Our next item of business is evidence from the Minister for Sport, Health Improvement and Mental Health as part of our continuing scrutiny of the financial memorandum to the Carers (Scotland) Bill. Mr Hepburn is accompanied by Scottish Government officials Dr Maureen Bruce, Moira Oliphant and Victoria MacDonald. I welcome our witnesses to the meeting and invite the minister to make an opening statement.
Thank you, convener. I do not have an opening statement. I am happy to move straight to questions.
That is fine. As you were a member of the committee for a considerable time, you will know that I will start with some questions. I will try not to ask all the nice, juicy questions so that colleagues can have a go. [Laughter.] They were going to lynch me during the break. I will kick off and we will see how it goes from there.
In paragraph 88 of its report on the financial memorandum to the bill, the committee stated:
“The Scottish Government has indicated that it would intend to bring forward a supplementary FM to address the costs of any amendments at Stage 2. The Committee is of the view that sufficient time must be allowed between Stage 2 and 3 of the Bill to allow proper scrutiny of a supplementary FM, including time for the Committee to seek evidence from stakeholders and the Scottish Government.”
How much time are we likely to get between stages 2 and 3?
I understand that the timetable is that we will have the stage 1 debate in early November and we will move to stage 2 pretty promptly thereafter. I think that stage 3 is likely to be in December or January.
Do you feel that that allows sufficient time?
I certainly hope so. My understanding is that the committee requested sufficient time to assess any supplementary financial memorandum, and I was clear that we would provide a supplementary financial memorandum only if something that we put in the bill necessitated that. As I said in my letter to you, I do not think that we are in that territory.
You state:
“I have decided to propose relatively minor amendments at stage 2 which will ensure that the way forward on the waiving of charges could be delivered through regulations in due course.”
That is a bit woolly. What timescale are we talking about?
For when the regulations will be in force?
Yes.
The provisions in the bill will come into effect for the financial year 2017-18. I think that we will have enough time, following the bill being agreed to by the Parliament and royal assent, to have the regulations in place for implementation of the act.
In your letter to us, you state that
“the Carers Bill Finance Group ... met for the first time in July”
and that it will
“further explore the assumptions behind the Financial Memorandum and consider any new evidence which may be available.”
Will that feed into a supplementary financial memorandum?
I have made the point that we do not envisage there being a necessity for one but, if such a requirement emerged, we would provide one.
I stand by the financial memorandum that we have provided, which is based on the best available information that we had. We set up the finance group because of remarks that other stakeholders made, but I am not aware of any evidence having emerged thus far that would cause me to question the initial financial memorandum.
You state that you
“consider the Financial Memorandum estimates to be robust, based on all the available evidence”,
although the committee expressed a number of concerns in its report.
You state:
“There is a separate issue about the role of the Finance Group in recommending an appropriate method of distributing funding to local authorities, NHS Boards and the Third Sector. It has a role too in establishing procedures for monitoring demand, costs and achievement against the Bill’s objectives. These are on a longer timescale”.
What timescale are we talking about? It is quite difficult for us to pin these things down. You say “in due course” and mention “a longer timescale”. We are not really getting anything concrete.
The group has two roles. One is to help to inform us as the bill proceeds. That is imminent, and we need to get any information that the group wants to provide as soon as possible, but there is also a slightly longer-term role. I know that the committee has expressed interest in the Government always reviewing the legislation that it passes, and the group is there to help to inform such a process. That is a slightly longer-term piece of work.
I open up the session to colleagues round the table.
I will pursue the question whether there will be a supplementary financial memorandum. You seem clear in your letter to the convener that there will not be one at stage 2 because there will be only limited amendments. Will we get one at any stage?
At this stage, I do not envisage one. Having been a member of the committee, I recognise the absolute requirement for it to scrutinise every item of Government expenditure. If it emerged that a supplementary memorandum was necessary, we would of course provide it.
So you are saying that, if the committee recommended it, you would provide one. The committee has already done that.
No. I am suggesting that, if it emerged as a necessity, which I do not think it has done thus far, we would provide one.
Do you accept that there is no procedure for providing anything like a financial memorandum at the stage when you would be introducing regulations?
I accept that, which is why we said that we will provide any financial information in the policy note. I am very willing to keep the committee up to speed as we progress.
By definition, secondary legislation receives a lower level of scrutiny. Although you have moved from a negative to an affirmative instrument, the regulations will still receive considerably less scrutiny than primary legislation does. Is that not the case?
That is in the hands of the Parliament’s committees; if a committee wishes to scrutinise any statutory instrument rigorously, it is able to do so. The move from a negative to an affirmative instrument is an important change. Our primary reason for doing that is that we think that Parliament should have the ultimate say in moving forward.
