Public Services Reform (Scotland) Bill: Stage 1
The next item of business is a debate on motion S3M-5429, in the name of John Swinney, on the Public Services Reform (Scotland) Bill.
I am delighted to open the stage 1 debate on the Public Services Reform (Scotland) Bill. The Government came into office with one overarching purpose: to focus the Government and public services on creating a more successful country, with opportunities for all of Scotland to flourish through sustainable economic growth. We started to focus Government by making clear our strategic objectives, by reducing the number of ministers and portfolios, and by putting in place the national performance framework.
Our wider public sector reform agenda, which was announced by the First Minister two years ago, is focused on simplifying and integrating public services and promoting the sharing of services through closer collaboration on a number of matters, including procurement. We are working closely with local government through the concordat and with public bodies as part of our effective public bodies programme to align objectives better to achieve the Government's purpose. We remain committed to simplifying Scotland's complex landscape of national public bodies, which has evolved over time and which for too long has been allowed to grow in an ad hoc and piecemeal fashion. The resulting overlap and duplication of function is clear to see, and changes are long overdue.
Against that background, the bill aims to remove overlap and duplication; provide greater clarity for service users and improved service delivery; and deliver more effective use of resources and better value for money. Our simplification programme is making progress, having already delivered a reduction from 199 public bodies to 161. The bill, together with other planned measures and legislation, will reduce that number to around 120 by 2011. No reasonable commentator can claim that this Government has not set its shoulder squarely to the wheel of simplifying and streamlining the public sector in Scotland. I note that the United Kingdom Government has recently announced its own plans for a modest streamlining of its public bodies.
Our public sector reform agenda was and remains the right approach. The Government's simplification programme, including the proposals in the bill, will deliver net financial savings of around £127 million over the period 2008 to 2013 and recurring annual savings of around £40 million thereafter. However, the dramatically changing global economic circumstances and the tightening of the budget settlement that is afforded to Scotland mean that we need to go further and faster in our reform agenda as we seek to secure the best value for money for the public purse. It is therefore essential for this Parliament to be able to respond more quickly to changing circumstances and to take advantage of opportunities to streamline further the public bodies landscape without the need to introduce primary legislation on every occasion. That is why the order-making powers in part 2 of the bill, with appropriate safeguards and parliamentary procedures in place, are so important.
Contrary to some suggestions, such order-making powers are neither novel nor unprecedented. In essence, they are powers that allow secondary legislation to make potentially wide-ranging changes to primary legislation, subject to appropriate conditions and safeguards.
Does the minister accept that it is not constitutionally appropriate for a Government minister such as him to make changes to parliamentary appointees? That is for Parliament to decide, not the Government. That is a fundamental issue, which he has got wrong in the bill.
I am not sure whether Mr Rumbles has seen the text of the letter that I issued to the convener of the Finance Committee. However, it explains some of the changes that the Government proposes. I will get round to sharing more details, and if Mr Rumbles wants to ask further questions at that point, I will be happy to address them.
As I said, the order-making powers are neither novel nor unprecedented. Similar powers were included in section 57 of the Local Government in Scotland Act 2003, which provides wide powers for ministers to modify any enactment that prevents local authorities from discharging best-value duties, having regard to economy, efficiency and effectiveness. That legislation was of course introduced by the previous Labour-Liberal Democrat coalition, and the order-making powers were endorsed as entirely appropriate by the Subordinate Legislation Committee of the day and passed with the Scottish National Party's full support. The wide nature of the powers in the 2003 act is underlined by the fact that they were subsequently used to deliver the provision of free school meals.
Having said that, I do of course recognise that concerns have been raised about the scope and operation of the powers in part 2. I promised the Finance Committee that I would consider those concerns carefully when I received its stage 1 report, with a view to lodging appropriate amendments at stage 2 to provide additional procedural and statutory safeguards.
Before I say anything further about part 2, I wish to place on record my gratitude to the Finance Committee, the Subordinate Legislation Committee and the subject committees that took evidence on the bill for their very thorough and helpful stage 1 reports. We have enjoyed a very constructive dialogue and debate with the committees, which I am sure will continue during stage 2 consideration.
I will, of course, provide the Finance Committee with a detailed response to its stage 1 report in good time before stage 2. However, I recognise that particular concerns have been expressed about the order-making powers in part 2. As I said to Mr Rumbles, I wrote to the convener of the Finance Committee and to members earlier this week, setting out the amendments that I propose to lodge at stage 2 to address the concerns that have been raised about the scope of the powers.
We propose to lodge amendments, first, to provide additional procedural safeguards and, secondly, to address specific concerns that have been raised about the scope of the powers. As recommended by the Subordinate Legislation Committee, we will lodge amendments that require proposals for an order under section 10 or section 13 to be subject to an enhanced form of super-affirmative procedure. Under that procedure, a proposed draft order would have to be laid before the Parliament, together with an explanatory document, for a period of 60 days. That would allow a proper opportunity for public consultation, and the relevant committees could take evidence on the proposals contained in the draft order, if they so wished. Following that consultation process, a final version of the draft order would formally be laid before Parliament, together with a further explanatory document giving details of the comments received and any changes made, and the order would be subject to the affirmative resolution procedure. Although the power to initiate such a proposal would rest with ministers, the final decision—the ultimate control—would remain with Parliament, as it properly should.
That is the fundamental problem that we face in Parliament today. The minister apparently does not accept that it is not up to him or the Government to initiate changes that are decided here in Parliament. It is not the prerogative of the Government to do that. He makes a point with regard to the Local Government in Scotland Act 2003, but he misses the constitutional point of the difference between Government and Parliament.
Mr Rumbles is perhaps making a point about parliamentary officers and individual ombudsmen. If I were to follow the logic of his argument, Government would be unable to initiate legislation.
No, the cabinet secretary misunderstands the point.
No, it is Mr Rumbles who misunderstands. My point is that the Government seeks the power to initiate changes to primary legislation through the route of secondary legislation. That power was included in the Local Government in Scotland Act 2003 and was voted for by Mr Rumbles. I do not think that Mr Whitton was here then, but Jackie Baillie, Karen Gillon and Mr McMahon certainly all voted for it—indeed, I voted for it.
That act enshrined the ability to change primary legislation by secondary legislation. There is a separate point about parliamentary bodies.
That is the point that I am making.
That is fine. I am just coming on to that point. If Mr Rumbles would listen to what I am saying, we might get somewhere. I will give way, though, to Jackie Baillie, who wanted to raise a point.
Does the cabinet secretary recognise that the legislation to which he referred does not alter the function or, indeed, the existence of public bodies in the way that he proposes to do through the bill, so it is not a precedent?
Of course it is a precedent, because it allows secondary legislation to be used to change primary legislation by order. What I have announced today and shared with Mr Welsh in the letter that I sent him yesterday is, essentially, the ability for such matters to be taken forward with extra consultation.
I come to the point that Mr Rumbles is interested in. Concerns have been raised about the inclusion of parliamentary commissioners, ombudsmen and other parliamentary bodies, such as Audit Scotland. On the other hand, some commissioners have made the point that, provided that the bill contains appropriate safeguards, the order-making powers could provide a useful means of making sensible changes to their powers and functions without the need for primary legislation.
With that in mind, I propose—I set this out in my letter to Mr Welsh—that, in relation to parliamentary bodies, the power to initiate proposals for an order under part 2 should rest with the Scottish Parliamentary Corporate Body, not with ministers, and therefore ministers should be able to embark on a consultation process with a view to making an order that affects a parliamentary body only if invited to do so by the Scottish Parliamentary Corporate Body. The reason for that is that the SPCB is elected by MSPs to steward and take forward issues of concern to them. We are suggesting an alteration to our proposal, to give the power of initiation exclusively to the SPCB—although of course the same consultation requirements that I have announced with the strengthened super-affirmative procedure would apply, and of course the final decision would rest not with the SPCB or the Scottish ministers but with Parliament.
Can the cabinet secretary point members to any part of the corporate body's constitution or standing orders that gives it any powers to deal with policy matters relating to the Parliament?
I have detected Parliament's concern at different stages—I certainly experienced it in opposition when I was a member of the Finance Committee prior to the 2007 election. Members of that committee were frustrated by the lack of power that the corporate body considered it had in addressing questions and resolving many issues connected with the financial sustainability and budgeting approaches of the parliamentary ombudsmen—[Interruption.] Mr Purvis says that it is not for the Government to decide; rather, it is for Parliament.
Wait a minute. That is precisely what I am saying. I am putting in place a power of initiation for the Scottish Parliamentary Corporate Body and reinforcing Parliament's ability to have the final say on such questions. That point is entrenched in what the Government is setting out.
Does the cabinet secretary accept that the issue is not so much the initiation power, although that is important, as the substantial and widespread nature of the powers? As Jackie Baillie rightly said, those powers include the power to set up new bodies, abolish existing bodies, amalgamate bodies and so on. How does that fit with the Paris principles and the independence of the commissioners, which is important?
Those bodies are creations of Parliament, and Parliament could decide that it wished to change them. It has the right to do that. I am in no way compromising Parliament's right to decide on that. I would have thought that what I am announcing would cheer up the Liberals a bit, but they are not very cheerful.
