnie's amendments.
I did not think that you had undergone a Damascene conversion just because you read from the SNP manifesto.
I have a question for Ross Finnie about amendment 27. The chairman will be appointed, so adding the chairman to the total number of councillor and elected members of the board could result, at any one time, in less than half of the board bring made up of directly elected members. Is that correct?
Ross Finnie may deal with that point when he sums up.
I am delighted that Bill Butler's choice of reading material is so intellectually highbrow and stimulating. He is certainly setting a good example.
I am grateful for the opportunity to respond to the amendments in group 1. Ross Finnie's amendments 25 to 29, 31 and 32 seek to separate the role of a health board chairman from that of the other appointed board members. From a presentational point of view, that might give the appearance of independence, and I am not unsympathetic to Ross Finnie's rationale. However, in reality, even if Ross Finnie's amendments were to be agreed to, the chair of a health board would still be appointed by Scottish ministers. Amendment 27 proposes that the chair, together with local councillors and directly elected members, would form the majority of a board. That would be a dilution of our proposals, which seek more balanced health boards with greater local and democratic representation. The amendments would mean that ministerial appointees could form the majority of board members. That runs counter to the bill's proposals, so I cannot support it.
Amendments 25 and 26 might also have unintended consequences. The chair would not be considered a member of the health board, so any legislative provisions that refer to members of health boards would not then apply to the chair. For example, the 1978 act provides for the payment of travelling expenses to members of health boards. If amendments 25 and 26 were agreed to, that provision would not apply to the chairman.
Amendment 17, in the name of Bill Butler, seeks to achieve the opposite effect to that of Ross Finnie's amendments by making a clear majority of a health board directly elected. Although I agree, as we all do, that the way in which health boards engage with and involve their communities must change, our approach of drawing the majority of members from local authorities and those who are directly elected represents the most sensible and balanced way of achieving that goal. It would mean that a majority on a health board would be democratically elected, and that is an important principle. As a result, I am not able to support amendment 17.
Amendment 29 would ensure that a health board chairman could not be an employee of that health board. That reflects current practice, so I see no reason why that should not be set out in legislation. Accordingly, I am happy to support the amendment and I encourage committee members to agree to it.
The debate has simply rehearsed the difficulties in trying to do two tasks that are related but slightly separate. Bill Butler's clear proposition is that the majority of board members must be directly elected. That has been his consistent position. He talked about the democratic nature of the composition of boards. I do not seek to argue that point in my amendments. My concern is about how boards are run and managed.
My response to Ian McKee is that the difficulty is with the chairman. If the cabinet secretary—or rather, the Government; I will not personalise the matter—sought, in wishing to change how boards are appointed, to have one of the directly elected people appointed as a chairman, that might get rid of my fundamental difficulty, which is that the Government still wants to appoint the chair.
The phrase with which I respond to Bill Butler is "independent or non-executive"; I might be drawing on previous background in using that. I do not suggest for a minute that independent or non-executive board members are not wholly engaged in the governance process. I use that phrase more as it is used in well-established reports on corporate governance on ensuring that paid employees of a company, who have the necessary skills and expertise in technical matters, are held properly to account by non-executive or independent directors.
Boards will have chairs, no matter how they are appointed. The chair's purpose is to head the non-executive or independent directors and lead them in holding the executive directors to account. If that is how a board is structured, it is odd to place the chairman on the side of the executive directors when taking a vote. That is a slight anomaly that arises from the bill.
On those grounds, I will press amendment 25.
The question is, that amendment 25 be agreed to. Are we agreed?
No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Finnie, Ross (West of Scotland) (LD)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Against
Grahame, Christine (South of Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McKee, Ian (Lothians) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
The result of the division is: For 4, Against 4, Abstentions 0.
Crumbs. I cast my vote against the amendment.
Amendment 25 disagreed to.
Does Ross Finnie wish to move amendment 26?
Amendment 26 is consequential on amendment 25, so I will not move it.
Amendment 26 not moved.
I can still move amendment 27, which is competent.
Amendment 27 moved—[Ross Finnie].
The question is, that amendment 27 be agreed to. Are we agreed?
No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Finnie, Ross (West of Scotland) (LD)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Against
Grahame, Christine (South of Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McKee, Ian (Lothians) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
The result of the division is: For 4, Against 4, Abstentions 0.
As the vote is tied, I cast my vote against the amendment.
Amendment 27 disagreed to.
Amendment 17 moved—[Bill Butler].
The question is, that amendment 17 be agreed to. Are we agreed?
No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Against
Finnie, Ross (West of Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McKee, Ian (Lothians) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
The result of the division is: For 3, Against 5, Abstentions 0.
Amendment 17 disagreed to.
Amendment 28 not moved.
Amendment 29 moved—[Ross Finnie]—and agreed to.
Amendment 22, in the name of Bill Butler, is grouped with amendments 23, 1, 24, 19 and 9.
