Regulation of Care (Scotland) Bill: Stage 2
I welcome Malcolm Chisholm and the Regulation of Care (Scotland) Bill team back to the committee. Today is the final day of committee scrutiny of the bill before the stage 3 debate.
There are no amendments to sections 42 to 45.
Sections 42 to 45 agreed to.
Section 46—Inquiries
Amendment 244 is in a group on its own.
Amendment 244 was lodged to address concerns raised by witnesses at stage 1. We have all heard stories of unacceptable treatment in various care settings. Several witnesses, including representatives of the National Care Standards Committee, Help the Aged and Community Care Providers Scotland, felt that there should be no barrier to making a complaint in such cases. What has become known as whistleblowing should be positively encouraged. Amendment 244 would protect staff in the care sector who wished to complain and it would offer encouragement by way of ensuring that their position was not compromised.
I move amendment 244.
Section 46(1) enables Scottish ministers to act on concerns over the exercise of functions by the commission or council—or, in the commission's case, concerns over the provision of a care service—by setting up an inquiry. Subsection (2) allows the commission to set up an inquiry on the exercise of its functions or over the provision of a care service. Subsection (3) allows the council to set up an inquiry on the exercise of its functions.
I fully support Janis Hughes's intention that care workers who through their participation in such inquiries blow the whistle on wrongdoing should be protected from detriment under the terms of the Employment Rights Act 1996. I am, however, unable to accept amendment 244.
First, the terms of the amendment are outwith the legislative competence of the Scottish Parliament, as the matter to which it relates—the Employment Rights Act 1996—is reserved under section H1 of schedule 5 to the Scotland Act 1998, and the matter comes within neither the specific exception in section H1 nor the general exception in paragraph 3 of schedule 4 to that act.
Secondly, as drafted, the amendment would not achieve the necessary effect of including the commission and council as prescribed bodies under the terms of the Employment Rights Act 1996. That is done by making an order under section 43F of the Employment Rights Act 1996. My officials have been in contact with the Department of Trade and Industry, which is responsible for the Employment Rights Act 1996, about adding the commission and council to the list of prescribed bodies, and will be submitting a formal case for their inclusion. That is a matter for DTI ministers and I cannot speculate on the timing of their decision. I am hopeful that they will look favourably on what I consider to be a strong case for the inclusion of the Scottish care regulators under the act.
Finally, the amendment erroneously implies that disclosures by care staff to ministers, or to officials or those carrying out inquiries established by Scottish ministers, are covered under the terms of whistleblowing legislation. That is not the case, although whistleblowing to ministers or civil servants by staff of non-departmental public bodies, such as the commission and council, is protected under the Employment Rights Act 1996, regardless of whether the bodies are listed as prescribed regulators.
I share Janis Hughes's desire to protect care workers as far as possible under the terms of whistleblowing legislation and I can assure her that I am pursuing all available measures to achieve that end. Amendment 244, although well intentioned, deals with a matter that is not within the powers of this Parliament and in any case would not achieve the desired effect. I apologise for the rather complicated explanation but, in view of it, I hope that Janis Hughes will withdraw amendment 244.
On a point of clarification, minister, you are indicating that the amendment does not fall within the competence of the Parliament, which leads me to ask the clerks why they deemed the amendment to be competent. I had a similar discussion last week on an amendment that I had lodged, which was deemed to be incompetent and was therefore not published. I know that the clerks undertake such scrutiny before an amendment is included in the marshalled list.
Apparently legal advice was taken from within the clerking service, rather than from the parliamentary legal team.
In which case, why was legal advice sought in respect of one amendment and not another?
Are you saying that legal advice was sought on your amendment?
The amendment was not on the marshalled list.
Could you clarify which amendment you are referring to?
I have forgotten which one it was. I am trying to ensure that amendments are checked for legal competence before they are included in the marshalled list.
The view of the clerks, on advice from other clerks in the legislation team, was that the amendment was competent. Obviously, the Executive takes the view that the amendment is not competent. At this stage, I cannot say anything other than it is the committee's decision whether we agree to the amendment, given that I have to ask Janis Hughes whether she wishes to withdraw it. Are there any other comments on that point?
