Health Committee, 20 Feb 2007

Meeting date: Tuesday, February 20, 2007

Official Report 218KB pdf

---

Legacy Paper

Item 6 on the agenda is discussion of the draft legacy paper. I draw the committee's attention to the covering document that was circulated with the papers for today's meeting. The recommendations are in bold print.

We need to consider and agree the legacy paper, and we should really go through it paragraph by paragraph to allow for proper discussion and points to be raised. Are you just going to see how fast we can go through it, Duncan?

How slow can we go? I have a meeting at 5.

So you have a vested interest in dragging it out—you will be very popular with your colleagues.

I remind members that we are not in private session, so everything is on record.

If we are going through the paper bit by bit, how will we slot in any additions?

We will go through it paragraph by paragraph. If we raise any points, the revised draft will return to the committee on 20 March. This is not the final discussion.

Perhaps we can move to the paper. Paragraphs 1 to 5 on page 1 are an introduction. Is everybody happy with them?

Members indicated agreement.

Paragraphs 6 to 8 simply describe the work that we have done. Under the second heading, "Strategies to Manage Workload", we make a point in paragraph 9 about the overall volume of work that has come to us.

I do not know whether we should complain about what is essentially our job.

The point is more about balance, because we are also meant to fulfil the select committee function. I remind members that there are two justice committees because of the workload on the justice agenda. It is a pointer to possible structural changes at committee level, depending on the workload. I think that that is a fair and worthwhile point to make because it is what led to the decision to create two justice committees.

We are not necessarily making a complaint; the paragraphs are simply about how much work we have done and the ways that we have devised to handle that workload.

Yes, but I am unsure about how that takes us to two health committees or whether that would be desirable.

We are not suggesting two health committees. My point is that committees should say what their workload has been because it would be useful for any future review of committees to be based on what they had done.

I am not being picky.

You are being picky.

No, I like to be convinced of these things. I do not know whether it is appropriate for that to be in an annual report or legacy paper.

As I understand it, the annual report is not designed to carry such information—it is a more constrained structure than a legacy paper. After all, we are not required to produce a legacy paper. This is something that we choose rather than have to do.

I may be taking it too seriously then.

I think that we should take it seriously.

Paragraph 9 simply makes a statement about the workload that we have had. Paragraph 10 deals with legislation and, in a sense, leads on to the fact that we have chosen to do things slightly differently in order to deal with the workload.

Paragraphs 11 to 14 deal with members' bills, and we note some key points about them, including a recommendation at paragraph 14 specifically about members' bills. It is something that we have discussed before.

I take the issue seriously, because the paragraph lets members off the hook. The idea that members do not understand the rules—when it is appropriate for them to introduce members' bills and whether, when introducing bills, they expect them to go the full course through to legislation—is too simplistic. Members cannot expect a bill to be enacted if they come along with it six months before the end of a parliamentary session, when time is limited and everyone else is showcasing.

That is a legitimate point. I suggest that we add another paragraph that states firmly that, when members introduce bills that they truly intend to become law, they have a responsibility to make themselves cognisant of the legislative process and to ensure that bills are introduced timeously, in order that they may get through that process.

There should be some reference to the wider problem that the Parliament must resolve of whether it is appropriate, sensible and realistic for all members to have the right to introduce a bill. We are dealing with the symptoms of that major problem. Something needs to be said about that.

We need also to include the recommendation in paragraph 14, because the current standing orders stipulate a final deadline that is far too late. Members can present themselves as having complied with standing orders but not be in a position to progress a bill much further. That provision must be changed.

Would that have the desired effect?

It would pull back the final deadline to before the summer recess prior to an election. I take on board the point that you make—that it is members' responsibility to be realistic about what is and is not possible with members' bills. In my view, that includes thinking about them earlier, rather than later, in a four-year session. I am not sure that it is for the committee to make a point about the bigger issue of the number of members' bills. We must deal with the overall position as it stands.

That is my basic problem. We are dealing with a symptom that cannot be addressed simply by moving the deadline. I may be wrong about that, but I suggest that Simon Watkins considers the point. If it has substance, he can include it in the final draft of the paper.

Paragraph 14 would make a difference to a committee's handling of its workload. I am not unhappy about inserting some lines that reinforce the point that members have a responsibility to be realistic about how long it will take them to introduce bills, and that highlight the fact that the sudden rush of members' bills late in the day is not particularly helpful, although we know that many of those bills were introduced by members who were fully aware that they were not going to run to term. We will re-examine the issue on 20 March, once the changes that have been suggested have been made.

