Tobacco and Primary Medical Services (Scotland) Bill: Stage 3
The next item of business is stage 3 proceedings on the Tobacco and Primary Medical Services (Scotland) Bill. For dealing with the amendments, members should have in front of them the bill as amended at stage 2, which is marked "SP Bill 22A", and the marshalled list of amendments, which is marked "SP Bill 22A-ML". In addition, they should have the groupings of amendments, which I as Presiding Officer have agreed. Members should also have a supplement to the marshalled list containing a manuscript amendment that I have agreed may be considered in this afternoon's proceedings. The supplement has been placed on each desk.
During the course of the afternoon, the division bell will sound. Proceedings will be suspended for five minutes for the first division. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. For all other divisions, the voting period will be 30 seconds.
Section 1—Prohibition of tobacco displays etc
Group 1 is prohibition of tobacco displays et cetera. Amendment 4, in the name of Mary Scanlon, is grouped with amendments 29, 29A, 30, 5, 6, 31, 32, 7 to 10, 14, 47 and 16. I draw members' attention to the pre-emption information on the groupings sheet under "Notes on amendments in this group".
We all agree on the link between smoking and poor health, and we all agree on the fact that the younger that people start smoking, the more acute their health problems in later life will be. Our opposition to the ban on tobacco displays is not an opposition to smoking cessation programmes. The fact is that the evidence base does not exist to support a ban. The Health and Sport Committee's stage 1 report states:
"The Committee notes that strong views were advanced on both sides of the debate. The Committee also recognises that the evidence base for this proposal is at an early stage and that the international evidence to date is inconclusive."
The Government proposes to ban visual displays in the hope that doing so will produce an evidence base in support of its argument that such a measure will reduce smoking. There is not yet conclusive evidence that the ban will achieve what it sets out to achieve. The claim in the policy memorandum that banning visual displays of cigarettes will
"protect children and young people from the impact of tobacco smoking"
is, therefore, not true. Although a ban on visual displays will put cigarette packets out of sight, there is no doubt that the Government needs to consider many other measures to make the policy successful. I can think of nothing less attractive than a product that states "Smoking kills".
As the Scottish Retail Consortium, the Scottish Grocers Federation and the National Federation of Retail Newsagents said in their briefing note detailing their joint positions:
"We believe that this will be a disproportionate measure for all affected retailers, large and small, and will add an undue burden on retail staff. It has no strong evidence base and there is doubt that it will have a significant impact on the number of young people taking up smoking."
In Iceland, smoking rates have declined, but academics have identified the in-depth work that has been done at community level as the crucial aspect in the successful decline in the number of people who smoke. In Canada, states such as Saskatchewan and Manitoba that have had tobacco display bans for the longest time have seen increases in youth smoking. In Ontario, the greatest reduction in smoking was achieved before a ban was introduced. In New Zealand, a proposal to introduce a ban was rejected by the Prime Minister, whose Government, like this Parliament's Health and Sport Committee, did not find conclusive evidence that a ban was the most effective strategy for combating youth smoking.
Finally, on the cost of the ban to businesses, there is also much dubiety. The Minister for Public Health and Sport told the Health and Sport Committee that the cost could be as little as £20 per gantry. However, that is just the cost of materials per shelf, not per gantry, and there can be up to seven or eight shelves on a gantry, as well as other fittings. The Scottish Government's regulatory impact assessment estimated that implementing the ban would cost Scotland's 11,000 tobacco outlets an average of £1,200 for small retailers, £6,000 for medium-sized retailers and £17,500 for large retailers.
I ask MSPs whether, in these difficult times, they are content to force on small businesses throughout Scotland additional costs and a measure on which there is a lack of any evidence to show its effectiveness in reducing youth smoking.
I move amendment 4.
I draw members' attention to my membership of the Royal College of General Practitioners and the British Medical Association, in case that is relevant.
Amendment 29 seeks to anticipate the reaction of the tobacco industry, which will almost certainly press and push retailers to display items that promote their products, albeit—if we pass the bill today—no longer directly. Frankly, the tobacco industry has never respected the spirit of any tobacco control laws and has often taken every possible step to delay or stop their implementation. When that has proved unsuccessful, they have sought ways round the spirit of the law.
I lodged amendment 29 in the light of the experience in Ireland, where new regulations are having to be developed to rein in the tobacco industry's inventive approach, which involves back lighting, adverts for lighters that clearly relate to a cigarette brand and even the use of the displays that limit sales by age in such a way as to infer that tobacco is available. Make no mistake—the tobacco industry is hugely powerful and has for more than 40 years found its way round successive pieces of legislation. Light tobacco fooled a whole generation into thinking that it was safe to smoke, and in the early part of this decade the industry sold ventilation to the Scottish health minister as an alternative to the ban on smoking in Kenny Gibson's proposed member's bill, which I supported.