Amendments 22 and 24 would prevent the party politicisation of direct health board elections. Concerns were expressed about that during the stage 1 debate and in the committee's report. Amendment 23 is consequential on amendment 22, and amendment 19 is consequential on amendment 24.
The issue was directly referred to in the committee's stage 1 report and the debate. Paragraph 47 of the report mentioned the fear that party politics could impinge on health board elections, and one organisation—Local Health Concern—suggested that there should be an attempt to prohibit party political slates. I have heard that argument before, and I think that it has some merit. There is a fear that parochial or single-issue group interests might prevail, which could lead to a lack of proper health care development—stasis, in other words—in a health board area.
If we wish to avoid that danger, we can, as amendment 24 proposes, proscribe certain categories of people from standing. We can also ensure by statute, as amendment 22 proposes, that certain people who become part of a proscribed category have to vacate office once they assume the other elected office. That would minimise the danger.
I emphasise that the amendments would not disqualify from standing people who happen to be individual members of a political party. I would not wish—nor, I think, would any of my colleagues—to disqualify such persons and we would, rightly, not be able to do so under the representation of the people legislation. The amendments seek to prevent—and I think that they will—political slates from standing formally as party political slates so described.
My belief—which is not contained in the amendment—is that the changes would encourage individual citizens to participate. If we say to the public, "This is not going to be the same old same old, and we want you not only to vote but to participate actively and to consider becoming a directly elected health board member", it will encourage local public-spirited citizens to come forward. People are already involved under the banner of health organisations such as the Royal National Institute for Deaf People, the Royal National Institute of Blind People and the Multiple Sclerosis Society. The amendments would act as an encouragement.
Basically, under amendment 24, those in elected posts would be proscribed from standing for a health board; under amendment 22, they would, by statute, have to vacate their directly elected health board place if they became an elected member, or an unelected member in the House of Lords. I ask colleagues to consider the amendments seriously; I hope that they can support them.
I move amendment 22.
The cabinet secretary will speak to amendment 1 and other amendments in the group.
I will speak first to amendments 1 and 9, which are in my name.
Amendment 1 clarifies that regulations may specify that an elected member must vacate office on becoming the holder of a restricted post that is set out in a list maintained by each health board. Amendment 9 is the equivalent amendment that clarifies that regulations may disqualify the holders of such restricted posts from standing for election. The amendments will ensure that regulations can enable health boards to keep lists of restricted posts that elected members will be prevented from holding. I believe that that is right because fulfilling such a dual role would bring a level of conflict into an elected member's purpose on the board.
Members will have seen from the draft regulations that were submitted at stage 1 that we propose that the responsibility for keeping a list of restricted posts should rest with each health board to allow them to respond flexibly to local administrative structures. However, we have built into the draft election regulations the right to allow anyone who finds themselves in a restricted post to appeal to the adjudicator appointed under the Local Government and Housing Act 1989. That mirrors equivalent restricted-post rules for Scottish local authorities.
The amendments in the name of Bill Butler would set out in the bill criteria for who can seek election to a health board and prevent those who hold political office from standing as candidates or holding office as elected members. I point out that MSPs are already prevented from sitting on health boards under the Scottish Parliament disqualification criteria, but it is right that all those individuals specified in amendments 22 and 24 are excluded from standing for election and from holding health board membership. Amendments 19 and 23 are consequential.
I am happy to support all the amendments in this group.
Do any other members wish to speak?
I have been vocal about my concern about party politicisation, and I have used the Highlands as an example because I can speak only from my own experience. I come from the land that is dominated by independent councillors. In fact, as the cabinet secretary will know, the excellent chairwoman of Shetland NHS Board is also an independent councillor, and that works extremely well. I have seen many independent councillors being elected to health boards.
I must say that I am always tempted to vote for Bill Butler even if I do not agree with him, because of his excellent debating skills.
And his charm.
Well, charm gets you everywhere. It is always worth a mention, even though it is against party policy—and of course I would not go against party policy.
So charm is against Conservative party policy.
Not at all. I want to put on the record that I think that Bill Butler has excellent skills, but I would never vote against party policy.
Bill Butler referred to party politicisation, but that does not happen in every part of Scotland. In fact, there is excellent practice involving independent councillors playing a role on health boards, and it would be a sad day if many committed individuals who were not party political were removed from health boards. I appreciate the principle underlying what Bill Butler says—he has a point—but I wanted to put on the record my comments about independent councillors.
I will let the cabinet secretary in before Bill Butler winds up.
I just have a point of clarification, which Bill Butler may have covered. The amendments in his name would prevent a councillor from standing for election to a health board, but they would not prevent a councillor from being appointed to a health board. Mary Scanlon cited the example of the independent councillor who is an excellent chair of Shetland NHS Board—such an appointment would not become impossible because of Bill Butler's amendments.
I agree with the point that the cabinet secretary has just made. Mary Scanlon should not resist the temptation to vote with me—although I might say that some of my party colleagues have sometimes resisted that temptation in the past.
Never!
