Public Services Reform (Scotland) Bill: Stage 1
Resumed debate.
The next item of business is continuation of the debate on motion S3M-5429, in the name of John Swinney, on the Public Services Reform (Scotland) Bill.
On a point of order, Presiding Officer. During the final speech in this morning's session of the debate, the Minister for Public Health and Sport accused me of misleading the chamber in relation to my assertions that part 2 of the bill gave powers for bodies to be abolished. The minister told members that I had misled the chamber, and that in fact those powers extended only to abolishing functions.
I seek your guidance, Presiding Officer, on whether it is in order for a minister to make such serious allegations of another member based on a selective reading of sections 10(2) and 10(3) of the bill. Section 10(3)(a), as the minister correctly said, states:
"modifying, conferring, abolishing, transferring, or providing for the delegation of any function".
However, the minister failed to go on to section 10(3)(b), which states:
"amending the constitution of, or abolishing, a person, body or office-holder listed in schedule 3".
Is that in order?
The longer the member went on, the more I began to think that the matter was a point of interpretation and a debating point, in response to which the member has sought to give his interpretation. If that is the case, he has now done so. I was not in the chamber to hear what was said earlier this morning. However, we will consider the matter that the member has raised, and come back to him if further comment is necessary.
I call Adam Ingram to resume the debate.
I will open this part of the debate by speaking about my main area of interest in the bill: parts 4 and 5. I will also mention our proposals for stage 2 amendments with regard to complaints handling.
The Finance Committee expressed concerns that the Government has not yet demonstrated how the new social care and health care scrutiny bodies, along with the other scrutiny bodies, will deliver on the Crerar review principles of public focus, independence, proportionality, transparency and accountability. The details of how the new bodies will operate are of course still being worked out in consultation with the existing bodies and key stakeholders.
However, there are many matters that we are clear about now, and I am happy to set those out for the Parliament. Social care and social work improvement Scotland and HIS will provide more streamlined and better co-ordinated scrutiny of social care, social work and health care services. Outcomes for service users will be improved by the ability to take a whole-systems approach to the scrutiny of services, from planning through commissioning to the delivery of services.
In time, the new bodies will be able to provide a comprehensive picture of how the needs of people who are using services are met. I will give some examples. When a person is being cared for in a care home, SCSWIS will be able to look not just at the care that the person receives in the home, but at how that person's care needs were assessed and whether appropriate care is being provided that improves their quality of life. For example, if a SCSWIS inspection of care at home services that are delivered by different providers in a local authority area reveals significant problems and user dissatisfaction, SCSWIS will be able to look at the assessment and commissioning process to see whether weakness at that level is contributing to the problems.
The new bodies will work together to develop more integrated methodologies for inspection and more consistent standards across all services. That means that they will increasingly use common reporting practices, standards and language. They will develop integrated scrutiny programmes and conduct more thematic and joint inspections of services. That means that the two bodies will be able to work together more closely, for example in scrutinising health and social care services that are delivered together to meet individuals' needs. Mental health services are an obvious example. In turn, that will lead to better risk assessment, more targeted inspections and the elimination of duplication and overlap, and it will allow us to spend less on scrutiny and more on improving services.
Although the aim of the changes is not simply to make savings, savings are important and there will be real opportunities for the bodies to share services, including offices, with the additional benefits that that can bring to co-operative working.
We are sure that the creation of SCSWIS and HIS will, in time, allow service users, their carers and the wider public to experience improvement in the quality of their services. That is, of course, what we aim to achieve with the proposals that we are discussing.
I will say a few words about our proposals on complaints handling.
Will the minister take an intervention before he moves on?
Certainly.
The Mental Welfare Commission for Scotland stated that it is concerned about health and social care services that are provided by the NHS for mental health patients who require continuing care. How will the NHS be scrutinised?
As the member knows, there is a different context, if you like, between SCSWIS and HIS. The main focus in the NHS has been on quality assurance and improvement through the provision of advice, the development of standards and peer review, to ensure the delivery of high levels of quality and care. That will, of course, continue under the new arrangements.
On complaints handling, the Crerar report and the further work by Douglas Sinclair gave us a road map to rationalise the system for dealing with complaints in the public sector. That is another area in which the service user, who should be at the heart of things, is often left bewildered by the variety of procedures and the number of bodies that administer them. We intend to lodge amendments at stage 2 that give the Scottish Public Services Ombudsman a clear remit to develop consistent, user-focused complaints procedures throughout the public sector.
We believe that it makes sense to reduce the number of bodies that oversee complaints procedures, so we propose to transfer the complaints-handling function of Waterwatch Scotland to the SPSO.
The minister needs to wind up.
We also propose to transfer the functions of the Scottish prison complaints commissioner to the SPSO.
I finish on that point, Presiding Officer. Thank you.
Another 17 members wish to speak, which leaves approximately 10 seconds of flexibility over the allocated time for each member, so enjoy.
I welcome the opportunity to speak in the debate. There is no doubt that there is much to be commended in the bill; for example, it provides opportunities to achieve better value for the taxpayer and to integrate services better. However, as a number of members have already made clear, it has a fairly fundamental problem, namely the Government's unseemly grab at unprecedented powers. I am particularly worried about that element and will address it later.
With the prospect of public finances being squeezed over the coming year, it is only right and proper that we get best value for every pound of public money that is spent. After all, our duty is to ensure that taxpayers' money is spent wisely. Although slimmed down management and reduced bureaucracy can mean more resources for front-line staff, we should be careful that in our zeal to curb public spending we do not throw the baby out with the bathwater. Not all quangos are bad and not all public bodies are superfluous. Many of the public bodies that the Government seems so keen to throw on the bonfire comprise volunteers who give up their time not for the minimal expenses, but to give something back to their communities.
If we read between the lines of the Cabinet Secretary for Finance and Sustainable Growth's letter to Andrew Welsh, bodies such as the children's panel advisory committees appear to be on the Government's hit list. I and many of my Labour colleagues would be seriously concerned about the abolition of CPACs. Surely it is inappropriate for such a retrograde step to be taken simply at the scrape of a ministerial pen rather than as a result of detailed scrutiny and debate by the Parliament, and it stands as an example of why part 2 should not be allowed to proceed.
Part 2 will be largely irrelevant in the reform of the children's hearings system. Instead, we are introducing primary legislation to reform the system, which will not, I have to say, happen in quite the manner that the member has described.
I have listened carefully to the minister's comments, but I have also read very carefully the cabinet secretary's letter to Andrew Welsh, in which the children's hearings system is singled out. Abolishing CPACs is the only way in which the Government can get the numbers to add up and we need to ensure that such a retrograde step cannot be taken without full parliamentary consideration and scrutiny.
The imperative for such a bill should be twofold: first, it should seek to reduce public spending where manageable and without detriment to services in order to free up resources to protect front-line services; secondly, it should seek to improve services by bringing together those that should be working in partnership and breaking down the silo mentality that can easily persist in any large organisation keen to protect its dominion. In general, therefore, I welcome the Government's move to bring together the staff and functions of the care commission and the Social Work Inspection Agency under the SCSWIS banner. It is not the best of acronyms, but the idea is good.
However, if the proposal is to work, it must be more than a simple idea or a simple coming together of organisations under a new banner. There must be proper integration of systems, procedures and information, all of which must be focused on service users. The bill must be an opportunity not just to reduce property, managerial and staffing costs, welcome as such a move might be, but to properly integrate services. Indeed, Children 1st made that clear in its evidence to the Education, Lifelong Learning and Culture Committee, and expressed concern about the amount of cohesion and integration that would be provided for in the creation of SCSWIS.
I have some sympathy with the view that, instead of establishing a cohesive scrutiny system, the bill's proposals will simply join together the existing functions of the different social care bodies without taking sufficient care to ensure complete and effective integration of their respective systems and processes, and I hope that the minister will take such concerns seriously during the passage of the bill. In light of some of the recent serious failings in child protection services, we must ensure that the proposed restructuring does not have a deleterious effect on the proper scrutiny of those services in Scotland. The consequences of such an error could be tragic and terrible.
I come to the bill's provisions for giving the Scottish Government order-making powers. The powers that are contained in sections 10 and 13 will enable ministers to make regulations that might supplement, transfer or abolish the public functions and/or create or abolish bodies that are listed in schedule 3. That is quite a mouthful, but it is also quite a bit of power. Schedule 3 contains a list of such bodies, including children's panels and children's panel advisory committees. The Government has the right to make those changes, but given its previous failed attempt to introduce a children's hearings bill, it is very important that it should not be allowed to use the proposed power without proper parliamentary scrutiny. That is I why I urge members to support the Liberals' amendment, which the Labour Party will support, and to abandon part 2 of the bill.
I begin, as ever, by declaring an interest as a farmer and therefore someone who could be affected by the bill. As a member of the Rural Affairs and Environment Committee, I was surprised to find how many of the bodies that are affected by the bill and included in schedule 3 specifically or loosely fall within that committee's responsibility. I estimate that 15 such bodies—ranging through SNH, the Scottish Agricultural College, Quality Meat Scotland, the Moredun Research Institute, the Macaulay Land Use Research Institute, the Scottish Crop Research Institute and several others—are contained in schedule 3 and will be affected by these wide-ranging proposals. Those bodies are, by and large, highly respected and well-run bodies and institutions that play an important part in the rural, marine and environmental life of Scotland. Of course, I would be happy to see the abolition of the Scottish agricultural wages board, which is absolutely unnecessary, but that is not germane to today's debate about stage 1 of the Public Services Reform (Scotland) Bill.
What is germane is the all-party concern about the wide-ranging powers that are proposed in part 2, and how we can move forward on that—if, indeed, we can. When a similar bill was introduced at Westminster, it was dubbed the abolition of Parliament bill, and even the Government accepts that it might just have overreached itself in Scotland too. Of course, every party supports the concept of reducing unnecessary quangos, bureaucracy and excessive costs, but that must be done in a measured way and not by adopting in an unfettered way the wide-ranging powers that are proposed in part 2.
Indeed, John Swinney's letter to Andrew Welsh of 5 January recognised that by stating his willingness to lodge amendments at stage 2
"which will provide additional procedural and statutory safeguards as well as an enhanced super-affirmative procedure to give Parliament greater opportunity for scrutinising any proposals which are brought forward."
I would therefore welcome amendments to introduce the super-affirmative procedure, as proposed by the Subordinate Legislation Committee, which would provide for a 60-day consultation period. I agree with many of the parliamentary commissioners who noted the desirability of being accountable to the Parliament rather than to ministers, and their acceptance that order-making powers could provide a way of making changes to their functions and jurisdictions without the need for primary legislation.