11:45
The problem is that the Parliament also sets out clear procedures in relation to financial memorandums, which should go before committees with primary legislation. I am being told that tens of millions of pounds’ worth of spending could simply slip through under secondary legislation. What estimates have you made of the total cost?
Let me be clear that we are not seeking to slip anything through; rather, we are seeking to be as clear as we can be. The matter is complicated and, to be candid, we are still discussing the issue with COSLA. I commit to keeping the committee informed as we move forward.
Is it not the case that there is a difference of opinion between the Government and COSLA about some of the unit costs?
We explored that at stage 1. I go back to the point that I made before: on the information that we have available, the estimates that we set out in the financial memorandum are robust. The previous time that I appeared before the committee, when I spoke about the financial memorandum, I made the point that I would welcome any different methodology that any partners, including COSLA, might like to set out. I think that I am right to say that, thus far, we have received no such methodology. Nonetheless, we have set the finance group to work through the issues. I stand by the financial memorandum that we presented.
Is it not the case that stakeholders have said that they believe that there will be enhanced costs? In setting out an ambitious policy and not following it up with adequate finance, are you in danger of disappointing people when it comes to implementation?
I agree that the bill is an ambitious piece of legislation in an area where we need to be ambitious. I am sure that you agree with that; there will be many carers in your constituency who find life difficult and I am sure that we can do more to support them.
I stand by the financial memorandum. We always seek to finance any legislative mechanism that we bring to Parliament.
When the convener asked about regulations being made in due course, I was not quite clear that you gave us the requested information. When are the regulations expected to be made?
I hope that we can put them in place to have statutory effect at the same time as the bill.
When will that be?
That would start in 2017-18.
Minister, do you stand by the financial memorandum?
Yes.
How is the cost of replacement care dealt with in the memorandum?
We were clear that, at that stage, we had not come up with the appropriate mechanism to provide the information. I made that perfectly clear when I presented the financial memorandum and I have been clear with the committee. It is an on-going matter. I am happy to keep the committee up to speed and I expect that it will want me to keep it up to speed, so I commit to doing so.
So there is no figure for replacement care in the financial memorandum.
My memory—my officials will correct me if I am wrong—is that there was no figure at that time.
The bill team gave evidence to the committee and said on the record that the cost of replacement care would on current prices be in the region of £30 million. We asked why that was not in the financial memorandum and we were told that it was because the team had worked out the figure of £30 million after the memorandum was published. How is it that the Scottish Government is telling us that there could be costs of £30 million on top of those in the financial memorandum, yet you say that there is no need for any additional information?
I am not saying that there is no need for additional information. As a former member of the committee, I recognise the importance of assessing any financial commitment that the Government seeks to make. The point that I make is that we have not yet defined what the mechanism will be and, without having defined that, we cannot say definitively what the cost will be. However, I do not think that the cost will be anything approaching £30 million.
How can you say that? What will it be?
We have not defined it ultimately. I am happy to come back to the committee once we have finessed that further, but I can say that it will not be £30 million.
The problem is that you have said that before, minister. I quote directly from the Official Report of 3 June 2015, when you told me:
“Having committed to come back to you in writing to clearly establish whether the £30 million is an annual figure, I will commit to providing a further breakdown of what it relates to, if the committee will find that useful.”—[Official Report, Finance Committee, 3 June 2015: c 53.]
Can you now tell us whether it is an annual figure and why you have not come back to us to tell us how it is broken down?
Having said that the cost will not be £30 million, I can tell you that it will not be an annual figure. If you feel that we have not provided you with the requisite information, I am happy to look at that and come back to you, and I apologise if we have not done that.
What do you mean by “if we have not done that”? I read out what you said. Do you feel that you have given us a breakdown?
If you are telling me that you do not feel that we have done that, I am willing to concede that, and we will look to provide you with further information.
That is really important. I am pressing the point because that is potentially the biggest single slice of the whole expenditure, and for the memorandum not to have that cost is a big mistake, which you have not corrected, when there will clearly be costs for care.
Even if you do not think that the cost will be £30 million, the cost will be borne by someone—whether that is by the Government, by local government or by individuals—and, under standing orders, the Government has to tell us what it thinks the cost will be and which of the three categories will bear it. However the waiving of charges issue is resolved, if there is to be respite for the number of carers that we all want, a large cost will be involved. The only thing that you are arguing about is how it will be broken down and who will pay for it but, regardless of who pays for it, that should all be clear from the financial memorandum.