Of course, I exclude Jackie Baillie and others from that. I agree with Mary Scanlon that we should never vote against party policy—unless it is a matter of principle, of course.
Seriously, I am grateful to the cabinet secretary, and thus the Government, for accepting my amendments. They have a serious intent, which is to ensure that the party politicisation of directly elected health boards is made very difficult, if not impossible—and that will, I hope, encourage members of the public to take part in the process.
Amendment 22 agreed to.
Amendment 23 moved—[Bill Butler]—and agreed to.
Amendment 30, in the name of Jackie Baillie, is in a group on its own.
I will pass round some documents. My apologies, convener—you saw me stapling them together as we were coming into the committee room, and I hope that they are helpful.
Amendment 30 would remove the ministerial power to dismiss an elected member. The committee as a whole has had concerns about that, and I regret that that proposed ministerial power would set a precedent. I am not aware of any legislation whereby directly elected members can be dismissed in such a way.
There are some helpful examples from elsewhere of how elected members can be removed from office. I have managed to obtain a copy of the "Cairngorms National Park Authority: Members' code of conduct". The document is coming round the table—I apologise for the lateness of circulating it—and I draw members' attention in particular to paragraphs 1.2 and 1.6, which set out the framework for the code.
Essentially, the Ethical Standards in Public Life etc (Scotland) Act 2000 provided for codes of conduct. As members will recall, it also established a Scottish Parliamentary Standards Commissioner to oversee the framework and to deal with alleged breaches of the code. Sanctions for a breach are helpfully outlined at annex A of the national park authority code. They include censure, suspension
"for a maximum period of one year"
and disqualification. There are further provisions that result in the possibility of disqualifying people not just from the national park authority but from other bodies.
I acknowledge the need to take powers, from time to time, to remove elected members from public office, but there are mechanisms for the removal of an elected member when there has been a breach of a code of conduct. The ministerial power provided for in the bill, which the committee found to be wide in nature, is therefore perhaps unnecessary.
I move amendment 30.
I can genuinely see both sides of the argument. Some people have expressed the concern that altering the membership structures of health boards may threaten the national aspect of the NHS. One way to allay that concern is to retain the same lines of accountability for all board members. That is why we originally proposed that the Scottish ministers should have the power to make regulations that give them the discretion to remove an elected member from office—to ensure that appointed and elected members would be on the same footing in their accountability to ministers. That is one side of the argument.
I appreciate that, on the other side of the argument, there is a point of principle at stake: when members are directly elected to health boards, they should not be able to be removed from the board simply at the discretion of ministers. As Jackie Baillie outlined, amendment 30 would remove the power to make regulations that give ministers a discretionary power to remove elected members.
I listened to the concerns that were expressed at stage 1, and I reflected further on the issue. Given those concerns, and given the fact that, although it is not impossible, it is difficult to envisage the circumstances in which a minister would exercise the power to remove a directly elected member, I have no appetite to resist the amendment and I would be comfortable if committee members agreed to it.
Does Jackie Baillie wish to wind up the discussion on amendment 30?
I will simply say that I am grateful for the cabinet secretary's comments. She has acknowledged that it is difficult to envisage circumstances in which any minister would use the power to remove an elected member of a health board. However, it is right that we should be clear and set out codes of conduct so that any member of a health board is aware of the nature of a breach that would result in a sanction. I welcome the cabinet secretary's views, and I will press amendment 30.
Amendment 30 agreed to.
Amendment 1 moved—[Nicola Sturgeon]—and agreed to.
Amendments 31 and 32 not moved.
Section 1, as amended, agreed to.
Section 2—Health Board elections
Amendment 2, in the name of the minister, is grouped with amendments 3 to 8. I call the minister to move amendment 2 and to speak to all the other amendments in the group.
I will speak to amendments 2 to 8. Following consideration—
May I just stop you there? It is my fault, but nobody is actually saying at the beginning that they are moving the amendment.
I was going to move it at the end.
It is helpful—just for my memory—if we have actually moved it.
Okay, I will move amendment 2, and I am now going to speak to amendments 2 to 8.
Following stage 1 consideration by the Subordinate Legislation Committee and this committee, I indicated that I would lodge an amendment to apply affirmative procedure to the election regulations. Amendment 2 fulfils that commitment. A draft of the election regulations will have to be approved by resolution of the Scottish Parliament before the regulations can be made.
Amendment 3 and amendments 5 to 8 are technical amendments. The default position, as set out in the bill, is that each health board area is to comprise a single electoral ward. The bill already provides that regulations must specify the number of elected members for each health board and that election regulations should specify the number of elected members per ward. Amendment 3 simply ensures that the same figure does not have to be duplicated in two sets of regulations. It provides that election regulations need specify the number of elected members per ward only where the health board area is divided into more than one ward. Amendments 5 to 8 are consequential on that change in the drafting.
The bill as introduced stated that the health board must appoint an individual as the returning officer for the elections. It is not the intention that the health board should determine who is appointed as the returning officer, and amendment 4 is a technical amendment that provides that the election regulations will specify who the returning officer should be.
