Official Report 153KB pdf
The first item on the agenda is delegated powers scrutiny of the Regulation of Care (Scotland) Bill. We will pause as our three witnesses come in and settle down.
Thank you. I am Liz Lewis and I head the Scottish Executive's regulation of care project, which is responsible for the bill and its implementation. With me is Roddy Macdonald, the head of the bill team, and Lynda Towers, our legal adviser in the solicitor's office.
The committee asked about the relationship between sections 58 and 59, regarding commencement orders. In our reply, we said that the commencement orders were to be subject to the negative procedure, but that is not correct. The intention is that the commencement orders, as is usual, will be laid and not subject to procedure. We will have to instruct that an amendment be lodged to make that intention clear.
Your statements are very helpful, but questions such as how much detail should be in the bill and whether the committee is happy with the idea of flexible codes of conduct being implemented later remain. I am happy for such codes to be flexible, but other committee members have said that they would prefer more detail in the bill. I am not making a specific point about that at the moment—I am happy to accept the structures that you describe. I also welcome the amendment that you mentioned.
I have a question on the national care standards. It has been suggested that one way of fleshing out the code without making the primary legislation more cumbersome and restrictive is to include a requirement in the bill for the draft code of practice to be laid before Parliament under the affirmative procedure, as for the animal welfare code.
Are you referring to the code of practice for employers that the council would produce?
Yes. It is in section 5.
There are two things. The care standards and the regulation of services are for the Scottish ministers to devise. There are also the codes of practice and the code of conduct for the work force, which are for the Scottish social services council to set. One function of the council is to be a self-regulatory body, so that the codes are owned by the work force. They should also mesh with equivalent codes in other parts of the UK, so that people can move around the UK and know what standards of conduct are expected of the profession. That is why the codes will be devised by the council, rather than through parliamentary procedure.
I understand that, but I am wondering how there can be some democratic input rather than just an edict dispensed by the minister, for which section 5(1) appears to provide. Given the importance of those matters to the members of the Health and Community Care Committee and the Parliament, balance might be achieved by including in the bill a requirement to set the code in a draft order, so that members can see whether anything is missing or not tidily drafted.
As I said, it is our intention that the draft versions of the standards should be available to the Parliament when it considers the regulations. We could certainly consider that point further.
We will then be in the same position as we are in with the Education (Graduate Endowment and Student Support) (Scotland) (No 2) Bill. The regulations are laid, and we see them, but there is no opportunity to do anything except lodge a motion against them.
My understanding is that the regulations on the Education (Graduate Endowment and Student Support) (Scotland) (No 2) Bill will set out a framework within which various payments and procedures for moneys can be dealt with. The sort of thing that will be included in the care standards is very different. They are not a regulatory framework that would allow one to work out what one's entitlement was. The care standards are much more general and more suited to guidance and examples of best practice, which it would not usually be appropriate to include in regulation.
I agree. Perhaps that was a bad analogy. However, members, and in particular those with an interest in health, might want input on the standards. The downside of the standards not being fully detailed in section 5 is that there is no way in which members can do anything to add to or subtract from them. That is why I wondered whether laying a draft code before Parliament would create an avenue for greater scrutiny. Otherwise, we will be presented with an administrative edict—a fait accompli.
The standards are being issued for consultation in three tranches, with a short consultation on the final one. The Education, Culture and Sport Committee and the Health and Community Care Committee have been involved in that process. Only the first tranche has been issued so far; the second will come out at Easter and the third in June. A further consultation on the costs associated with the standards will also be widely distributed.
Did the committees suggest the wording that Lynda Towers quoted from the draft standards document?
No. That wording came from a consultation document that was issued to a wide range of individuals and bodies, including the committees, and was produced by the relevant working groups of the national care standards committee. That committee is made up of all the relevant stakeholders, including principally the users and carers.
I know that this is nit-picking, but what is the worth of that document? It has no legal standing and is not mentioned in the bill.
The bill says that all the actions of the commission's registration inspection officers and any enforcement proceedings in the courts must take the national care standards into account.
Right.
Are you satisfied that the consultation process will deal with that issue?
The process is at a very early stage; we have had only the first part. However, we are planning an extensive consultation. There has been a positive reaction from the various user groups who are speaking to the Health and Community Care Committee and the Education, Culture and Sport Committee.
Section 23(1)(a) refers to regulations relating to the commission and gives Scottish ministers the power to confer additional functions on the commission. I understand that those regulations will be dealt with by the negative procedure. Given what you have already conceded on sections 58 and 59, would such additional powers not be better dealt with by the affirmative procedure?