I accept the cabinet secretary's intention to lodge amendments at stage 2 that will seek to give the SPCB the power to initiate proposals for orders to be laid before the Parliament relating to the parliamentary bodies that are named and retained in schedule 3. However, as a former member of the SPCB, and while I can think of no better theoretical or practical alternative—and notwithstanding the cabinet secretary's assurances of this morning—I want to be assured further that the SPCB is the most suitable or well-equipped body to take on board that additional level of policy responsibility.
If I recall correctly, Mr Scott is the second Tory speaker to express some concerns about part 2. Does he intend to vote for the Liberal amendment at 5 o'clock?
For the avoidance of doubt, we do not intend to support the Liberal amendment at 5 o'clock. That does not mean that we cannot express our reservations about part 2.
The proposals to give the SPCB more powers would complicate the corporate governance structures and the powers that the body currently exercises. The proposals would add politics and policy making to what is and was intended to be a purely apolitical administrative structure and function. The proposed amendments on the scope of the order-making powers in sections 10 and 13, which would protect the independence of the judiciary, are of course to be welcomed, as is the intention to produce an amendment to section 11 to exclude in perpetuity local authorities from schedule 3.
I turn to the specifics of the decision to integrate into SNH the Deer Commission for Scotland and the Advisory Committee on Sites of Special Scientific Interest. The Rural Affairs and Environment Committee approved that decision unanimously and I wholly support it. My only caveat is that a formal evaluation process does not appear to be in place to judge the success or failure of the amalgamations. The lack of benchmarking or auditing of the proposals is an inherent weakness. I also note that the Minister for Environment has no further plans to reform public bodies that are within her area of responsibility, nor any knowledge that the Cabinet Secretary for Rural Affairs and the Environment, Richard Lochhead, intends to do so in his area of responsibility. I wonder whether that is wise given the straitened financial future that we face. That is a matter for another day, but it rather suggests a lack of ambition, notwithstanding the high regard that Scottish Conservatives have for most of the public bodies that are mentioned in schedule 3.
Although in general the Conservatives welcome the Public Services Reform (Scotland) Bill, we have grave reservations about part 2. We await with bated breath the amendments that the cabinet secretary and others propose to lodge at stage 2. Our support for the progress of the bill thereafter will be entirely dependent on our view of the suitability or otherwise of those amendments. In the meantime, we will support the bill at stage 1.
Under other circumstances, I might well have commented on the important issues that Adam Ingram raised, but Mr Swinney might not be surprised that I want to concentrate my remarks on part 2, which relates to order-making powers that the Scottish Government wishes to bestow on itself. On that issue, Mr Swinney intervened and was intervened on at some length this morning, but I was left a little depressed by the content of the exchanges, because it was by no means clear that the Government really gets the concerns that Liberal Democrats and others have about part 2. I commend John Scott's comments on the Scottish Parliamentary Corporate Body.
The finance secretary has offered several concessions, which are not unwelcome, but you can bet your boots that, when a minister prior to a stage 1 debate offers an enhanced super-affirmative procedure to Parliament by way of reassurance, we are dealing with a Government and a minister that have got things seriously wrong.
Let us look more closely at part 2, which provides a classic textbook example of what are known as Henry VIII powers. Section 10 will enable ministers by order to do anything
"which they consider would improve the exercise of public functions".
They could abolish or amalgamate a body that carries out a function and the function itself, change that body's constitution or create a new public body. That was the point of the exchange to which Ross Finnie referred in his point of order earlier this afternoon.
Those powers do not relate only to Government quangos, although that is bad enough; they cover all the independent parliamentary commissioners that have been established by or are under the jurisdiction of the Parliament, including Audit Scotland, Scotland's Commissioner for Children and Young People and the Scottish Human Rights Commission.
Will the member take an intervention?
I want to make a little progress.
Section 11 empowers the Scottish ministers to add to the extensive list of bodies in schedule 3, in case they have forgotten anybody. Dare I say it, the cabinet secretary appears not to have heard of the Paris principles, under which the independence of such bodies should be protected. Certainly, nothing that he has said to the Parliament today gives reassurance that he understands what those principles mean in practice.
Would Mr Brown care to add to his remarks the fact that I confirmed this morning that ministers do not have any powers to act in such a fashion? It is absolutely central to the bill that the power of decision making remains with the Parliament in those circumstances.
I am coming on to that.
Section 13 is, if anything, even worse, because it allows Government by order to remove financial costs, administrative inconveniences or even a criminal or civil sanction, and to change a statutory order, public general act or an act of the Scottish Parliament to do so. John Swinney seems to want the royal dispensing power that was claimed by the Stuart kings and which led to their removal in 1649 and again in 1688. I wonder whether he, like Charles I and James VII, regards Parliament as an administrative inconvenience.
What about my intervention?
I would rather not deal with such matters in the face of interjection from a sedentary position.
I commend the comments of Derek Brownlee's colleague Oliver Heald MP. Admittedly, his name is not widely known to the public; nevertheless, he led for the Tories at Westminster on the Legislative and Regulatory Reform Bill, which is not dissimilar to the Public Services Reform (Scotland) Bill. Mr Heald described the Westminster bill as "a threat to Parliament". He said that it was
"a major move … towards government by Ministerial edict … Parliamentary corner-cutting"
and that the winners would be
"civil servants and Ministers". —[Official Report, House of Commons, Standing Committee A, 28 February 2006; c 6.]
I asked myself why Mr. Brownlee's approach here is different—
Will the member give way?
I am sorry, but I cannot.
I suppose that the difference between them is that, down there, the Conservatives claim to be the principal Opposition, whereas up here the job of the Conservative Party appears to be to sustain the SNP Government.
I hope that no one on the Tory, or indeed the Government, benches would dispute that the powers in part 2 are extraordinarily wide. That is what has led to the huge concern among stakeholders and across the parliamentary committees. The powers would, for example, allow the abolition by order of both the role and the office of the Auditor General for Scotland and the Scottish Public Services Ombudsman.
Will the member take an intervention?
No, I am sorry.
Parliamentary commissioners could be transferred into quangos under ministerial direction. Despite Mr Ingram's recent exchange with members, ministers could allow the scrapping of the entire children's hearings system because children's panels are bodies listed in schedule 3 and their functions could be scrapped or changed under section 10. [Interruption.] I hear mutterings of "Rubbish" from ministers, but they could do all those things if they were so minded.
Mr Swinney says that having the powers is okay because ministers would still need the approval of Parliament for the orders concerned. That is true, but the orders, draft or otherwise, are not amendable by this Parliament. There is no stage 1 examination of the careful kind that is done by the committees considering the bill, and the cabinet secretary's proposition totally ignores any proper basis for when subordinate legislation procedure, enhanced or not, is appropriate and when full parliamentary scrutiny of the legislative process is appropriate. The difference is one of principle. Professor Alan Page said:
"primary legislation should be about important matters of principle, and subordinate legislation should be about picking up the detail."
Aileen McHarg developed the point as it relates to the parliamentary commissioners. She said that a statute
"is an important guarantor of public bodies' independence and enables them to resist inappropriate attempts by Government to interfere with their functions. A public body can say to Government, ‘You might want us to do that, but we cannot do it, because our statute says that our functions are X, our duties are Y and our powers are Z.'"—[Official Report, Finance Committee, 15 September 2009; c 1492-93.]
Mr Swinney seems to think that the only principle is the need for public economy and efficiency as stated in the current bill. Important though that is, the principle is the purpose set out by the Parliament for the existence, functions and operation of the bodies in question.
The Parliament has been remarkably restrained in its dealings with this minority Government. Part 2 is not a step but a mile too far. I strongly urge the minister to think again about the matter, to recognise the reasonable limits of ministerial power and to scrap part 2. As it happens, the existing powers in the UK Deregulation and Contracting Out Act 1994 appear not to have been used by this or indeed previous Governments in any event.
I congratulate the Cabinet Secretary for Finance and Sustainable Growth on introducing the bill, which is much needed.
At first sight, the bill might appear drab, understated, perhaps even a teeny bit boring, but it is actually fairly exciting and sizzling with energy. [Laughter.] I just thought that I would cheer the place up a bit. At the heart of the bill is a bonfire of the quangos—another promise that is being kept by the Scottish Government—a proper ordering of the public landscape, a revitalisation of civic Scotland and another step in the right direction.
The bill contains provisions to allow ministers to tighten further the public landscape to make savings and efficiencies and to make the public purse work harder for the public weal. That is contained in part 2 of the bill, which we have heard a lot about today. Part 2 brings some public authorities into the legislative realm for the first time. I do not know why Mr Purvis seeks to remove part 2, and Ross Finnie's speech made that no clearer. Perhaps I can be clearer.
Statutory instruments will have to be laid before Parliament to effect any order under part 2, meaning that the Parliament will retain control. Mr Swinney made it clear today—and he has continued to make it clear—that that will remain the case. He has given assurances that amendments will be lodged at stage 2 to address the concerns that have been raised. Section 15 makes it clear that the orders that the Scottish ministers will be able to issue will be restricted to those that give direction or consent or that appoint people to serve—functions that they already have in relation to those bodies but that are not, by and large, measured in statute. The bill addresses that lack.
The bill is a wide-ranging, necessary and welcome piece of legislation that is in Scotland's best interests, and I look forward to its being passed in its entirety. I will concentrate on a couple of issues that are important to me—the social work provisions and the creative Scotland provisions. Part 4 and, to some degree, part 5 create health care improvement Scotland from NHS Quality Improvement Scotland and the care commission, and social care and social work improvement Scotland from the Social Work Inspection Agency and the functions of Her Majesty's Inspectorate of Education relating to children's services and the care commission. As we have discussed a lot today, SCSWIS is maybe not a good acronym, but it seems to be being used out there now, and it may be a problem if we replace it with something else.
SCSWIS will reduce duplication and bureaucracy in the inspection of care services. At present, there is a joint inspection process for children's services, which has been in place for a number of years. In the past few years, that has enabled there to be an holistic inspection regime for any child or young person who is accessing the services that they require, which has not only proved beneficial to the person accessing the services, but enabled any parent, carer or professional to ensure that a co-ordinated approach has been taken to a child's care package. That has ensured quality in care and delivery. The new inspection regime, which is detailed in part 4, will come into its own by placing on adult services the same responsibility for joint inspection. That means that for a parent or carer of a young person with, for instance, a learning disability who is moving from children's services to adult services, the transition will be much more seamless. That will be beneficial for everybody who is involved in that process.
During the Education, Lifelong Learning and Culture Committee's evidence taking, I received a reassurance from Government officials that there will be a highly motivated, quality trained workforce. In that context, I declare an interest, given my previous occupation as a learning development officer in social work services. The Scottish Social Services Council raised concerns about whether the new agency will be able to enforce a code of practice on employers and whether it will be able to enforce and monitor continuous professional development and minimum qualification development programmes for staff who work in care and social work services. I was pleased to hear that the Government is seeking to amend section 53 of the Regulation of Care (Scotland) Act 2001 to make it obligatory for social services workers and their employers to comply with the Scottish Social Services Council's code of practice. I know that that will be welcomed by staff, staff organisations and trade unions alike.