I move amendment 2.
As no committee member has indicated that they wish to speak, I offer the minister the opportunity to wind up the discussion.
I am happy to leave it at that.
Amendment 2 agreed to.
Amendments 3 to 8 moved—[Nicola Sturgeon]—and agreed to.
The fifth group of amendments is on personal identifiers in all-postal ballots. Amendment 33, in the name of Jackie Baillie, is the only amendment in the group.
Having taken evidence from the Electoral Commission and from local authority returning officers, the committee held strong views on the issue that is raised in amendment 33.
Health board elections will be important. I hope that there will be considerable interest in them and that they will be hotly contested. The elections will be the democratic means by which local people can express their views, so it will be important that all votes are considered as valid and that no questions should arise over the ballot. The fact that postal ballots will be used suggests a clear need for the use of personal identifiers. However, if the ballot were to be conducted in a different way, that requirement would not be necessary. I hope that amendment 33 will enjoy the support of committee members and the cabinet secretary.
I move amendment 33.
Given the general difficulties in the 2007 election with voting and ballots, and the problems that have occurred in the south with postal votes, if we are serious about having proper elections and ballots for health boards, we need to use personal identifiers.
In an ideal world I would agree with what has been said, but we do not live in an ideal world. Personal identifiers would add enormously to the cost of the procedures and to the delay. That would be wrong. We should not let the best be the enemy of the good, so we should proceed with the system that is in the bill. Later on, in the full roll-out, we can perhaps come to a different decision, but we need to get the procedure working.
I have sympathy for Jackie Baillie's and Richard Simpson's points. Nonetheless, I am concerned about the escalating costs of the pilot and about the potential cost of roll-out. It would be helpful if the cabinet secretary said how much more costly it would be to use personal identifiers for the pilots and what the delay would be in introducing the pilots.
I am aware that the committee discussed the issue at length and highlighted it in its stage 1 report. I hope that, from my reaction to amendments that we have debated and to some that we are yet to discuss, the committee will accept that I am taking seriously its comments and that, where possible, I am trying to accommodate its concerns and reach a consensus. However, I regret to say that, having considered the issue carefully, I cannot support amendment 33. Members will know from the draft election regulations that were submitted during stage 1 that we propose an all-postal ballot for the pilot health board elections, which follow the arrangements that are in place for national park elections in Scotland. I was glad that Jackie Baillie relied so heavily on the national park model with an earlier amendment.
Amendment 33 stipulates that personal identifiers would be used only with an all-postal ballot. As Jackie Baillie has conceded, if there was a traditional ballot—a mix of the ballot box and postal votes, as was the case in the 2007 election to which Richard Simpson drew our attention—the amendment would not require personal identifiers to be used for the postal votes that were cast. That is a somewhat anomalous position.
To return to the substance of amendment 33, I will try to answer the questions that Mary Scanlon posed. A requirement for personal identifiers for an all-postal ballot would entail significant additional expenditure, which we estimate to be at least £800,000 for the pilot elections. It would also inevitably postpone, by a considerable time, the start of the pilot elections if an all-postal ballot was used. I cannot say exactly how long the delay would be, but it is likely that it would be a considerable number of months, if not longer.
The method that is used in the pilot elections will be assessed as part of the evaluation. It is right and inevitable that the experiences of the pilot elections, including those of the method of voting, will form part of the evaluation report that will be placed before the Parliament. The Parliament will then be able to decide whether personal identifiers should be used for any roll-out of the elections. However, for the purposes of the pilot, my strong belief is that amendment 33 would introduce a disproportionate cost and an unnecessary delay in implementing the policy, which is designed to put communities at the heart of decision making in the health service, and the pilots, which are designed genuinely to test the viability of direct elections. I therefore ask Jackie Baillie to reflect on the comments and to consider withdrawing amendment 33.
I listened carefully to what the cabinet secretary said. However, I treat seriously the evidence that we received from those with responsibility for running elections. Those experts, who have years of experience—which, frankly, those of us sitting round the table do not have—are clear that in all-postal ballots personal identifiers are required to secure the validity of the election.
Richard Simpson was right to point out that the outcome of the 2007 election and the chaos that ensued did not fill the public with confidence, and today I learned that questions have been asked by a member of the Scottish National Party and other people about a recent election elsewhere. That is the context in which we are operating. The important point is that the public should have confidence in the outcome of an election.
I accept the cabinet secretary's point that the requirement for personal identifiers would cost £800,000. However the two pilots offer the opportunity to test whether such an approach is needed—that is the mechanism for evaluating the approach, rather than complete roll-out at a higher cost.
I was trying to be helpful when I suggested that personal identifiers should not be used in an election that involved a mixture of voting in person and voting by post, because traditionally in Scotland and elsewhere the overwhelming majority of people vote in person rather than by post. I press amendment 33.
The question is, that amendment 33 be agreed to. Are we agreed?