The need for amendment 29 hinges on whether the tobacco advertising legislation adequately covers the likely response of the industry.
Is there evidence to show how a campaign to reduce smoking among young people should be presented to achieve a successful result? Should smoking be presented as something that is bad for your health or as something that isn't cool, to use the vernacular?
As far as what we are trying to do in the bill is concerned, the important thing is to denormalise tobacco as a product—to make it something that is not seen as soon as people go into a shop. At the moment, when people go into a shop, the first thing that they see is a massive gantry.
The increase in the size of gantries was a response to the Tobacco Advertising and Promotion Act 2002. Since that legislation was introduced, gantries have increased in size by 50 per cent. That is a classic illustration of the tobacco industry's response. It has spent a fortune on clever packaging that might display the phrase that Mary Scanlon mentioned, but which also incorporates holograms and uses ultra slim packs. The industry also produces note pads that people can use. A variety of ancillary things have been developed that promote smoking.
Amendment 29 would give trading standards officers the power to prevent new, subtle forms of advertising that, under TAPA, might not lead to a procurator fiscal taking action for a criminal offence. Amendment 29 would make such advertising an offence, which is important not just in tightening the legislation but in making it easier to implement as part of the continuing relationship between trading standards officers and retailers. By agreeing to amendment 29, we can tighten the bill, simplify its implementation and, for the first time in a generation, ensure that we are one step ahead of the industry rather than always reacting to it. I hope that members will see fit to support amendment 29.
I lodged a supplementary amendment—amendment 29A—after discussions with the Government, which I know has concerns about the bill being challenged. We should not hold our breath—it may well be challenged, whatever happens. The inclusion of the phrase "cigarette lighters" would leave the bill open to the possibility of challenge. That is why I sought permission to lodge amendment 29A.
On section 1, Mary Scanlon has been entirely consistent in her argumentation at all stages of the bill, especially in committee. The Liberal Democrats' position is that the bill is a progressive legislative move, and we support the Government in that. We must tackle the scourge of tobacco in all its manifestations, although we recognise that there is no single solution to the problem of how to reduce consumption, which is enormously disappointing.
Like Mary Scanlon, I find current cigarette packs quite repulsive. However, that revulsion does not appear to be shared by large numbers of our young people, who are not deterred from buying cigarettes. That is why all measures that can be taken to try to remove the enticement to smoke are justified. We will therefore not support amendment 4 and consequently the other amendments in Mary Scanlon's name.
On anticipating the behaviour of the industry, as Richard Simpson made clear, the industry is remarkable in its resilience and the way in which it seeks to overcome difficulties. Credit to it—it is a commercial business. However, it is right that we should seek to put the issue that Richard Simpson raises on the statute book. I was the only member who supported Kenneth Gibson's endeavours at stage 2 to pass an amendment similar to amendment 29. I know that the Government would prefer to approach the issue by way of regulation. That is fine, but that would mean people simply receiving a stern letter from the minister pointing out the substance of the legislation; regulation itself would not necessarily create a criminal offence. In our view, it is better that the bill creates an offence of tobacco advertising, which was its original purpose. Liberal Democrats will oppose Mary Scanlon's amendments but support Richard Simpson's.
I turn to the second of Richard Simpson's amendments, amendment 29A. E-mails to members have raised the issue of whether we will be getting rid of challenge 25. I rebut that. There is only one place in a shop where cigarettes can be obtained, which is at the point of sale. In alcohol displays, it is good that challenge 25 notices are seen across the range of products, but in the case of tobacco, there is only one point of sale, and one notice that makes clear the age restriction and challenge 25 will be perfectly sufficient and will not be able to be abused.
Labour, too, opposes all of Mary Scanlon's amendments. We do so because we are persuaded that point-of-sale displays are becoming increasingly important to manufacturers as a means of marketing tobacco products to young people. That is backed up by a substantial body of research, which links such displays to smoking behaviour. However, I recognise Mary Scanlon's concerns about cost. Is the £20 for a gantry or a single shelf? I would be grateful if the minister provided clarity on that important point.
Richard Simpson's amendments seek to close loopholes that we know, from the experience of Ireland, can be exploited by some in the tobacco industry. Alternative advertising displays, with the branding and colouring of well-known cigarettes, are used to circumvent the ban on point-of-sale displays. We need to close that loophole. I know that the principle underlying Richard Simpson's amendments is supported by others, such as the cross-party group on tobacco control, the Scottish coalition on tobacco and ASH Scotland. The whole point is to stop advertising tobacco to children at point-of-sale displays in all possible forms. There will be no additional impact on retailers, no extra costs and no extra burden on enforcement officers. The amendments are clear, simple and easily understood.
