Health and Sport Committee, 30 Sep 2009

Meeting date: Wednesday, September 30, 2009

Official Report 272KB pdf

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Subordinate Legislation

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Health Board Elections (Scotland) Regulations 2009 (Draft)

Good morning and welcome to the 25th meeting of the Health and Sport Committee in 2009. I remind members, witnesses and those in the public gallery to switch off their mobile phones and other electronic equipment. No apologies have been received.

The first item on our agenda is an oral evidence session on an affirmative instrument that sets out the regulations for the pilot elections of members to health boards in Fife and Dumfries and Galloway under the Health Boards (Membership and Elections) (Scotland) Act 2009. Members have a copy of the draft instrument with their papers for the meeting. I draw members' attention to the note from the clerks setting out the Subordinate Legislation Committee's concerns about rule 5 of the schedule to the regulations, which relates to voter eligibility.

I welcome the Cabinet Secretary for Health and Wellbeing, Nicola Sturgeon MSP, who is here to give evidence on the regulations. She is accompanied by Robert Kirkwood from the business planning executive of the Scottish Government and Kathleen Preston, solicitor with the health and community care section of the Scottish Government's legal directorate. I remind members that this session is an opportunity to ask the cabinet secretary and the officials accompanying her to clarify certain points. Once we move on to the debate, which will follow, officials will not be able to participate.

I will word my question slightly differently from the comments of the Subordinate Legislation Committee. It is quite difficult to construe how the schedule to the draft regulations relates to schedule 1A to the National Health Service (Scotland) Act 1978, which is derived from the 2009 act. I accept that paragraph 9(4) of schedule 1A states what we "may not entitle" people to do. I do not wish to dance on the head of a pin, but is a provision that states that we "may not entitle" people to do something the same as expressly providing for an act to be an offence?

I take Ross Finnie's point. Paragraph 9 of new schedule 1A to the 1978 act makes it clear that an individual is not permitted to vote twice, regardless of whether they do so in the same health board area or in different areas. However, it does not go on to stipulate the penalties for doing that.

Schedule 1A simply states that you have no power to allow an individual to vote twice. There is no express provision for that to be an offence. Is that not a lacuna?

The fundamental point of substance is that the 1978 act contains a clear provision that it is not permitted for someone to vote twice. Guidance to the returning officers will make it clear that someone who is registered to vote in more than one health board area is not entitled to vote in more than one area.

However, it is not an offence for them to do so.

The 2009 act does not specifically make it an offence.

It is, therefore, not an offence under the regulations.

The regulations flow from the wording of the 1978 act. Ross Finnie will be aware, as he has the text in front of him, that the act states that regulations

"may not entitle an individual to vote … in more than one Health Board area."

It is clear that it is not intra vires for the regulations to deal with that issue. The central point is that the 1978 act makes it clear that an individual is not entitled to vote more than once in either one health board area or more than one area.

I wholly accept that the wording of the 1978 act makes it ultra vires for you to make a regulation that permits people to vote in more than one health board area. However, the issue for me is whether there is express provision for that to be an offence. It is not quite clear to me why it would be ultra vires for the regulations to state expressly the penalty for voting more than once and, therefore, to make that an offence, given that schedule 1A states that people may not vote twice.

Are you suggesting that that could and should be done in the regulations?

Yes.

I do not want to pre-empt the debate that we may have later. I have demonstrated that the 1978 act makes it clear that it is not permitted for someone to vote twice. If the issue that Ross Finnie raises is of concern to the committee, we could undertake, after the committee has recommended that the regulations be approved, to lay amending regulations to put the matter beyond doubt.

Mary Scanlon has a question.

It is on another issue.

I am sorry—I skipped past Helen Eadie. I must not do that.

I do not mind, convener.

My concern relates to the issue that Ross Finnie raised. Health board elections have not yet been rolled out across Scotland—at the moment, only two pilot programmes are proposed. However, it appears that the regulations that you propose we approve do not determine the effect of rule 5 in the schedule to the regulations, which will be dependent on returning officers using existing local government rules and processes, almost as a code of practice. Ian McKee and I are members of the Subordinate Legislation Committee, which was most concerned that the position could have been made much clearer. The legal effect of rule 5 needs to be assessed carefully. That supports the point that is being made by Ross Finnie.