No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Finnie, Ross (West of Scotland) (LD)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Against
Grahame, Christine (South of Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McKee, Ian (Lothians) (SNP)
Abstentions
Scanlon, Mary (Highlands and Islands) (Con)
The result of the division is: For 4, Against 3, Abstentions 1.
Amendment 33 agreed to.
Amendments 24 and 19 moved—[Bill Butler]—and agreed to.
Amendment 9 moved—[Nicola Sturgeon]—and agreed to.
Group 6 is on age of voting. Amendment 34, in the name of Ross Finnie, is the only amendment in the group. I invite Ross Finnie to speak to and move amendment 34.
I normally obey your injunctions automatically, convener, but on this occasion I will speak to the amendment and reserve my position on moving it—
The clerks are whispering to me that you must move the amendment but you have the right to seek to withdraw it after the debate.
Okay. That is the position that I wanted to protect. I believe that people who are under 18 should be able to vote, so it was with concern that I lodged amendment 34. I did so almost exclusively on the basis of the evidence that the committee heard. The committee said in paragraph 89 of our report at stage 1:
"The Committee has serious concerns about the proposal for a private young persons' register and does not find this to be a recognisable part of the usual democratic process … These are complicated issues to resolve and the Committee calls on the Scottish Government to come forward with specific proposals to address those concerns in advance of Stage 2."
Rather than bore members by repeating that position, I afford the cabinet secretary the opportunity to say whether she can accommodate the committee's requirements. I will consider whether to press amendment 34 after I have heard from her.
I move amendment 34.
I will deal briefly with the principle of the matter, because I suspect that most if not all members agree that it is right to give 16-year-olds the vote. Allowing young people to vote in health board elections would be a useful first step in introducing them to the democratic process.
Health issues affect everyone and it is right that we give 16 and 17-year-olds the opportunity to express their views on a service of which they will undoubtedly have had experience, and of which they will continue to have experience throughout their adult lives. Amendment 34 would deny 16 and 17-year-olds the opportunity to participate in shaping and delivering future health services. I believe that, in principle, it would be wrong to do that.
However, Ross Finnie focused on the practical issue, which I will now address. A key issue in extending the franchise is ensuring that 16 and 17-year-olds are registered to vote. There must be provisions in place to ensure that that is the case. During discussions with electoral registration officer representatives, the use of a young persons register was considered. Those discussions allowed us to identify a way forward that would enable local EROs to record details of 16 and 17-year-olds and attainers in their own way, using a solution that was right for them locally. Information on young persons would be kept in a private register. Details of how we propose that that register will operate are contained in the draft Health Board Elections (Scotland) Regulations, which we provided the committee with at stage 1.
I appreciate that the committee had concerns, and I undertook to re-examine the issue. I am not in a position today to offer the committee an alternative, but I certainly am in a position to say that we will have further discussions to find out whether there is a preferable way of ensuring that 16 and 17-year-olds can vote in health board elections. I know that that will not completely satisfy Ross Finnie, but I ask him to withdraw amendment 34, so that we do not lose the principle of giving 16 and 17-year-olds the ability to vote, on the basis that we might be able to satisfy him on the matter before stage 3. If we cannot do that, he will have the opportunity to relodge his amendment at that stage.
What the cabinet secretary has said is helpful. The central issue is the publication of names and addresses of people who are under the age of 16, which will be a difficult problem to solve.
The cabinet secretary indicated that there might be local variation in how the matter is handled. I would not want that to be the case; at stage 3, I would want to see a solution to the problems that we have all identified or a statement to the effect that the issue will be dealt with uniformly, on a national basis, rather than in a way that allows local variation.
The cabinet secretary has entirely anticipated the position in which I have placed myself. I feel quite strongly about young persons registers but, equally, I do not need to be persuaded on the principle of giving 16 and 17-year-olds a vote, so I am content to seek the committee's agreement to withdraw amendment 34. However, I seek leave to lodge a similar amendment at stage 3, if necessary, and I very much hope that the cabinet secretary will produce concrete proposals before we have to vote on any such amendment at stage 3.
As I understand it, you would be perfectly entitled to do that.
Amendment 34, by agreement, withdrawn.
Section 2, as amended, agreed to.
Section 3 agreed to.
Section 4—Pilot scheme
Group 7 is on evaluation of the pilot. Amendment 35, in the name of Dr Richard Simpson, is grouped with amendments 11, 36, 40 and 41.
Section 4, together with the section that deals with the content of the evaluation of the pilots, is crucial to what is an unusual bill, in that it provides for the piloting of direct elections to health boards to find out whether they achieve the objectives that we all seek, which are to ensure public involvement and engagement and to ensure that health boards are accountable locally. Although local accountability has improved, as our stage 1 report showed, it is still highly variable, and further measures are required to improve it. One such possible measure is direct elections to health boards.
My series of amendments seeks to make it clear that the evaluation of all the pilots should be undertaken independently of Government and of health boards, and that it should be authoritative, independent and credible. If the committee agrees to the amendments in the group, the evaluation methodology will be made clear. Later amendments will lay out in detail what the evaluation is to cover.