The Health and Sport Committee was unable to find one patient-centred benefit in this sizzling bill. Can the member tell us what those benefits are? Does she think that the Health and Sport Committee got it wrong?
I cannot speak for the Health and Sport Committee, but I looked at the social services aspect of the bill for the Education, Lifelong Learning and Culture Committee. The benefits that I recognise from my personal experience of working in the field are in the reduction of duplication in inspection and the seamless transition from children's services to adult services. At the moment, that is a minefield of a process for any parent or carer to go through.
The bill will also establish creative Scotland and enshrine the arm's-length principle. I asked questions of the Government officials about that, too, and was given assurances that the bill will sufficiently protect the arm's-length principle and allow ministers to be kept "well away" from how artists go about their work.
The landscape of civic Scotland will be simplified and streamlined by the bill, which will provide additional clarity and save much parliamentary time being taken up when minor amendments need to be made to the running of NDPBs. I hope that the cabinet secretary takes cognisance of the Unison briefing that members received today, especially the issues that it raises around pay bargaining. Four recommendations are made at the end of that briefing, which I hope the cabinet secretary will take note of.
The bill will burn off a few quangos and give ministers the ability to dispose of others, but it will limit ministers' powers to interfere. In particular, the bill limits the ability of ministers to take quango operations and responsibilities on themselves. The bill is good and I support it.
For the record, I still believe that the provisions in part 3 should have formed a stand-alone bill. The establishment of creative Scotland should be the subject of a debate in its own right, because making that new and important body's creation part of a debate about reform sends out the wrong message.
While listening to this afternoon's important debate, which feels a bit surreal, I sometimes felt that I was in the wrong debate. That shows me that we should have had a separate debate. However, I acknowledge that the artists, agencies and organisations that depend on creative Scotland's establishment have been frustrated and have shown much patience in waiting for the body, so the debate is now about how we move forward. I feel for many of the artists and individuals who are waiting for the vision to happen. The situation is unnecessary and unfortunate for all those who are relying on the arts body; we must end some uncertainties forthwith.
In many ways, the legislative process is incidental to the leadership and vision that are required to make creative Scotland a success. Scottish Labour believes in the concept of creative Scotland—indeed, its establishment was our policy—but the leadership is not yet apparent and the full vision does not exist. The new Minister for Culture and External Affairs has outlined some of her big ideas for creative Scotland—for instance, she has said that links with schools are a priority. Of course I support that, but I do not see why that has become a priority when functions and issues still need to be resolved.
Serious issues require further clarification and further scrutiny. The first is the reduction in staffing. I heard and fully support what the cabinet secretary said about protecting jobs and having no compulsory redundancies, but I also support the recommendations in the stage 1 report. Ministers need to explain why having a leaner organisation with additional functions—particularly in relation to the creative industries—will not lead to a poorer set-up than currently exists.
I am in favour of a change of skill set for the new agency, but I oppose slimming it down, with all the costs that are attached to that. Will the Minister for Culture and External Affairs clarify where the funding will come from and how redundancies and the reduction in staffing will affect the organisation? Apart from the skill set that Scottish Screen will bring to the new agency, what requirements will be set out to recruit staff who can deal with the new additional functions?
The creative industries are a key growth sector for Scotland and the arts. They can drive success for the new body and have wider economic and artistic benefits. The creative industries can contribute more to the economy, but they cannot do so without the right support. That is why it is important for the new organisation to have the right skill set.
The failure to make creative Scotland the lead body on the creative industries is a mistake. The creative industries framework agreement, which concerns how to deliver the expected outcomes for the creative industries, is a bit of a fudge. I am not convinced that it will deliver clarity for the creative industries, but I will watch that with interest.
The evidence for my view is my experience in the music industry. I have highlighted many times before the failure of our enterprise agency to have a credible music policy. Many members have agreed that music plays a vital role in the Scottish economy and has an important place in Government support. Music contributes significantly to the economy, but it has not been truly valued as it should be.
Creative Scotland opens up new possibilities for music and creative industries.
Pauline McNeill articulates a fair criticism of past issues, but I assure her that much ministerial time has been spent on ensuring that Scottish Enterprise and Highlands and Islands Enterprise address properly the concerns that she has expressed. I hope that what we have done will satisfy many in the creative industries that we are seizing the economic opportunity that we accept exists in those industries.
I agree that a great deal of time has been spent on the matter, but in my opinion—which is based on experience—we need a lead organisation. We have not really had that. That should be addressed if we truly believe that the creative industries can play the part that I certainly believe it is possible for them to play.
Some detail is required on how the new body will operate. Many who gave evidence to the Education, Lifelong Learning and Culture Committee rightly questioned how an expanded list of creative industries will be supported with the same or fewer resources. Given that the number of industries within the creative industries umbrella that are supported by the Scottish Arts Council is set to expand from the current six to 13, it is fair to ask whether there will be a reduction in support. The nervousness about that in the arts sector was drawn out by the Federation of Scottish Theatre, which made the point in evidence to the Education, Lifelong Learning and Culture Committee. That is why leadership must be provided, both by the minister in charge and by the new creative Scotland executive, so that the industries can achieve their full potential.
It is interesting that, over the Christmas period, the Minister for Culture and External Affairs talked about the priority link with schools. I have said that we will support that, although not necessarily as a priority. I point out that, when Labour came up with the idea of establishing creative Scotland as an agency, our idea was that we would introduce cultural co-ordinators, which the Scottish Government has done away with. If the culture minister believes in the need for links with schools and communities, cultural co-ordinators would provide a way of delivering that on the ground. Perhaps she will comment on that in her closing remarks.
You should finish now, Ms McNeill.
In conclusion, it is time for action, but it is certainly time for leadership. It is time to end the uncertainty for all the artists and agencies that have waited so long for what I hope will be a successful creative Scotland.
I will focus on the small part of the bill that will have an impact on the public audit system in Scotland, including the Auditor General for Scotland, Audit Scotland and the Scottish Commission for Public Audit, of which I am the convener.
For those who are less familiar with the work of the commission, I should explain that I and my commission colleagues—two of whom, Derek Brownlee and Robert Brown, are here today—scrutinise the budget and expenditure of Audit Scotland and provide assurances to Parliament that Audit Scotland is using its resources wisely. We are, I suppose, the folk who audit the auditors—not a job that I ever envisaged for myself, but a job that must nonetheless be done and done properly.
Over the winter of 2008, the commission undertook a short review of the corporate governance of Audit Scotland. That was prompted by a comparative review of the National Audit Office in England by Tiner, by the anticipated introduction of the Public Services Reform (Scotland) Bill and by the fact that, after the first decade of the Parliament's life, the commission felt that it was appropriate to reflect on the system of public audit in Scotland that had evolved over a number of years.
As a result of our review, the commission made a number of recommendations to the Government. I am pleased that some of them have found their way into the bill in section 98, which I believe will bolster the independence and integrity of the public audit system in Scotland. For example, the bill provides for the defence of privilege against defamation proceedings to be extended to the commission's proceedings and—perhaps more significant—to the reports of the Auditor General. It is proposed that every future Auditor General will be appointed for a single non-renewable term of eight years, which will straddle three parliamentary terms. The bill will also enable the commission to appoint three non-executive members of the five-person Audit Scotland board.
In its written evidence to the Finance Committee, the commission said that it would welcome an amendment to the bill to involve the Office of the Commissioner for Public Appointments in Scotland in the recruitment of the non-executives, subject to any cost implication being clarified. Therefore, I listened with interest to the cabinet secretary's announcement that, rather than give OCPAS a statutory role in the appointments process, the commission should instead make appointments in a way that reflects the spirit of the OCPAS code of practice. I have been advised of Mr Swinney's reasons for that, which I will discuss with my commission colleagues at an early opportunity.
Part 2 has clearly generated the most controversy and debate, both this morning and this afternoon. It is probably fair to say that, in parts, the debate has been intemperate on both sides. I do not intend to add to that.
The SCPA is included in the list of public bodies in schedule 3. As the commission has already stated its opposition to its inclusion in that list, I will take the opportunity to reiterate the nub of the evidence that the commission gave to the Finance Committee before I reflect on the cabinet secretary's comments.
The role and function of the SCPA are set out in primary legislation, and that legislative base is crucial to our independence. The commission's raison d'être is to provide direct assurances to Parliament that Audit Scotland—the budget of which is top sliced from the Scottish consolidated fund so that it is seen to be independent of Government—is using its resources efficiently and effectively. Consequently, the commission was of the view that it would be inappropriate for the Scottish Government to be perceived to have the potential to undermine the commission's independence by modifying its operation.
I read with interest the cabinet secretary's letter to the convener of the Finance Committee and listened to his remarks about what he considers to be procedural and statutory safeguards, namely that the Scottish Parliamentary Corporate Body—as opposed to the Scottish ministers—will hold the power to initiate orders and the enhanced super-affirmative process. As a relatively new member who is engulfed in the issues of the day for Livingston, I must confess that the workings of the corporate body are still a wee bit of a mystery to me. I have only recently got my head round the super-affirmative procedure, so I am intrigued by the Subordinate Legislation Committee's recommendations to enhance it; I am also somewhat thankful that I do not sit on that committee.
I have no doubt that, following today's debate, my colleagues on the commission will have an erudite discussion and debate about the merits of the proposed safeguards and the concern that the powers in part 2 have been drawn too widely. We will need to consider carefully how any legislative changes would impact on the workings of and the relationship between the corporate body and the commission, particularly as we hold different but complementary duties—it is a case of the whole being more than the sum of the parts.
It would be helpful if, either in the summing-up speech or in writing, the Government supplied me, as convener of the SCPA, with a clear statement of why the commission and, indeed, Audit Scotland are included in schedule 3, and an indication of whether the cabinet secretary will consider removing either or both of them from it.
Most speakers have supported the continuing simplification of government agenda and every MSP probably agrees that our constituents clamour for simplification and the removal of unnecessary red tape, but public protection and the maintenance of quality should be at the heart of legislation that the Parliament passes. Consumer Focus has called for much better protection of the public, and that should be the mission of MSPs, too. In theory, any legislation could be on the statute book for decades, if not longer, so as we shape the bill we must think not only of the here and now, but of the future.
Most members support the move to reduce even further the number of quangos. My view is that when it comes to spending significant sums of taxpayers' money, that should be done by elected representatives rather than by quangos. There is a place for quangos as advisory bodies to ministers, but in my opinion that should be their only role.
