Public Services Reform (Functions of the Common Services Agency for the Scottish Health Service) (Scotland) Order 2013 (SG 2013/12)
We come to agenda item 2, which gives members an opportunity to question Scottish Government officials about the draft order.
Thank you very much.
Can I stop you there, Mr Paterson? Thank you. That is a wonderful introduction. If that is a logical place to stop and you have said what you would like to say, we would like to interrogate the three final points that you have just made. Is that sensible in the context of what you were going to say?
Yes, absolutely.
In which case, let us do that, please, and we will start with Stewart Stevenson.
Our interest as a committee of course is simply in the way in which subordinate legislation is being used rather than the policy objective that is sought to be delivered, which is a matter for others. However I will ask first about the issue of proportionality under section 18(2)(b) of the 2010 act. In doing so, I take from your opening remarks that the policy objective to which this power is asserted by you to be proportionate is that of clarifying the operation of section 15 in relation to local government and extending the range of bodies to which services can be provided. I think that your opening remarks captured the policy objective to which proportionality needs to be applied.
Yes, I can do that. Before I describe how we address the proportionality issue, it would be useful to look first at section 18(1) of the 2010 act. The test there is whether the Scottish ministers are satisfied as to that matter. The role of this committee is, in some ways, very much like the role of the Court of Session during a judicial review, as you are looking at whether or not the view that the Scottish ministers have taken is a view that a reasonable minister could take.
I understand the argument that you deploy that, if the agency were to go outside the public services, it would be unlikely to meet the test of proportionality. It is helpful that we see some of the boundaries because that helps us to understand the proportionality. However, the order as it is laid is essentially an enabling order rather than an order that specifies what the CSA will do.
When section 15 was originally drafted and enacted, the intention was that the Common Services Agency would provide services to local authorities as the only other range of bodies that it dealt with outside the Scottish health service. Ministers’ intention now is that it should be a shared service for the Scottish public sector as a whole, including the non-departmental bodies. In order to ensure competition, it is not envisaged that non-departmental bodies would be told, “You must use this service”, but they would have the opportunity to use it. A number of them have already expressed interest in using different aspects of the Common Services Agency’s services.
Given that this is a potentially significant expansion of the Common Services Agency’s role, is it proportionate to allow the extension, in view of the potential impact that it might have on the role that the agency already has? Is that part of the consideration that ministers have given to the proportionality test?
That has been part of the consideration, although I would argue that that is not a matter of proportionality. It really relates to ensuring that services that are currently delivered continue to be delivered to the same high standard. Part of the consideration was that, as currently drafted, neither section 10 nor section 15—nor indeed the functions order, which confers other functions on the Common Services Agency—put in place a statutory control on how much effort the Common Services Agency applies to any particular part of its business. It seemed to us that to try to control the Common Services Agency’s day-to-day use of its staff and resources by legislation would most likely be ineffective. The way to ensure that resources and staff are used effectively is by having good management. The Common Services Agency has demonstrated over the years that it is well managed and provides a good service. It seems to us that the answer lies not in what would necessarily have to be a very clumsy regime for trying to control exactly how resources are used, but rather in ensuring continued good management of the service.
I will conclude, because I think that we have explored this as much as we reasonably can. On what sections 10 and 15 say about the existing duties, ministers, in considering proportionality, consider that management is in place that protects and minimises the risks to the existing services that are derived from the extension of services and that, therefore, it is proportionate to extend the services. Is that the essence of what you said?
That is correct.
Hanzala Malik wishes to ask a question.
My question is more for clarification than anything else. As far as the Common Services Agency is concerned, will we be allowing private companies to engage and, indirectly almost, privatising sections of the service?