The next section of the paper deals with inquiries. Paragraph 15 refers to some of the different things that we have done and to the one-off inquiry meetings that we have held. Members have indicated that they are content with paragraph 16. Paragraph 17 is a simple recommendation noting the importance of post-legislative scrutiny. We are moving into a time when post-legislative scrutiny will become increasingly important in the Scottish Parliament.

Paragraphs 18 to 24 are in connection with subordinate legislation. Paragraph 18 is fairly straightforward. Paragraph 19 is a simple description of the way in which we have handled subordinate legislation. Does any member wish to comment on paragraph 20?

That part of the draft report mentions the discussions that we have had on the issue and it states, although not particularly clearly, that there has been an improvement, in that the problem seems to have resolved itself. It would be useful to point out that discussions have taken place and that there has been an improvement, if that is the case.

Does anybody feel that there has been a particular change in the way in which subordinate legislation is presented to the committee?

I do not find the Executive notes to be any better.

The draft report says that subordinate legislation has not been a problem lately, but we give the Executive no credit, although I may be reading the report wrongly. There were some discussions with the committee.

To which paragraph are you referring?

I am referring to my notes, as I scan through the report. It states:

"The Health Committee raised these issues with the Subordinate Legislation Committee as part of its inquiry into the Subordinate Legislation Committee process."

That paragraph is about timing, not about the supporting information.

The report says somewhere that the situation has not been—

Paragraph 21 is about the timing of subordinate legislation coming through and the fact that we have occasionally considered instruments that were already in effect. We state that that

"has happened less frequently more recently."

That might be one of the points to which you are referring. That is in the last part of paragraph 21, which is on the timing.

Yes. It states:

"this has happened less frequently more recently."

My question is whether that is the case and, if so, whether that is a result of the Health Committee raising the problem with the Subordinate Legislation Committee.

That issue is about timing. It is now quite a while since we have had to deal with an instrument that was in force before we considered it. That is why that comment was included.

Should we say that that is good?

That is what we are saying—that it

"has happened less frequently more recently."

No—all that we are saying is what has happened. Duncan McNeil wants to add that that is good.

The situation occurred in the past, but it is happening a lot less frequently now, which is acknowledged in paragraph 21. That issue is about the timing of subordinate legislation. There may still be an issue about the information that comes with subordinate legislation and how it is presented.

Have we raised that with the Executive? The draft report makes a stark claim, when it states:

"However, the effective scrutiny of Subordinate Legislation is often hindered by the poor quality"

of work by other officials.

I remind you that the Subordinate Legislation Committee has had an extensive inquiry into the subordinate legislation process. Our comments are part and parcel—

Is that the way in which our officials have reported the matter to us? If somebody said that about our officials—

Just hold on, Duncan. We will ask the clerk about the issue.

The points were all taken from the submission that we made to the Subordinate Legislation Committee's inquiry into the process.

Which was agreed by the committee.

Yes.

I am asking whether there has been any improvement.

What we have just said is that there has been no improvement in the quality of the Executive notes that accompany Scottish statutory instruments, but that there has been an improvement in the timing of instruments coming to us. On some aspects, there has been improvement but, on others, there has been none. It may be regarded as early days, because the Subordinate Legislation Committee has not long completed its examination of how subordinate legislation is handled. There is a moving picture.

So, to move to paragraph 24, you are saying that we still need improvement in the information.

Can we deal with paragraph 22?

I just want to say that I agree totally with paragraph 20. The Executive notes often simply repeat what is in the instrument.

Paragraph 22 states that, by agreement, we raised those issues with the Subordinate Legislation Committee. Paragraph 23 suggests that any new committee should continue to deal with subordinate legislation in the way in which we have done. We have taken evidence and treated some aspects of subordinate legislation more seriously. In paragraph 24, we suggest that the new committee should continue

"to work with the Executive to bring about a qualitative improvement in the standard of"

the accompanying information.

Paragraphs 25 to 28 are on petitions. Paragraph 25 mentions the number of petitions with which we have dealt. Paragraph 26 details some of the different approaches that we have taken to dealing with petitions. Paragraph 27 sets out further approaches to petitions, including that of absorbing them into the main part of our work.

Paragraph 28 contains the recommendation to our successor committee about

"absorbing petitions into work that it is undertaking"

as a suitable way of handling them. Are members happy with that?