The Government has suggested that the issue is a matter for guidance, but I am not convinced that that is strong enough. There would be no direct sanctions if the guidance were not followed. We have an opportunity properly to ban displays, and we should take it.
I am encouraged by the fact that all parties agree that firm action is required to prevent children and young people from becoming smokers. The tobacco display ban has been one of the most contentious provisions in the bill. On the one hand, the Conservatives believe that there is not enough evidence to justify a tobacco display ban; on the other hand, members of the Labour Party believe that we have not gone far enough. We believe that the provisions in the bill and the draft regulations are proportionate.
The Conservatives believe that it is simply not true to say that removing the final marketing tool of the tobacco industry will reduce the attractiveness of tobacco to children and young people. I believe that they are wrong on that. Very few countries have yet introduced a tobacco display ban, and those that have have done so only recently. As with the ban on smoking in public places, we are pioneers. From the work of Cancer Research UK and others, we know that the display of tobacco in the most prominent place in 11,000 shops in Scotland is having an impact on our most vulnerable. It is making a product that kills half of its long-term users more attractive to children and young people. Therefore, I contend that the evidence for banning displays exists. For me, the most compelling point is the need to remove the last advertising loophole. I reassure the chamber that the Government is committed to evaluating the impact of all the provisions in part 1.
I understand that there are concerns about the impact of the policy on our small shops. I have worked closely with retailers and believe that the regulations that we have drafted will both protect children and young people from the harms of tobacco promotion and minimise the impact on small businesses. Our is a proportionate response.
I agree with Richard Simpson that we should do all that we can to prevent the tobacco industry from attempting to circumvent the display ban that is detailed in the bill and the advertising ban that is set out in the Tobacco Advertising and Promotion Act 2002. I understand the concerns about incidents that have occurred in Ireland in response to its display ban, which came into force in July 2009. However, the Scottish display ban will be the most robust in the United Kingdom and will be even more robust than the Irish display ban. Regulations will limit the display of tobacco to 120cm2, based on figures that have been provided by retailers showing that each row of a gantry in a small shop is around 15cm high and that the widest section for a tobacco product is 8cm. The loopholes that have occurred in Ireland will not, therefore, occur under the bill. Retailers were concerned that the display ban would impede their carrying out necessary everyday tasks such as stocktaking and cleaning. We have taken that in good faith and have exempted the display of tobacco for those tasks.
I appreciate the fact that Dr Simpson has tried to craft a future-proof amendment, which he hopes will predict any possible move that the tobacco industry may make to circumvent our wide-reaching tobacco display and advertising bans. However, amendment 29 falls short of achieving that, and there are major concerns about its practical application, as well as drafting concerns. Instead, we will draw up clear guidance on the implementation and enforcement of the bill. I assure the chamber that I will make it clear that the advertising of lighters over gantries and the use of lighting around gantries will not be acceptable.
I am pleased that Richard Simpson has seen sense and, with amendment 29A, is seeking to remove the reference to lighters from amendment 29. If there is evidence of retailers ignoring the guidance, we will revisit the regulations and consider removing exemptions from the display ban. That could be very costly to retailers, as it could lead to tobacco having to be stored under the counter, which I know that retailers do not want. I urge the chamber to allow us to achieve what amendment 29 seeks through regulations and guidance rather than through the bill itself, which could have undesirable and unintended consequences.
The unintended consequence of amendments 31 and 32, which deal with tobacco industry-funded campaigns such as no ID, no sale, would be to limit campaigns that inform customers and retailers of their rights and responsibilities around tobacco sales. On the retailer side, amendment 31 would ban displays that are aimed at staff, such as prompts by tills to remind staff to verify a customer's age; for customers, it would restrict campaigns that are essential to the successful implementation of many of the bill's provisions, including proxy purchase. The amendment would restrict such campaigns by retailers, Young Scot and cancer charities as well as the tobacco industry. In fact, any shop or charity that came up with an idea would have to approach the Government for approval first. Surely the creation of such bureaucracy would not make any sense. I am sure that no one wants that to happen.
I therefore ask Mary Scanlon to withdraw amendment 4 and not to move amendments 5 to 10, 14, 47 and 16. I also ask Richard Simpson not to move amendments 29 to 32.
I call Mary Scanlon to wind up and either press or withdraw amendment 4.
I was sympathetic to Richard Simpson's amendments but, when I read what the briefings said about overly complicating the bill, I decided that it would be a more commonsense approach to get the Government to work with retailers. Having spoken with a Government adviser, I think that it is for the Government and the retailers to come to an accommodation about what is right for them, and it should be done through regulation and guidance.