No—private companies would not be allowed to engage. That said, under the current health service, there are not only health boards and special health boards, which are all public bodies, but private bodies that the health boards engage with. For example, general practitioners are private contractors, and health boards will also buy services from, say, Initial or some other cleaning contractor. The health service has always been a public service, but it deals as necessary with private contractors and suppliers, such as drug suppliers. That will not change, but the order itself will allow the Common Services Agency, which is itself a public body, to provide a wider range of services to other Scottish public bodies.
I am sorry to return to this issue, but I am not quite sure what you mean. My very specific question—which is not technical; it simply requires a yes or no response—was whether the order will allow additional privatisation. On the one hand, you are saying that you want to widen its range of services but, on the other, you are saying that it will not allow for additional provision. As I said, I am not actually sure what you mean by that.
If you want a yes or no answer, the answer must be no. It will not allow for further privatisation.
Just to make things absolutely clear, is it not correct to say that GPs and general dental practitioners who are and have always been private contractors to the health service are at the moment able to get services from the CSA?
That is my understanding.
So for the private contractors who supply services to the health service and always have done since its inception the order will have no adverse and probably no beneficial effect.
That is correct.
Mike MacKenzie will explore issues related to section 18(2)(c) of the Public Services Reform (Scotland) Act 2010.
Section 18(2)(c) of the 2010 act states that any provision made under section 17 must, when “taken as a whole”, strike
The Government’s view of the public interest is that public services are provided as efficiently as possible and to the highest possible quality. In this case, we see the public interest in improving the quality, cost and efficiency of the services that are provided to the public sector.
Can you explain, then, how the order
The first stage of this process was to consider who might be affected by the order, and our view was that the persons who were likely to be “adversely affected by it” were primarily commercial contractors who in some cases would no longer provide services to the bodies that the CSA will begin to provide services to.
Is the Scottish Government content that the explanatory document accurately reflects the effect of the order and addresses the public interest balance?
Yes, we are. The consideration of section 18(2)(c) is set out in paragraphs 3.14 and 3.15 of the explanatory document.
You have described some of the potential adverse effects of the proposed changes. Has there been any other consideration of potential adverse effects? How does the order mitigate against potential adverse effects?
The other potential adverse effect that was identified by your advisers concerned patients of the health service. We had considered that, but felt that the potentially adverse effect was neither bad enough nor likely enough to warrant its being set out in the explanatory document.
You are optimistic rather than pessimistic.
The background is that the Common Services Agency seems to be a respected and well-managed organisation that provides a good service to the Scottish health service. It seems reasonable to suppose that if a well managed organisation has the opportunity to expand, that expansion would also be well managed. You may be right, perhaps I am an optimist rather than a pessimist.
Okay, thank you very much.
I have no objection to optimism, but perhaps I could extend that point. Commercial history shows us the risk that an organisation that expands will lose its focus. It is potentially very easy for somebody to say, “Ah, there is a more profitable opportunity out there.” The profit is good because it gives the organisation—in this context, the public sector organisation—the money to do the other things that are its core business, but it might then genuinely lose focus by concentrating on the outside things. I think that that is the risk to which our advisers are referring: the risk that, because an organisation has the opportunity to focus on outside things, it fails to concentrate on providing the basic inside things.
It is very difficult to put in place effective protections against poor management in statute. It is very difficult to put in place protections against poor management full stop, but particularly in statute because that sets out a broad rule. If someone is managing poorly, they might first ignore that broad rule and secondly look for ways around it in order to justify or allow what they are doing.
That is very helpful. We will now move on to the issue of whether section 18(2)(d) removes any necessary protections. The health and safety of persons is one example on the protected list. Could you comment on the Common Services Agency’s role in relation to health and safety, particularly in connection with this order?
Health and safety is a different beast from health. When we talk about health and safety at work or on railway lines for example, that is about preventing people from being injured or contracting some kind of industrial disease, rather than about providing a health service.
You are absolutely right but, forgive me, I do not think that we need to go through the list. We will buy the general principles. The question is the extent to which there is anything in the draft order that goes anywhere near any of those issues.