I had better proceed to other subjects and address other ground that the bill covers.
Crucially, the Government proposes a number of changes that will strengthen the scrutiny process and Parliament's right to control areas that are entirely and properly in its preserve. I hope that members will consider the Government's announcements, understand the cementing of Parliament's role and responsibility in the process, and consider matters in a dispassionate fashion rather than in a purely partisan fashion. It is important that we turn the rhetoric about tidying up the public sector landscape into practicalities. I am regularly told by Liberal Democrats and members of the Labour Party, and I am told all the time by members of the Conservative party—we get this every Thursday from Miss Goldie—that we must act to tackle the number of public bodies. We are putting in place a practical way of making that happen. I hope that members will consider that on its merits.
Will the cabinet secretary explain one thing? If he is willing to go through the super-affirmative procedure and to take time to allow committees to take evidence and consult, what is the unbearable burden of the short and simple pieces of primary legislation that are currently required? What is the big problem with them?
The problem is that the issues can never be taken forward in primary legislation in the fashion that Mr Harvie has characterised. Mr Harvie should consider the specific proposals in the bill to change a number of bodies, some of which are not terribly controversial—I am talking about the Deer Commission for Scotland and other bodies. It would be extremely difficult to find the opportunity to bring primary legislation to Parliament and the time to go through all the procedures. We are trying to develop an efficient way of rationalising public bodies where opportunities arise to do so in order to deliver greater public sector efficiency. That is the rationale and thinking behind the process.
We have listened to specific concerns that various committees that took evidence on the bill raised about the scope of the powers, and we propose to lodge a number of amendments in response to them. In particular, we will make it clear that the order-making powers cannot be used in such a way as to interfere with the independence of the judiciary, judicial bodies or judicial decision making. As the Subordinate Legislation Committee recommended, we will also make it clear that the power to add bodies to schedule 3, and therefore to bring them within the scope of the order-making powers, does not extend to local government. Finally, we will lodge amendments to make it clear that the powers cannot under any circumstances cut across existing statutory duties to protect and preserve Scotland's cultural heritage.
Taken together, that package of amendments will deal fully with the concerns that have been expressed about the scope and coverage of the order-making powers in part 2 and the associated procedural safeguards. The process of debate and dialogue will no doubt continue during stage 2, but I hope that members will agree that we have responded positively and constructively to the concerns that the Finance Committee and other committees expressed in their reports.
Will the cabinet secretary give way?
The cabinet secretary should begin to wind up.
It would be helpful if the Presiding Officer gave me guidance on when I am due to complete my remarks.
You may have another couple of minutes, given the number of times that you have given way.
I will treat Jackie Baillie to some more rhetoric and briefly cover some other provisions in the bill, which will also be covered by my colleagues in the closing speech this morning and in the opening and closing speeches this afternoon.
On creative Scotland, a great deal of hard work has been done to address all the points that stakeholders have raised, and I am pleased that the Education, Lifelong Learning and Culture Committee and the Finance Committee have recommended that creative Scotland should be fully established.
Parts 4 and 5 set out the functions for the two new scrutiny bodies: health care improvement Scotland and social care and social work improvement Scotland. Our intention is to establish two new scrutiny bodies that can fulfil the Crerar principles of public focus, independence, proportionality, transparency and accountability while contributing to the simplification of the scrutiny landscape.
On part 6, scrutiny improvement is a key part of our work. We are focusing on balancing the need for independent external scrutiny with the ability of service deliverers to undertake robust self-assessment and self-improvement. I stress that many such issues will be addressed in much greater detail by my colleagues on the Government's front bench.
I have considered the options for accommodating the Office of the Commissioner for Public Appointments in Scotland's regulation of appointments to the board of Audit Scotland. My preference is for the Scottish Commission for Public Audit to commit to making those appointments in a way that reflects the spirit of the OCPAS code but without further statutory underpinning, thereby leaving it to Parliament to satisfy itself that those non-executive appointments are made in an appropriate way by the SCPA.
The Government has produced a bill that is consistent with its drive to deliver public sector efficiency, streamline the size of the public sector and respond to the challenges that we all know we are going to face in the years to come.
I move,
That the Parliament agrees to the general principles of the Public Services Reform (Scotland) Bill.
Although the Finance Committee considers the financial implications of all legislation, the committee has never before been designated the lead committee on a bill since the establishment of the Parliament in 1999. In what is therefore a unique position for a convener of the Finance Committee, I am pleased to speak on the committee's behalf in this stage 1 debate on the Public Services Reform (Scotland) Bill.
This wide-ranging bill touches on the remits of a number of different committees and is a good example of Parliament's committees working together by contributing their individual specialised areas of expertise.
While the Finance Committee took the lead role in examining the cross-cutting issues in the bill, the Rural Affairs and Environment Committee examined the provisions relating to Scottish Natural Heritage; the Health and Sport Committee considered the provisions relating to the care commission and care services, as well as the new health scrutiny body, health improvement Scotland; and the Education, Lifelong Learning and Culture Committee examined part 3, on creative Scotland, and provisions relating to social work. The committees also considered duties of co-operation and joint inspections and commented on the order-making powers in part 2.
I will leave the representatives of the secondary committees to detail their recommendations on those areas, and I thank them for their detailed scrutiny of significant parts of the bill.
The Finance Committee was aware that the bill is only one element of the Scottish Government's programme for the reform of public services. We sought to place the bill in a wider context that includes issues that were being actively scrutinised elsewhere, such as single outcome agreements and the Scotland performs programme.
The wider programme for simplifying the public sector landscape is clearly linked to parts 1 and 2 of the bill. The committee heard a range of evidence about the simplification programme. Although I will not pre-empt discussions on our future work programme, the issue of the future shape of public services during a continuing squeeze on all budgets has exercised us throughout this parliamentary session and will continue to be a major focus for the Finance Committee.
Part 2 proved to be by far the most contentious area of the bill during our stage 1 scrutiny. The cabinet secretary has already given his initial response to our detailed recommendations on it, both in correspondence and in his opening remarks today. However, large parts of our evidence taking and our report were focused on the implications of those powers.
Part 2 contains the public functions power, in section 10, and the burdens power, in section 13. It is important to distinguish between those two powers because although many of the safeguards in the bill apply to both of them, their purposes and possible implications are markedly different.
The section 10 power to
"improve the exercise of public functions"
certainly exercised our witnesses and the committee to the greatest extent. Many of my comments on procedure and other safeguards apply to both powers.
On the safeguards that are applied by the bill, I express the committee's thanks to the Subordinate Legislation Committee for its detailed and thoughtful work and thorough recommendations. We have already heard from the cabinet secretary that he plans to bring forward a range of amendments to address our concerns in this area, and I thank him for the early notice of his intentions.
A major area of debate for the committee was the list of bodies in schedule 3 to the bill, to which both the powers in part 2 will apply. A range of bodies listed in the schedule, their stakeholders and other experts expressed concern over the potential impact on the independence of some of the bodies. Again, the cabinet secretary has already outlined his intention to come back at stage 2 with significant changes to address the committee's concerns.
Will the member give way?
I want to make progress. Mr Rumbles can raise his point later in the debate.
It is worth highlighting some of the specific concerns that were expressed in evidence to the committee.
The list in schedule 3 contains all the parliamentary commissioners and the ombudsman. The commissioners and the SPCB all submitted evidence to the committee that, due to the possible and the perceived impact on their independence from the Government, they should be removed from the schedule.
The Scottish Information Commissioner explained that the Freedom of Information (Scotland) Act 2002 was deliberately framed by Parliament to safeguard the commissioner's independence from Government, and the Scottish Human Rights Commission claimed that its inclusion in schedule 3 could threaten its application to the United Nations as a category A national human rights institution and would affect public confidence in its independence. Those are serious concerns, and the cabinet secretary has agreed to take them into consideration.
The list in schedule 3 also includes Audit Scotland and the Accounts Commission; the Scottish Court Service; a range of quasi-judicial bodies such as the Judicial Appointments Board; the Mental Welfare Commission; and the police complaints commissioner. Again, witnesses from those bodies and their stakeholders all expressed serious concerns about their inclusion. It is, therefore, welcome that the cabinet secretary has committed to consider those issues, and the committee looks forward with interest to the stage 2 proceedings.
The committee heard evidence from legal academics and others who raised the serious point that, in their view, such powers have the potential to blur the dividing line between subordinate and primary legislation, and could alter the balance of power between Parliament and Government. However, although the committee takes those concerns seriously, we are also keenly aware of the need to speed up the pace of public services reform and we recognise that a parliamentary mechanism is needed to ensure that small-scale changes such as those in part 1 can be enacted without the need to resort to primary legislation.
It is the clear view of the committee that the safeguards, as currently drafted, do not go far enough in protecting the role of Parliament. Again, I welcome the cabinet secretary's commitment to engage constructively in that area.
Part 6 was considered in detail by the secondary committees and, again, I express the Finance Committee's appreciation of their work. When we considered the provisions related to the proposed duty of user focus, evidence was split between some legal academics and members of the Law Society, who questioned the value and impact of imposing such a general duty, and Professor Crerar and people from the voluntary sector, who were clear that the provisions should encourage cultural change in scrutiny bodies that would be of benefit to the users of public services.