The issue that has generated the greatest controversy in the debate so far is the proposed power that would allow ministers, through the mechanism of motions in Parliament and the super-affirmative procedure, to modify, transfer or abolish the powers of more than 100 organisations. As has been eloquently explained, principally by Jackie Baillie and Ross Finnie, ministerial order-making powers are a huge constitutional issue. The evidence that we have received from many sources raises a variety of issues relating to that, in particular the issue of independence from Government, which is fundamental for a variety of organisations.
The Scottish Information Commissioner, Kevin Dunion, told the Finance Committee that the inclusion of his office in schedule 3 was
"anomalous and beyond the scope of the Government's intent"
for part 2. The Law Society of Scotland questioned whether
"such wide-ranging powers are appropriate"
and the Mental Welfare Commission for Scotland said that the powers could fundamentally undermine its independence and effectiveness.
Professor Himsworth argued that the case for giving ministers powers to remove or reduce burdens had not been made. He stated that the potential for the use of such powers was vast and that a strong constitutional case had to be made, but that it had not been. He suggested that "removing … burdens" echoes the language that was fashionable prior to the credit crunch, when Governments sought to lift "the burden of red tape" from commercial and other organisations. He suggested that regulation is no longer a dirty word, not only in respect of banking—which is not the concern of the bill—but in respect of environmental protection and aspects of health and safety, which it is appropriate for Governments and Parliaments to regulate. It is unacceptable, simply in the name of improving the landscape, to identify the obligations that have been imposed by the deliberate decisions of Parliament as burdens and to remove them at the direction of ministers.
I now come to the Subordinate Legislation Committee's report. Angela Constance is probably glad that, as she said, she is not on that committee—I think that it is a form of punishment for all recalcitrant members of the Parliament to be given a sentence on that committee. Nevertheless, the Subordinate Legislation Committee's key points are important, in particular the point to which Ross Finnie referred in his point of order. The issue is whether the limits of the powers that are set out in sections 10 and 13 and the restrictions that are set out in section 12 are sufficiently precise and clearly defined, in particular whether the term "necessary protection" is sufficiently clear and precise, and also whether the powers will be open to different interpretations, which is the point that Ross Finnie made.
The Subordinate Legislation Committee asked that further consideration be given to whether certain bodies, such as local government and bodies established specifically to scrutinise Government, should be exempted from the scope of the bill—I heard the cabinet secretary say that he will take on board some of those concerns—and protected from inclusion in schedule 3 by the use of orders under section 11, and, if so, to ensure that that is clear and unambiguous.
The Subordinate Legislation Committee also has concerns about whether the procedures in relation to the powers in sections 10, 11 and 13 provide for full and adequate parliamentary scrutiny of the respective orders in all cases. Having been a member of the Parliament for 10 years, I could probably count on the fingers of one hand the number of times that the Parliament has debated an issue fully and properly under the affirmative procedure. I am therefore sceptical about the cabinet secretary's proposals, as the powers to make orders could create a huge problem not only in this session of Parliament but in future sessions. Other parliamentarians have made the important point that if a Government with a big majority came to power, it could go to town using the legislation. We must think not only about what the legislation will do in the here and now when there is a minority Government, but about what could happen when a Government has a very big majority. I am grateful for the opportunity to contribute to the debate.
I agree with Pauline McNeill that the Public Services Reform (Scotland) Bill is an unwieldy vehicle to deliver what will be a once-in-a-generation reform of the body governing the arts in Scotland, but we are where we are. I will confine my remarks to part 3.
I pay tribute to a number of individuals who have worked hard to bring the concept of creative Scotland this far. Linda Fabiani is far too loyal to complain, but had some of her senior SNP colleagues been more supportive, especially in allowing her to spell out mechanisms for how the arts in Scotland might be funded, creative Scotland would have been up and running more than a year ago. I pay tribute to Linda Fabiani for her good humour, often in adversity, and for the solid foundations that she laid. Of course, I also pay tribute to Mike Russell for his role in clearing up some of the Government's confusion on these funding responsibilities.
We should also commend Mr Russell for the trust he put in interim chairman Ewan Brown, who has been a steadying hand at the tiller of what often seemed like a vessel in distress. However, Mr Russell's ego needs no massaging from me. To paraphrase Tommy Docherty's line about a rival soccer manager, he is all covered in love bites, mostly self-inflicted. I must say that the new Cabinet Secretary for Education and Lifelong Learning might live to regret his move from what I consider to be the best job in the Government.
I have handed out the bouquets; I now come to the brickbats. I had intended to concentrate on the heavy weather that the Government has made of getting a proposal that had general cross-party support on to the statute books. Confusion remains about several aspects of part 3, but perhaps that is not surprising, given that there has been precious little ministerial continuity in the creative sector. Fiona Hyslop is the 10th arts minister in Scotland in 10 years and there have been three such ministers since the SNP Government came to power.
However, if the arts portfolio under Alex Salmond is beginning to look like a game of pass the parcel, the response by Iain Gray to Fiona Hyslop's appointment, which was to say that she had been moved to a
"non-job in culture and external affairs",
was insulting to the creative sector in Scotland as a whole and to his own culture shadow, Pauline McNeill, in particular. The reason why people come to Scotland has nothing to do with the quality of its governance, far less of its politicians, and everything to do with its culture, architecture and music. The creative sector contributes nearly £6 billion a year to our economy and employs 60,000 people. It is the strongest pillar in our most important industry, which is tourism.
At Holyrood, Patricia Ferguson, Pauline McNeill and others raised hopes that there were still members on the Labour benches whose ideas on Scottish culture stretched beyond Iain Gray's declared passions, Hibernian Football Club and martial arts but, after Iain Gray's recent put-down of the arts portfolio, should we be surprised that Scotland's creative community thinks that the Holyrood bubble is inhabited entirely by philistines? Donald Dewar, John Smith and Norman Buchan, you should be living at this hour; Labour has need of you.
Scottish Conservatives, on the other hand, have always striven to uphold a healthy creative sector in Scotland. We are determined that the new body will be the lead Government agency and will be fit for purpose in a rapidly changing artistic world. What has been important to us is that creative Scotland should be the lead organisation in promoting, funding and developing the arts in Scotland. I got that assurance from Michael Russell in his response to a question that I asked him after his statement to the Parliament in April last year. He said:
"The role that Creative Scotland will have in the process is absolutely clear: Creative Scotland is the lead organisation."—[Official Report, 2 April 2009; c 16433.]
Why was it not possible for Linda Fabiani to utter those six words—"Creative Scotland is the lead organisation"—before the Creative Scotland Bill collapsed in chaos some 16 months ago? I take the minister at his word—perhaps I am being disingenuous in saying that, but I hope that Pauline McNeill is proved wrong and that creative Scotland delivers the leadership that the arts in Scotland require.
The rest of what I will say about part 3 is mainly to do with tidying up. We still lack a definition in the bill of Scotland's national culture. I think that I understand what our national culture is, but I am not convinced that my vision is shared by the SNP. The bill still does not tell us what is meant by terms such as "art", "culture" and "creativity". Sure, those are only words but, ultimately, as Rod Stewart reminds us, words are all we have. Let us ensure that they are the right words.
The budget for creative Scotland is to be comparable to the combined budgets of Scottish Screen and the Scottish Arts Council, but the new body's remit will be far wider.
Despite reassurances from ministers, many people remain suspicious of the vaunted hands-off approach that is outlined in the bill, which Christina McKelvie supported. Scottish Conservatives remain to be convinced that the current wording is sufficiently precise to ensure that the Scottish ministers can wield no influence over matters such as artistic direction.
I noted the minister's assurances on amendments that will protect the national collections. The issue was rightly raised by the Education, Lifelong Learning and Culture Committee.
It is not the job of the Government to shape the arts and culture of a nation. The Government's job is to create the climate in which our artists can produce of their best and develop their talents for the benefit of the nation and the wider community. Creative Scotland's aspirations are impressive; let us hope that the Public Services Reform (Scotland) Bill is the vehicle that finally delivers them.
I add my thanks to all those who attended the Finance Committee meetings as witnesses and to the committee clerks, who did an excellent job in guiding us through a pretty sizeable bill. I also thank members of other committees that assisted in the scrutiny of the bill.
It has become clear to me as a member of the Review of SPCB Supported Bodies Committee and in my role in the Finance Committee that we can improve public services in Scotland and save money while we do so. It is not about correcting mistakes from previous Administrations and putting an SNP stamp on public services; it is about how the Parliament can improve public services to the benefit of Scots throughout the country.
During the stage 1 inquiry, the Finance Committee did not agree on every facet of the proposals, but its members all shared the opinion that we have a duty to ensure that our public bodies deliver better services and get the best value for the Scottish taxpayer. That is particularly important now, with a reducing Scottish block grant meaning that we have to find new ways to make our funds go further.
The bill is very important and can have a wide-ranging impact on how public services are delivered for Scots in the 21st century. The proposals in it for the creation of new scrutiny bodies for health and for social care and social work are aimed at improving services for a range of people throughout Scotland. Those changes, as Adam Ingram outlined and Christina McKelvie mentioned, will ensure that scrutiny bodies are more focused on individual service users, resulting in better services for the most vulnerable members in our society. That is highly important.
The process of simplifying and improving public bodies has been at the heart of Scotland's SNP Government since May 2007. The number of public bodies has already been cut and the bill will reduce it further. Projects that the Government has already delivered are projected to make annual savings of £36 million and the proposals in the bill should increase annual savings to the Scottish taxpayer to more than £40 million. Crucially, the bill will also give us the tools to do more and go further. One of the key recommendations of the Finance Committee's report was that we needed to do more and to go further.
It would be remiss of me not to mention some of the areas of contention that were raised during the stage 1 inquiry in the committee. As we have heard, members of the committee and others raised concerns about the order-making powers and the possibility that public bodies that are currently accountable to the Parliament could become accountable to ministers. The past two years has shown that we must be able to respond quickly to changing circumstances and take steps to optimise public services.
It would be helpful if members of the Government party were to give us some definition of the circumstances in which they think that parliamentary legislation is appropriate and those in which they think that subordinate legislation is the proper way to advance such important issues.
The Cabinet Secretary for Finance and Sustainable Growth has sent a letter outlining proposals for stage 2 amendments. I suggest that members of other parties who say that they will oppose the bill might take the position of the Law Society, which wrote today to all members of the Scottish Parliament outlining its concerns about the bill but going on to say:
"The society notes that the government intends to bring forward amendments at stage 2 to deal with some of these concerns. The Society will consider those amendments carefully".
That is the correct, constructive way to move forward.
Members should agree to the general principles of the bill today, vote against the Liberal Democrat amendment and consider the Government's amendments when they are lodged. If they are not happy, members can lodge their own amendments at stage 2, but the cabinet secretary has been clear that he is prepared to listen to comments from across the parties to address the concerns not only of members but of some of the witnesses from whom the Finance Committee and other committees heard.