The evaluation is crucial to any future decision of the Parliament to support or revoke the pilot scheme under the affirmative resolution procedure that we have agreed to today. The amendments in the group seek to establish the independence of the evaluator and the timing of their appointment. In addition, it seeks to ensure that publication of the evaluation process is made prior to the process getting under way. In that way, MSPs and the public can see exactly what is involved and can comment critically on the process as things move forward.
I move amendment 35.
First, I will speak to amendment 11 in my name. It has always been our intention to let the pilot scheme operate for an appropriate length of time. That will allow the new board structure to deal with the full range of issues that health boards deal with at present. The bill says that ministers have to bring forward an evaluation report no later than five years from commencement of the pilots, but it does not set a minimum. The committee raised the issue with me at stage 1. Amendment 11 seeks to address the issue. Pilots will have to operate for a minimum of two years before a report can be published and laid before Parliament. The five-year long stop for publication of the evaluation report will remain in place.
The other amendments in the group, which are in the name of Richard Simpson, seek to ensure the independence of the evaluation process. I have given a clear commitment to the independence of the report, but I have no difficulty in supporting amendments 36 and 41 and I encourage the committee to agree to them.
Although I am sympathetic to amendment 35, the appointment date that he specifies is too restrictive. The pilot order may be made some time ahead of the first health board election. It is therefore more appropriate for the bill to provide for appointment ahead of the first election instead of before the making of the pilot order. If Richard Simpson agrees to withdraw amendment 35, I commit to lodging an amendment at stage 3 to link appointment to the first election date.
I am not minded to support amendment 40, although I will be interested to hear the views of members on the subject. The bill itself specifies the most important aspects of the evaluation. It is right that that is done in the bill. If the committee agrees to the other amendments in the group, it is important to secure the independence of the person who will carry out the evaluation. They will need a degree of flexibility to carry out the evaluation in whatever way they think is fit. Given that the key elements will be prescribed in legislation, the independent person needs to be able to adapt the ways in which they carry out the evaluation, as circumstances arise. It is not appropriate for ministers, or Parliament, to dictate in advance every last detail of how the independent person carries out the evaluation.
In accepting amendments 36 and 41, I ask Richard Simpson to withdraw amendment 35, not to move amendment 40 and to work with me on drafting a more appropriate amendment, which I will lodge at stage 3.
I seek clarity on an aspect of amendment 41. Is the last word in the amendment statutorily defined?
I believe that it is. It is in the Scotland Act 1998. I am surprised that Ross Finnie does not know that.
I did not know that. I also could not find my copy of the act.
I can recite it verbatim.
If I had found my copy, I would have checked.
I thought that you were looking a bit stressed this morning.
The situation is serious.
That is banner headlines for tomorrow, Ross.
I will find my copy.
You have thrown Ross Finnie a challenge, cabinet secretary.
My concern is that, far too often, when setting up pilots—this was the case even when I was in government—we only subsequently consider what might be involved in the evaluation and who might produce it. As a result, evaluators often get involved so late in the process that their ability to influence the detail of how the evaluation is carried out is limited. That is true particularly of Government-ordered evaluations, for which the specification is often determined by the Government—although we will go on later to discuss the content of the evaluation.
The purpose of both the amendments with which the cabinet secretary is unhappy—amendments 35 and 40—is to ensure that the evaluator is appointed at an early enough stage and publishes proposals on how this important trial should be evaluated. Unlike most pilots, the health board elections pilot will not be able to be tested and altered as we go along. Given that the pilot will be fixed in an act and in subordinate legislation, the ability to make changes will be limited until we reach the stage of roll-out. I am concerned to ensure that the evaluator is in place early enough and publishes how the pilot will be evaluated so that the public can consider the matter.
Convener, I am unsure—perhaps the clerks can advise—whether any other amendments will fall if I do not press amendment 35. It seems to me that, without amendment 35 specifying that the evaluator must be appointed before ministers make the pilot order, amendment 40 cannot require the specification to be published by the evaluator, who might not be in place. I have a slight difficulty with that. Amendment 40 will require that the specification on how the evaluation is to be carried out must be published within a certain time.
Bear with me one moment.
I am advised that the other amendments are not consequential, but even if they were, the issue could be fixed at stage 3.
In that case, I will not press amendment 35. I will consider the amendment that the cabinet secretary lodges at stage 3. However, I will move amendment 40 because I want the evaluation specification to be published.
Amendment 35, by agreement, withdrawn.
Amendment 10, in the name of Nicola Sturgeon, is in a group on its own.
Amendment 10, which will amend section 4, "Pilot scheme", responds positively to a point that was raised by the Subordinate Legislation Committee and supported by this committee in its stage 1 report.