Although other committees took the lead on the policy implications of certain areas of the bill, the Finance Committee considers the financial implications of all bills, and this legislation was no different.
In general terms we found the financial memorandum to be a detailed and useful document that sets out the financial implications of the bill, although we raised some specific issues. Concerns were expressed in evidence to the committee regarding whether the £3.2 million savings that it was anticipated would result from the bill would be sufficient, and whether the bill could or should be used to drive through a higher level of savings. However, the committee recognises that the bill is not designed to be a cost-saving exercise, although we encourage the cabinet secretary to look for further savings from the measures in the bill and the wider simplification programme, which I am sure he will be happy to take on board.
We considered the area of the financial memorandum that dealt with creative Scotland to be extremely detailed and a major improvement on the document that we considered in 2008. However, although the financial memorandum provides ranges of figures and attempts to give a "best estimate", some areas are subject to "significant margins of uncertainty", particularly the voluntary early severance or retirement scheme and the harmonisation of business systems and information technology. We appreciate that much of the work is on-going and is the responsibility of Creative Scotland 2009 Ltd. However, due to the wide range of costs involved, we have asked the Government to monitor and report to Parliament regularly on progress towards establishing the new body.
The committee was content to recommend to Parliament that the general principles of the bill be agreed to. However, we had a range of concerns about part 2, and we asked the cabinet secretary to bring forward revised proposals prior to stage 2 consideration. I am pleased that the cabinet secretary has recognised the strength of the committee's concerns in that area, and that he has responded by correspondence prior to this debate. I am sure that the rest of the committee members look forward to discussing in detail those revised proposals and others at stage 2, if the bill receives support at decision time tonight.
I will confine my remarks to the Liberal Democrat amendment.
As Andrew Welsh made clear, part 2 of the bill proved to be by far the most contentious. Indeed, it was on the convener's casting vote that the Finance Committee disagreed to a proposal from the Liberal Democrats to recommend the removal of part 2 from the bill.
On part 2, as Andrew Welsh pointed out, the committee relied heavily on undertakings from the cabinet secretary. Paragraph 48 of the report details that he undertook
"to look again at the issue of preconditions";
paragraph 53 says that he will
"consider the balance between the scope of the powers and the accompanying safeguards";
and paragraph 68 says that he undertook
"to look at the list of bodies in schedule 3".
I make it clear to the cabinet secretary at the outset that I accept that his letters to the Presiding Officer and the convener of the Finance Committee were issued in good faith and represent the Government's best endeavours to answer the substantial concerns that were raised by the Finance Committee and others in relation to part 2. We have considered those letters carefully and have concluded that the responses do not adequately address the very serious concerns that have been raised. Accordingly, we continue to believe that part 2 should be withdrawn from the bill if it is to proceed.
The general principles of the bill, as set out in the long title, include
"simplifying public bodies, including … the dissolution of certain bodies".
Part 2 gives effect to that principle. On the grounds of "efficiency, effectiveness and economy", ministers would be given order-making powers under section 10 whereby they could modify, abolish or transfer the functions of most of the 78 or so persons, office-holders and bodies that are set out in schedule 3.
On the ground of reducing burdens, ministers could, under section 13, abolish, confer, transfer or delegate functions of any description, or create or abolish a body or office, all by means of a statutory instrument. I say to the cabinet secretary that those powers are not analogous to the powers in section 57 of the Local Government in Scotland Act 2003, which at no stage gives anybody any power to abolish, transfer or confer the powers of any part of local government in Scotland.
Does Mr Finnie accept that, as I said in my opening speech, stage 2 amendments from the Government will implicitly exclude local government from that process and from any suggestion that it could be included?
Does Mr Finnie recall any moment in his long ministerial career when he considered that minor changes to the arrangements for public bodies in Scotland could be undertaken in a better fashion than by using primary legislation?
The cabinet secretary's first point is completely irrelevant, as I am not dealing with local government; I accept that he has said that the 2003 act is a precedent.
I move on to the issue of "minor changes". Liberal Democrats agree with the Finance Committee's conclusion at paragraph 87 of its report that, as Andrew Welsh pointed out—the cabinet secretary made this point, too—
"a parliamentary mechanism is needed to ensure that small-scale changes like those set out in Part 1 of the Bill can be enacted without the need for primary legislation."
However, the cabinet secretary's policy memorandum makes it clear that his Government considers the matters that fall within the ambit of part 2 to be small scale.
We do not accept that. Changes that could include the abolition of a body would not be small scale, and a change that had the capacity to alter fundamentally the policy intention of an act that has been passed by the Parliament would not be justified on that ground.
Interference.
It is quite extraordinary that one has to bear such a degree of intervention from members on one's own back bench.
I am sure that you will be able to deal with it, Mr Finnie.
Furthermore, such changes do not lend themselves to the use of the short-form procedure of secondary legislation. There is a fundamental difference between primary and secondary legislation, which is made clear in paragraphs 75 and 76 of the Finance Committee's report, and no amount of so-called safeguards can alter that fact.
Will the member take an intervention?
I will finish my point.
Andrew Welsh commented on the number of bodies that are listed in schedule 3, but the cabinet secretary, in his letter to the Presiding Officer, rejects any change to that list.
In his letter to the convener of the Finance Committee, the cabinet secretary's first proposal is that any order that is made under section 10 or section 13 should
"be subject to an enhanced form of ‘super-affirmative' procedure".
I confess that in the past, I may have been seduced by the offer of a super-affirmative procedure, but here we are dealing with the principle of whether the provisions that are contained in part 2 could potentially alter the balance of power between Government and Parliament.
When a Government feels compelled to offer not just an affirmative procedure, or a super-affirmative procedure, but an "enhanced super-affirmative procedure", Parliament is entitled to conclude that if the provisions that are set out in part 2 require that degree of procedural and statutory safeguard, they do not warrant the use of secondary legislation.
I take Mr Finnie back to his point about changing primary legislation by the use of secondary legislation. Can he explain his justification for supporting that principle when he supported the Local Government in Scotland Act 2003? Why will he not take the position that he took at that time in relation to the bill that is before us today?
I am sorry that the cabinet secretary was not listening when I made abundantly clear the distinction that I am drawing, and which the Liberal Democrats are drawing in this debate: nowhere in section 57 of the 2003 act are powers given to anyone to abolish transfer or confer the powers of any part of local government in Scotland. That is distinctly different from the powers that the Government seeks under part 2 of the bill.
The cabinet secretary's second proposal is that the power to initiate an order under part 2, as far as it affects parliamentary bodies, including Audit Scotland, the Scottish Commission for Public Audit and the various parliamentary commissioners and ombudsmen, should rest with the SPCB rather than with ministers.
Liberal Democrats welcome the cabinet secretary's acknowledgement that it is not appropriate for ministers to propose changes to parliamentary bodies, commissioners, ombudsmen or bodies with an audit function. However, we cannot accept that it would be appropriate for the SPCB to do so, and we think that it is inappropriate for ministers to prescribe who might propose such changes.
As the cabinet secretary is well aware, the SPCB was established under section 21 of, and schedule 2 to, the Scotland Act 1998. As members are aware, the SPCB's principal functions are to manage the Parliament building, to ensure that the Parliament has the appropriate level of resources, and to be responsible for the Parliament's budget. It has no policy function. Therefore, it is wholly inappropriate to suggest that the SPCB should initiate a procedure that might have the effect of countermanding policy intentions that have already been agreed to by the Parliament. Parliamentary committees might do that, but it is not for the Government to prescribe what committees should or should not do.
Who does the member think should be able to initiate that procedure? Given that the corporate body is a committee of the Parliament, surely it is the appropriate body.
If the member had been listening, he would know that I deliberately went on to add a caveat so that he would not make that intervention. I made the point that committees of the Parliament are perfectly entitled to initiate such a procedure. The point is that it is not for the Government to prescribe what parliamentary committees do.
In relation to part 2, the cabinet secretary proposes to lodge amendments that make it expressly clear that the order-making powers in sections 10 and 13 cannot be used in such a way as to interfere with the independence of the judiciary, judicial bodies or judicial decision making, and that the power in section 11 cannot be used to add local government bodies to schedule 3. Liberal Democrats welcome the proposal to clarify the position, but the fact that the Government concedes that part 2, as drafted, is open to such interpretation only underpins our view that it has been far too widely drawn.
As Patrick Harvie made clear in his intervention, administrative convenience should not be used as an excuse to resort to secondary legislation when substantive changes are in contemplation and primary legislation is clearly the most appropriate route. Part 2 is far too widely drawn. It attempts to shift the balance of power between the Government and the Parliament, and its so-called safeguards are both inadequate and inappropriate. It should be withdrawn.
I move amendment S3M-5429.1, to insert at end:
"but, in so doing, calls on the Scottish Government to remove Part 2 of the Bill at Stage 2."