Members should look at the matter constructively. This is not the stage to say no; the stage to say no is if we cannot find amendments to agree on at stage 2. I think that we can get agreement, but it appears that the Liberal Democrats may be determined simply to press the nuclear button. That is disappointing and I hope that the Labour Party resists propping it up in that.
I agree that we must have safeguards to reflect the independence of parliamentary bodies from not only this Government but future Governments. I welcome the steps that the cabinet secretary is taking to provide those safeguards.
Members should be in no doubt that the order-making powers are vital aspects of the bill that will ensure that we can act swiftly to get the best from our public services, provided that the necessary safeguards are in place. The Scottish Government is committed to making our public services simpler, better co-ordinated and more responsive—the bill will build on that. The whole Parliament must work together to ensure that, despite the current economic situation, we continue to improve our public services and support Scotland's economic recovery. I hope that the Parliament will unite today to take the bill forward, because it is important for Scotland.
I declare my membership of the British Medical Association. I do not necessarily agree with all the views that are expressed in its briefing today, but some of it is important.
There is a core to the bill with which nobody will disagree, which is that we should always try to improve the efficient delivery of public services. However, futile soundbites about the "bonfire of the quangos" should themselves be consigned to the bonfire. Society's needs for the regulation, inspection, standard setting and accountability of public services will always be complex and will change from time to time. However, it is vital that Parliament should retain the primary role in making any significant change. The problem is not about nuclear buttons, as Mr FitzPatrick suggested, because all parties support the bill. We have major concerns about only one part of the bill.
Even with the proposed safeguard of the affirmative or super-affirmative procedure—I think that it has now got to the level of an enhanced super-affirmative system—there will still be a huge list of bodies that ministers will be allowed to abolish under part 2. If the proposal in part 2 was to give ministers powers under a form of affirmative system to make minor changes, members might support that. However, the power to abolish more than 100 bodies gives rise to considerable concern.
There is a division in the chamber between the approach taken by those of us who say that part 2 should be taken away now because it is not fit for purpose and that it should be brought back as an amendment at stage 2, when it will be scrutinised on a line-by-line basis, and the alternative approach, which the SNP apparently supports, as do the Conservatives—although their speakers in the debate do not—which is that part 2 should be left in place and that it should be up to members in the chamber to make line-by-line amendments. That is the dichotomy that faces members in the vote this afternoon.
If I have heard the member correctly, he is now elucidating a different Labour position, which is that we are trying to achieve the same result by different means. Is it not more appropriate to do that at stage 2? Earlier Labour speakers suggested that part 2 should come out of the bill and that it should stay out.
In its current form—that is correct. However, what we are saying is that, if the Government comes back with proposals that would allow only minor changes to be made under part 2, our party would be in a position to provide some support. It is the draconian powers that change the constitutional basis that are at the core of the argument here. I am sorry that John Scott and Mary Scanlon have left the chamber. They made excellent speeches that were entirely compatible with the Labour and Liberal position today. I of course welcome the changes that the cabinet secretary indicated, but they do not go far enough; they tinker at the edges and do not alter the constitutional position.
I had intended to speak entirely about health issues in the bill, such as those to do with the Mental Welfare Commission, the Scottish health council, accountability, complaints and the confidentiality of medical records. However, I cannot possibly do justice to all that in my remaining two minutes and 45 seconds.
The Health and Sport Committee indicated its support for the Crerar principles, but it expressed disappointment about the outcome of discussions and the proposed amendments to the bill—the realignments that will occur. We think that the cultural differences in some of the bodies that are to be put together have not been fully addressed. I know that Frank Clark of the care commission is in the public gallery. The commission has expressed great willingness to work together with the bodies with which it is to be merged to try to achieve that. However, I think that the mergers are going to be quite difficult.
I am pleased that the Government has withdrawn the proposal regarding the Mental Welfare Commission, but it remains in schedule 3 as a body that can be abolished. We will certainly propose an amendment to remove that possibility, if we cannot get rid of part 2 today. It is fundamental to patients that they are safeguarded by a truly independent organisation over which only Parliament has a measure of control.
I think that the merger of NHS Quality Improvement Scotland and the Scottish health council will bring about greater understanding and co-operation. Some of those bodies' joint reports have been helpful, but I think that the merger will improve matters. As the Health and Sport Committee suggested, it is important that the Government lodges an amendment to ensure that the Scottish health council's functions are clearly maintained and identified. They should not simply be absorbed and lost in NHS QIS.
Adam Ingram talked a little about complaints. It is clear that, in the public's perception, there are still problems with the complaints system, and it is the public who are important. It is sometimes difficult for our constituents to know to whom they can complain. We have not been ambitious enough. We need to end up with a single point of entry to which our constituents can go and then be directed to the appropriate body that deals with the matter. What is important is what is behind the single point of entry and how it is dealt with. There will be problems to do with the professional roles versus the systematic roles that are looked at by different bodies. That is an important issue.
I realise that I am out of time and that I have not covered all the issues. However, I commend Ian McKee's speech on confidentiality. There are issues to do with confidentiality. The new protocols will have to be carefully considered to ensure that trust between the doctor and the patient is maintained and that we do not infringe on that.
I commend the bill, apart from part 2.
Richard Simpson is right about part 2. It cannot simply be amended because it contains a fundamental principle that is constitutionally damaging. Therefore, it must be removed. We may be able to come back to some aspects of it so that minor consequential issues can be tidied up without requiring primary legislation, but the problem is that it goes far too far as it stands; it goes way beyond what is acceptable to a democratic institution such as the Scottish Parliament, and so it must be removed. I will return to part 2 later.
First, I want to concentrate on creative Scotland, as other members have done. One body that is to be abolished is the Historic Environment Advisory Council for Scotland. We should always consider the historic environment when we consider matters in the chamber, and the historic environment is that creative Scotland should have been up and running by now. Indeed, it should have been running for the best part of a year but, because of the Government's failures with the Creative Scotland Bill, it is not. This morning, Derek Brownlee suggested that those of us who voted against that bill's financial resolution were not aware of the consequences of doing so. As the person who spoke against that financial resolution in the debate in June 2008, I was fully aware of the consequences of what would happen if we voted against it. The Minister for Parliamentary Business did not seem to be aware of those consequences and seemed to be caught in the headlights. He failed to take the opportunities that he was given to withdraw the financial resolution and allow it to come back at a later date, which would have allowed the bill to proceed once we had resolved some of the financial issues.
My recollection is that the motion on the financial resolution could not be removed in the way that the member describes. In their speeches after the confusion that arose about finances, a significant number of members who voted against the financial resolution referred to amendments that they wished to be lodged at stage 2. Surely that implies that they believed that the bill would continue.
Mr Brownlee has a selective memory. I spoke against the financial resolution and members voted against it because of the Government's failure to clarify the financial position in the stage 1 debate. The Government was given opportunities. It could have withdrawn the financial resolution before the vote; a member who moves a vote can always withdraw the financial resolution and bring it back. There was up to six months to bring back a financial resolution. I asked the Minister for Culture and External Affairs several times to have a cross-party meeting at which to discuss the best way forward and to bring back the Creative Scotland Bill as a stand-alone bill at the end of the six-month period, as Pauline McNeill suggested. That would have been in January last year.
Instead, we were told that the fastest way of delivering creative Scotland would be to peg it on to the Public Services Reform (Scotland) Bill, which was due to be introduced in February last year but was not introduced until May, only reached stage 1 in December and, due to the Government's intransigence on part 2—its refusal to accept that it might have got part 2 wrong—might end up being thrown out. It is important that we recognise that historic context. Creative Scotland is important, and the situation needs to be resolved.
Some issues remain to be sorted out in relation to creative Scotland, as was highlighted in the Education, Lifelong Learning and Culture Committee's report. Some of the funding issues are still not as clear as they might be. Some of the questions about what is the lead body for the creative industry remain to be answered—although the Government has said that creative Scotland will be responsible for leading the co-ordination, it is not clear what body is to be the lead body. There are serious issues about finance, including questions about new money. When she appeared before the Education, Lifelong Learning and Culture Committee, the minister said that there would be
"access to new money in this arrangement that does not exist within the existing organisations as it involves enterprise resources from Scottish Enterprise, Highlands and Islands Enterprise, local authority business gateways and so on."—[Official Report, Education, Lifelong Learning and Culture Committee, 23 September 2009; c 2735.]
However, that is not new money; it is money that is there already in those bodies. The issue about the gateways for creative industries is not helped by the issues that have been raised in that regard. I acknowledge the work that Michael Russell in particular did to try to resolve some of those issues, but I do not think that we are there yet.
I am still concerned about some of the issues to do with directions and guidance. Although the Government has assured us that it does not have the ability to give directions on issues to do with the general functions of creative Scotland, it has the power to give guidance on that, which gives it a lot of power to direct what creative Scotland does.
There are other issues of confusion. For example, creative Scotland may provide Scottish ministers with such other advice and information as it considers appropriate, but it can do that only under the directions that are given by the Government or in a manner that the Government may determine, which means that it can give advice only when the Government wants it to. That is hardly very helpful.
Many issues remain to be clarified at stage 2, but we must, separately, consider the position with regard to part 2. It would be a serious error to continue with that part of the bill. It gives ministers unprecedented powers to abolish public functions without proper parliamentary scrutiny. There is no question but that primary legislation receives more scrutiny than secondary legislation—that is the way in which the system is designed—but, more important, as Robert Brown and others have pointed out, primary legislation can be amended but secondary legislation cannot; it can only be approved or rejected. That means that Parliament does not have the opportunity to amend the constitution of a body, the membership of a body or the functions that are being delegated to it through secondary legislation.
Will the member give way?
I am sorry, but the Presiding Officer is indicating that I must come to a conclusion.
Many important bodies will be subject to the powers in part 2. Scottish Water could be abolished by the method that is set out in the bill, and who knows what could be done with its functions. Perhaps they could be given to another body, which could go on to privatise them. VisitScotland, Historic Scotland and other important bodies such as Scottish Enterprise, Highlands and Islands Enterprise, the Scottish Environment Protection Agency and Scottish Natural Heritage could be abolished without primary legislation coming before the Parliament. That is wrong and it cannot be allowed to happen. I urge members to vote for the Liberal Democrat amendment tonight.
Towards the end of debates, members often say that it has been a wide-ranging and interesting debate. Today's debate must be one of the most wide-ranging there has been, given that so many committees have been involved in scrutiny of the Public Services Reform (Scotland) Bill.