First, could amendment 244 be interpreted as the view of the Scottish Parliament as expressed in the bill, and therefore be deemed competent? There may not be the power to make that view law, but we can certainly express the view of the Parliament that the issue should be included within the argument. Secondly, could the minister make available a copy of his formal submission to the DTI not only to the committee, but to the whole Parliament, by placing the submission in the Scottish Parliament information centre?
I have no problem with making that information available and I will do so.
I made two arguments against amendment 244. I believe that the amendment is not competent because it relates to a reserved matter. However, irrespective of that point, the wording does not achieve the intention behind the amendment. The amendment says that a qualifying disclosure
"is to be treated as a protected disclosure".
That is necessarily the case under the legislation because qualification and protection are two sides of the same coin. The amendment does not achieve the intended effect. We need to ensure that the commission and the council are inserted into the list of prescribed bodies and the procedure for that is to make an order, which is a regulation-making power of Westminster. The problem is not just that the amendment relates to reserved powers, but that the wording does not achieve the intended effect.
We want to deliver something in relation to whistleblowing, but we have a legal question mark about whether amendment 244 is competent, or, even if it is competent, whether it would achieve what all the committee members clearly want. We could revisit this issue during the stage 3 debate, should the Presiding Officer be minded to allow us to do so. In the interim, we could take legal advice in order to find out whether it would be competent for us to exercise the committee's intention in relation to the amendment.
The advice that we take from clerks when we lodge amendments is that our amendments are acceptable—if they were not, they would not be included in the marshalled list. I am therefore concerned to learn that the committee clerks accepted an amendment that is deemed legally incompetent because it refers to a reserved matter. We must investigate that situation further.
I accept the minister's argument on the legal competency of amendment 244, although it puts us in a difficult situation. He suggested making representations to the DTI, but that will not happen overnight, given the situation at the Westminster Parliament. I am concerned about being caught between two stools. However, given that we still have the option to revisit the issue at stage 3, the most sensible thing for me to do would be to seek the committee's agreement to withdraw amendment 244 at this stage. We should then seek further, robust legal advice and, should that legal advice be that the proposals in amendment 244 are legally competent, we could revisit the issue at stage 3.
We will bring it to the attention of the Presiding Officer that that is the committee's wish. I hope that we will then be able to debate the issue again, and vote on it, at stage 3.
Amendment 244, by agreement, withdrawn.
Section 46 agreed to.
Sections 47 to 51 agreed to.
After section 51
Amendment 242 is in a group on its own.
The proposal in amendment 242 was suggested to me by the British Agencies for Adoption and Fostering, which is seeking to introduce a common age throughout all legislative provisions that relate to young people.
I move amendment 242.
I understand the concern that prompted Margaret Jamieson to lodge amendment 242. Amendment 242 would align the age limit for the discretionary allowance that is paid to carers who look after a child, where the carer is a relative or friend, with that for fostering allowances.
In the interests of fairness, I am prepared to accept the proposal in amendment 242, although I cannot accept the amendment as drafted. Therefore, I undertake to lodge an amendment at stage 3 to effect the change proposed by amendment 242. In so doing, I recognise that extending a discretionary scheme in such a way increases expectations and therefore financial pressures on authorities. We will keep under review the use made of the extra discretion and take account of any pressures that may arise in the next spending review.
I am happy with the minister's comments.
Amendment 242, by agreement, withdrawn.
Sections 52 and 53 agreed to.
Section 54—Panels for curators ad litem, reporting officers and safeguarders
Amendment 241 was also lodged by Margaret Jamieson.
I move amendment 241, which is a technical amendment.
I will argue that amendment 241 is a bit more than a technical amendment.
The purpose of section 54 is to improve support for the training of safeguarders. Safeguarders play a key role in looking after the interests of children who are involved in children's hearings, and that training will help to ensure that they are properly prepared to perform that role. We consulted on the provision when we were preparing the bill and it received strong support.
