Official Report 264KB pdf
The purpose of agenda item 2 is for the committee to consider the delegated powers in the Carers (Scotland) Bill at stage 1. The committee is invited to agree the questions that it wishes to raise with the Scottish Government on the delegated powers in the bill. It is suggested that those questions be raised in written correspondence. The committee will have the opportunity to consider the responses at a future meeting before the draft report is considered.
Section 1(1) defines what is meant by “carer” for the purposes of the bill. Section 1(2)(b) provides that the section 1(1) definition does not apply in circumstances in which care is or would be provided
“under or by virtue of a contract, or ... as voluntary work.”
When care is provided in those circumstances, the bill does not apply.
Section 1(3) provides that the Scottish ministers may make regulations that provide that “contract” does or does not include
“agreements of a kind specified in the regulations.”
The regulations may permit a relevant authority to disregard section 1(2)(b)
“where the authority considers that the relationship between the carer and the cared-for person is such that it would be appropriate to do so.”
The power in section 1(3) appears to be significant, as it permits the Scottish ministers to make regulations that could considerably expand or restrict the reach of the bill’s provisions, depending on the manner in which it is exercised.
Does the committee therefore agree to ask the Scottish Government for further justification of the choice of the negative procedure for the exercise of the power in section 1(3) and for an explanation of why the affirmative procedure is not considered to be more appropriate for that power, given the effect that its exercise might have on the applicability of the bill to particular groups of carers?
Members indicated agreement.
Section 4 concerns the meaning of the term “personal outcomes”. Section 4(1) provides that “personal outcomes” means
“outcomes which would, if achieved, enable carers to provide or continue to provide care for cared-for persons.”
Section 4(2) provides that the Scottish ministers
“may by regulations make further provision about personal outcomes, including provision about ... which outcomes may be personal outcomes ... and the matters to which a relevant authority is to have regard in considering which outcomes may be personal outcomes.”
Does the committee agree to ask the Scottish Government whether the drafting of the power in section 4(2) is considered to be sufficiently clear, on the basis that it appears to contemplate both the Scottish ministers and relevant authorities determining which outcomes may be personal outcomes; to explain further the relationship between sections 4(2)(a) and 4(2)(b); and to provide clarification of the respective roles of the Scottish ministers and relevant authorities in relation to the power?
Members indicated agreement.
I think that it is very important that not just Government and local authorities but individuals have a right to determine what are personal outcomes, rather than have it imposed on them that something will or will not be a reasonable personal outcome. A good opportunity ought to be provided for the individual to have tailor-made personal outcomes, and I hope that that is part of the legislation.
I have no doubt that the Government will want to make sure that that is part of the process. What we are looking for is clarity on where that would be specified.
The committee may wish to welcome the level of detail and the number of examples that are provided in the delegated powers memorandum that accompanies the bill. The inclusion of such information in delegated powers memoranda is extremely helpful to the committee.
I found the structure that is consistently used in the DPM to be particularly helpful. In each case, it describes the provision, gives the reason for taking the power and then has a section entitled “Choice of procedure”. I thought that that was a good way of structuring the discussion. I do not recall having seen that structure used in other DPMs, and I encourage the author of the memorandum to share it with their colleagues.
The committee and its advisers would probably endorse that. Thank you for that comment.
That completes agenda item 2.
11:35 Meeting continued in private until 11:36.