Amendment 10 will ensure that the affirmative procedure will apply if Scottish ministers make an order seeking to terminate the pilots. I believe that such an order would be a very extreme response to extreme circumstances and would be made only if a significant risk was posed to the operation of the NHS. However, it is right that, just as we ask Parliament to endorse the principles and implementation of the pilots, we should also allow Parliament the opportunity to play a role in any revocation.
Amendment 10 will also ensure that the affirmative procedure applies to the pilot order or to any order that amends the pilot order if it textually amends sections 1 to 3 of the bill. That will ensure that any such order will be subject to parliamentary scrutiny.
I move amendment 10.
Amendment 10 agreed to.
Section 4, as amended, agreed to.
Section 5—Report on pilot scheme
Amendment 11 moved—[Nicola Sturgeon]—and agreed to.
Amendment 36 moved—[Dr Richard Simpson]—and agreed to.
We can either take a little break now or press on. Do members agree that we should press on?
Members indicated agreement.
Group 9 is on the content of the evaluation of the pilot. Amendment 37, in the name of Dr Simpson, is grouped with amendments 38, 20 and 39.
I will move amendment 37, speak to amendments 38 and 39, and allude to Michael Matheson's amendment 20.
That is an interesting phrase to use.
My amendments are designed collectively to ensure that the evaluation report covers all the issues that we wish to see covered. Those issues are not, of course, exclusive. On the advice of the Government and others, the independent evaluator may choose to include further elements. The amendments merely lay down some of the basic elements that will be covered.
Amendment 37 deals with improving the local accountability of health boards, which is what we want. Amendments 38 and 39 similarly seek to ensure that all the pilots that are going to be undertaken—the cabinet secretary has assured the committee that alternatives will be considered—will be included in the evaluation: it will not be restricted to the direct election pilots that we will approve through passing the bill.
My reference to Michael Matheson's amendment 20, which I support, is that the costs should also be looked at.
I move amendment 37.
I thank Richard Simpson for alluding to my amendment.
Amendment 20 seeks to add to the bill a requirement that the evaluation of the pilots considers the costs of the health board elections. The committee will be aware that the Finance Committee's report on the bill referred to the need for the evaluation that will precede a decision on rolling out health board elections to include a full assessment of the costs associated with the pilot. Along with that, the Finance Committee also recommended a restatement of the expected costs of any roll-out of health board elections. In effect, my amendment would deliver on those recommendations and place that additional requirement on the evaluation.
I listened with interest to Richard Simpson and Michael Matheson. It is important to ensure that evaluation of the costs of the health board elections, and local accountability of health boards, be included in the evaluation. Accordingly, I support amendments 20 and 37, and I encourage the committee do likewise.
I am not minded to support amendments 38 and 39, and I will take a couple of minutes to say why. Members know that I have already given a commitment in writing, which was reiterated in Parliament at stage 1, to make proposals for alternative non-statutory pilots to run concurrently with pilot elections in advance of stage 3. I certainly anticipate that any evaluation report would look at them, and not just at the pilots of direct elections.
I do not believe that agreement to amendments 38 and 39 would deliver Richard Simpson's desired effect. They would not oblige the Scottish ministers to carry out the alternative pilots that are specified, but would mean simply that if such pilots were undertaken, the evaluation report should assess them against the direct election pilots. However, if different kinds of alternative pilots were to be undertaken, the amendments would not impose the requirement that they be evaluated against the direct elections pilots. Those are important points that Richard Simpson might want to consider.
In addition to those important issues, it is also important at this stage that we do not seek to limit the types of alternative pilots that we might want to conduct. For example, I do not think that we should limit ourselves to conducting only an alternative pilot that includes a majority of councillors; there are other possible alternatives. Also, I do not see why we should insist that an alternative pilot should necessarily incur the same level of expenditure as a direct election pilot. A legitimate point of comparison that we might want to make in the evaluation is whether an alternative approach could achieve better results for less expenditure.
As members know, we are considering the shape of alternative pilots that can be developed from and compared to direct election pilots. In that light, and in the light of some of the more technical issues that I have raised about the effect of his amendments, I ask Richard Simpson not to move amendments 38 and 39, but instead to await my proposals ahead of stage 3. That will leave him free to relodge his amendments at stage 3, should he decide to do so.
Does the cabinet secretary propose to introduce at least the outline form of the alternative pilots before stage 3? That would allow us to decide how we want to proceed with regard to the two amendments to which she has objected. If she gives us that assurance, which I think she has indicated previously she would do, I am happy not to move amendments 38 and 39.
I think that I have given it before, but if it has not been clear I am happy to give the assurance that the outline of the alternative pilots will be shared with members in advance of stage 3.
Amendment 37 agreed to.
Amendment 38 not moved.
Amendment 20 moved—[Michael Matheson]—and agreed to.
Amendment 39 not moved.
Amendment 40 moved—[Dr Richard Simpson].
The question is, that amendment 40 be agreed to. Are we agreed?
No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Finnie, Ross (West of Scotland) (LD)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Against
Grahame, Christine (South of Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McKee, Ian (Lothians) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
The result of the division is: For 4, Against 4, Abstentions 0.