It is fair to say that it has not been the best start to the year for Mr Swinney and his department. Yesterday, his deputy minister Mr Mather could see no definite start or finishing date for the long-awaited Beauly to Denny transmission line. Today, Mr Swinney comes before us to debate the Public Services Reform (Scotland) Bill at stage 1, and already, as we have heard, he is in trouble.
The Liberal Democrats have eloquently put forward an amendment that calls on the Government to remove part 2 at stage 2. I should tell the cabinet secretary and the Parliament that, at the moment, Labour is minded to support that amendment. That would be consistent with the position that Labour took in the Finance Committee, where we warned that we could not support the provisions in part 2 as they stood and that we looked to the cabinet secretary to bring forward some new proposals to address the concerns that have been expressed by those who would be affected by his wide-ranging power grab.
As Ross Finnie outlined, the committee disagreed by division to a proposal to recommend the removal of part 2 from the bill. Members will not be surprised to learn that it was my good friend Mr Brownlee who rode to the SNP's rescue by voting with it yet again, causing a tie, and giving the casting vote to our convener, Mr Welsh. That has happened before and no doubt it will happen again.
It is a pity that Mr Brownlee had not discussed his views with his colleagues on the Education, Lifelong Learning and Culture Committee, the Health and Sport Committee or the Rural Affairs and Environment Committee. The Education, Lifelong Learning and Culture Committee recommended the removal of part 2, with only the SNP members who were present dissenting. The Rural Affairs and Environment Committee said that it would prefer the powers that the cabinet secretary is seeking to take to himself to be removed from the bill, while members of the Health and Sport Committee recommended that the Scottish Public Services Ombudsman and other bodies that were established and are funded directly by the Scottish Parliamentary Corporate Body be removed from schedule 3 and added to the list of those that would be exempt from ministerial control. Committee members came to those conclusions as a result of the evidence that they heard from a wide range of witnesses from all corners of Scottish public life, all of whom told the cabinet secretary that what he was proposing in part 2 was more than a step too far. Indeed, it is unprecedented.
So, what is the cabinet secretary proposing? As Mr Finnie reminded us, part 2 contains two order-making powers. It is worth repeating that section 10 allows ministers to
"make … provision which they consider would improve the exercise of public functions".
That includes
"modifying, conferring, abolishing, transferring, or providing for the delegation of, any function".
It also includes abolishing, creating or amending the constitution of public bodies. Section 13 allows ministers to
"make any provision which they consider would remove or reduce … burdens".
That can also include
"abolishing, conferring or transferring, or providing for the delegation of, functions"
and "creating or abolishing" a public body.
The bill team confirmed that the list of bodies that would be subject to those powers is the original list of 199 national public bodies that was drawn up at the beginning of 2007 when the overall review of the public sector began. Basically, the cabinet secretary, in a minority Government with no parliamentary majority, wants to take to himself the power to do what he likes because, as he said, he wants to go further and faster without bothering with minor details such as primary legislation to make major changes.
Does Mr Whitton recognise that the final decision on any change that was proposed by any such order would be taken by the Parliament and not by ministers? That means that those powers are not taken by me or ministers but remain with the Parliament, where they are today.
The point is that the minister wants to take the powers in the first place and that less scrutiny will be involved.
Come on. That is rubbish.
The cabinet secretary says that that is rubbish, but more learned members of the Parliament, such as Mr Finnie, disagree with him.
Will the member take another intervention?
Of course.
This is a fundamental point. Mr Whitton and his colleagues press me to take action to make the public sector more efficient, and in the bill we are seeking to take powers of initiation, not of final decision. That is the bit that I do not understand about Mr Whitton's—
Unamendable.
Mr Purvis says, "Unamendable". Under the super-affirmative procedure that we have said we will use, there will be a draft order, on which consultation can take place. There will then be a further order, which, if it is not satisfactory, can be rejected by the Parliament.
I remind the cabinet secretary that he is making an intervention and not responding to one.
I am aware of that, Presiding Officer.
The final decision rests here in the Parliament. If members have concerns about an order, those can be advanced in the scrutiny process.
I am grateful to the minister for his short speech, but it does not alter the fact that he is trying to take to himself powers that he should not have.
As the learned legal professors told the Finance Committee, the order-making powers are unprecedented at both Scottish and United Kingdom levels. By taking the powers to themselves, SNP ministers would be able to abolish or merge public bodies at will. Mr Swinney says that he knows better. Indeed, he just tried to argue that there is a precedent for his proposal in section 57 of the Local Government in Scotland Act 2003, but as the Finance Committee noted, that was not mentioned as a precedent for the power in section 10 in the accompanying documents or during the evidence that was given by his bill team. In addition, there are key differences between the powers in the 2003 act, which are essentially for local authorities, and the wide-ranging and extensive powers that are listed in section 10. Again, Mr Finnie enunciated those.
As for section 13, the Scottish Government argues that it largely mirrors provisions in the UK Legislative and Regulatory Reform Act 2006, which I remind Mr Swinney was dubbed the abolition of Parliament bill, but it remains a mystery why Mr Swinney did not just adopt the provisions that are set out in that UK act.
Who are the people, apart from Opposition MSPs, who are defying the cabinet secretary's will? We are in good company, as the list includes the Lord President of the Court of Session, who stated that the Scottish Court Service should be excluded from the dreaded list in schedule 3; Audit Scotland and the Accounts Commission; the Scottish Association for Mental Health; the police complaints commissioner for Scotland; all the commissioners who were appointed by the Parliament; and the learned legal professors whom I mentioned a short time ago.
Given the weight of public opinion against him, we would have thought that Mr Swinney might have had some second thoughts.
The list that the member mentioned is indeed learned. Did those on it say that part 2 should be scrapped or that it should be amended?
Mr Brown is testing my memory as to what was actually said in committee, but given that he is a lawyer, I would have thought that he would listen to the Lord President of the Court of Session and take guidance from him. The Lord President was certainly of the view that the proposed powers were unprecedented and that they should not be taken by ministers because that would be unparliamentary.
The cabinet secretary said that he would reconsider the list of bodies in schedule 3, but so far it seems that he has decided to make no changes to it. To be fair, he wrote to the committee earlier this week with a proposal. His plan is to put in place what he described a few moments ago as further safeguards, but he still insists that he and the Scottish Government be given the wide-ranging powers. I am afraid that that is just not acceptable to us. Indeed, last month, Mr Swinney stated in a letter to the Presiding Officer that he still believed that the best way forward was to keep the parliamentary bodies including Audit Scotland, the Scottish Commission for Public Audit and all the parliamentary commissioners and ombudsmen on his long list.
The cabinet secretary needs to ask himself why these provisions are in such a mess. The answer probably lies in the lack of consultation right at the beginning. If at the start Mr Swinney and his officials had asked the parliamentary commissioners about their inclusion in schedule 3 they could have told him what they thought and he could have saved himself a lot of trouble.
In his letter to the Finance Committee, Mr Swinney remains unrepentant, declaring:
"In the present financial climate it is more important than ever we get the best possible value from the public pound."
Moreover, he says:
"Parliament must be able to respond more quickly to changing circumstances and take advantage of opportunities to further streamline the public bodies landscape and improve delivery of public services without the need for primary legislation on every occasion."
Despite that, the leader of the bill team told the Finance Committee:
"the bill is not … a cost-saving exercise".—[Official Report, Finance Committee, 1 September 2009; c 1394.]
Many of those who gave evidence to the various committees were less than impressed by that. As Mr Welsh has made clear, the financial memorandum states that the net savings over the period to 2014 amount to just over £3 million. Leading economist Jo Armstrong of the Centre for Public Policy for Regions—an organisation much quoted by SNP ministers—told the committee:
"If the bill is not about cost savings, that is a lost opportunity."—[Official Report, Finance Committee, 15 September 2009; c 1488.]
I venture to suggest that there is not a party—or indeed an MSP—in the chamber that does not support the idea of public services reform to make things better for those whom we seek to represent. The Finance Committee encouraged the cabinet secretary to look for further year-on-year savings, and one area that he might still consider is why each parliamentary commissioner has his or her own human resource and finance function. Surely some streamlining is possible there.
Does the member not accept that the order-making powers could be used to merge those very backroom functions? Does he not realise that he has made our argument for us?
I do not believe that I have—
Thank you for that contribution, David. That was absolutely fantastic.
Very good.
The SNP has set itself a target of cutting the number of public bodies. I do not believe that that will require secondary legislation, but I see that Mr Finnie wishes to intervene.
Ross to the rescue!
Indeed. Perhaps I can assist Mr Whitton. Would it not have been more appropriate for the cabinet secretary to have implemented the recommendations of the Review of SPCB Supported Bodies Committee? At least those suggestions came from a parliamentary committee, rather than from the Government itself.
Mr Whitton, you should watch your time.
I will do so, Presiding Officer. I am grateful to Mr Finnie for his intervention.
The SNP has set itself the target of cutting the number of public bodies; however, merging some bodies and transferring responsibilities between others does not necessarily constitute real reform. The Finance Committee shared the view of some witnesses that the bill does not go far enough. We are in favour of streamlining the quango state and reforming the delivery of public services but that has to be done in a way that improves service delivery not only for customers—in other words, the tax-paying public—but for the staff involved.