The Rural Affairs and Environment Committee was a secondary committee to scrutinise provisions that fall within its remit; its focus was on the transfer to SNH of the functions of the Deer Commission for Scotland in section 1, and of the functions of the Advisory Committee on Sites of Special Scientific Interest in section 2. The committee would like to thank all those who provided evidence. It is fair to say that there was broad agreement in the committee that there would be few difficulties in those mergers proceeding, but it is important to highlight some of the concerns of those who gave written and oral evidence.
ACSSSI seems to have been a classic example of the growth of the quango sector, in that it is a body that was set up to advise SNH, which is, in turn, an adviser to the Government on natural heritage matters. The Scottish Rural Property and Business Association and the Confederation of Forest Industries (UK) Ltd, which represents forestry interests, expressed concerns about ACSSSI's demise, but others recognised that independent advice could be accessed elsewhere—from universities, for example. The committee was reassured by the Minister for Environment that she would keep a watching brief on the issue.
I will turn to the proposal to transfer the functions of the Deer Commission for Scotland. In June 2007, Mike Russell, the previous Minister for Environment, tasked Professor Neil Kay with examining the current structures of environment and rural agencies. Professor Kay concluded that
"integrating DCS within SNH is likely to be an issue which will be considered due to the logical fit between the two bodies in terms of their competences and capabilities."
In their evidence, the majority of key stakeholders accepted the Government's objective of simplifying the landscape, and many supported the principle of decluttering. However, concerns were expressed about the potential loss of the expertise in the Deer Commission for Scotland, especially among its board members who, it seems, have had a more hands-on role than appointees to some other boards. The committee noted the importance of effective deer management and its important contribution to the Scottish economy in terms of jobs, tourism and culture.
I believe that much of the concern stems from the long-term mutual distrust between SNH and the Deer Commission for Scotland. However, that has lessened in recent years and, following the evidence from SNH and the failure of the Association of Deer Management Groups to come up with any concrete evidence of obstruction, together with my subsequent conversation with Andrew Thin, the chair of SNH, I am satisfied that SNH will do everything to ensure that the expertise of DCS employees will be fully utilised, and that expertise from that sector will join the SNH board in the near future.
On the wider provisions of the bill, the Rural Affairs and Environment Committee was mentioned a number of times this morning in relation to delegated powers. David Whitton, who is not currently in the chamber—
Yes he is.
I beg Mr Whitton's pardon. He is sitting on the wrong benches, but he is indeed here. I apologise.
David Whitton gave the impression that the whole of my committee had concerns. The committee expressed those concerns by a majority of one, rather than—as was implied—by the whole committee doing so. Almost all the organisations that gave evidence were content that the Government is trying to curtail the quango state. The conversion to that view by Tom McCabe and others is astonishing, given that they are past masters in allowing the quango state to mushroom during the eight years of Labour-Lib Dem rule.
I find it astonishing that Labour and the Lib Dems tonight want to scupper the bill at this stage. I ask, as others have, whether they have a death wish for the creative sector in Scotland.
I make it clear that we are proposing a reasoned amendment today, not to scupper the bill but to allow it to proceed in a sensible manner while removing the part that is of concern to what appears to be the majority of members in the chamber.
To take out a major section of the bill at this stage, rather than let it proceed as it is and amending it, seems to me to be crazy. Many people outwith the chamber see the unnecessary duplication and bureaucracy that hampers effective delivery to our citizens and to employees who are on the front line.
As Joe FitzPatrick said, given the savage cuts that are coming down the line from Westminster, to give appropriate powers to ministers without undermining democracy seems to be a prudent step that will ring with the electorate.
I draw members' attention to my recorded declaration of interests.
The debate has been long but worthwhile, and I am sure that both the Finance Committee and the Government will take a great deal from it to help with their stage 2 considerations and ensure that the bill is strengthened during that process.
Public services are at the very heart of our communities and many people rely on them daily. I support our public services, but I understand that reform is healthy and will be the means by which we can protect public services long into the future. I record my thanks and appreciation to the staff who deliver those services day in, day out: they do a great job and the services would not be what they are without our dedicated workforce.
Many of those staff will be affected by the bill, particularly those who work in non-departmental public bodies. One area in which the bill could do more is negotiation of pay and conditions of staff who are employed by NDPBs. The current process requires that each individual NDPB negotiate, which is time consuming and expensive. There must be a better and more streamlined approach. Of course, the negotiating framework should not be included in the bill but, as Unison suggests, the bill could set out an enabling framework. That idea is worthy of further consideration, so I hope that the Government will consider it before stage 2 and lodge amendments.
As others have done, I will say something about the order-making powers in part 2. As a former member of the then Procedures Committee, I am well aware of the need to work hard to maintain the balance between the Parliament and the Executive. There are always tensions, pressures and things that people want to be done more quickly, but those cannot be allowed to override or sacrifice proper parliamentary scrutiny. I am now in my third session as a member of Parliament and I have seen changes to various public bodies and the creation of others.
While my party was in Government in session 1, it proposed the abolition of the Ancient Monuments Board for Scotland and the Historic Buildings Council for Scotland and the transfer of their functions to Historic Scotland. On first reading, that proposal did not seem controversial but, as we took evidence, it became clear that the time was not right for making that change. Instead, through negotiation and amendment, a new body was formed with the right powers and responsibilities. In the committee's deliberations, Mike Russell, who was then, like me, a humble back bencher, said:
"the matter has shown the committee system at its best. We have gone from a deeply flawed plan, which was vigorously opposed by key individuals and did not stand scrutiny by the committee, to a sensible plan that still reduces the number of quangos, but also produces more robust and sensible solutions. It also closely examines the performance of a body that has not been and clearly is not up to par. That reflects credit on all those involved".—[Official Report, Education, Culture and Sport Committee, 17 December 2002; c 3334.]
If the bill had been in place then, that positive committee-led solution would not have been achieved, because an amendment to an affirmative order is not possible. That solution could be achieved only through amendment of primary legislation. In that example, Parliament was seen to do its work.
In session 1, we were also responsible for the creation of Scotland's Commissioner for Children and Young People. That was achieved through a committee-initiated and committee-led bill, not through Government legislation. It would be wrong to remove that approach and to place the power to make changes with the SPCB. Angela Constance said that, as a new member, she has not got to grips with the SPCB. I have been here for 10 years and I still do not know exactly what the SPCB does, but I know that it does it behind closed doors and in private. That is not the right way to make changes to important matters such as the role of commissioners who have been established by Parliament.
Does Karen Gillon agree with the Government that changes to commissioners' functions should be initiated only by Parliament? If so, Parliament has a responsibility to find a way in which to make such changes. That can be done by order if the change is relatively minor, as Kevin Dunion suggested in evidence, but if the change is major, it could and should, as Karen Gillon said, be done through primary legislation. Does she agree with that position?
I do indeed, but that is not what the bill says. If the bill said that, we would be happy to support it. However, the bill would allow the Government to abolish commissioners and to change things that Parliament has set up.
The right way to do anything that relates to commissioners is through a parliamentary committee that is open to the public, open to evidence and open to scrutiny. Major changes of the sort that are potentially covered under the bill should be made through primary legislation. If the minister or the Government wanted to lodge amendments at stage 2 that would limit their functions in that area to minor matters of administration, I would have nothing against that, but I have great difficulty signing up to an order-making power that will give the Government of the day, whatever it may be, the power to abolish an organisation.
The SNP manifesto contained a commitment to amalgamate SNH and SEPA. Of course, such a proposal—which at the moment would require primary legislation—has never come before Parliament because it would never find support. Under the bill, however, the proposal could be put through in an affirmative resolution that could not be amended and would not be subject to proper scrutiny—
Will the member give way?
The member has only 10 seconds left.
If there is nothing behind this order-making power, why is the Government zealously clinging to the proposal? If there is nothing that the Government wants to do that it cannot put in the bill, what is the proposal really about? Is it not about trying to do things by the back door, instead of through full public and parliamentary—
You must finish, Ms Gillon. I am sorry to hurry everyone, but there is simply no time available.
I must apologise to members whose speeches I had to miss. A very large textile company in my constituency went into administration today so, inevitably, I had to leave the chamber for part of the debate.
The bill that we are scrutinising was delayed by the Government, but it has tried to justify the insufficient time that was given to consulting on the bill's measures by saying that it had to move quickly to introduce them. Its position is not consistent. If the government had consulted on the bill—the fact is that it consulted on no part of it—many of the concerns that have been raised today would have been brought to its attention.
The Liberal Democrats agree with the Government that we should secure best value for the public purse, especially in the current difficult economic circumstances, but the measures in part 2 are disproportionate and no justification has been offered for why they have been included, apart from references to the Government's overall agenda to be able to move quickly to streamline the public sector landscape. In that light, I believe that we are justified in looking at the Government's record over the past three years.
This morning, the cabinet secretary said that the number of public bodies is to be reduced by 25 per cent. On the face of it, that seems to be a fairly positive move that is consistent with the thrust of Tom McCabe's very good speech. However, if we consider the details, the reality begins to emerge. The 25 per cent, for instance, includes the merging of the various children's panel advisory committees into a national body. Such a reduction might or might not be a good thing—I believe that such centralisation is problematic—but it is not equivalent to a 25 per cent reduction in the cost of bureaucracy to Scotland's public purse or in headcount.
Moreover, the Government's financial memorandum to the bill estimates that it will make £3 million in savings, although we should put that in context by remembering that the entire Scottish budget is £30 billion. However, in our scrutiny of the memorandum, we learned that that estimate was based on the transfer of staff from creative Scotland, which is within the bill's remit, to other parts of the Scottish public sector that are outside that remit. The Government might well estimate that the bill will save £3 million, but it has said nothing about the net saving to the public purse; after all, it has also said that the bill will not result in any redundancies. As a result, we do not even know whether the £3 million is an accurate figure. Even if it is, it is outshone by the nearly £30 million in administrative and set-up costs for two new bodies that the Government established in the same period: Skills Development Scotland and the Scottish Futures Trust.
When we consider part 2, which has caused the most controversy and is the reason why we have lodged our reasoned amendment, we should also look at the Government's record. This bill could in some way affect the legislation relating to the children's hearings system and creative Scotland. Earlier, the Minister for Children and Young People said that the measures in the proposed children's hearings bill, which the Government withdrew in order to secure wider public and civic participation and more cross-party support, would mean that the powers in this bill, with which ministers could make statutory instruments that would abolish children's hearings, would not be necessary.
We have also debated the Creative Scotland Bill. We were told by the then minister that, although the Government did not need to use primary legislation to create creative Scotland, it had chosen to do so because that provided the best route for full parliamentary scrutiny. Now we are being told that the current bill is required for order-making powers to abolish or transfer the functions of creative Scotland because that does not need full parliamentary scrutiny. There is no consistency in the Government's approach.