I use my casting vote against the amendment.
Amendment 40 disagreed to.
Amendment 41 moved—[Dr Richard Simpson]—and agreed to.
Section 5, as amended, agreed to.
Section 6—Termination of pilot scheme
Amendment 12, in the name of the cabinet secretary, is grouped with amendments 13, 14 and 21.
Amendment 13 provides that as an automatic consequence of Parliament voting down a roll-out order, the pilot scheme will be terminated and the provisions of the bill relating to health board elections be repealed. The vote on roll-out will be subject to the super-affirmative procedure, should the committee agree to Michael Matheson's amendment 21. Amendment 13 addresses the question that was raised by the committee in its report, about what would happen if a roll-out order were rejected by Parliament.
Amendments 12 and 14 are drafting amendments and are consequential on amendment 13.
Amendment 21, in Michael Matheson's name, seeks to introduce the super-affirmative procedure for any roll-out order, which was a specific request of the committee in its stage 1 report. Given all my previous commitments on the issue, I am pleased to support amendment 21 and hope that the committee will do so, as well.
I move amendment 12.
The cabinet secretary referred to amendment 21. The committee had concerns about the procedure that would be used following evaluation of the pilots and made a clear recommendation that the super-affirmative procedure should be introduced for any future consideration of a roll-out. That is what amendment 21 will achieve.
Amendment 12 agreed to.
Amendments 13 and 14 moved—[Nicola Sturgeon]—and agreed to.
Amendment 42, in the name of Ross Finnie, is grouped with amendments 43 and 44.
Section 6 of the bill sets out a sort of Armageddon scenario in which we would not be able to proceed with any variant of any pilot, whatever the circumstances. Unfortunately, however, section 6(2) would simply revoke sections 1 to 7 and, in so doing, would remove what I thought was the helpful introduction in the bill by the cabinet secretary of a statutory provision for councillors to be on health boards. I thought that that was a helpful amendment to the 1978 act. I have lodged amendments 42, 43 and 45 so that, if we ever used the provisions in section 6(2), we would remove the elements connected to the pilot orders but not the elements of section 1 that give statutory backing to the appointment of councillors to health boards.
I move amendment 42.
I invite the cabinet secretary to speak.
I support amendments 42, 43 and 45 in principle. I will come back to the "in principle" bit later. The bill gives statutory underpinning to the position of councillors on health boards, which I think everybody has welcomed. However, as Ross Finnie rightly pointed out, the statutory underpinning could be repealed if the legislation was repealed because of the process that is set out for piloting elections. Ross Finnie proposes that even though elected health boards might not be pursued in the future, that should not affect the statutory presence of local councillors on health boards. I think that that is right because local councillors play a key role on our health boards and it will be a positive step to give them statutory underpinning.
I therefore support the principle behind amendments 42, 43 and 45, although there are some technical deficiencies in their wording that will need to be dealt with if the amendments are to operate as Ross Finnie intends. For example, the interaction between the commencement provisions in amendment 43 and section 11 of the bill does not quite work, as the provisions are drafted. I therefore ask Ross Finnie not to move amendment 43, but I give him a commitment that I will work with him to lodge amendments at stage 3 that will effectively implement what he proposes in amendment 43.
That is an interesting offer, Ross. Are you prepared to take it?
It is the second offer that I have had this morning, so I feel very good now. I am not being "alluded to" now—I am having positive offers made to me. I think that that places me just a half-step above Michael Matheson. I have not yet had the important elevation to Presiding Officer, though. It really is a morning of promotions.
That is a black spot for you, Ross.
If the cabinet secretary accepts amendments 42, 43 and 45 in principle, I am perfectly happy to accept her offer.
Amendment 42, by agreement, withdrawn.
Section 6, as amended, agreed to.
After section 6
Amendment 43 not moved.
Section 7—Roll out
Amendment 21 moved—[Michael Matheson]—and agreed to.
Section 7, as amended, agreed to.
Section 8 agreed to.
Schedule agreed to.
Sections 9 and 10 agreed to.
Section 11—Commencement
Amendment 44 not moved.
Section 11 agreed to.
Section 12 agreed to.
Long Title
Amendment 15, in the name of the cabinet secretary, is grouped with amendment 16.
Amendments 15 and 16 relate to the long title of the bill. During an evidence session with the committee at stage 1, an issue arose around the bill's title and the principles that Parliament would be required to sign up to if it passed the bill. For the avoidance of any doubt, I gave a commitment to amend the long title. Amendments 15 and 16 will do that and will make clear the precise route that needs to be followed in the introduction of elections to health boards.
I move amendment 15.
Amendment 15 agreed to.
Amendment 16 moved—[Nicola Sturgeon]—and agreed to.
Long title, as amended, agreed to.
That ends stage 2 consideration of the bill. I thank you all for the efficacy of the procedure. I thank the cabinet secretary and her team. We now move into private session for item 4.
Meeting continued in private until 12:26.