You should finish now, Mr Whitton.
In conclusion, with its crude arithmetical approach, the SNP is in danger of missing a golden opportunity. Its fixation on securing the extraordinary powers demanded by ministers to force through change in the teeth of widespread opposition is not the answer. Constructive dialogue and wider consultation can still take place before stage 2, and I hope that the cabinet secretary does not miss the opportunity to engage in that dialogue and consultation to save his bill.
As most of the bill is relatively uncontentious, I will begin by looking at its contentious part. Concerns have been expressed about the very existence of part 2, the list of organisations in schedule 3 and, crucially, the mechanism for amending that list. All those points are important and I will touch on them, but I point out that they are important only if we accept that there is in principle a case for part 2. If we take the view that has been expressed by the Liberal Democrats and which I think the Labour Party is moving towards, which is that, as a matter of principle, the powers in part 2 are simply too broad and should not exist and that primary legislation should be used for the proposed changes, we do not need to get into the detail about safeguards and the list of bodies that are subject to them.
Although I understand the Liberal Democrats' argument about part 2, I do not necessarily accept it. If we can get the safeguards right, and they are not right in the bill as drafted; if we can get the list in schedule 3 right, and it looks as if the Government is proposing a separate schedule of parliamentary bodies; and, crucially, if we can get the mechanism for amending the schedules right, there is a case for allowing secondary legislation to achieve some of the aims in part 2.
Does the member accept that there is a big distinction to be made between the major powers set out in part 2 and the more minor administrative changes that it might be worth having the power to deal with?
That is potentially the case, but it all depends on what one might consider to be major. For example, the proposal in part 1 to merge the Deer Commission for Scotland and SNH, which is not particularly controversial and seems to be worth while, was unlikely to have been effected by primary legislation, which is probably why it has been included in this catch-up bill. If, under the powers set out in part 2, the Government were to propose a similar merger, I would not consider that to be major; if, on the other hand, the Government were to propose that Audit Scotland should not exist, that would be major. The issue is how we define a major change.
We have heard what the Government intends to do at stage 2 to address some of the concerns. We should look at the detail of those amendments, ensure that the people who have expressed concerns about part 2 have the opportunity to comment on them and only then take a view on whether they can be supported or whether other amendments are required. Whether we end up with a part 2 that Parliament can support will very much depend on the shape of Government or Opposition amendments at stage 2. We believe that, as the bill stands, part 2 is too widely drawn, but Parliament will be able to change it at later stages in a more considered and thoughtful way.
I do not think that the member has sufficiently explained why he thinks that the Rural Affairs and Environment Committee, in particular, was wrong in its perfectly clear conclusion that the majority of its members would prefer to see these powers removed from the bill.
If I recall the evidence correctly, the Rural Affairs and Environment Committee was told by the Cabinet Secretary for Rural Affairs and the Environment that he could not envisage the powers being exercised within the rural affairs remit, which probably led the committee to conclude that they were not particularly necessary in that respect.
I point out to the member that the Rural Affairs and Environment Committee concluded that the proposal was unnecessary and too over the top in light of the proposal in the SNP manifesto to merge the Scottish Environment Protection Agency and SNH.
I am responsible for many things, but thankfully the delivery of the SNP's manifesto is not something that I have anything to do with.
Oh I do not know about that. [Laughter.]
If the overexcitable Liberal Democrat members check carefully, they will find that we on this side of the chamber are busy implementing the Conservative manifesto.
The oral evidence that the Finance Committee took on part 2 was very interesting. As Mr Whitton said, a parade of organisations came forward to suggest either that they be removed from schedule 3 or that part 2 be amended or deleted. However, there was a shining exception to all that. One organisation was even more enthusiastic about these powers than the Scottish Government: the Convention of Scottish Local Authorities very much welcomed the proposals. Of course, neither COSLA nor its member organisations will be subject to those powers, and I was disappointed but not entirely surprised that the organisation showed little enthusiasm for my suggestion that schedule 3 be expanded to include local authorities and ensure that its members could benefit from the provisions that it finds so desirable. It appears that the Government, too, does not share my view.
The status of the various parliamentary commissioners and ombudsmen has already been touched on. It is important that we protect the independence of those organisations, but that is not the same as saying that no reform to them can ever be considered. The current arrangements for parliamentary commissioners and ombudsmen arose in a piecemeal fashion, as the Finance Committee of the second parliamentary session recognised. Reform should not be ruled out. The key point is that it is properly for Parliament and not the Government to drive that aspect of the reform agenda.
The independence of the organisation or group being scrutinised is an important principle that we need to retain, and be seen to retain, but that operational independence cannot and should not mean that we absolve ourselves of responsibility for considering the appropriateness of the current arrangements. Independence is not the same as a lack of accountability and, ultimately, as a democratically elected Parliament, we should not shy away from asking questions of organisations merely because we have designed into their operation a degree of separation from Parliament or Government.
Related issues arise on the audit bodies, and the Government's proposals for the role of the SPCB will need careful thought. In particular, the SPCB is audited by Audit Scotland, and that might give additional complexity to the question whether the SPCB should have a role in the initiation of the powers in part 2. As members are aware, along with four other MSPs, I am a member of the Scottish Commission for Public Audit, although I do not intend to speak on behalf of that organisation today. Later in the debate we might hear about some of the more technical points. That is a distinct issue, although it is related to the points about the parliamentary commissioners and ombudsmen.
The broader point is about the ambition of the bill. It was heartening that all members of the committee agreed that it does not go far enough. When the Finance Committee first took evidence on the bill, we were told:
"the bill is not primarily a cost-saving exercise".—[Official Report, Finance Committee, 1 September 2009; c 1394.]
The question should be, "Why not?" Everyone is aware of the scale of the financial challenge that will confront the Scottish Government during the next few years. Reforming public services will be the only way to protect them, and to deliver more, or the same, with less resource. So the ambition of the bill, or perhaps the lack of it, represents the missed opportunity that Parliament and Government can and should address at later stages.
We have heard today, and it was also mentioned in the cabinet secretary's letter to the convener of the Finance Committee, that the bill will generate recurrent savings of £40 million by 2013. That is a fraction more than 1 per cent of the likely reduction in the Scottish budget that has been forecast by independent commentators. So when the cabinet secretary says that we must go further and faster, he is right—we need to go very much further. As it currently stands, the efficiency and reform programme is helpful, but it barely scratches the surface of what is required to tackle the spending reduction that will be required to pay off the United Kingdom's national debt. If the bill were any more timid, it would be a minister in Gordon Brown's Cabinet. It is time that the Scottish Government moved up a gear to instigate wider-ranging public sector reform.
Members will have seen the Scottish Council for Voluntary Organisations submission. The SCVO was right to say that public sector spending cuts change the bill's context. The bill would be more effective at achieving public service reform if, for example, it encouraged greater use of the voluntary sector in the delivery and design of public service. Public sector reform could mean greater diversity in the provision and design of public services across the country to allow innovation in service design and greater personalisation of services to users. The opportunity to move to a more flexible provision of services and away from a one-size-fits-all approach could benefit service users. The Government does not have to be the provider of all services, even if it is the funder or the enabler. Indeed, the Government should probably be the provider only if there are no better alternatives. The Government needs to tackle the broader part of the public services reform agenda.
As we have seen, at the core of part 1 is a variety of fairly modest reductions in the number of existing bodies. The target of a reduction of 25 per cent in the number of quangos is aimed more at getting headlines than achieving results, because it does not mean the same reduction in the budgets or head counts of non-departmental public bodies. A reduction in the reach of NDPBs is not much in evidence in the bill.
Creative Scotland has not been mentioned much so far, although it is broadly welcomed by members. My colleagues will talk about it later today, but it is difficult to avoid the conclusion that creative Scotland is in the bill simply because it is an available legislative opportunity. When the Creative Scotland Bill fell in 2008, it was only because some Opposition members did not understand that a bill cannot carry on if we vote for the general principles but against the financial resolution. It would be unfortunate if the Public Services Reform (Scotland) Bill meant that creative Scotland ended up in the long grass once again.
We support the general principles of the bill because we support public service reform. We will use stages 2 and 3 of the bill process to improve the bill and to encourage the Government to increase the pace of public service reform.
The Parliament should agree to the general principles of the Public Services Reform (Scotland) Bill. We should welcome it because the Government is committed to delivering real improvements in a public sector landscape that has been left cluttered and complicated despite decades of previous Administrations talking about bonfires of the quangos. The overlapping and duplicating network of public sector bodies that was inherited from the previous Lib-Lab Executive causes unnecessary difficulties to members of the public and to the voluntary and private sector groups that have to work with them. That problem is really holding Scotland back.
It is ironic that members are saying that the bill does not go far enough when, for the first time ever, a full list of Scottish public bodies was published under the current Government in October 2007.
It might be ironic, but did the member not sign up to the committee report that said just that?
I do not believe that we can cut a swathe through decades of incompetence and of public bodies evolving on an ad hoc basis without taking a co-ordinated and strategic approach. We have made a start.