The debate was not helped by the Minister for Public Health and Sport accusing Ross Finnie of misleading Parliament when he pointed out that the order-making powers in the bill will confer powers to introduce statutory instruments that can abolish bodies. The minister said that the bill confers powers to abolish the functions of bodies, but that is not the case. Indeed, it was the minister herself who misled Parliament because section 10(3)(b) of the bill clearly mentions
"amending the constitution of, or abolishing, a person, body".
Section 13 mentions that by removing "an administrative inconvenience", a body or office can be created or abolished.
An order under section 10 can be used only to improve the exercise of public functions, and they would not be improved by abolishing a body unless it no longer had a function to perform. Members must consider the whole context of the bill. Jeremy Purvis is over-producing and accusing the minister unfairly.
You must close in answering that point, Mr Purvis.
That is not the case, nor was it said by any minister during any of the scrutiny of the bill. Section 13 is even clearer about administrative inconvenience.
You must close please.
The powers are disproportionate and should be deleted from the bill, which is why we will press our amendment to allow Parliament to express that view.
Before going into the bill in detail, I must pick up on the Labour Party's narrative—as exemplified by David Whitton and Richard Simpson—that there is a Tory party split. What a day to choose to use that narrative. I do not know whether any of them have seen The Scotsman, The Herald, The Times, The Daily Telegraph, the Daily Mail or any newspaper at all today, but there is only one party in this country that is split inside and out, and top to bottom, and it is the Labour Party.
Let us look at the general principles of the bill. The Scottish Conservatives want to modernise and streamline the structures of our public sector. We want them to be simpler, and we want to reduce duplication and cost. Such reform is critical for us to protect front-line services as we come up against tougher budgets. When one looks at the overarching purpose of the bill, it is legitimate to question whether it will achieve that purpose in full. It will go some way towards achieving it, but legitimate questions can be asked about the degree to which it will really do so. Does it offer a meaningful reform of public services, or can more be done between now and stages 2 and 3?
The Conservative view is that the bill does not offer as strong a change or reform as it could. If I am correct in my reading of the situation, the Finance Committee took the same view—that the bill does not go far enough. It seeks to reduce the number of quangos by eight but, as the SCVO said, it does not do
"what it says on the tin".—[Official Report, Finance Committee, 29 September 2009; c 1562.]
I therefore ask whether, in closing, the minister will propose ways of going faster and further on public sector reform.
It has been said that the bill is not a cost-saving bill, but why is it not a cost-saving bill? Tom McCabe outlined a lot of the challenges that we will face during the next four or five years. Can something more be done to make the saving more than a mere £3.3 million over six years?
The Chartered Institute of Public Finance and Accountancy suggested that that saving is merely at the margins and made the valid point that most of the savings will happen after the costs have been incurred. There is a fair question about whether the savings will happen at all. I sat on the Finance Committee as a substitute for Derek Brownlee for one of the meetings on the bill. When I looked through the questions, I saw that there was a higher and a lower estimate of what the cost savings might be, but there was also a best estimate. In some cases, although not all, the best estimate was simply the mid-figure between the top and bottom figures. Is there a way in which we can save more money in the public services through the financial provisions?
The most contentious—or biggest—point of the day the order-making powers in part 2. There is an important point of principle: we need to ask whether the Government requires such powers and whether it is practical or desirable to have a more streamlined process through which Government can react. We must consider whether primary legislation is sometimes unwieldy and time consuming and is not always the best use of time for making particular changes. The Conservatives think that there is a need and a call for such a process, but I want to be clear and tell members why the Conservative position has been consistent. We have made it absolutely clear that, if part 2 is unamended, we will not vote for its provisions at stages 2 or 3. However, our view is that, at stage 1, we can vote in favour of the bill without voting for the Liberal Democrat amendment, because if we have sufficient safeguards and if sufficient amendments are made in relation to schedule 3, we could support part 2.
The Liberal Democrat and Labour position seems to be that we need to scrap part 2 in its entirety. Some powerful speeches were made on that, particularly by Robert Brown and Ross Finnie. However, the Conservatives do not believe that we need to scrap part 2 in its entirety to achieve something workable.
In articulating that point of view, does Mr Brown accept—as I have confirmed in a letter to Mr Welsh—that the Government has expressed its willingness to engage constructively with the parliamentary committees to find approaches to the part 2 powers that would command broader support in Parliament?
I acknowledge Mr Swinney's letter to the Finance Committee of, I think, 5 January, which was passed to other members. The letter refers specifically to a potential safeguard. We will consider the amendment that is lodged and review it accordingly to find out whether it will introduce safeguards that will be sufficient to satisfy our demands.
Mr Swinney's letter also refers to the schedule 3 list and mentions a proposed solution on that issue. Again, we will look at the detail of the amendment when it is lodged to find out whether it is workable. Derek Brownlee pointed out one potential flaw in that solution, which is that if the Scottish Parliamentary Corporate Body were to be responsible for initiating legislation, that might hamper Audit Scotland's independence, because Audit Scotland is responsible for auditing the corporate body's accounts. There are potential flaws in the proposal.
Maureen Watt began by pointing out that members often say that the discussion has been wide ranging and interesting. That probably applies to today's debate. It has been useful in giving us the opportunity to establish further evidence—if any was really needed—that the SNP Administration far too often confuses slogans with solutions. The finance secretary has tried to convince us that he believes in public sector reform by calling the bill the Public Services Reform (Scotland) Bill, but simply calling it that does not mean that it will achieve that. As many members have pointed out, especially Tom McCabe in a very effective speech this morning, there is little evidence that, beyond a numerical reduction in public bodies, there is any vision of reform or indication of the type of improvement that is being pursued through the bill.
We debate the bill against the background of sharply rising public expectations of our public services. People demand more than the basics and they are right to do so. As Andrew Welsh said this morning, and as the SCVO pointed out in its briefing paper for the debate, the key to reform is redesigning the system round the user. We must ensure that there is scope for public bodies to change and develop. Monolithic structures will not do, and we cannot engineer change and improvement through governmental edict alone. However, I cannot agree with the view that was expressed in the debate this morning that we need to cut through decades of incompetence. It is simply not the case that our public services are or have been inherently weak or substandard.
We need change, but any changes that we make must enhance what we have, and they should not be an end in themselves. I am happy to reiterate that Labour is in favour of streamlining the number of quangos in Scotland and of reforming the way in which services are delivered. We endorse the intention to create social care and social work improvement Scotland—although "SCSWIS" sounds more like a communicable disease than a scrutiny body—and creative Scotland We want to certify that the changes will be made in a manner that improves the delivery of public services to the public. Having listened to the concerns that Malcolm Chisholm and Mary Scanlon raised this morning and which John Scott mentioned this afternoon about some of the proposals for change in part 5, it is hard to be confident that the bill as introduced can achieve that aim.
Regrettably, any good objectives are outweighed by the overall approach inherent in the bill, which indicates that the SNP is simply taking a crude arithmetical approach that will make the bill a lost opportunity for the reform of public services. Previously, SNP MSPs regularly railed against centralisation and Government dominance, yet, judging by the content of their speeches today, it is clear that they are now prepared to give their Government centralising powers to take actions that they have long argued against. When in opposition, the SNP never fails to criticise anyone who dares to suggest that ministers should take such powers, but SNP members have been suffering from collective amnesia in the chamber today, conveniently forgetting all the contradictory arguments that they made previously on the subject of the primacy of the Parliament over the Executive. Such acquiescence is not healthy, as a Parliament of sheep would undoubtedly lead to the creation of a Government of wolves.
Unlike SNP members, we are not fooled by Mr Swinney's warm words about his intentions to amend the bill because, ultimately, he still insists that the Scottish Government wants those unacceptable powers. In the debate, the cabinet secretary has sought to follow up the letter that he sent to the Finance Committee and to allay fears over those centralising powers. He says that he will lodge amendments that will require the proposals to be subject to an enhanced form of super-affirmative procedure. Unlike some members, we will not be fobbed off with extra protections. If the Government drops its power-grabbing proposals, we will not need those safeguards.
Will Mr McMahon reflect on two points that I made earlier? The first was that Parliament would remain the decision maker in the case of all the proposed changes; the Government would not be in a position to effect those changes without the agreement of Parliament.
They cannot be amended.
Order.
Secondly, as part of the process that we are putting in place, the bill follows the same structure and concept inherent in the Local Government in Scotland Act 2003, of which Mr McMahon was a supporter.
I disagree with the first point that the cabinet secretary makes. It is clear that such proposals, as he intends them, cannot be amended by the Parliament when they are brought before it. That is a particular problem.
I will address the cabinet secretary's second point later in my speech.
If a proposal made by any future Government was so abhorrent to Parliament, do we not have a remedy, in that we can have a vote of no confidence in the Government?
That is the nuclear option.
Exactly. We spoke about nuclear options earlier this afternoon. This is a democratic process—a debate on the general principles of a bill. There is one aspect of part 2 of the bill that, as a general principle, we cannot support. We are asking the Government to take the provisions away, drop them from the bill as it stands and bring back something that the Parliament can support. That is the democratic process, and it does not require votes of no confidence or nuclear options—it requires the Government to listen to the Parliament.
We are concerned that the Scottish Government did not carry out a dedicated public consultation on the bill. Instead, it chose to rely on previous consultations and published reports. That was a big mistake, as was highlighted by the concerns that were raised by many of those who gave evidence on the bill. It is yet another example of the changed attitude of SNP members. We repeatedly heard them in opposition extol the need for proper and effective consultation, yet now that they are in government, they do all that they can to avoid scrutiny and ignore sound opinion against their proposals from bodies such as the Law Society of Scotland. They are the epitome of the poacher turned gamekeeper.
As with far too many of the Government's bills, there are also concerns over the financial memorandum. The financial memorandum states that net savings from the bill as a whole over the period 2008 to 2014 will equate to more than £3 million. However, the Finance Committee has pointed out that the largest element of the savings involved in the bill will come from the reduction in the number of staff at creative Scotland and restructuring or streamlining in relation to social care and social work improvement Scotland. As the intention is for the staff to be redeployed within the Scottish Government, it is questionable whether those measures will result in a saving to the public purse.
As I said, Labour's biggest concern relates to sections 10 and 13, which will allow ministers to make provisions to improve the exercise of the public functions, including modifying, conferring, abolishing, transferring or delegating any function. As has been pointed out, contrary to what Shona Robison claimed earlier, section 13 allows ministers to make provision to reduce or remove burdens, including the abolition of a public body. That cannot be acceptable in principle.
According to a range of evidence that the Finance Committee heard, the proposed order-making powers are unprecedented. Professor Page of the University of Dundee stated that
"primary legislation should be about important matters of principle, and subordinate legislation should be about picking up the detail. The concern about part 2 of the bill is that it ignores that dividing line".—[Official Report, Finance Committee, 15 September 2009; c1492.]
