Health and Community Care Committee, 12 Jan 2000

Meeting date: Wednesday, January 12, 2000

Official Report 173KB pdf

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Adults with Incapacity (Scotland) Bill: Stage 2

Item 2 on our agenda is consideration of the Adults with Incapacity (Scotland) Bill. I will explain the stage we are at and why the bill is on our agenda for today's meeting.

It became clear to me in the dying days before the recess that the situation is as follows: the Justice and Home Affairs Committee is examining two bills between now and the Easter recess and it has decided—rightly—that rather than consider both concurrently, it will consider the Adults with Incapacity (Scotland) Bill first.

To allow the Justice and Home Affairs Committee to start its work on amendments at stage 2, which is its role as lead committee, we have to decide on submitting things by a certain time. The deadline for lodging items with it is, I think, 17 January, which is two working days before it starts to consider amendments at its meeting on 19 January.

I want to ask members two things. First, as you may recall, stage 2 amendments are moved in the names of individual MSPs; we will not move any committee amendments. I felt, however, that as the health aspects of the bill are the most contentious, and as we have already done some work on the bill, considering the non-party political nature of the bill, it may be appropriate that amendments come not with a political grouping view but with the backing of the committee, perhaps in my name, as convener.

If we agree that that is how we should proceed, I think that we should examine part 1 and possibly part 4—which covers money held in care homes and in the national health service—today. I would guess that the Justice and Home Affairs Committee will not reach part 5, the main medical part of the bill, until later in its programme. That would give us the opportunity at another meeting in the coming weeks to examine part 5 with a view to preparing amendments.

Part 1 covers general principles and definitions. I thought that members might be particularly interested in section 1(2).

When will Jim Wallace let us have his amendments? Although we have had a general outline, I feel that we need the specific wording before we submit our own amendments. As far as I recall, he answered many of the issues that were raised in the chamber, but in a general way. I do not think that we are ready to consider specific amendments until we have his response.

The Executive has the same deadline for lodging amendments as all members: 5.30 pm on Monday 17 January.

So we do not know what Mr Wallace's amendments are, but we have to lodge ours, which he might already have taken care of? Would it not be more helpful to see Jim Wallace's amendments first? They may render some of our amendments unnecessary.

This is to do with the understanding of procedure and the fact that we all have the same timetable. There is nothing wrong with our submitting an amendment and its having to be withdrawn should the amendment of the Minister for Justice cover the same aspect.

I take Margaret Jamieson's point—and Mary Scanlon's. The problem is that we may well be repeating our work. We know that all the committees have a heavy work load. If we repeat work every time a bill is introduced, the efficiency of our procedures will not be helped. I do not know whether we should speak to the convener of the Procedures Committee to get this changed.

I have in front of me the text of what Jim Wallace said in the debate. Many of the points that he made about the various sections and his proposed amendments are what I expect us to discuss now. I hope that he will submit his amendments on the same day—17 January.

I agree with everyone's remarks so far. It is frankly not ideal that we are all working to the same timetable; it would have been more helpful if Jim Wallace had lodged his amendments a week or 10 days before our deadline. This does seem to involve spending a lot of time going over the same thing.

During the debate, I found the way in which Jim Wallace picked up on the major issues of the bill very positive. We have reason to believe that most of the things that we will talk about this morning will be picked up by the Executive by way of amendments.

Should we speed up our own responses and set ourselves a deadline of Friday or even Thursday this week to get our views in? That would, I hope, influence Mr Wallace in making up his mind. He is working to a Monday deadline—he is probably working on it right now.

I spoke to Jim Wallace about this yesterday. I asked him specifically about part 1 and about the areas of part 1 that I think the committee will have most concern about. Like Ben Wallace, I have read the general statement Jim Wallace made to Parliament. It seems to me that he addressed many of the issues of concern, particularly in part 5.

The issue in part 1 is about intervention. When I spoke to the minister last night, he said that the Executive was not minded to include an amendment on that, partly because it is waiting for the Millan committee's proposals on the same point, but he is perfectly happy for other members to lodge amendments on that issue. He said that if other members lodge amendments, the Executive will look at them and decide what to do on the strength of them. It is unlikely to lodge an amendment specifically on part 1.

We are more likely to be concerned about issues relating to part 5. My suggestion for today is that if we agree that there is some merit in our submitting something with committee backing, we should consider part 1. Because the Justice and Home Affairs Committee is likely to start with part 1 on 19 January, we should get our proposals in before that date. Therefore, we should decide on them at this meeting.

By the time part 5 is considered by the Justice and Home Affairs Committee, we will have had the chance to discuss the Executive's amendments in full, unless the Justice and Home Affairs Committee goes whizzing through everything. My gut feeling is that, despite having an excellent convener and a good bunch of members, the Justice and Home Affairs Committee will not whiz through to part 5. The chances are that we will have time to consider our concerns about part 5 in the light of other amendments, including those that will have come from the Executive.