Ross Finnie summed up the situation when he said that there is no single solution to smoking. However, unfortunately, the focus of the bill has been the display ban. As parliamentarians, we should be seeking solutions that work and have been proven to work, which is not the case in relation to the banning of visual displays.
I wish to press amendment 4.
The question is, that amendment 4 be agreed to. Are we agreed?
No.
There will be a division. I suspend the meeting for five minutes.
Meeting suspended.
On resuming—
We will proceed with the division.
For
Aitken, Bill (Glasgow) (Con) Brocklebank, Ted (Mid Scotland and Fife) (Con) Brown, Gavin (Lothians) (Con) Brownlee, Derek (South of Scotland) (Con) Carlaw, Jackson (West of Scotland) (Con) Fraser, Murdo (Mid Scotland and Fife) (Con) Johnstone, Alex (North East Scotland) (Con) Lamont, John (Roxburgh and Berwickshire) (Con) McLetchie, David (Edinburgh Pentlands) (Con) Milne, Nanette (North East Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) Scanlon, Mary (Highlands and Islands) (Con) Scott, John (Ayr) (Con) Smith, Elizabeth (Mid Scotland and Fife) (Con)
Against
Adam, Brian (Aberdeen North) (SNP) Alexander, Ms Wendy (Paisley North) (Lab) Allan, Alasdair (Western Isles) (SNP) Baillie, Jackie (Dumbarton) (Lab) Baker, Claire (Mid Scotland and Fife) (Lab) Baker, Richard (North East Scotland) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Brankin, Rhona (Midlothian) (Lab) Brown, Keith (Ochil) (SNP) Brown, Robert (Glasgow) (LD) Butler, Bill (Glasgow Anniesland) (Lab) Campbell, Aileen (South of Scotland) (SNP) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Coffey, Willie (Kilmarnock and Loudoun) (SNP) Constance, Angela (Livingston) (SNP) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Cunningham, Roseanna (Perth) (SNP) Curran, Margaret (Glasgow Baillieston) (Lab) Don, Nigel (North East Scotland) (SNP) Doris, Bob (Glasgow) (SNP) Eadie, Helen (Dunfermline East) (Lab) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Fabiani, Linda (Central Scotland) (SNP) Ferguson, Patricia (Glasgow Maryhill) (Lab) Finnie, Ross (West of Scotland) (LD) FitzPatrick, Joe (Dundee West) (SNP) Gibson, Kenneth (Cunninghame North) (SNP) Gibson, Rob (Highlands and Islands) (SNP) Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) Godman, Trish (West Renfrewshire) (Lab) Gordon, Charlie (Glasgow Cathcart) (Lab) Grahame, Christine (South of Scotland) (SNP) Grant, Rhoda (Highlands and Islands) (Lab) Gray, Iain (East Lothian) (Lab) Harper, Robin (Lothians) (Green) Harvie, Christopher (Mid Scotland and Fife) (SNP) Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) Hepburn, Jamie (Central Scotland) (SNP) Hume, Jim (South of Scotland) (LD) Hyslop, Fiona (Lothians) (SNP) Ingram, Adam (South of Scotland) (SNP) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Kelly, James (Glasgow Rutherglen) (Lab) Kerr, Andy (East Kilbride) (Lab) Kidd, Bill (Glasgow) (SNP) Lamont, Johann (Glasgow Pollok) (Lab) Livingstone, Marilyn (Kirkcaldy) (Lab) Lochhead, Richard (Moray) (SNP) MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP) Macdonald, Lewis (Aberdeen Central) (Lab) Martin, Paul (Glasgow Springburn) (Lab) Marwick, Tricia (Central Fife) (SNP) Mather, Jim (Argyll and Bute) (SNP) Matheson, Michael (Falkirk West) (SNP) Maxwell, Stewart (West of Scotland) (SNP) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McCabe, Tom (Hamilton South) (Lab) McConnell, Jack (Motherwell and Wishaw) (Lab) McInnes, Alison (North East Scotland) (LD) McKee, Ian (Lothians) (SNP) McKelvie, Christina (Central Scotland) (SNP) McLaughlin, Anne (Glasgow) (SNP) McMahon, Michael (Hamilton North and Bellshill) (Lab) McMillan, Stuart (West of Scotland) (SNP) McNeil, Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Morgan, Alasdair (South of Scotland) (SNP) Mulligan, Mary (Linlithgow) (Lab) Murray, Elaine (Dumfries) (Lab) Neil, Alex (Central Scotland) (SNP) O'Donnell, Hugh (Central Scotland) (LD) Oldfather, Irene (Cunninghame South) (Lab) Park, John (Mid Scotland and Fife) (Lab) Paterson, Gil (West of Scotland) (SNP) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Robison, Shona (Dundee East) (SNP) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Russell, Michael (South of Scotland) (SNP) Salmond, Alex (Gordon) (SNP) Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Somerville, Shirley-Anne (Lothians) (SNP) Stevenson, Stewart (Banff and Buchan) (SNP) Stewart, David (Highlands and Islands) (Lab) Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD) Sturgeon, Nicola (Glasgow Govan) (SNP) Swinney, John (North Tayside) (SNP) Thompson, Dave (Highlands and Islands) (SNP) Tolson, Jim (Dunfermline West) (LD) Watt, Maureen (North East Scotland) (SNP) Welsh, Andrew (Angus) (SNP) White, Sandra (Glasgow) (SNP) Whitefield, Karen (Airdrie and Shotts) (Lab) Whitton, David (Strathkelvin and Bearsden) (Lab) Wilson, Bill (West of Scotland) (SNP) Wilson, John (Central Scotland) (SNP)
The result of the division is: For 14, Against 103, Abstentions 0.