I have already said to Ross Finnie that, if that were the view of the committee, it would be possible for us to give an undertaking to lay amending regulations, which would allow the committee to agree to the substance of the regulations today. Such amending regulations would make clear what I believe is already clear in the primary legislation—that it is not permissible for somebody to vote twice.

I have a further question. At a meeting in Fife, I was told that the returning officer was not consulted on the regulations. That is a matter of some concern. Also, the representations that were made by the health board appear not to have had much cognisance given to them. That, too, is a matter of concern in Fife.

Officials from the Scottish Government met the elections officials in Fife and in Dumfries and Galloway on three occasions over the summer in preparation for the elections. In those discussions, the elections officials in both areas expressed their confidence in the arrangements and in their ability to deliver the elections to schedule on the basis of those arrangements.

I have a question on paragraph 11 in part 5 of the schedule to the regulations, which deals with the list of restricted posts. The issue came up in a few of the committee's stage 1 discussions on the Health Boards (Membership and Elections) (Scotland) Bill, which established the pilots. I was surprised to see that what is stated in the regulations is as unclear as what was stated during the passage of the bill in respect of

"giving advice on a regular basis"

and

"speaking on the Board's behalf … to journalists or broadcasters."

The list of restricted posts will now be at the discretion of each health board. Will you give us more clarity about what you expect? When the policy is rolled out, we could find that national health service employees, general practitioners and other, independent contractors such as optometrists and pharmacists may or may not be eligible, depending on the health board. I was looking for clearer guidance. Will you enlighten us as to what you expect?

The arrangements that are set out in the primary legislation and in the regulations for giving health boards the ability to draw up a list of restricted posts are identical to the arrangements that exist for local authorities to draw up lists of restricted posts. We have not created a new system; we have simply emulated the system that already exists.

Under that existing system, the adjudicator—about whom I will say more in a moment—issues guidance to local authorities. It is our intention that adjudicator guidance will be issued to health boards as well, in order to promote consistency among health boards in the kinds of posts that may or may not be included. I add the caveat that different people in different posts in different health boards perform slightly different functions; therefore, those lists will not be absolutely identical in all circumstances in two different health boards. Nevertheless, that adjudicator guidance will promote consistency among health boards.

The regulations give more detail than the 2009 act about the adjudicator, as was intended. The regulations lay down clearly what is effectively an appeals process for somebody who disputes the fact that their post is, or is intended to be, included in a list of restricted posts. They can ask the adjudicator to adjudicate on that and, as you can see from the regulations, due priority is required to be given to any such applications, bearing in mind the fact that an election is imminent. The regulations clearly lay down that appeals process. I stress that this is not a novel system; we are simply applying the existing local authority system to health board elections.

We are dealing with pilot elections. All aspects of the operation of those pilots will be subject to independent evaluation before Parliament takes any decision on a future roll-out. There is an opportunity to consider how the local authority system works in the context of health board elections and, in theory, Parliament could decide to change that if it took a later decision to roll out the elections.

I appreciate that there are similarities between local authorities and health boards. However, there are also clear distinctions. For example, 90 per cent of patient contact with the NHS is in primary care.

Under the proposed system, an appeal would go to the Scottish Public Services Ombudsman, which could take up to 18 months, by which time the election would have passed. For those reasons, I am looking for a bit more clarity.

Given that local government does not contract with pharmacists, optometrists and GPs, would those professionals, given their contracts with the NHS, be eligible to stand for a health board election?

Yes. Obviously, health boards can compile lists of restricted posts, but there is nothing in either the primary legislation or the regulations to suggest that a contractual relationship between a health board and a GP or pharmacist would lead to such roles being included on a list of restricted posts.

The legislation says that there are two sorts of roles that might cause someone to be put on a list of restricted posts: one that involves someone giving advice on a regular basis to a board, which is significantly different from a contractual relationship; and one that involves someone regularly speaking on a board's behalf to journalists or broadcasters. It is quite clear, therefore, that a board's head of communications would fall within the category of people who could be included on a list of restricted posts, but that a GP, optometrist or pharmacist who has a contractual relationship with a board and who, from time to time, gives the board opinions or advice would not.

The categories in paragraphs 11(1)(a) and (b) of the schedule to the regulations could also apply to a senior consultant in the NHS. However, as long as they did not regularly give advice or talk to journalists or broadcasters, no one at a certain level of salary or responsibility would necessarily be excluded. Is that correct?