Paragraphs 29 to 31 are under the "Budget Scrutiny" heading. Paragraph 29 is on

"The time available to subject committees … to allow in-depth scrutiny",

which we have frequently expressed concerns on. It mentions the fact that much health board expenditure is "not broken down", and goes on to say:

"the budget definitions have changed year on year."

Again, we have frequently raised that point.

Paragraph 30 covers some of the things that we have done to get round those issues. We recommend to any successor committee that it continues to

"give consideration to the appointment of budget advisers and the commissioning of research, and a focus on specific aspects of the budget",

as we have done.

Despite our having done that, I think that we would all agree that our quest for more focused information has not been satisfied.

Would you like to reinforce that at paragraph 31?

We could discuss how that could be done better. I know that other committees such as the Audit Committee feed into the process, but I am not sure if we actually come together when it comes to budget scrutiny. In the past, people would come along to committees, and members would examine certain sections of the budget with them. It seems that the Conveners Group, the Parliament or this committee need to take a fresh look at how we conduct budget scrutiny. We have tried using advisers and various other means, taking individual sections of the budget, looking at it in a wide sense or focusing on parts. We never really get satisfaction out of the process. It has always been frustrating.

I do not know whether it should be a matter of continuing to work in the same way or of working more effectively with other committees in narrowing things down. I have no solutions. However, simply having what has been written in the draft paper under "Budget Scrutiny" seems a wee bit of a cop-out, because the approach that we have taken has not got us the results that we have wanted.

Indeed. It is saying how we have managed to work around that, but it is still not satisfactory. Perhaps we need to reinforce paragraph 31 by saying that, although we still consider the whole process to be unsatisfactory, we have managed, in certain ways, to deal with some aspects of the budget. We could say that we still believe that there should be a complete and strategic examination of how budget scrutiny is conducted in the Scottish Parliament.

It is one of our most important jobs. It might be the most boring, but—

We will come back with amended, slightly strengthened, wording. In taking that point on board, I will highlight with the Conveners Group the way in which budget scrutiny should be done as something that it might wish to consider at an early stage in the new session.

European issues are covered in paragraphs 32 to 35. It is fair to say that that is something else that we have struggled with.

I am delighted to see European issues in the legacy paper, at any rate.

Yes—we wanted to flag them up. Members will note the recommendations in paragraphs 33 and 35. It is fair to say that we have still not dealt with European issues completely to our satisfaction either.

Yes, there is work to be done. There are some issues around what has been suggested. There are issues of budget and competition between committees in respect of how we interact with Europe. If one committee secures a budget for travel early on, for instance, another committee will have lost out.

I suggested one thing some time ago, but it was never really followed up. It concerned how we relate to the Westminster Health Committee and the work of the National Assembly for Wales and the other devolved assemblies. There are common agendas, which—

We did follow that idea up. We got a report on what the Health Committee at Westminster was looking into. At the time when we checked its work, there was nothing that really ran alongside our work programme.

That may be, but we could still take that up, in relation not just to Europe but also to the work that is being done at Westminster. As far as a work programme is concerned, I would have thought that we might be able to feed into what is happening about particular matters in Wales and, hopefully soon, in Northern Ireland. There is work that could be done in that regard, despite our limited resources.

There is a spelling mistake in line 2 of paragraph 34. Unless it is expected that people are going to be gazing at submarines and destroyers, I suggest that we change the spelling of the word "naval".

We agree substantially with the wording, but perhaps we ought to make a slightly stronger statement about the fact that we still do not think that the approach to European issues is completely satisfactory—we still struggle just a bit with that.

Part 3 is "Innovative Approaches". Paragraphs 36 to 38 are introductory. Paragraphs 39 to 44, which are on round-table meetings, explain what we have been doing. I know that not everybody on the committee is particularly happy with round-table meetings. I know that they work better when the witnesses engage in the discussion. There is no doubt that some of them have gone very well, but with others it was a little like getting blood out of a stone. We have found that, when we are short of time, having a round-table meeting can be a way of having the maximum number of witnesses and taking the maximum amount of evidence relatively quickly. Sometimes the decision to have a round-table meeting is driven by that consideration as much as anything else. I know that Janis Hughes has a view on that.

I would not be as gushing about round-table meetings as the draft paper is. I do not disagree with the first few paragraphs, which say that we have used the technique successfully in different contexts. Paragraph 43 says that round-table meetings have been "very beneficial". I would take the "very" out. In paragraph 44 I would say, "The Health Committee would recommend to its successor that it considers the use of round-table evidence sessions in appropriate circumstances" rather than just saying that they are wonderful and that the successor committee should have them.