I think that the Justice and Home Affairs Committee will consider part 1 on 19 January. If we want to put something together, we have two options. One is to come up with a definitive comment in today's meeting. Alternatively, committee members might indicate to me and to the deputy convener a sense of what they want the committee's comment to be, and we could put something together and have it checked out with regard to the legal process, to ensure that it stands up. We have to do that before we submit our amendment. If we do not consider part 1 today, we will have missed the boat because the Justice and Home Affairs Committee will have already examined it.

I remind members that they may all lodge amendments up to the deadline. There is nothing to stop any member lodging an amendment for the first part of the discussion, up to 5.30 pm on Monday 17 January.

I accept what you are saying. If we do not discuss the other parts of the bill today, will the committee still be allowed to lodge amendments beyond Monday's deadline? If that is not the case, we will have to submit them as individuals. However, perhaps anyone who is lodging amendments at a later stage should do so with the concurrence of the entire committee.

There will be deadlines to meet for the later stages of the bill. Prior to the next part within stage two, there would be two days in which to lodge amendments.

But the deadline for us, as individuals, for the whole bill, is 17 January.

The danger is that if you miss the 17 January deadline and the Justice and Home Affairs Committee goes through the bill much more quickly than we imagined, because it has fewer amendments, it could do the whole of stage 2 in a short time and you would fail to get your amendments in for later parts of the bill.

Does the committee still have the right to lodge amendments beyond 17 January?

There is no such thing as a committee amendment. Basically, you can show support for an amendment in the name of the convener.

So every amendment that we wish to lodge has to be lodged by Monday evening—

To be absolutely certain that they reach the Justice and Home Affairs Committee in time, yes.

I understood, from the paper that we received, that amendments cannot be submitted after Monday evening. Are you saying that if the Justice and Home Affairs Committee does not reach later parts by Wednesday, we could still lodge amendments to those parts by Wednesday?

Yes, because that would mean the Justice and Home Affairs Committee will have another day in which to consider the remaining parts. The danger arises because we cannot dictate how quickly that committee will go through stage 2.

What I said to you about having that lag time is based on the information that I have been given by the clerk. It is all down to how quickly the Justice and Home Affairs Committee goes through the process. It is taking part 5 at the end of its deliberations after going through parts 1, 2, 3, 4, 6 and 7. It depends on the number of amendments to the other parts. The areas on which we have concentrated in our deliberations are in part 5 and, possibly, part 1. I have to confess that I am not sure how much difficulty the Justice and Home Affairs Committee is having with respect to loopholes, possible amendments or problem areas in other parts of the bill.

Do committee members feel that there is some benefit in our lodging an amendment that is in my name, but which has been discussed by the committee and has some sort of committee backing? Or do members feel that it is better to take until Monday, either individually or in their own political groups, to come forward with amendments? This issue had to be on today's agenda in order that we could make such decisions. I am happy to hear committee members' comments on the issue.

Convener, your suggestion is sensible—I would not have any problem with a committee amendment being put forward through you. If we had a general discussion on the principle of the amendment today, we could delegate its wording to you and Malcolm. Perhaps it could be circulated to committee members, so that we could get back to you with any changes.

I can see the Justice and Home Affairs Committee's timetable being governed by how much of the debate has been picked up in the Scottish Executive's amendments. If much of the debate has been taken into account, the Justice and Home Affairs Committee might deal with this more quickly than it would otherwise have done. However, if little of what was said in the debate is picked up, it is likely that it will take longer. To be honest, we are guessing a bit.

As with so many aspects of this process, it is a first for the Parliament. I attended a briefing the other day about the procedure for dealing with amendments to bills. At the end, the expert who briefed us said that it is all up in the air and that it is being made up as we go along. I thought, "Well, that is us almost back to square one again."

Because, technically, we cannot lodge amendments as a committee—they have to go in in the name of the convener—I am not convinced of the benefit of this course. It would perhaps be better left on an individual or party basis.

Any other comments?

I agree with Kay, on the ground that there is no such thing as a committee resolution. One of the interesting aspects of the debate is that it has never been a party political issue in the chamber.

And it is not likely to be.

There does not seem to be any great advantage, therefore, in having any form of committee resolution. Moving forward on an individual basis—which, technically, is what a committee amendment would be anyway—would be more sensible.

I concur with that, for technical reasons. However, we should be able at least to discuss or raise our amendments here. I have given three pages of amendments to the clerk—

You are not thinking of having the flu, are you Richard?