Amendment 4 disagreed to.
After section 1
Amendment 29 moved—[Dr Richard Simpson].
Amendment 29A moved—[Dr Richard Simpson]—and agreed to.
The question is, that amendment 29, as amended, be agreed to. Are we agreed?
No.
There will be a division.
For
Alexander, Ms Wendy (Paisley North) (Lab) Baillie, Jackie (Dumbarton) (Lab) Baker, Claire (Mid Scotland and Fife) (Lab) Baker, Richard (North East Scotland) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Brankin, Rhona (Midlothian) (Lab) Brown, Robert (Glasgow) (LD) Butler, Bill (Glasgow Anniesland) (Lab) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Curran, Margaret (Glasgow Baillieston) (Lab) Eadie, Helen (Dunfermline East) (Lab) Ferguson, Patricia (Glasgow Maryhill) (Lab) Finnie, Ross (West of Scotland) (LD) Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) Godman, Trish (West Renfrewshire) (Lab) Gordon, Charlie (Glasgow Cathcart) (Lab) Grant, Rhoda (Highlands and Islands) (Lab) Gray, Iain (East Lothian) (Lab) Harper, Robin (Lothians) (Green) Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) Hume, Jim (South of Scotland) (LD) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Kelly, James (Glasgow Rutherglen) (Lab) Kerr, Andy (East Kilbride) (Lab) Lamont, Johann (Glasgow Pollok) (Lab) Livingstone, Marilyn (Kirkcaldy) (Lab) Macdonald, Lewis (Aberdeen Central) (Lab) Macintosh, Ken (Eastwood) (Lab) Martin, Paul (Glasgow Springburn) (Lab) McArthur, Liam (Orkney) (LD) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McCabe, Tom (Hamilton South) (Lab) McConnell, Jack (Motherwell and Wishaw) (Lab) McInnes, Alison (North East Scotland) (LD) McMahon, Michael (Hamilton North and Bellshill) (Lab) McNeil, Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Mulligan, Mary (Linlithgow) (Lab) Murray, Elaine (Dumfries) (Lab) O'Donnell, Hugh (Central Scotland) (LD) Oldfather, Irene (Cunninghame South) (Lab) Park, John (Mid Scotland and Fife) (Lab) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Simpson, Dr Richard (Mid Scotland and Fife) (Lab) Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Stewart, David (Highlands and Islands) (Lab) Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD) Tolson, Jim (Dunfermline West) (LD) Whitefield, Karen (Airdrie and Shotts) (Lab) Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP) Aitken, Bill (Glasgow) (Con) Allan, Alasdair (Western Isles) (SNP) Brocklebank, Ted (Mid Scotland and Fife) (Con) Brown, Gavin (Lothians) (Con) Brown, Keith (Ochil) (SNP) Brownlee, Derek (South of Scotland) (Con) Campbell, Aileen (South of Scotland) (SNP) Carlaw, Jackson (West of Scotland) (Con) Coffey, Willie (Kilmarnock and Loudoun) (SNP) Constance, Angela (Livingston) (SNP) Crawford, Bruce (Stirling) (SNP) Cunningham, Roseanna (Perth) (SNP) Don, Nigel (North East Scotland) (SNP) Doris, Bob (Glasgow) (SNP) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Fabiani, Linda (Central Scotland) (SNP) FitzPatrick, Joe (Dundee West) (SNP) Fraser, Murdo (Mid Scotland and Fife) (Con) Gibson, Kenneth (Cunninghame North) (SNP) Gibson, Rob (Highlands and Islands) (SNP) Grahame, Christine (South of Scotland) (SNP) Hepburn, Jamie (Central Scotland) (SNP) Hyslop, Fiona (Lothians) (SNP) Ingram, Adam (South of Scotland) (SNP) Johnstone, Alex (North East Scotland) (Con) Kidd, Bill (Glasgow) (SNP) Lamont, John (Roxburgh and Berwickshire) (Con) Lochhead, Richard (Moray) (SNP) MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP) Marwick, Tricia (Central Fife) (SNP) Mather, Jim (Argyll and Bute) (SNP) Matheson, Michael (Falkirk West) (SNP) Maxwell, Stewart (West of Scotland) (SNP) McKee, Ian (Lothians) (SNP) McKelvie, Christina (Central Scotland) (SNP) McLaughlin, Anne (Glasgow) (SNP) McLetchie, David (Edinburgh Pentlands) (Con) McMillan, Stuart (West of Scotland) (SNP) Milne, Nanette (North East Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) Morgan, Alasdair (South of Scotland) (SNP) Neil, Alex (Central Scotland) (SNP) Paterson, Gil (West of Scotland) (SNP) Robison, Shona (Dundee East) (SNP) Russell, Michael (South of Scotland) (SNP) Salmond, Alex (Gordon) (SNP) Scanlon, Mary (Highlands and Islands) (Con) Scott, John (Ayr) (Con) Smith, Elizabeth (Mid Scotland and Fife) (Con) Somerville, Shirley-Anne (Lothians) (SNP) Stevenson, Stewart (Banff and Buchan) (SNP) Sturgeon, Nicola (Glasgow Govan) (SNP) Swinney, John (North Tayside) (SNP) Thompson, Dave (Highlands and Islands) (SNP) Watt, Maureen (North East Scotland) (SNP) Welsh, Andrew (Angus) (SNP) White, Sandra (Glasgow) (SNP) Wilson, Bill (West of Scotland) (SNP) Wilson, John (Central Scotland) (SNP)
The result of the division is: For 60, Against 60, Abstentions 0. I will therefore use my casting vote. In this case, the status quo is the bill, and the amendment would be a change, so I vote against the amendment.
Amendment 29, as amended, disagreed to.
Section 2—Displays which are also advertisements
Amendment 30 moved—[Dr Richard Simpson].
The question is, that amendment 30 be agreed to. Are we agreed?
No.
There will be a division.
For
Alexander, Ms Wendy (Paisley North) (Lab) Baillie, Jackie (Dumbarton) (Lab) Baker, Claire (Mid Scotland and Fife) (Lab) Baker, Richard (North East Scotland) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Brankin, Rhona (Midlothian) (Lab) Brown, Robert (Glasgow) (LD) Butler, Bill (Glasgow Anniesland) (Lab) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Curran, Margaret (Glasgow Baillieston) (Lab) Eadie, Helen (Dunfermline East) (Lab) Ferguson, Patricia (Glasgow Maryhill) (Lab) Finnie, Ross (West of Scotland) (LD) Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) Godman, Trish (West Renfrewshire) (Lab) Gordon, Charlie (Glasgow Cathcart) (Lab) Grant, Rhoda (Highlands and Islands) (Lab) Gray, Iain (East Lothian) (Lab) Harper, Robin (Lothians) (Green) Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) Hume, Jim (South of Scotland) (LD) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Kelly, James (Glasgow Rutherglen) (Lab) Kerr, Andy (East Kilbride) (Lab) Lamont, Johann (Glasgow Pollok) (Lab) Livingstone, Marilyn (Kirkcaldy) (Lab) Macdonald, Lewis (Aberdeen Central) (Lab) Macintosh, Ken (Eastwood) (Lab) Martin, Paul (Glasgow Springburn) (Lab) McArthur, Liam (Orkney) (LD) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McCabe, Tom (Hamilton South) (Lab) McConnell, Jack (Motherwell and Wishaw) (Lab) McInnes, Alison (North East Scotland) (LD) McMahon, Michael (Hamilton North and Bellshill) (Lab) McNeil, Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Mulligan, Mary (Linlithgow) (Lab) Murray, Elaine (Dumfries) (Lab) O'Donnell, Hugh (Central Scotland) (LD) Oldfather, Irene (Cunninghame South) (Lab) Park, John (Mid Scotland and Fife) (Lab) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Simpson, Dr Richard (Mid Scotland and Fife) (Lab) Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Stewart, David (Highlands and Islands) (Lab) Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD) Tolson, Jim (Dunfermline West) (LD) Whitefield, Karen (Airdrie and Shotts) (Lab) Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP) Aitken, Bill (Glasgow) (Con) Allan, Alasdair (Western Isles) (SNP) Brocklebank, Ted (Mid Scotland and Fife) (Con) Brown, Gavin (Lothians) (Con) Brown, Keith (Ochil) (SNP) Brownlee, Derek (South of Scotland) (Con) Campbell, Aileen (South of Scotland) (SNP) Carlaw, Jackson (West of Scotland) (Con) Coffey, Willie (Kilmarnock and Loudoun) (SNP) Constance, Angela (Livingston) (SNP) Crawford, Bruce (Stirling) (SNP) Cunningham, Roseanna (Perth) (SNP) Don, Nigel (North East Scotland) (SNP) Doris, Bob (Glasgow) (SNP) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Fabiani, Linda (Central Scotland) (SNP) FitzPatrick, Joe (Dundee West) (SNP) Fraser, Murdo (Mid Scotland and Fife) (Con) Gibson, Kenneth (Cunninghame North) (SNP) Gibson, Rob (Highlands and Islands) (SNP) Grahame, Christine (South of Scotland) (SNP) Harvie, Christopher (Mid Scotland and Fife) (SNP) Hepburn, Jamie (Central Scotland) (SNP) Hyslop, Fiona (Lothians) (SNP) Ingram, Adam (South of Scotland) (SNP) Johnstone, Alex (North East Scotland) (Con) Kidd, Bill (Glasgow) (SNP) Lamont, John (Roxburgh and Berwickshire) (Con) Lochhead, Richard (Moray) (SNP) MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP) Marwick, Tricia (Central Fife) (SNP) Mather, Jim (Argyll and Bute) (SNP) Matheson, Michael (Falkirk West) (SNP) Maxwell, Stewart (West of Scotland) (SNP) McKee, Ian (Lothians) (SNP) McKelvie, Christina (Central Scotland) (SNP) McLaughlin, Anne (Glasgow) (SNP) McLetchie, David (Edinburgh Pentlands) (Con) McMillan, Stuart (West of Scotland) (SNP) Milne, Nanette (North East Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) Morgan, Alasdair (South of Scotland) (SNP) Neil, Alex (Central Scotland) (SNP) Paterson, Gil (West of Scotland) (SNP) Robison, Shona (Dundee East) (SNP) Russell, Michael (South of Scotland) (SNP) Salmond, Alex (Gordon) (SNP) Scanlon, Mary (Highlands and Islands) (Con) Scott, John (Ayr) (Con) Smith, Elizabeth (Mid Scotland and Fife) (Con) Somerville, Shirley-Anne (Lothians) (SNP) Stevenson, Stewart (Banff and Buchan) (SNP) Sturgeon, Nicola (Glasgow Govan) (SNP) Swinney, John (North Tayside) (SNP) Thompson, Dave (Highlands and Islands) (SNP) Watt, Maureen (North East Scotland) (SNP) Welsh, Andrew (Angus) (SNP) White, Sandra (Glasgow) (SNP) Wilson, Bill (West of Scotland) (SNP) Wilson, John (Central Scotland) (SNP)
The result of the division is: For 60, Against 61, Abstentions 0.
Amendment 30 disagreed to.
Does Mary Scanlon wish to move amendment 5?
We oppose section 2, but given the previous vote I will not move amendment 5.
Amendment 5 not moved.
Section 3—Regulation of display of prices
Amendment 6 not moved.
Section 4B—Purchase of tobacco products on behalf of persons under 18
I exercise my power under rule 9.8.4A to extend the deadline to allow the debate on groups 1 and 2 to be completed.
Group 2 is on offences involving purchase of tobacco products by or on behalf of persons under 18. Amendment 18, in the name of the minister, is grouped with amendments 21 to 23.
Amendment 18 relates to the changes that were made to the bill at stage 2 to create a new offence of proxy purchase. The offence makes it illegal for someone aged 18 or over knowingly to buy or to attempt to buy tobacco products or cigarette papers for someone who is under 18.
At stage 2, Dr Simpson sought to amend the bill to provide for penalties for second or subsequent offences to be pitched at a higher maximum level. As a general rule, it is not policy to provide different maximum penalties for first and subsequent offences in Scottish statute. Such provisions were abolished or allowed to wither away by paragraph 4 of schedule 1 to the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995. The policy is, rather, that legislation sets out the maximum level of a penalty and the appropriate amount of the fine is left to the sheriff's discretion, taking into account the circumstances of the case.
In practice, it is highly unlikely that a sheriff would impose the maximum penalty for a first offence unless there were special circumstances. We therefore need to determine whether the maximum level of fine that has been set is appropriate. I have given the matter a great deal of consideration, as I said at stage 2 that I would, and I am satisfied that there is a case for increasing the maximum penalty for the offence of proxy purchase to level 5.