We have had interesting discussions at the Finance Committee and we heard interesting contributions from right across the public sector about simplifying the landscape. There was general agreement that it is time for public service reform. The bill's objectives should be admired. It seeks to streamline decision making and transparency in the network of Scottish public bodies, and to reduce bureaucratic complexity for the private and voluntary sectors and also for individual citizens who have to engage with those bodies in their regulatory or other functions. We want greater clarity of role, remit and function, and we have to bring together bodies that have similar skill bases and prevent that needless overlap that we all know happens. We have to create greater critical masses of expertise and stop unnecessary activity.
It is also right that we should create hurdles that will mean that new bodies have to be clearly justified. As a parliamentarian during the past 10 years—particularly during the first eight of those—I have felt that we created another body every time there was a problem. It was like putting a sticking plaster on something instead of dealing with it properly. We now have a chance to do it properly, and we should all welcome that. It is shame that the entire debate so far has centred on one part of the bill. That might sound quite confusing to anyone outside who has not had the privilege of sitting through the committee meetings. I know that part 2 is contentious, and that there was a lot of discussion and understandable concern about it among many people who came to the Finance Committee to give evidence. However, along with that concern was expressed the view that public services in this country need to be reformed, and that we could go further.
I was particularly interested in what Derek Brownlee said about the SCVO, because further discussion could be had about the voluntary sector's role in public services. The SCVO's submission talks about that. We can use the bill as a basis for going further. Understandable concerns were also expressed by SAMH, Unison, which talked about public sector pay, and by Voluntary Arts Scotland, which talked about creative Scotland in its written submission, saying, quite rightly, that we have to be sure that we involve the voluntary sector as proper partners with creative Scotland.
What is all the fuss about part 2? I, too, had concerns about it, but I am really pleased that the finance secretary has been more than willing to talk about amendments at stage 2. The letter from the finance secretary to the convener of the Finance Committee—I understand that it went to the corporate body, too—lays out plainly the flexible approach that the cabinet secretary is willing to take.
Will the member give way?
No—I am nearly finished.
David Whitton quoted from the cabinet secretary's letter. It states:
"In the present financial climate, it is more important than ever that we get the best possible value from the public pound."
Yes, it is, and I believe that the bill is a start in doing that. We have heard criticism that massive cost savings will not start immediately. We cannot mess about with people's jobs and lives and expect instant cost savings. A long-term approach is needed. There are hidden savings for voluntary groups and individuals in our communities that are not reflected directly in a financial memorandum from Government.
I do not have time to detail all the issues that Mr Swinney has said he is willing to consider, but I want to mention the power of initiation, which, as Mr Swinney said, is important for any Government to have. It is also important that use of the power is scrutinised appropriately by Parliament. The cabinet secretary is moving towards that and has shown his willingness to do so.
I will requote another comment from the cabinet secretary's letter that Mr Whitton read out. The letter states:
"we must go further and faster. Parliament must be able to respond more quickly to changing circumstances and take advantage of opportunities to further streamline the public bodies landscape and improve the delivery of public services".
I believe that the bill is moving towards that. It should be supported, so I ask members to support it and to reject the Liberal Democrat amendment.
Few members will be keener than I am to discuss public service reform that takes account of our need to use our human capital as efficiently as possible, as well as the way in which the world around us is changing and the economic circumstances that we face now and will face in future. In the interests of the people whom we serve, we need a debate on public service reform that is predicated on all those things, because public services are the critical threads that hold our society together. They are the critical protector during the vulnerability of childhood and of old age. Throughout our lives, they facilitate the opportunity for each and every one of us to be all that we can be.
We have a duty to future generations to ensure that those services are sustainable, have developed and are relevant to the circumstances of the time. If we were serious about that, a public service reform bill would deal with organisational structures in our public services, eliminate duplication, oppose professional demarcation on every front and allow dedicated and committed front-line professionals to do their job because of the system rather than in spite of it.
Sadly, we are discussing none of that today. Sadly, relative to the size of the issues in the public sector, we are playing with words rather than instigating effective actions. To achieve the things that I have mentioned—to sustain services and meet expectations—we require reform that frees up hundreds of millions of pounds. However, the proposals that we are discussing will produce anticipated savings of just over £3 million in the first four years. That is an avoidance of the responsibility that we took on when we sought representative roles in the Parliament. That avoidance will eventually do a great disservice not only to public servants, but to the public whom we serve. The bill is in no way a substantial reform of our public services.
As Mr McCabe knows, I share entirely his analysis so far about the scale of the challenge that faces public services in Scotland. However, does he not consider that elements of the bill will assist us in facing that challenge—although they are not the entire answer—and that some of the powers in the bill, which he might be coming on to, are worthy assistance in meeting that objective?
Of course I recognise that the bill is of assistance, but my point is that it is minuscule assistance in dealing with the very large problem that faces us now and which will be even greater in the years to come.
Rightly, the powers that ministers propose to take under part 2 have attracted considerable attention from various committees of the Parliament and from many external organisations, particularly voluntary ones. As has been explained, those powers will allow primary legislation to be amended by secondary legislation. They will allow ministers to act in a way that many people feel does not give sufficient regard to our system of parliamentary democracy.
I have read the cabinet secretary's letters of 18 December and 5 January and I acknowledge that he has made significant concessions that will go some way to allaying those concerns. That said, I have two specific points. First, when similar proposals went through the Westminster Parliament, they were dubbed the abolition of Parliament bill. That was, no doubt, an exaggeration, but it is an indication of the level of concern about proposals that could circumvent the role of Parliament and the scrutiny that a Parliament should give to proposals by any Government. It is a Parliament's role to hold Government to account, which can be inconvenient and at times incredibly frustrating for Government. However, it has to be so because, as I have said many times, it is not an even contest. Governments hold most of the cards, which makes the job of Parliament all the harder.
Secondly, I know from experience that any minister worth their salt will be anxious to get things done. No matter how much bravado they engage in, all ministers know that their roles are time limited, so the obstacles and barriers that the parliamentary process puts in their way can, on occasion, allow their thoughts to stray to a more simple process that would allow them to pay less attention to parliamentary process and to move ahead with simply getting things done. That is tempting, but it is not the system that we have. I respectfully suggest that many of the concerns about the proposed ministerial powers are legitimate enough to encourage the Government to reflect further on how they could be reformed.
As I said, we need substantial changes to effect genuine and worthwhile public sector reform. That cries out for an up-front set of proposals that would require debating and defending, rather than a set of legislative clauses that would allow changes to be made under the cover of darkness.
I will devote most of my speech to a health care aspect of what is a welcome and comprehensive bill although, as a member of the Subordinate Legislation Committee, it gives me pleasure to note that the Government is prepared to take on board so many of that committee's constructive suggestions.
The vast majority of the bill's health care proposals are excellent, but I will concentrate on concerns that have been expressed by the British Medical Association—which I share—about the confidentiality of patients' health records, as affected by part 5. Members will be aware that medical records often contain a host of intimate details, which might be unimportant in the greater scheme of things, but which a person would find highly embarrassing if they were released to a wider audience. Until halfway through the last century, medical records were available only to a patient's clinician. In fact, when Edinburgh's Sighthill health centre—Scotland's first health centre—was designed in the early 1950s, there was no central records department, as it was considered totally unacceptable practice for records to leave the consulting room of the individual practitioner.
With changes in the way in which medicine is practised and the development of larger teams in general practice and hospitals, it has gradually been accepted that many more people should be able to access individual medical records, as that is in the patient's long-term interests. Patients have, by and large, accepted that further invasion of their privacy, for the same reason. However, that does not mean that medical records should be available to all and sundry. A receptionist who scrutinises records without authorisation, for example, to investigate a neighbour's affairs, faces instant dismissal if caught.
There have been one or two rare but highly publicised cases in which medical information has been accessed by hospital staff, perhaps out of simple curiosity or even to pass information to the press about a celebrity. Again, severe punishment is warranted, because once a person feels a lack of confidence in the security of case notes, then he or she loses confidence in the rest of the service provided.
Section 90 in part 5 seeks to modify the National Health Service (Scotland) Act 1978 to allow the establishment of health care improvement Scotland, which is a welcome body that will have a general duty to further improve the quality of health care. I support totally its establishment. To perform its task, HIS is to exercise the functions conferred on it by the bill, once enacted, and by any other enactments. One of the functions conferred on it is to make regulations to require anyone or any organisation providing health services to provide individual health records for the purpose of inspection and, in new section 10N(f) of the 1978 act, to undertake
"interviews and examinations … which may be carried out in connection with the inspections".
Although it might be argued that that is in the interests of a particular patient, or, to use an Orwellian argument, that only those who have something to hide have something to fear from the process, the provision exposes a serious concern. Nowhere does the bill state that informed consent from the individual should normally be obtained before medical records are handed over to someone from HIS, or an examination conducted. Of course there are occasions when it would be inappropriate to seek informed consent, such as when a child or an adult with severe learning disability is concerned. However, I am concerned that a blanket policy of sharing confidential notes with outside agencies without a person's consent, or even knowledge, is leading us down a path that the majority of the public would not wish us to travel.