Absolutely. It is not the nature of someone's contract or their seniority in the NHS that should be the key factor in determining whether they are on the list of restricted posts but the nature of their relationship with the board. I would expect that, if there were any doubt about whether someone should be on the list of restricted posts, the balance should favour their not being on the list because the thinking behind direct elections is to increase participation in the business of health boards. Therefore, I would not expect boards to take an unduly restrictive approach.

Rhoda Grant has a supplementary question on the same lines.

I return to the issue of GPs who are independent contractors standing for election. What checks and balances will be in place for them when the health board discusses its relationship with contractors and the like? Somebody who supplied goods and services to a local authority would need to declare an interest and leave any meeting of the authority. Will it be the same for contractors in a health board?

I take it that you are asking what would happen if a contractor was an elected member of a board. I look to the lawyer beside me for the answer to that, but I assume that it would involve declarations of interest.

Once someone is a member of a health board, there will be no distinction between categories as to their duties. They will be subject to the same duties and obligations as other members, which will include their not being involved in decisions in which they have a direct interest.

Will there be any difference in that regard between GPs who are employed by health boards and GPs who are private contractors? Will they have the same status, apart from the fact that GPs who are employed by health boards will not have to declare an interest?

I will repeat my point. I do not think that the fact that someone is employed as a GP is an issue. Similarly, I do not think that the fact that someone has a relationship with a health board as an independent contractor in and of itself excludes them from standing for election. The issue would be the nature of their relationship with the board, bearing in mind the two headings in the 2009 act. If the relationship was considered to be close enough, it may lead to somebody being included on the list of restricted posts. However, I stress that there are adjudication provisions in the regulations that effectively constitute an appeals process. Ultimately, as with local authorities, we are giving health boards discretion, to an extent. I have made it clear that I do not expect health boards to take an unduly restrictive approach. However, we have produced provisions that will allow any individual with a dispute over their inclusion on the list to go to adjudication.

I have two questions, one of which is about the poll closing at 4 pm. It is a postal vote, is it not? Are there clear indications as to what would happen if we were in the middle of the sort of problems that we currently have with postal services?

I am pretty sure that we can provide the committee with more information about the contingency arrangements that any returning officer will have in place for postal ballots when there is a postal strike. I hope that the current dispute will be over by the time we get to the health board elections in June next year, but you can never tell.

I hope so, too. The other issue that was widely debated was that of 16 and 17-year-olds voting. It is now indicated that voters born before 1 December 1993 will be able to vote or to stand as a candidate. Have we resolved the publication issue?

Yes. From memory, I think that that was resolved through Ross Finnie's amendments at stage 3 of the Health Boards (Membership and Elections) (Scotland) Bill. You will recall that the Health and Sport Committee had significant concerns about our original proposal to publish a young persons register. We will now simply use the information on the local government register. You referred to the eligibility of people who were born on or before 30 November 1993. Effectively, that means that somebody who is 16 on or before 30 November this year will appear as an attainer on the electoral register and on the register that will govern the elections in June next year, so they will be eligible to vote in June next year.

But under the registration process that is happening just now, what has been done to circulate information to individuals about the register or to seek individuals to go on it?

It simply involves the registration processes that local authorities undertake to ensure that they capture data on 16 and 17-year-olds to allow them to vote in other elections as soon as they become 18, so there is no change in that respect.

I appreciate that such a compromise is probably required. However, I presume that those who are 16 on 29 November this year did not fill in the application form for the electoral register a year ago. Under the present system, in which 18 is the age limit, people apply well ahead to get on the electoral register. Their names can be published on the register if they are over 16, and their birth date indicates when they will become eligible to vote. Do you see what I am getting at?

Let me try to answer that point. From preparatory discussions with registration officers and returning officers in Fife Council and Dumfries and Galloway Council, we understand that both councils will run a sweep-up campaign following the canvass that took place over the summer. Towards October and November, under the sweep-up campaign, the councils will contact individuals who are entitled to go on the register because they will be 16 on or before 30 November.

Thank you very much.

That concludes our evidence-taking session.

We move to agenda item 2, which is consideration of motion S3M-4820. Does any member wish to debate the motion?

Yes.

Under standing orders, the maximum time for the debate on the motion is 90 minutes. I call on the cabinet secretary to open the debate.