Amendment 241 would extend the provisions of section 54 to curators ad litem and reporting officers. I do not believe that that is necessary or appropriate. Although there are clear similarities between safeguarders and curators ad litem and reporting officers, there are important and fundamental differences.
Safeguarders work exclusively within the children's hearings system. Their primary role is to provide an independent opinion on the child's circumstances and to recommend what they consider is in the best interests of the child. They are appointed by local authorities, after appropriate consultation. They receive a fixed fee per appointment—currently, the fee is just under £100—which is determined by the Convention of Scottish Local Authorities.
By contrast, curators ad litem and reporting officers have a wider remit than that of safeguarders. They play an important role in adoption and parental responsibility order procedures and deal with all sorts of family and mental health matters. It is crucial to note that they are appointed by the courts and are paid a professional fee, which can range from £500 to £5,000, reflecting the fact that the vast majority are qualified solicitors and are expected to offer a professional service.
Amendment 241 would place a duty on local authorities to provide training for curators ad litem and reporting officers. I am not convinced that it is either right or proper for local authorities to have such a duty in respect of people who are appointed by the courts. There might also be questions about why those individuals, given their professional status and income, should benefit from training provided at the expense of local authorities.
I am content that section 54 is appropriate. It will provide valuable additional support for safeguarders. The section does not need to be extended in the way proposed by amendment 241 to cover curators ad litem and reporting officers and I urge Margaret Jamieson to withdraw the amendment.
Thank you for that explanation, minister—I am not going to argue with you. The proposal in amendment 241 was certainly not portrayed to me in that way. Given those comments, I seek the committee's agreement to withdraw the amendment.
Amendment 241, by agreement, withdrawn.
Section 54 agreed to.
After section 54
Amendment 188 is in the name of the minister.
Amendment 188 inserts a new section into part 4. It deals with training for the members of children's panel advisory committees. Amendment 188 will amend the Children (Scotland) Act 1995 by placing a duty on local authorities to train members of those committees and their sub-committees and by giving Scottish ministers the power to assist with that training.
The members of children's panel advisory committees play a key role at the heart of the children's hearings system. They lead annual recruitment campaigns, interview applicants, make recommendations to Scottish ministers for the appointment of children's panel members, oversee local needs for panel members' training and development, monitor panel members and provide feedback. In short, they are a key support to the success of Scotland's system of child welfare and justice. Most local authorities already offer training to committee members. Placing a duty on them to provide that training makes good sense.
We propose a partnership approach in amendment 188. Through its regional network of children's panel training organisers, the Executive will meet the full cost of organising training. Local authorities will be required to meet the cost of training materials and events. The financial impact on local authorities is likely to be minimal, given that they already support some training events for advisory committee members.
Last year, we consulted the Convention of Scottish Local Authorities, the Association of Directors of Social Work and individual local authorities on the proposed new duty. No particular concerns were expressed about the funding of the proposed new arrangements. As I said, local authorities already support this type of training; amendment 188 would simply give them a formal duty to continue doing so.
I move amendment 188 and commend it to the committee.
Amendment 188 agreed to.
Section 55—Interpretation
Amendment 86 moved—[Malcolm Chisholm]—and agreed to.
Amendment 125 moved—[Margaret Jamieson].
Amendment 125 would extend the definition of "child" in section 55 to include, for some services, persons up to 18 years. The bill currently defines a child as
"a person under the age of sixteen years".
One effect of amendment 125 would be to extend the regulation of day care services for children aged up to 18, which is not our intention. Any day care services for 16 to 18-year-olds—who may have a disability, for example—would be covered by the definition of support service that is already in the bill.
However, I can see why the amendment was lodged and as the bill now covers adoption and fostering services that extend up to 18 years, it is appropriate that we revise the definition. We have had the matter under review and intend to lodge an amendment at stage 3 to ensure that the definition of a child reflects the age limit of particular services: 16 for day care and 18—with appropriate qualifications, as at present—for adoption, fostering and secure accommodation.