What are the possible outcomes of such a policy? There is the intended outcome of allowing scrutiny bodies immediate access to information that could help them to decide whether the health care provided is up to standard. However, there could also be unintended outcomes. A patient might not reveal important information to a doctor for fear that confidentiality could be abused or a doctor might not record sensitive information for the same reason, despite the fact that the information could be important to another doctor caring for that individual. Ultimately, the entire confidence of a person in those offering care could be seriously compromised.
When those concerns were put to ministers during an evidence-taking session at the Health and Sport Committee meeting on 23 September last year, the committee was reassured that a code of practice was being developed that would deal satisfactorily with that problem. I am always a little worried about bills that have possibly draconian measures, but which will be modified and made acceptable by subsequent non-statutory activity, be that a code of practice, regulations or whatever. However, I am reassured that the ministers are aware of those genuine concerns and I look forward to any further observations in their summing up.
In his letter of 5 January to the convener of the Finance Committee, the Cabinet Secretary for Finance and Sustainable Growth showed a welcome willingness to realise that well-meaning legislation could have unintended consequences and he outlined action to avoid that outcome as regards the independence of parliamentary bodies. I hope that that course of action will also apply to the issue that I have raised today.
The Public Services Reform (Scotland) Bill is important and interesting and can generally be supported with the exception of part 2. However, as Tom McCabe emphasised, the bill could have been much more, as it lacks the strategic approach to reforming public services that the current situation demands. That deficiency and the problems with part 2 have arisen to some extent because of the failure to consult. That is extremely regrettable.
I will go through the bill in order. Part 1 is entirely acceptable, but part 2 is still problematic. I note the cabinet secretary's letter and welcome the changes in relation to the parliamentary bodies as well as the degree of procedural safeguard, but it is not as much as the Finance Committee asked for.
The fundamental objection to section 10 in particular remains. There was damning criticism of the section in the strong words of legal academics that are quoted on pages 17 and 18 of the Finance Committee report. In response to Gavin Brown's question, the academics said that they wanted section 10 to be removed. They said that the Henry VIII powers—or Macbeth powers, as we should call them—are unprecedented in their width. Much of the Government's defence hitherto has been about the preconditions that are outlined in section 12 and the words "necessary protection" in section 12(2)(b) in particular. The problem is that those words are open to different interpretation and, to some extent, the cabinet secretary acknowledged that in his letter by being more specific, but only in relation to legal bodies and the national collections. I am not sure where that leaves the other bodies, and I have particular concerns about the Mental Welfare Commission for Scotland. I want to see much more movement in that regard and believe that the best remedy that is available to us under present circumstances is to remove part 2 from the bill.
Part 3 is much better and much better than last time round, particularly in relation to the creative industries. There are still issues to do with the relationship of creative Scotland to local authorities, the voluntary sector and indeed other key partners such as the enterprise agencies, but we do not want any further delay in establishing creative Scotland.
Parts 4 and 5 are by far the most interesting to me. They set up new social care and health care improvement bodies. As various witnesses said, there should perhaps be more emphasis on integration in each of those cases, rather than just on putting existing bodies and functions together under one roof. There should be a focus on scrutiny and improvement in each of those new bodies. However, there are good reasons why the Scottish Commission for the Regulation of Care and NHS Quality Improvement Scotland have taken different approaches to their work. There is no need for a complete alignment of functions, which might be an issue if there were to be a single scrutiny body, as was recommended by certain people. I think that the Health and Sport Committee made such a recommendation and I look forward to other contributions on the subject from members of that committee.
We should debate all those issues, so I find it regrettable that today's debate has been dominated by part 2. One of the consequences of the setting up by regulations of NHS Quality Improvement Scotland in 2002 is that, as far as I know, the nature of our health improvement body has never been debated in the Parliament. I hope that people will take that opportunity during our scrutiny of the bill.
The circumstances surrounding the establishment of QIS are different from those surrounding that of the care commission, which was set up through the Regulation of Care (Scotland) Act 2001. It is noticeable that the bill proposes to give ministers powers to make regulations about aspects of care provision inspection that are currently specified in primary legislation. That is probably acceptable in most cases, but it highlights a major issue that we should debate during our consideration of the bill—the move towards having a more risk-based system of social care inspection. Some senior people in the field are concerned about the move towards there being less inspection and more self-evaluation of social care. That deserves to be debated today and at the committee stage.
Is not the whole point of risk-based scrutiny and inspection that we can focus our attention on services that require more time and attention?
I said that such an approach was acceptable in most cases; the concerns that have been expressed to me are more about increasing self-evaluation, but I accept the minister's point as it relates to most of the care commission changes.
I will mention three amendments that I would support. There was interesting evidence from community care providers that suggested that there should be a duty on local authorities to take account of gradings by the care commission or the new body—although I do not know how we will pronounce its acronym, SCSWIS—in their commissioning decisions. In view of recent experience in Edinburgh, I strongly support that.
It is important that there should be an amendment in relation to the proposed Scottish health council. I support the Health and Sport Committee's suggestion with regard to the council's establishment that the word "may" should become "must", or indeed "shall". There will be a continuing role for the health council.
In general, part 6 is very good, particularly its emphasis on user focus, but I support what Dr McKee said about the suggestions from the BMA in relation to medical records: there should be either explicit consent or anonymisation.
I commend Tom McCabe for his opening remarks, which were excellent. My comments, like those of Malcolm Chisholm and Dr McKee, relate to parts 4 and 5.
The purpose of the bill is to
"simplify and improve the landscape of … public bodies, to deliver more effective, co-ordinated government … for the benefit of the people of Scotland."
That is our starting point, and it is what I looked for from everyone who submitted or gave evidence.
However, on simplification, paragraph 74 of the Health and Sport Committee's report states that we found confusion and "potential duplication". We certainly did not find anything that pointed to a more effective service and we found great difficulty in naming even one benefit to the people of Scotland.
The bill seems to be a missed opportunity to change from the current system, whereby considerable time and effort are taken to produce material that is not for the direct benefit of service users but is simply for inspection to a system that is based on efficiency, quality of service and user focus. On social care and social work improvement Scotland, which, from now on, I will refer to as SCSWIS, even NHS Forth Valley stated:
"The core functions of SCSWIS are regulation of care and inspection of social services with little mention of improvement."
In paragraph 28 of the Health and Sport Committee's report, we asked the Government to set out the patient-centred benefits, because we had no idea what they were.
Many witnesses doubted the estimated savings of £640,000 by 2014. COSLA and Unison believed that the reduction in the number of quangos is cosmetic and that many staff would want to apply for other civil service jobs rather than transfer to an NDPB.
The lack of consultation in relation to the Mental Welfare Commission for Scotland, which Malcolm Chisholm mentioned, was, at the least, arrogant and it illustrated clearly a lack of understanding of the commission's responsibilities, which we highlighted in paragraph 18 of our report. Looking after and protecting the rights of vulnerable individuals are very different from inspecting and regulating services.
The written evidence from the Mental Welfare Commission highlighted the confusion arising from the complaints function of SCSWIS applying to independent health care services but not to the national health service. We have no information about the Government's intentions and expectations about standards-based inspections in the NHS, although information on that is due at stage 2. NHS Quality Improvement Scotland also highlighted that by stating:
"While the NHS is heavily performance managed it is not formally regulated as such, and the sanctions that can be invoked are less explicit."
The Scottish Patients Association said that the issue of frail elderly patients with problems with nutrition and hydration should be looked at, which is another reason to have NHS hospitals inspected independently, on a par with the independent sector.
On inspection, the Mental Welfare Commission stated:
"people with continuing health and social care needs should expect the same basic standards regardless of whether they are in hospital, care homes or in their own homes. … We see facilities for continuing care in the NHS that would be unacceptable in a registered care service … It is vital that the Bill addresses that inconsistency."
However, we know that the bill does not do that, at least not yet.
There is no provision in the bill for the investigation of incidents and events by an independent body in the NHS, as exists for other parts of the care service.
The functions under parts 4 and 5 are compared and contrasted by the Mental Welfare Commission on the basis of currently available information. Of the 11 separate functions, the independent health care sector and care services achieve 10, social services fulfil six and the NHS fulfils five. The lack of clarity that exists at this stage is not helpful for our scrutiny of the bill.
The Scottish Independent Hospitals Association was very positive in its approach to the bill. Given that it recorded no instances of MRSA or C diff in 2008-09—a period of 53,500 bed days—it is already prepared, with key performance indicators in place, to facilitate benchmarking performance. The witnesses from the association were probably the most enthusiastic witnesses that appeared before the Health and Sport Committee, despite their waiting seven years for care commission scrutiny.
It is fair to say that all MSPs will be aware of constituents who are assessed for a number of hours of care and support each week or who have concerns about their care review, community care assessment or care management review, but the bill does not give SCSWIS any power to investigate or respond to any such complaints.
As the paper from Community Care Providers Scotland stated,
"it is likely to be a source of considerable confusion … if the body which has oversight of both social care and social work services has the power to handle complaints about some of those services, but not about others."
As well as the confusion, there is the move to reduce the burden of inspections, which Malcolm Chisholm mentioned, which is resulting in local authority services being asked by SWIA to evaluate themselves. We should all be seriously cautious about that.