What we have in mind is the kind of function that is currently the responsibility of ministers or another body but which might later seem more sensible for the commission to perform. Although we initially thought that the negative procedure was sufficient, we are certainly interested in hearing the committee's views on that issue.
Perhaps the first set of regulations might be subject to the affirmative procedure.
If the committee were minded to recommend that, ministers would not feel that there were strong reasons for going against the committee's views.
I am open minded, but I wonder whether we might be giving ministers more positive powers, so to speak, and perhaps the logical approach would be to make those powers subject to the affirmative rather than the negative procedure. I will need to consider that point.
The intention is that the power would not be used for anything terribly major. The commission will be set up with the powers that it needs to perform its main functions. However, we might decide in future to follow Sir Stewart Sutherland's recommendation and establish a national care commission to examine trends and so on, but we would not have provided that particular, useful function for the commission.
Section 24(10) says that ministers must consult on regulations that they make
The intention is that such regulations would effect only minor changes, would not require consultation and would not amend any major provisions in the regulations. Ministers would certainly wish to consult on anything that caused a substantive change. We believe that the wording of section 24(10) conveys that intention and would not allow ministers to amend regulations in a major way—that is not our intention.
The road to hell is paved with good intentions. Not that I doubt anyone's good intentions at this stage, but the way in which the bill is drafted leaves a loophole for a less constructive approach to the business of care. That is why I want to stick on the point.
Perhaps I could clarify the issue. Regulations that are made under section 24(10), whether they make substantial changes or otherwise, would come before the Parliament. If it was felt that the change was substantial, the committee could bring that to the Executive's attention. Therefore, there is a means of regulating the exercise of the power.
I agree, but it would be up to us to spot that.
Let us assume that the Executive's view is that a proposed change to a regulation is not substantial. It would be normal for the narrative to indicate whether consultation had taken place and it would therefore be quite clear if the power had been exercised without consultation. In examining the effect of the regulations, you might consider that the change was substantial and the fact that there was a question about consultation would be highlighted. You would be able to raise the matter at that stage.
May I ask for some guidance? Is it up to the committee to decide whether or not a change is substantial? We are talking about a policy change.
We are straying into a grey area—if it is a policy change, it would not be for us to decide whether the change was substantial. From the committee's point of view, our difficulty would be noticing that it was a substantial change and that consultation had not taken place. There is a danger that such a change could fall through the net if we were not specifically looking for it.
I would have thought that, for such a qualification, it would be incumbent on the Executive, in the note accompanying the relevant regulations, to explain why it had not consulted—if it had not done so—and why the effect of the change in question was not substantial.
If there are no further questions, I thank the witnesses for their time and trouble. They have made matters clearer.
The arrangements are all right just now because there is consensus. However, should that consensus break, there is room in the drafting that would allow the Executive of the time to introduce substantial changes if it wanted to.
You are right—it is a question of how we monitor the situation. It comes down to the importance of greater experience on the committee. In due course, more people will start looking out for whether there has been consultation, rather than simply relying on the fact that similar instruments have previously come before us, sometimes with evidence from witnesses. The question, for our advisers and for members, will be whether there has been consultation, and if there has not, why. When he was a member of the committee, Fergus Ewing used frequently to ask that on agriculture matters—and rightly so.
You are probably right, convener.
On that basis, should we simply draw the matter to the lead committee's attention, highlighting the potential difficulty, but saying that we cannot see an easy way to address it directly without producing a lexicon on reams and reams of paper?
It is the responsibility of the lead committee—because it is on top of the issues in a way that we are not—to determine when a change is substantial and when it is not and to question the Executive on the extent of the consultation and so on. Presumably it will tell us if it is dissatisfied.
That is the only practical way to proceed.
Do we wish to comment on the care standards? The only other point would be whether we want the code of practice produced before the regulations come before Parliament. We could indicate to the lead committee that that is an alternative—although I was reasonably satisfied that there would be substantial, on-going consultation in tranches. That is probably as beneficial as laying an instrument at a later stage. Early consultation is probably better than a document being laid.
It would be interesting to get a legal definition of "homely".
I do not know about yours, but no one would want to stay in my home.
Given that the lead committee is the one with responsibility to the stakeholders—I think that that was the terminology used—all that we can do is draw its attention to the options available and ask how it considers that consultation would best be achieved.
The business under way in the Education, Culture and Sport Committee shows that consultation is going ahead well and that people feel included.
The only difficulty is how the codes of practice can be amended once they are produced, and that problem is not specific to the bill. The difficulty lies in producing a code which on the face of it seems fine, but which subsequent experience demonstrates is not. The procedure for amending such codes is unclear, to say the least.
We can flag that up to the lead committee.