My view is that there is nothing that does so. We are talking about allowing a public body to provide services to other public bodies. We are not doing anything structural that would create a constitutional difficulty, anything that takes away someone’s right to retain their property or anything like that. My submission is that we are not removing a necessary protection. You heard my comments on the difference between health and safety, and health.
We take your line on health and safety. What will the effect of the order be on the current restrictions on the sharing of premises?
At the moment, the Common Services Agency has a limited ability to share premises with other bodies. I think that the limitation is that it can share premises with education authorities for certain limited purposes. We propose to expand that so that the agency can share premises with a number of other bodies, including Government departments and non-departmental public bodies.
That seems reasonable, I have to say. Do members have any other questions?
Can I stay with that theme, convener? We are talking about the impact that the expansion and diversification of the CSA’s duties will have on the sharing of NHS premises. Is that correct?
Yes.
I would like to understand why, although the ministers may determine which public bodies may share premises, the order does not provide for any control over that arrangement. Is that your understanding of the order?
Yes, that is right.
Do you therefore understand why some people might think that there is a lack of transparency, detail and clarity on how those arrangements can be implemented, if there is no provision in the order to control them?
The order follows the style of the 1978 act, which sets out that certain bodies can be provided with various services as determined by ministers. I should check that that is a correct statement. Can you give me one second?
You have been very helpful in clarifying our understanding that the expansion of the CSA’s duties would allow the sharing of premises, although there is no provision in the order to control that arrangement.
Yes. As I said—sorry for having to check—the order follows the style of the 1978 act, in that section 15(1)(b), which relates to the purchase and store of goods and materials, provides for Scottish ministers to determine bodies or classes of bodies that may be provided with those.
I will put the question in another way: did the CSA explore with the Government why it was not necessary to address this issue specifically in the order?
The reason why it was not addressed in the way that you suggest was, first, the desire to have similar arrangements apply to the use of property as apply to the purchase of goods and materials. In addition, lying behind section 15(1)(b) is the fact that it would be extremely clunky to say that Scottish ministers may specify by order that a body can use particular premises. The Government would have to come back to the Parliament regularly to ask permission to make an order to specify that a particular building must be leased for a particular period.
I understand the case that you are making, and we want you to have maximum flexibility. However, can you see that the down side of not going through the parliamentary process is a lack of transparency about the basis on which decisions have been made? You might argue that your proposed approach is necessary and desirable but, from the perspective of legislators, it seems to lack transparency.
The order certainly does not specify that a further order must be made. However, if someone wanted to know what was happening, they could simply make a freedom of information request, for example for information about which buildings had been let. Transparency is therefore achievable, although the level of transparency that you are talking about is not provided for in the order itself.
That is interesting. Thank you.
Mr Paterson, you said that additional privatisation is not envisaged, but your explanation suggests that there might be an element of that. You talk about an increase in service and involvement, without there being an increase in consultation. Jim Eadie rightly suggested that there is a lack of transparency. Are you comfortable with there being no requirement for consultation, or might you revisit the area?
I respectfully disagree with the premise of your question, which is that there is increased privatisation as a result of—
But you were talking about additional services and powers.
Yes, but the additional services are being provided by a public body.
Not if you are using common services agencies, which surely are not public bodies.
The point is that the Common Services Agency is and will remain a public body.
Is your point that that service is closer to the provision of healthcare?
That is indeed my point. All the other functions, in paragraphs (a) to (n) of article 2, seem to be to do with the IT and other services to which you referred, but paragraph (g) seems to be something of an exception. Is that relevant in the context of what I said about focus?
You make a fair point. The Common Services Agency is a single legal entity, of course, but it is divided into divisions, which provide different services. My understanding is that the service that you mentioned is distinct from services such as information technology and legal services. The focus of that particular division—I think that it is called patient services—would remain, or one would certainly expect it to remain. However, it is something that we can take away and think about.
Okay. I invite you to do that. Thank you.