Some of my amendments are quite radical proposals. If the committee did not feel that they were appropriate, I would withdraw them; I would not waste the time of the Justice and Home Affairs Committee with them. Before lodging those amendments, I would appreciate the opinion of my colleagues on this committee. Although they would still be my amendments, I hope that we will have the opportunity to discuss them, because they are quite substantive.

We have those before us today, do we? People will not have had the chance to look at them and other members will not have had the chance to put their amendments together.

There is nothing to stop us giving Richard various points of consideration, not necessarily in committee. Presumably, Richard, you are happy to circulate your amendments to committee members and for us to give you feedback, outside the official—

That would be preferable, Richard, simply because committee members have not had a chance to consider the amendments. If you do lodge the amendments in your own name but, as Duncan suggests, ask us for our opinions and comments, we can send those by e-mail.

I have given my amendments to Jennifer Smart—perhaps she could circulate them to members for their consideration.

And we will get back to you by—

If Richard submits amendments, can he put them in with a list of names supporting them?

Up to four members may support any amendment.

Only four?

Yes.

How interesting—I wonder why that is.

We are a new Parliament and we do not have to accept what happens elsewhere. Given our time commitments and our work load—I am thinking of the two huge files for care in the community on my desk—I wonder why we have to sit and write amendments when it is likely that Jim Wallace has already addressed them. It is a duplication and a waste of our time. In future, it would be helpful if we could see the Executive's amendments first. There is no doubt that Jim Wallace's speech addressed positively many of the major issues and concerns. I would find it a gross waste of time to sit and write out amendments, knowing that on Monday, Jim Wallace is likely to produce something identical to them.

I support what Kay said and what has come through in the discussion. I would like to see Richard's amendments, take time over them and discuss them with the people in my group who are also in the Justice and Home Affairs Committee. We should put in amendments as individuals, rather than as a committee.

Would it be worthwhile my writing to the Procedures Committee, making that point about the Executive's amendments? There may be a perfectly good reason behind the procedure, but it may be worth raising the point. Yet again, it illustrates the difference between a bill in which the only committee of the Parliament that is involved at stage 1 is the lead committee, and one in which a secondary, or even a tertiary, committee is involved at stage 1.

The lead committee will have sight of the Executive amendments in time for it to take them on board in its deliberations. The Justice and Home Affairs Committee will have the Executive amendments on 17 January and will start its work on 19 January. The fact that amendments are meant to come from individuals means that, technically, all members of the Parliament have the same right to examine amendments in advance, but they do not. The lead committee will examine the amendments and express its point of view. That committee therefore has an extra word on those amendments, whereas the secondary and tertiary committees, who were involved at stage 1, but have lost that involvement at stage 2, do not.

For this particular bill, the Parliamentary Bureau has made the Justice and Home Affairs Committee the lead committee, although the most contentious aspects are those that are of interest to this committee—the medical aspects. The bill is slightly odd in that respect.

The situation flags up once again the difficulties that we have come across with the timetable, which was set to suit the lead committee, but which caused problems for other committees, particularly this one, which were interested in being involved.

The situation is slightly odd, but will probably arise quite a lot when committees deal with bills. If you write to the Executive, there is another thing that is different about this bill that should be mentioned. I am used to Executive amendments, but they are usually minor and technical. The difference in this case is that the amendments that Jim Wallace announced were major changes to the bill. I cannot remember that ever happening. We should point out that amendments like that must be given in advance. Minor and technical amendments are a different matter.

It is probably worth making the point—I hope that this is not seen as partisan—that we should all be glad that it looks as if the Executive has listened to a lot of the comments that were made about the bill. That is why major changes have been made. We want the Executive to be able to make changes once it has taken on board advice from outside Parliament. I take Malcolm's point.

I am sympathetic to what Mary Scanlon said about the amount of time that the committee can spend on amendments. The procedure needs to be clarified. We learned this morning that the committee cannot submit amendments, which I had not realised. I do not have a problem with your suggestion, convener, of submitting amendments, with committee consensus, in your name, but it seems that the committee is not of a mind to do that, which is fair enough. However, I wonder whether we should spend too much time discussing amendments at today's meeting, if we are not going to submit committee amendments, but submit amendments in our individual names or circulate amendments that we can then all sign up to.

I totally agree with you. The point that I take away from this discussion is that we have some concern about the procedure. On this occasion, the committee has decided to go forward as individuals and to have discussions with our party groups, but in different circumstances we may have thought differently. However, the procedural situation that we would have found ourselves in would still be the same. It is as well to use that situation to ask that the procedure be examined and whether this is the most effective way for a secondary or tertiary committee, which may have a keen interest in a bill, to proceed. The lack of time is a problem.