On that basis, I ask Margaret Jamieson to withdraw the amendment.
Amendment 125, by agreement, withdrawn.
Amendments 87 and 88 moved—[Malcolm Chisholm]—and agreed to.
Amendment 126 not moved.
Amendment 127 moved—[Margaret Jamieson]—and agreed to.
Amendment 128 not moved.
Amendment 26 moved—[Malcolm Chisholm]—and agreed to.
Amendment 189 is in the name of Malcolm Chisholm.
Amendment 189 is a minor technical amendment that clarifies the definition of an independent medical agency in section 55 by inserting the full reference to the National Health Service (Scotland) Act 1978. It makes no substantive change to any provisions in the bill and I trust that the committee will accept it.
I move amendment 189.
Amendment 189 agreed to.
Amendments 89 and 27 moved—[Malcolm Chisholm]—and agreed to.
Amendment 90 is in the name of Malcolm Chisholm.
Amendment 90 would extend the definition of social worker to include all qualified social workers.
The bill currently defines a social worker as a person who
"engages in social work which is required in connection with any care service, or health".
That definition would exclude people who work as field social workers for local authorities or the voluntary sector or in criminal justice settings. As members know, field social workers carry out a range of duties. For example, they assess care needs, manage the provision of services, support families, engage in child protection work and support people with addictions.
Amendment 90 would ensure that, for the purposes of the bill, all social workers would be covered by the definition in section 55. Anyone with professional qualifications acceptable to the council would qualify as a social worker. The amendment strengthens the bill and I ask the committee to accept it.
I move amendment 90.
Amendment 90 agreed to.
Amendment 28 moved—[Malcolm Chisholm]—and agreed to.
Amendment 91 is in the name of Malcolm Chisholm.
Amendment 91 is a technical amendment, which is linked to the amendments on adoption and fostering to which the committee has already agreed. The bill provides that the Scottish commission for the regulation of care will regulate adoption and fostering services that are provided by local authorities and voluntary organisations. As drafted, the bill does not define what constitutes a voluntary organisation. The amendment provides such a definition.
I move amendment 91.
Amendment 91 agreed to.
Section 55, as amended, agreed to.
Section 56—Orders and regulations
Amendment 92 is grouped with amendments 29 and 93.
Amendments 92, 29 and 93 relate to the making of secondary legislation and respond to the recommendations of the Subordinate Legislation Committee in its stage 1 report.
The Subordinate Legislation Committee recommended that the first set of regulations made under the powers in sections 23(1)(a) and 39(a) should be subject to the affirmative procedure, as they give ministers wide-ranging powers to confer new functions on the commission and the council. We have accepted that suggestion; amendments 92 and 93 make the necessary provision and, indeed, go further than that. All regulations under those sections will be subject to the affirmative procedure. The amendments also provide that orders made under section 58(2) should be subject to the affirmative procedure. The Subordinate Legislation Committee considered that that procedure was appropriate, as the power allows primary legislation to be changed by secondary legislation. We have accepted the committee's views and the amendments will effect the necessary change.
Amendment 29 will bring the bill into line with normal practice by excluding commencement orders made under section 59(2) from any parliamentary procedure, although such orders will still be scrutinised by the Subordinate Legislation Committee. In the bill as drafted, such orders would be subject to negative procedure. Again, the change is in line with the view of the Subordinate Legislation Committee. I am sure that the committee will recognise that we have responded appropriately to the concerns of the Subordinate Legislation Committee by lodging the amendments.
I move amendment 92.
Amendment 92 agreed to.
Amendments 29 and 93 moved—[Malcolm Chisholm]—and agreed to.
Section 56, as amended, agreed to.
Section 57 agreed to.
Schedule 3
Minor and consequential amendments
Amendment 222 is grouped with amendments 223 to 227, 135, 228, 190 to 192, 229, 194, 136, 195, 196, 213, 197, 198, 231, 199, 200, 95, 232 and 30.