I do not disagree with that. Round-table meetings can work well. I do not know whether we need to review whether we are inviting too many people who present the same argument. They are as good a way of organising an evidence session as having three witnesses at the top of the table, followed by another three—

Then another three and another three. It all depends on whether the witnesses buy into the whole idea. Sometimes round-table meetings work and sometimes they do not.

They work quite well in so far as we get different people around the table. Some folk are more inclined to argue than others. The round-table discussion on the drugs issue revealed some hidden problems between the different witnesses. It is fair enough to have round-table meetings, but it all depends on the people who are around the table. How much information do they get beforehand about the fact that they have to participate and that we do not get a higher profile because we are MSPs? Are they encouraged to interact with other people around the table?

Some round-table meetings have not worked as well as others. In every case, we probably got more evidence out in a shorter time than we would have got otherwise, so, to that extent, they have worked. As events, some worked better than others. It would be worth asking the clerks to review the round-table meetings to assess the extent to which certain witnesses did not really participate and whether there was a common thread in all that. Perhaps we are not yet fine-tuning who we invite to participate. We need to have people who want to participate actively, rather than people who are just there to make up the numbers. I suspect that we sometimes invite people so as not to be seen to be leaving them out, rather than because we think that they will contribute actively to the discussion.

Overall, I get the impression that witnesses are more relaxed in a round-table situation than they are in the almost confrontational situation that we sometimes have.

On the whole, the experience has been good. Round-table meetings allow a lot of evidence to be taken in a shorter space of time, so they have a beneficial impact on our working timetable. However, they probably need to be fine-tuned for them to work as effectively as possible. Perhaps we should amend slightly the sense of paragraphs 39 to 44 to reflect that. We will consider them again on 20 March.

Paragraphs 45 to 49 deal with stakeholder events. Those who attended the big forum that we held to launch the care inquiry thought that it was successful. Events of that sort are quite useful, but they take up a lot of resources and require a bit of organising, so they cannot be held frequently. However, we can recommend to our successor committee that it considers holding stakeholder events when it seems appropriate to do so. It is difficult to see how such an event could be managed more than once or twice in a four-year session, but they still represent an appropriate way in which to move forward.

They are certainly useful as part of any major inquiry.

Yes.

Paragraphs 50 to 52 relate to the public debate in the chamber. Again, the same comments apply as applied to the stakeholder events. Public debates cannot be held every three months, but they are useful at appropriate times.

Paragraphs 53 to 55 are about commissioning research. I remind committee members that we have commissioned research as a way of progressing an aspect of our work that we would otherwise not have had time to fit in. That has meant that we have been able to cover a broader range of issues. The research budget that is available to committees has not been particularly well used, but the Health Committee was one of the committees that saw possibilities for its use. I want to recommend to our successor committee that it commission research as a way of handling some of its workload.

Paragraphs 56 and 57 deal with single-meeting inquiries. We have had one or two of those recently to address topics for which we had only limited time. The recommendation in our paper, which is that our successor committee consider using single-meeting inquiries, is reasonable.

The paragraphs on external meetings are fairly straightforward. We recommend that our successor committee thinks about leaving Edinburgh about twice a year, which seems to be a reasonable target. Again, the cost of doing so must be considered, which means that it is not something that can be done every month.

Paragraphs 61 and 62, which deal with case-study visits, are fairly straightforward.

Paragraphs 63 and 64 deal with launching committee reports and flag up the fact that we have occasionally invited inquiry witnesses to the launch of major reports, which we think maximises publicity for the committee's work, as it brings together on the day the report is launched many of the people to whom the press would want to speak. Obviously, we would not invite witnesses to the launch of every report, but it has worked quite well when we have launched major reports.

The next part of the paper is entitled "Potential Selection Criteria for Inquiries". We will have to go through it paragraph by paragraph. Paragraph 65 relates to the difficulties of selecting inquiry topics when the committee is pressed for time and when it is difficult to assess how much time we have. It explains that we have adopted a set of principles in that regard.

Paragraph 66, "Portfolio Balance", deals with our attempt to balance our work across our remit, so that we can to some degree scrutinise most areas.

Paragraph 67 deals with the need to avoid duplicating the work that other committees are doing.

Paragraph 68, "Making a Difference", and paragraph 69, "Scale", deal with the criteria that we consider when we are selecting subjects for inquiries. If you remember, we had to ensure that the remit of the care inquiry was manageable because it would have been almost impossible to have covered everything.