I hope that the Government will respond to the Health and Sport Committee's call for positive and constructive feedback from service users. Rather than have every piece of feedback channelled into a complaint, it should ensure that positive feedback can be taken, too.
I certainly support a reduction in the number of quangos but, like others, I expect real savings, a better service, and benefits for patients and service users. On all those counts, the bill needs considerable improvement.
The context of this debate on the bill is worth considering, so that we can begin to understand the Scottish Government's direction of travel. Many moons ago, Alex Salmond promised to reduce the number of Government quangos by 25 per cent—a numerical target. As Tom McCabe rightly said, that target was not based on a strategy to reform public services or to reduce directly the regulatory burden. The reduction was to be achieved by April 2011.
We have a reduction of eight bodies in the bill, with a shortfall—if the target is to be met—of 37 bodies to be abolished in just over a year. By any measure, that is a tall order, even for the Cabinet Secretary for Finance and Sustainable Growth. I fear that it is in danger of becoming another Scottish National Party broken promise. It is disappointing that it remains a numbers game.
In committee, a Government official admitted that key to achieving the target was the abolition of children's panel advisory committees—down from 32 to one—which was opposed by hundreds of panel members and supporters throughout Scotland, which led to the withdrawal of the children's hearings bill. Forgive me for being cynical—it is not in my nature—but if we pass the Public Services Reform (Scotland) Bill as it stands, we will give the Government unprecedented order-making powers to abolish children's panel advisory committees, literally at a stroke of a pen, without the need for primary legislation and the fullest possible scrutiny by the Parliament. That would be a most unfortunate consequence.
Before I move on to consider the order-making powers more fully, I will talk about the two new health and social care bodies. We in the Labour Party are in favour of the creation of social care and social work improvement Scotland and health care improvement Scotland. However, if the Minister for Public Health managed to change the acronym for one of the bodies, I think that members throughout the chamber would be particularly pleased. It is entirely sensible to integrate regulation and improvement in social care and social work improvement Scotland and to create health care improvement Scotland to drive up standards and improve patient care.
The discordant note that I strike is that the lack of pre-legislative scrutiny and consultation has resulted in concerns about implementation, clarity of purpose, staffing and administrative issues, which other members have outlined. I hope that ministers will address that during the bill's passage. One interest is in whether SCSWIS—I will not get used to saying that—can act as a pre-qualification registration body throughout the 32 local authorities for service providers that tender for contracts. That would be a positive move and I invite the minister to consider lodging amendments to achieve that.
I am curious about how health care improvement Scotland will operate. Will its approach be that of the health care environment inspectorate to the whole range of its responsibilities or is another mechanism proposed? Malcolm Chisholm and Mary Scanlon are right to express concerns about the increase in self-assessment. We have critical examples in which we know that that has not worked—it has spectacularly failed. We need to achieve the right balance and to be proportionate. I see the Minister for Public Health and Sport shaking her head, but the outbreak of Clostridium difficile at the Vale of Leven hospital was the subject of two self-assessment reports before things went badly wrong. We need collectively to learn to achieve the right balance.
I look forward to scrutinising the amendments in relation to the Mental Welfare Commission and I congratulate the minister on withdrawing the initial proposal, which failed to reflect the commission's important safeguarding role.
Despite what Mr Swinney says, no precedent exists for the proposed order-making powers, which cross the line between what is rightly the Government's responsibility and what is rightly the preserve of Parliament. When we stop to consider it, the evidence is compelling. It is not just the Education, Lifelong Learning and Culture Committee that wants the order-making powers to be scrapped, or the Rural Affairs and Environment Committee, which thinks likewise—the list is endless, as David Whitton said. The list includes the Law Society of Scotland and professors and academics who specialise in the constitution. I can think of few bodies—COSLA is one—that support keeping part 2 intact.
I invite the Parliament to take a step back. To get the bill through, the cabinet secretary proposes that we create a new parliamentary procedure, which I have heard described as resulting in a super super-affirmative order. Perhaps we will have an order next year that is super to the power of three. By its nature, the proposed procedure will provide less scrutiny than that for primary legislation. I say to Gavin Brown that, when Michael Clancy of the Law Society was asked to comment on the new procedure, he told Gavin Brown's colleague Derek Brownlee and me that
"that would mean the creation of an alternative bill procedure. We do not really need that."—[Official Report, Finance Committee, 22 September 2009; c 1526.]
The Law Society's written submission says:
"at the very least the powers proposed to be used under these provisions should not be used as a replacement for primary legislation or full scrutiny by the Parliament."
We need to amend the list of bodies in schedule 3. Strong evidence was given that a range of independent organisations and commissioners should be exempt. Independence is important. The great virtue that parliamentary status brings to many of those commissioners and bodies is independence. If that independence were compromised or threatened by ministers being given the power by order to do pretty much what they like in relation to those posts, that would be a backward step.
It is entirely wrong to say that people disagree with reform if they oppose the sweeping order-making powers in the bill. The Parliament has not been stretched with legislation and ministers have plenty of opportunities to introduce bills. The debate is about how reform is scrutinised—not about whether reform is undertaken—and, to be frank, about how we turn our public services towards the challenges for the future. The cabinet secretary needs urgently to reconsider part 2 and schedule 3.
We have had an interesting debate about the bill. Several relevant and important points have been made. My colleague the Minister for Children and Early Years, Adam Ingram, will address in greater detail this afternoon some of the issues that relate to health care, social work and social care scrutiny improvements. I say to Malcolm Chisholm and Mary Scanlon that I am sure that Adam Ingram will respond to some of the points that were made.
Ian McKee expressed concerns about information sharing. We are confident that the issues that he and the BMA have raised will be addressed in regulations—through development of the existing code of practice or production of a separate code. We certainly have no blanket policy of allowing unrestricted access to medical records. Perhaps that can be debated at more length this afternoon.
In his opening speech, the Cabinet Secretary for Finance and Sustainable Growth explained the amendments to the order-making powers that he proposes to lodge at stage 2. I will say a little more about those powers, in response to some points that were made. Streamlining and simplifying the public bodies landscape is a continuing process. Not everything can be done in a single bill or in several bills. It is therefore vital that the Government and the Parliament should have the flexibility to make further changes quickly, as and when opportunities arise. The order-making powers in part 2 will achieve that flexibility.
It is of course essential that any new powers are accompanied by appropriate safeguards. With that in mind, the bill defines the scope of the powers narrowly. The powers allow ministers to make proposals to improve the exercise of public functions or to remove and reduce burdens in existing legislation—that is all that the powers can be used for. Any proposals must be proportionate to the policy objective—they cannot remove any necessary protection in existing legislation, and any new or modified functions must be consistent with the general objects or purpose of the body in question.
Nevertheless, as the cabinet secretary said, we acknowledge and accept that concerns have been expressed at stage 1 about the scope and coverage of the order-making powers and that those concerns need to be addressed. As John Swinney made clear, we therefore intend to lodge a package of amendments at stage 2 that are designed to strengthen the statutory and procedural safeguards to which the powers are subject and to provide further reassurance on other issues that have been raised, such as the independence of parliamentary and judicial bodies and the protection of Scotland's cultural heritage.
Is the minister prepared to apply a similar measure to the Mental Welfare Commission, whose independence also needs to be guaranteed?
I have made it clear that we stepped back from including the commission in the bill as introduced, to allow further discussion—Malcolm Chisholm is aware of that. Following consultation, we informed Parliament of the Government's intention to lodge a range of stage 2 amendments in relation to the commission. We intend the commission to remain an independent body, with functions that primarily concern the protection of the rights of individuals with mental disorder or learning disability. The amendments will simply clarify that role and reflect the commission's current practice and activities. They will also tidy and simplify the commission's governance arrangements, which is what the commission wants. I hope that I have reassured Malcolm Chisholm about that.
Will the minister give way?
I must move on, thank you—I have much to cover.
I return to the order-making powers. We propose to put in place an enhanced form of super-affirmative procedure, so any proposals will be subject to full public consultation, parliamentary scrutiny and—if necessary—amendment before a draft order is laid before Parliament.
The amendments that I have described will address fully the concerns that were raised during stage 1 consideration. We are of course prepared to consider further the balance between the scope of the powers and the accompanying safeguards at stage 2—Derek Brownlee asked for that. However, I hope that the Parliament will agree that narrowly focused order-making powers that are accompanied by appropriate statutory and procedural safeguards have an important part to play in driving forward the public services reform agenda.
I will deal with specific points that were made. As always, Andrew Welsh made a thorough contribution to the debate, not least because he highlighted Finance Committee members' support for the Government to go further in the reform of public bodies. It is not in order for members to ask us to go further in reforming the public sector and then to vote against giving us the mechanism and tools to do so, while offering no credible alternative way forward.
Ross Finnie and David Whitton are concerned about the abolition of bodies. I say to them that the power is a power to transfer or abolish not bodies but functions. It is important to set the record straight on the point. We need the facts of the matter, not scaremongering.
I hope that members carry through on what they want to see happen by enabling us to put in place the mechanisms. Voting against the measures would be—at the very least—extreme hypocrisy.