This large group of Executive amendments makes minor and consequential changes to existing legislation to take account of the changes that will be made by the bill. Members will be pleased to hear that I do not propose to talk in detail about individual amendments, but I am happy to offer more information on particular amendments if members have any questions or concerns. Many of the amendments simply update terminology by, for example, removing references to nursing homes and residential care homes and replacing them with references to care home services, as defined in the bill. All the changes introduced by the amendments will be needed once the bill is enacted and I ask the committee to support them.
I move amendment 222.
Amendment 222 agreed to.
Amendments 223 to 227, 135, 228, 190 to 192, 229, 194, 136, 195, 196, 213, 197, 198, 231, 199, 200, 95, 232 and 30 moved—[Malcolm Chisholm]—and agreed to.
As adoption was not covered by the bill at stage 1, we agreed that we would like some time at stage 3 to reflect on the substantive amendments, in case any organisations wish to make points to us. We reserve that right.
We will no doubt return to that at stage 3.
Schedule 3, as amended, agreed to.
Section 58 agreed to.
Schedule 4
Repeals
Amendment 233 is grouped with amendments 201, 234 to 238, 137, 202, 97, 203, 243, 204 to 206, 240 and 98.
Like the amendments in the previous group, the Executive amendments in this group make changes to existing legislation. They repeal some provisions to take account of the changes that the bill will make. I see little point in talking about the amendments in detail, but I will expand on any of them if members would like further clarification.
Many of the amendments repeal legislation that provides for the registration of care services and which will be superseded by the bill. Examples include provisions in the Nursing Homes Registration (Scotland) Act 1938, the Social Work (Scotland) Act 1968 and the Children Act 1989.
As with the previous group of consequential amendments, each repeal that the amendments propose will be needed once the bill is enacted. I ask the committee to support the amendments.
I move amendment 233.
Amendment 233 agreed to.
Amendments 201, 234 to 238, 137, 202, 97, 203, 243, 204 to 206, 240 and 98 moved—[Malcolm Chisholm]—and agreed to.
Schedule 4, as amended, agreed to.
Section 59—Short title and commencement
Amendment 31 is grouped with amendment 32.
Amendments 31 and 32 make changes to the list of sections that will come into force 14 days after royal assent.
Amendment 31 adds sections 40 and 44 to the list of those that will come into force after 14 days. Section 40 gives the council the power to make rules about registration under part 2. The council needs to have the power to start making rules as soon as it is legally established. Section 44 requires the commission and the council to consult each other on matters that are of interest to them both. The section also requires commencement shortly after royal assent, to allow the council and the commission to begin a dialogue at the earliest opportunity. I am sure that the committee will appreciate that it is important that sections 40 and 44 come into force at the earliest opportunity.
Amendment 32 removes sections 51 and 52 from the list of sections that will come into force when 14 days have expired following royal assent. Section 51 amends the definition of community care services in the Social Work (Scotland) Act 1968 to allow direct payments to be made to children for the services that they require. We are consulting further on the role of direct payments as part of our work on the long-term care bill. It is sensible to delay commencement of section 51 until that consultation is complete.
Section 52 amends sections 13A and 59(1) of the Social Work (Scotland) Act 1968 to allow local authorities to provide and maintain residential accommodation where nursing care is provided. That will allow local authorities to provide nursing care in their homes and supply a seamless package of care. The provision forms part of our plans for single care homes. Section 52 will not be required until the new arrangements for care home regulation start in April 2002 so we need not commence the section straight away.
I commend amendments 31 and 32 to the committee.
I move amendment 31.
Amendment 31 agreed to.
Amendment 32 moved—[Malcolm Chisholm]—and agreed to.
Section 59, as amended, agreed to.
Long title agreed to.
That ends stage 2 consideration of the Regulation of Care (Scotland) Bill. I thank the minister and the bill team for all their assistance in the past few weeks. I also thank colleagues on the committee for their assiduous work on the bill, which is the first that we have dealt with as a lead committee. Thank you all for your hard work.
Meeting closed at 12:11.