Paragraph 70 is on "Condition-specific Issues". There are any number of ailments and conditions into which people want the Health Committee to conduct inquiries. We have to take care, because we cannot conduct inquiries into everything that is suggested to us. I think our inquiry into eating disorders emerged from a petition.

We move on to paragraph 71, which is on local matters. The committee has resisted attempts to draw it into the many local debates about health boards. I strongly recommend that our successor committee also resist attempts to draw it into local controversies.

Paragraph 72 is entitled "Potential for Committee Legislation". The facility to introduce committee legislation is used rarely in Parliament—it has been used just once or twice. We have not considered an approach in detail. We suggest that if our successor committee wants to introduce a bill it should start its consideration in the first year of the new session in order to allow the time that will be required. The issue relates to our discussion about members' bills and the need to be realistic about how long it takes to get legislation through.

The final criterion is timing. On which paragraph 73 provides a straightforward explanation.

The next part of the paper is entitled "Potential Activity in the Third Session", which will obviously be a matter for a subsequent committee. In paragraph 75 we flag up the proposal to introduce a public health bill in the next session of Parliament and we suggest potential subjects for inquiry. Our successor committee might choose not to take up any of those suggestions—we have no idea.

Many suggestions are relevant and deserving of support, but I do not know whether a legacy paper should go as far as to suggest subjects for inquiry. The other comments in that part of the paper, for example about what we did on workforce planning, will be relevant for our successor committee—

Let me explain the reason for including suggestions. When the new committee meets for the first time it will have no agenda, so it will find it useful to be able to discuss certain matters, such as potential subjects for inquiry, to let it get out of the starting box quickly. We are not trying to give the new committee a mandate; we are simply providing a tool that it can use at the very beginning of the session. We suggest subjects that we might have considered if we had had more time or if the timing had been right.

It is fine to include suggestions that will facilitate discussion, so I recommend that we keep the suggestions in. Who knows? When the successor committee meets we might find that it is we who are sitting here again—although I know that a few faces will not be here.

In the final part of the paper we recommend that the committee organise an away day.

Members have suggested changes to the paper, which will be made. I take it that the committee agrees that we produce the legacy paper on that basis.

We must also consider what we should do, if anything, as a result of our one-off evidence-taking meeting on 23 January, on the treatment of drug abusers, which arose out of Rosemary Byrne's member's bill, the Treatment of Drug Users (Scotland) Bill. We must decide how to deal with the requirement for us to report to Parliament in some way on what we did with it. A draft report will come before the committee on 6 March.

Is it not possible for us to retain the bill for information—to let it hang, in a sense? It is one of the items in the legacy paper that could be picked up in the next session.

The problem is that, having had the Parliamentary Bureau refer the bill to us, we must respond to the bureau officially on what we are doing with the bill. We can choose to say simply that the bill was referred to us with no time limit for action. A variety of practice is developing. Is not it the case that some committees are not reporting at all?

Some are unlikely to report.

We could choose to take that approach, because we were given no time limit. Alternatively, we could tell the bureau that we were unable to deal with the bill as would be expected at stage 1, but that we had a one-off discussion about some of its subject matter. We could indicate where the Official Report of that discussion is to be found. A third option would be for us to come to a view on the evidence that we heard on that one day, although I do not think that that would be appropriate.

I recommend that, at most, we should say that we were unable to progress the bill at stage 1 as a committee would normally do and that we decided separately to hold one meeting on the subject matter of the bill, at which we debated matters that would have arisen during consideration of the bill. We should refer the Parliamentary Bureau to the Official Report of that meeting. Are members happy with that suggestion?

There is no reason why we should not do both things separately. We could report simply that we decided not to proceed with the bill because of lack of time. I do not see why the member's bill has to be linked to the round-table meeting that we held. That would look like we had made a half-hearted attempt to start taking evidence on the bill, which I do not think was the case. We should say that we decided not to proceed—full stop.

It does not really matter one way or the other, because we are not proceeding with the bill.

It amounts to the same thing.

There might be virtue in saying that we had had a separate one-off meeting that happened to be on the broad subject to which the bill relates.

Will our successor committee pursue the matter? Some controversial points were made at the meeting.

It is on the list of potential inquiry topics. Do we agree to report that we will not report on the bill?

Members indicated agreement.

Members will have to consider the draft report on the bill at our next meeting, but it will not be very long. Does the committee agree to take that item in private, as is our normal practice?

Members indicated agreement.