There is another issue that needs to be addressed. Once a bill is introduced, people will want to know the view of the Health and Community Care Committee on different aspects of it. No legislation is perfect and, inevitably, the time will come when something will have to be changed or will be fought over in the Court of Session. The views of the people we represent and of the Health and Community Care Committee need to be seen in amendments. It is correct that we should see the Government's amendments so that we can comment on them and ensure that most of our concerns have been satisfied, but the Health and Community Care Committee's view, particularly on parts 1 and 5, will be valuable in the future.

We are, unfortunately, bound by standing orders. That is why I say that the issue will need to go back to the Procedures Committee if we want to make our point. I concur totally with what you say, which is why I suggested a possible way forward, particularly for a non-partisan bill such as this one.

I have believed from day one that the Adults with Incapacity (Scotland) Bill should have been a joint committee bill. That has been part of the problem from the beginning. I can see why people might have thought that having a joint committee bill so early in the process might be more difficult to cope with and more messy, but I think that it might have been easier all round. We are learning all the time.

Before the next meeting, I will investigate whether there is any way in which we can examine part 5 later in the process, but I think that we are on a sticky wicket on this issue.

You have said most of what I wanted to say, convener, and I agree entirely with what you have said. The issue of involving two committees in a bill must be re-examined. I went through the Public Finance and Accountability (Scotland) Bill and some of the amendments that I proposed were taken up by the committee and moved by Mike Watson on behalf of the primary committee. There was no secondary committee, although we worked with the Audit Committee, but we were able to divide the work quite easily.

The Adults with Incapacity (Scotland) Bill cannot be divided. I find it objectionable that the Justice and Home Affairs Committee is the only committee that will be able to vote on stage 2 amendments. If this committee's view were contrary to that of the Justice and Home Affairs Committee, we would only be able to move amendments at stage 3, although we will have that opportunity.

As we are in a new Parliament and the situation is far more informal than at Westminster, could we telephone Mr Wallace's office now? [Laughter.] Seriously, I am pretty sure that his amendments will have been worked out already and that he could at least give us a rough draft of them. I am sure that there is no rule prohibiting that. Otherwise we will talk and talk, without knowing what we are talking about.

I think that there may be such a rule. In any case, I do not think that there is any way in which we could get the information today.

We do not know that. It might just be lying there.

As I said, I will follow the issue through to see whether there is any way in which we can get round the problem and get the chance to talk about part 5 of the bill, so that we can be part of the process and be allowed to make amendments. However, I do not think that there is.

I take on board Dorothy-Grace's point. One of the reasons that I spoke to Jim Wallace last night was to find out where he was in the process of producing amendments. I asked him—and the committee clerks tried to find out yesterday from the clerk of the Justice and Home Affairs Committee—whether a draft list of amendments was available that we could use to get a sense of what the Executive amendments are likely to be. That would have given us an idea of where our time would be most fruitfully spent. Unfortunately, such a list was not available yesterday and when I spoke to Jim Wallace last night, his feeling was that the Executive is still taking on board comments.

Jim Wallace made all the right sounds, but the devil is in the detail.

Absolutely, Mary. That is the problem. It is the technicalities of any bill that will land somebody in court, not the broad brush. We all applauded some of the comments that Jim made.

As somebody who has worked alongside the voluntary organisations that have been promoting this bill over the past couple of years—and I am sure that others here are in the same position—I am extremely disappointed that this committee was not chosen to be the lead committee on this matter. Anyone who looks at party manifestos for the elections—but who looks at party manifestos?—would find that any commitments to the Adults with Incapacity (Scotland) Bill are contained under the health sections. Most of the contentious issues are medical issues.

I have a final point that relates to what Ben Wallace said. A Health and Community Care Committee viewpoint will be expected, in future, on the legislation. There are some procedural difficulties that we must highlight now. I would be happy to circumvent the procedure by supporting amendments in your name, convener, but that is not acceptable to the full committee. We should consider how we might overcome that, so that a committee view can be expressed.

My nose is not put out of joint by the fact that people have not taken that line. I simply felt that we had to put the issue on the agenda, so that we could keep ourselves appraised of the situation and know what options were available to us if we wanted to take them. I fully understand why committee members have said that they want to take action individually.

I am not sure whether SNP colleagues were saying that, in principle, they did not want the committee to lodge amendments, or whether the problem was in the practicalities. If the latter is true, is there a case for compromising and saying that we will timetable scrutiny of part 5, which is the main concern of our committee, for the next meeting, and ask the Justice and Home Affairs Committee not to deal with part 5 until we have considered it?

SNP members are more concerned about the practicalities, Malcolm, and I support what you have just proposed.

So we will timetable part 5 of the bill for our next meeting and I shall investigate the various options that are open to us. At the same time, I shall make representations to the Procedures Committee on some of the procedural points that have been raised by the committee this morning. Is that acceptable?

Members indicated agreement.