Let us be in no doubt—with those powers, the Government could abolish or merge bodies at will.
John Swinney argues that there is a precedent in section 57 of the Local Government in Scotland Act 2003. However, as the Finance Committee noted, that act was not mentioned as a precedent for the power in section 10 either in the accompanying documents or in the evidence that was given by the bill team.
I think that I clarified the point in correspondence with the Finance Committee. The Government cited the 2003 act as an example because, in the evidence that was given to the committees, there was commentary about the lack of a precedent. The Government subsequently provided information on a precedent. I would have thought that that would be viewed as being helpful to the parliamentary committees in their scrutiny of the bill.
But it was not cited in the first place. There are also key differences between the powers in the 2003 act and the wide-ranging and extensive powers that are listed in sections 10 and 13.
Robert Brown earlier talked about Henry IV powers—sorry, Henry VIII powers.
Once more unto the breach!
It could have been Henry VIII or Bonnie Prince Charlie—it does not really matter. The principle is the same. When Henry VIII powers were discussed in the House of Commons, Jack Straw stated:
"‘Parliament has long—and rightly—been hostile to the principle of Henry VIII powers'".—[Official Report, House of Commons, 8 Dec 2009; Vol 502, c 272W.]
The Scottish Parliament should make it clear today that it shares Westminster's hostility.
It is considered a truism by some that the Government that governs best governs least. Unfortunately, the bill indicates that the Scottish Government seems bent on proving that the Government that governs least governs worst. We have no intention of allowing the Government to govern badly, so we will support the Liberal Democrat amendment. We will not support bad legislation, and we want to make it clear that the bill needs much reworking to make it acceptable.
I thank colleagues for their comments on the general principles of the bill as well as for raising specific issues both here and in the numerous committees that scrutinised the bill. Whatever the controversy that surrounds part 2, the debate has demonstrated the strength of feeling among members of the need for reform of our public services. That is what we must focus on. We should focus on improvements to public service delivery, not protection of the institutions that provide those services.
The question must be asked why so little progress has been made on public sector reform in previous years under devolution. The default position has too often been to address issues by establishing new bodies, which have frequently duplicated the functions of existing bodies. All parties in the Parliament have been guilty of calling for such bodies. Once established, bodies tend to expand and all too frequently end up suffering from a form of institutional inertia. The view is that they have always been there, so they should always stay there. We now need to find ways of cutting through that institutional undergrowth and genuinely simplifying and streamlining the delivery of public services, because that matters to the people of Scotland. That aim lies and has always lain behind the order-making powers in part 2, to which I will return.
First, I will focus on the important issue of creative Scotland. I am pleased to say that the committees' reports broadly supported part 3, which is on creative Scotland. We are addressing the few concerns that the committees expressed—I refer members to the Government's response on those issues. In the debate, several members have agreed with the committees that avoiding further delays and uncertainty about creative Scotland's establishment is vital. Members must reflect on that serious point at decision time.
When I met Councillor Harry McGuigan of COSLA yesterday, we discussed our mutual clear understanding of the tremendous potential of a new relationship between the three partners—local government, creative Scotland and the Scottish Government. If Parliament agrees that the new body should come into being, it will inherit a good base on which to build effective working practices with a variety of partners. We recognise the importance of ensuring that the relationship between the partners is as strong and transparent as possible, to engage with sectors and stakeholders and to nurture art and creativity in communities throughout Scotland.
As a single national body, creative Scotland will be more streamlined and more effective in delivering its new, wider remit, which the bill sets out clearly. Pauline McNeill is right to identify issues with structures and costs. Creative Scotland will release resources by removing duplication in back-office functions such as human resources, finance and facilities management, which will allow resources to be put towards supporting artists.
Creative Scotland has been identified as a dynamic and innovative development body that will provide the leadership for arts and culture in Scotland that Ted Brocklebank and Pauline McNeill talked about.
Will the minister address my point that a new skill set might be required to deal with the new functions in relation to the creative industries? Will the scope for dealing with those functions exist? Will she direct creative Scotland to ensure that those skills are in place?
There is obviously tension about any direction. I warmly thank Ewan Brown and Creative Scotland 2009 for providing the foundations to ensure that the new body is more than the sum of its parts and has a new synergy and skill set to do exactly what Pauline McNeill describes. That organisation is ensuring that we have a body that is fit for purpose in the 21st century to meet the changing arts and cultural demands of the 21st century.
Ted Brocklebank sought reassurance about the Government's role. The role of Governments is to create the conditions for success and not to influence the direction or content of that success. Creative Scotland will be more flexible and will be able to respond and adapt to the cultural practice of the 21st century. That is a skill-set requirement, to which Pauline McNeill has referred.
Creative Scotland will help artists and creative practitioners of all kinds to make the most of our contemporary arts and culture and our vibrant traditional inheritance. It is important that we establish the body as soon as possible with a statutory basis and with democratic endorsement, to give the community involved the support that it deserves. Even in the heated debate that we have had about part 2, we should not forget how important the bill is.
I return to part 2. I agree with Derek Brownlee that we all need to reflect on the points that have been made today and to give Parliament the opportunity at stage 2 to consider exactly what changes need to be made as a result.
I reiterate my comment about the point at which things are done by primary legislation and the point at which things are done by subordinate legislation. On what principle is the Government operating?
I will develop that issue and address exactly the point that Robert Brown made in his speech.
Let us be clear: the powers in part 2, which are subject to appropriate safeguards, have a crucial part to play in driving forward the public services reform agenda on which we all agree. I hope that the powers will command members' support. If we do not use such powers, we will fall back to the previous inertia under devolution, in which no action was taken.
I will set out exactly what the powers and safeguards are, because they are the key to today's debate. The power in section 10 allows ministers to make proposals to remove the exercise of public functions—a point that Ross Finnie made—having regard to efficiency, effectiveness and economy. The section does not—this point is absolutely central—provide a free-standing power to modify, transfer or abolish public functions at large, still less to abolish public bodies themselves.
Similarly, the power in section 13 allows ministers only to remove or reduce burdens resulting from any legislation. Robert Brown asked the central question: what are the principles that will determine whether such matters should be done by order or by primary legislation?
I want to develop this point, as it is very important.
The powers are also subject to stringent statutory and procedural safeguards. In any such order, the effect of the provision must be proportionate to the policy objective and must not remove any necessary protection in existing legislation. Any new or modified functions must be broadly consistent with the original objects or purposes of the body in question. That means that Scottish Water could not be dealt with by such an order in the way that Iain Smith suggested nor could SEPA and SNH be dealt with by such an order in the way that others suggested—
Order. One moment, minister. If members wish to have conversations, they should have them outwith this chamber. The only person who should be speaking is the minister.
As I have said, anything outwith those safeguards would need to be dealt with in primary legislation. In my view, that sets out the principle that Robert Brown called for in his question.
I am coming on to the points that Karen Gillon made, if she will let me address them.
As was pointed out in John Swinney's letter, which Karen Gillon should have read, any proposed change to any of the bodies, such as the commissioners, that have been established by the Parliament would need to be initiated by the Parliament and requested by the corporate body, with the consent of the Parliament. Whether such changes should be developed by order, with content initiated by a committee, is a reasonable question, but anything that the Parliament itself wants to initiate without using an order could clearly be done using primary legislation.
However, I remind everyone about the time that it takes to introduce primary legislation—this point was highlighted by Patrick Harvie—which is where the order-making power will make a difference. Following consideration by many members, I was requested to fast-track the joint inspection provisions for child protection because of the importance of having such measures on the stocks. It took six months for the proposed Government legislation to be introduced using Government time and with co-operation from Opposition parties—never mind how long it would take to fight to introduce a committee bill that would need committee time. That is the sort of difference that the powers in the bill could make. I hope that that addresses Karen Gillon's point.
If Scottish Water, SEPA and SNH cannot be affected by such an order, why are they included on the list in schedule 3?
The point is that the powers under part 2 will allow us to deal with minor issues that can make a difference. They will ensure that minor changes that are required can be made. A number of bodies have recognised that such a power would indeed be very useful.
Will the minister give way?
Sorry, but I need to move on, as I am very tight for time.
It is also worth pointing out that a number of public bodies, parliamentary commissioners and ombudsmen have recognised that the order-making powers, with appropriate safeguards, could provide a useful mechanism for making sensible changes to their duties, functions and jurisdictions. I refer to Kevin Dunion's evidence to the Finance Committee; indeed, I note that the Scottish Public Services Ombudsman pointed out:
"Although we can look to Parliament to safeguard the independence of the offices, we need to have a good look at how we bring about change if we do not have powers such as order-making powers on the agenda."—[Official Report, Finance Committee, 29 September 2009; c 1568.]
We will be able to do that only if we have the opportunity to consider the bill further at stage 2.
Clearly, it is right that any order-making powers should be narrowly focused and accompanied by safeguards. We have proposed additional safeguards, as set out in John Swinney's letter to the convener of the Finance Committee. We have also made it clear that we are fully prepared to consider any further proposals for amendments to the scope of the accompanying safeguards at stage 2.
The order-making powers will provide the scope and flexibility for the Parliament to make further adjustments where necessary. What we are proposing is a parliamentary process, not some form of ministerial diktat. The Parliament's committees have shown themselves to be perfectly willing to reject orders made by ministers, such as the Justice of the Peace Courts (Sheriffdom of South Strathclyde, Dumfries and Galloway) Order 2009. There is nothing unconstitutional or improper in what is proposed in the bill. Such scrutiny will be available; the issue is about the pace of change.
Will the minister give way?
I am in my closing minute.
I have already referred to the inertia that we have seen in the past 10 years. As Tom McCabe said, we need to address how we can improve the pace of change. Let us not be in a position where Parliament repeatedly calls for public services reforms, complains about having too many quangos and then moves to restrict and limit the Government's ability to deliver those changes. Yes, there must be democratic accountability and public scrutiny, but the Government has responded positively and constructively to address that. We would like to have the opportunity to move our amendments at stage 2.
I urge Parliament to agree to the general principles of the Public Services Reform (Scotland) Bill.
Before we move to the next item of business, there are two things that I wish to say. There are at least four members in the chamber who took part in the debate but who were absent for virtually all the winding-up speeches, and many others came in very late. That is not only against the code of conduct, but a discourtesy to Parliament. I beseech all members to try to obey that part of the code of conduct in future.
In relation to the point of order that Nicol Stephen made yesterday, following the points that Iain Smith made, I received a letter from the Minister for Parliamentary Business just before I came into the chair, which states that the arrangements that were agreed with business managers did not go to plan, for which
"I wish to apologise on behalf of the Scottish Government and assure you that no discourtesy to the Parliament was intended."
That is an apology. I accept it and consider the matter to be closed.