The purpose of the draft Health Board Elections (Scotland) Regulations 2009 is to make provision—under sections 1 to 3 of the Health Boards (Membership and Elections) (Scotland) Act 2009—for elections to take place to Fife NHS Board and Dumfries and Galloway NHS Board. As members will know, the act, which was passed on 12 March this year, makes provision for pilot health board elections to take place. As members are well aware, any decision on further roll-out of elections will be for Parliament to take following independent evaluation. Roll-out will also be subject to the super-affirmative parliamentary process.

The regulations that are before the committee today are a development of the draft regulations that were submitted to aid the committee's stage 1 consideration of the bill in October last year. The regulations confirm that the pilots will be all-postal elections that will utilise the single transferable vote system. The election procedures that are laid out in the regulations are consistent with the content of the 2009 act.

To try to keep the administrative arrangements as simple as possible, we have borrowed heavily from existing electoral practice in local government elections and national park board elections. That mitigates the risks associated with attempting to introduce new or untested procedures.

As we have just touched on, to take account of the views that were expressed in Parliament during the passage of the bill, the regulations contain a significant modification in relation to the voting eligibility of 16 and 17-year-olds. Rather than proceeding with plans to construct a separate young persons register, the regulations provide that we will utilise the existing electoral register for local government elections. As I have just said, that means that anyone who is 16 on or before 30 November this year will be entitled to vote in the pilot elections next year.

As we discussed, the Subordinate Legislation Committee raised a concern about the eligibility of people to vote in more than one health board area during the pilot elections. I believe that the primary legislation is clear, but I appreciate the Subordinate Legislation Committee's concerns and the comments that members have made today. Therefore, I am happy to repeat my undertaking that we could come back with amendment regulations to make it clear that it is not permissible to vote on more than one occasion. If the committee is otherwise satisfied with the regulations, I do not believe that such a concern should prevent the committee from recommending today that the regulations be approved.

Finally, the committee will also today consider the Health Boards (Membership) (Scotland) Regulations 2009. Although those are subject to a different procedure, I will briefly outline their content since I am here. They set out the make-up of Fife NHS Board and Dumfries and Galloway NHS Board after the 2010 elections. The overall size of those boards will closely mirror their current set-up with one key difference: elected members and local authority-appointed members will together make up a majority of the board's members. That will be achieved by reducing the existing contingent of executive members to five and by not renewing, or terminating early, some appointments.

With those comments, I am more than happy to answer any other questions that the committee might have.

I move,

That the Health and Sport Committee recommends that the draft Health Board Elections (Scotland) Regulations 2009 be approved.

I propose an amendment: we should defer the decision on the regulations until we have taken evidence from Fife Council's returning officer, which I hope could happen next week. The deadline for approving the regulations is 12 October, when Parliament will be in recess. I hope that, after we have heard next week from Fife Council's returning officer, and possibly from Dumfries and Galloway Council's returning officer, we will be better informed. The cabinet secretary has given some assurances, which are helpful, but the fact remains that the Subordinate Legislation Committee reported to the lead committee and the Parliament that

"the response provided by the Scottish Government has not assisted the Committee in establishing how as a matter of law eligibility of voters is to be established in circumstances where a person could be entitled by the criteria set out in Schedule rule 5 to vote in more than one Health Board election."

The Subordinate Legislation Committee felt that

"failure to make specific provisions for such circumstances and leaving the matter to the discretion of individual returning officers is considered an unusual exercise of the power, given that the 2009 Act anticipated that criteria for eligibility would be set in these Regulations and approved by Parliament and not in guidance."

I cannot say what my source is for the information that Fife Council's returning officer had not been consulted, but suffice it to say that the information was second hand and not from the returning officer himself. However, I believe that the returning officer has raised that concern and others. It is appropriate for the committee to try to ensure that the elections are run as smoothly as possible and with the full compliance, help and support of the returning officers.

I speak as someone who supported the Health Boards (Membership and Elections) (Scotland) Bill. I have never been an opponent of direct elections to health boards; indeed, I fought within my party to have the bill approved. I am not attempting a wrecking manoeuvre; I simply want to ensure that we get the best law and the best regulations.