I take your perspective. I am clear that we can cost things only when we have definitively set out how we will take the matter forward. We are working on that, and I have been candid about that. I am not trying to hide anything from the committee. We are still talking to COSLA about the costs and we are not quite there yet, but my commitment is to inform the committee as quickly as we can.
Forgive me for pursuing this, convener. Mr Hepburn, you said clearly in the financial memorandum that in 2017-18 you expect 11,000 carers to receive support. Not all of them will be entitled to a break, but they will get some support. You also said that by 2021-22 more than 153,000—almost 154,000—will be getting support. Again, not all of them will get breaks, but I presume that a proportion will.
You can predict how many people will need support, so surely the Government can predict on current modelling what percentage of that 153,000 are cases where additional care is likely to be needed while the carer is away. I presume that you have some idea of the average weekly cost of care. Surely the Government ought to be in a position to estimate the likely costs. Of course there will be a range and it will depend on demand, but you must have some idea of what the likely costs will be.
We continue to discuss that with COSLA, which represents local authorities. It is the local authorities that will have the delivery function. We are trying to get a solid and reliable figure, which I will present to the committee as soon as possible.
Okay, but can you say whether more or less than 50 per cent of those carers would be likely to require a break?
I will reflect on that point and write to provide you with that information.
Subsequent to your appearance at the committee in June, you wrote to us on 10 June 2015 to say:
“As set out in my previous reply to you of 28 May, the waiving of charges issue is to be resolved for Stage 2.”
My reading of your most recent letter is that it is not to be resolved for stage 2 and that it will be resolved after the bill has been passed.
I have decided to resolve the issue by using a statutory instrument. We can rush to try to resolve it—although it is a complex matter and not a straightforward one—or we can put in place the appropriate mechanism to support carers appropriately. I think that carers out there would expect us to do the latter, and the issue can best be resolved by having a process in which we do that by regulations, which will be an affirmative instrument that is subject to parliamentary scrutiny, as any affirmative instrument is. That will give us space to proceed in the appropriate manner.
That is how I have decided to resolve the matter, so that is the resolution. We are taking it forward by statutory instrument.
Is that not delaying resolution, as opposed to resolving it? Just to say that there will be regulations does not resolve the matter. The issues remain the same; you are just delaying a decision on them.
No—a decision is clearly imminent. We continue to discuss the matter with local government and with the national carers organisations. Incidentally, I think that carers out there would want to know that we are resolute in the commitments that we have made to them.
We are just discussing the mechanism by which we seek to deliver, and I would argue that that creates no more delay than any other statutory instrument or any bill. We deliver things by that mechanism. In my time as a member of the Scottish Parliament, I have scrutinised many bills under which we have sought to take forward our statutory obligations by way of regulation. I do not think that our approach to this issue is any different.
I shall close by saying that I strongly believe that the Government ought to produce a supplementary financial memorandum, because I think that you have missed what is potentially the biggest slice of the cost. If it is not the biggest, it is certainly one of the biggest slices, so I do not think that the financial memorandum represents best endeavours. I could be wrong, but I will leave it at that.
That concludes questions from committee members, but I still have a few things to ask. Minister, you said that you do not want to rush to resolve the matter, but it is 16 weeks since you were last at the committee. As you know, and as you have said on a number of occasions, you were a member of the committee, and yet you say that there is no defined mechanism. You have said that you have not defined the cost, but it will not be £30 million. However, the financial memorandum indicates your best estimates, so will the figure be £29 million, £9 million or £15 million?
We really need a bit more information. It is not as if we are asking you back after you were here last week. Sixteen weeks is a long time, and I would have thought that negotiations and deliberations would have progressed somewhat, even before you came to the committee and before the financial memorandum was published, let alone in the 16 weeks since you were last here. Do you not feel that that is somewhat unsatisfactory? If you were back here on the committee, how would you view the position?
I recognise that committee members take their scrutiny role seriously, as I did when I was a member of the committee. All that I can do is be as candid as I can be. As I said, we are in dialogue with COSLA on the matter and we have not reached agreement yet. It would clearly have been better if I had been able to come along today and say that we were at that place, but we are not at that place. I hope to be there very soon, and as soon as we are, I will inform the committee.
How soon is “very soon”? Will it be a week, two weeks or three weeks? Is there any deadline for concluding those discussions, given the stage that we are approaching?
I certainly hope to do that imminently. I hope that it will be only a matter of weeks.
I have a question for you, convener, because I am not sure what we can and cannot do, given the evidence that we have heard today. Given what we have heard from the minister, would it be appropriate to consider a supplementary note to the committee’s report?
We will discuss that when we move into private session.
That concludes our questions. I thank the minister for his evidence.
11:59 Meeting suspended.Previous
Draft Budget Scrutiny 2016-17