I will be brief. I do not entirely agree with Helen Eadie's suggestion. I ask the cabinet secretary to elaborate slightly on the offer of an undertaking that she made in her opening remarks. Given that the Government believed it necessary expressly to provide in new schedule 1A to the 1978 act that regulations should not allow people to vote in two places, and given that the cabinet secretary referred to the use of local government legislation, under which voting in two places is an offence, it is slightly anomalous that it is not made expressly clear in the regulations that individuals, never mind the electoral registration officer, have an obligation to comply with the law. At present, there is no penalty, although an implicit offence is created in paragraph 9(4) of schedule 1A. If the cabinet secretary gave a clearer undertaking, I would be content to rely on that and to allow the regulations to proceed.

As no other member wishes to speak, I will let the cabinet secretary address the points that have been raised and then we will decide what to do.

With regard to Helen Eadie's comments, the decision to recommend that the regulations be approved today—which would, of course, be my preference—or to defer their consideration for a week is a matter for the committee, not for me. I guess, however, that I am trying to influence that decision.

I am grateful to Helen Eadie for raising the point about the returning officer. I simply reiterate that my officials have met election officials in Fife and Dumfries and Galloway and will continue to do so as we move towards next year's elections. It is clearly as much in our interests as it is in the interests of returning officers in both health board areas for the elections to proceed smoothly and we will work very closely with returning officers to ensure that that is the case. Indeed, I give a very strong undertaking to the committee in that respect.

As for Ross Finnie's comments, I hesitate to say what I am about to say, but I am going to say it anyway even though I might be proved wrong. I do not think that it is an offence under local government legislation to vote twice. I believe that as far as local government is concerned if someone is legitimately registered in more than one local government area they can vote twice. However, I stand to be corrected on that point.

The undertaking that I am willing to give today to the committee—the precise details of which I am happy to put in writing after the meeting—is that I will make clear in amendment regulations what I believe to be clear in the 2009 act, that it is not intended that people be allowed to vote twice. In other words, voting twice will not be permitted. As for what the regulations can do with regard to the creation of offences, I will have to take further legal advice on the matter. I do not want to give the committee an undertaking that I might subsequently find myself unable to meet, but I certainly undertake to make it clear in regulations that it is not intended to permit anyone to vote twice.

Of course, my only option now is to ask whether the committee agrees to the cabinet secretary's motion.

Does Helen Eadie not have a chance to come back?

The motion cannot be amended at this stage.

But do I not get a chance to respond to the cabinet secretary's comments?

No. The motion has been moved, and the cabinet secretary has summed up. If you have something additional to say, I might be able to be flexible. However, either the cabinet secretary withdraws the motion, which she has not done, or we proceed to the vote.

All I want to say is that deferring consideration until next week would give us time to find out the cabinet secretary's plans with regard to enforcement. If she is able to respond in time, we will be able to reach a decision before the deadline of 12 October.

I am just setting out the procedural options for the committee.

Cabinet secretary, you could seek leave to withdraw the motion.

I am sure, convener, that you will knock me into line if I am getting procedurally out of line. I am simply trying to divine the committee's mood. Instead of forcing the committee into the position of having to vote down regulations that I sense it broadly supports, I would prefer to withdraw the motion and give the committee the week that it requires.

The cabinet secretary has sought leave to withdraw the motion.

Motion, by agreement, withdrawn.

That was very helpful, cabinet secretary. We will return to the issue next week.

The next item on the agenda is draft budget scrutiny. I think that I will suspend—

No, no—

Do you not want the meeting to be suspended, Mr Finnie?

We have another piece of subordinate legislation to consider.

Oh, I beg your pardon. [Interruption.] I am kerfuffled here. The official reporters will have difficulty spelling that.

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Health Boards (Membership) (Scotland) Regulations 2009 (SSI 2009/302)

Item 3 is consideration of a negative instrument. Members will have a copy of the regulations, which are associated with a pilot health board election, and a note from the clerk.

The regulations specify the total number of members and the number of each type of member of Fife and Dumfries and Galloway health boards following next year's elections to them. The Subordinate Legislation Committee reports that several drafting errors that it identified—and which are highlighted in the clerk's paper—were drawn to the Scottish Government's attention. In its response, the Government acknowledged the errors but stated that, in its opinion, they did not affect the regulations' validity or operation. However, it undertook to correct the errors at the earliest opportunity, and the Subordinate Legislation Committee was content with the response.

If members have no comments, is the committee content to make no recommendation on these regulations?

Members indicated agreement.

I thank the cabinet secretary and her team for their attendance and the committee for keeping me in order as usual. I suspend the meeting for a couple of minutes so that I can undo my kerfuffle.

Meeting suspended.

On resuming—