Amendments 21 to 23 apply the presumption as to contents of containers for the purpose of any trial for offences relating to the purchase or attempted purchase of tobacco by persons under 18 and the purchase or attempted purchase of tobacco for persons under 18. The presumption as to contents of containers already applies to offences relating to the sale and display of tobacco products.
I move amendment 18.
I call Dr Richard Simpson. Please be as brief as possible, Dr Simpson.
I thank the Government for responding to the debate at stage 2 so well. It is important that we have higher fines, as the current levels are rather low in relation to tobacco and so on. The fact that we are moving on is welcome. I thank the minister.
Minister, do you wish to wind up?
No.
I am grateful to you.
Amendment 18 agreed to.
Section 5—Display of warning statements
Amendment 31 moved—[Dr Richard Simpson].
The question is, that amendment 31 be agreed to. Are we agreed?
No.
There will be a division. This is a one-minute division.
For
Alexander, Ms Wendy (Paisley North) (Lab) Baillie, Jackie (Dumbarton) (Lab) Baker, Claire (Mid Scotland and Fife) (Lab) Baker, Richard (North East Scotland) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Brankin, Rhona (Midlothian) (Lab) Brown, Robert (Glasgow) (LD) Butler, Bill (Glasgow Anniesland) (Lab) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Curran, Margaret (Glasgow Baillieston) (Lab) Eadie, Helen (Dunfermline East) (Lab) Ferguson, Patricia (Glasgow Maryhill) (Lab) Finnie, Ross (West of Scotland) (LD) Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) Godman, Trish (West Renfrewshire) (Lab) Gordon, Charlie (Glasgow Cathcart) (Lab) Grant, Rhoda (Highlands and Islands) (Lab) Gray, Iain (East Lothian) (Lab) Harper, Robin (Lothians) (Green) Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) Hume, Jim (South of Scotland) (LD) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Kelly, James (Glasgow Rutherglen) (Lab) Kerr, Andy (East Kilbride) (Lab) Lamont, Johann (Glasgow Pollok) (Lab) Livingstone, Marilyn (Kirkcaldy) (Lab) Macdonald, Lewis (Aberdeen Central) (Lab) Macintosh, Ken (Eastwood) (Lab) Martin, Paul (Glasgow Springburn) (Lab) McArthur, Liam (Orkney) (LD) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McCabe, Tom (Hamilton South) (Lab) McConnell, Jack (Motherwell and Wishaw) (Lab) McInnes, Alison (North East Scotland) (LD) McMahon, Michael (Hamilton North and Bellshill) (Lab) McNeil, Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Mulligan, Mary (Linlithgow) (Lab) Murray, Elaine (Dumfries) (Lab) O'Donnell, Hugh (Central Scotland) (LD) Oldfather, Irene (Cunninghame South) (Lab) Park, John (Mid Scotland and Fife) (Lab) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Simpson, Dr Richard (Mid Scotland and Fife) (Lab) Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Stewart, David (Highlands and Islands) (Lab) Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD) Tolson, Jim (Dunfermline West) (LD) Whitefield, Karen (Airdrie and Shotts) (Lab) Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP) Aitken, Bill (Glasgow) (Con) Allan, Alasdair (Western Isles) (SNP) Brocklebank, Ted (Mid Scotland and Fife) (Con) Brown, Gavin (Lothians) (Con) Brown, Keith (Ochil) (SNP) Brownlee, Derek (South of Scotland) (Con) Campbell, Aileen (South of Scotland) (SNP) Carlaw, Jackson (West of Scotland) (Con) Coffey, Willie (Kilmarnock and Loudoun) (SNP) Constance, Angela (Livingston) (SNP) Crawford, Bruce (Stirling) (SNP) Cunningham, Roseanna (Perth) (SNP) Don, Nigel (North East Scotland) (SNP) Doris, Bob (Glasgow) (SNP) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Fabiani, Linda (Central Scotland) (SNP) FitzPatrick, Joe (Dundee West) (SNP) Fraser, Murdo (Mid Scotland and Fife) (Con) Gibson, Kenneth (Cunninghame North) (SNP) Gibson, Rob (Highlands and Islands) (SNP) Grahame, Christine (South of Scotland) (SNP) Harvie, Christopher (Mid Scotland and Fife) (SNP) Hepburn, Jamie (Central Scotland) (SNP) Hyslop, Fiona (Lothians) (SNP) Ingram, Adam (South of Scotland) (SNP) Johnstone, Alex (North East Scotland) (Con) Kidd, Bill (Glasgow) (SNP) Lamont, John (Roxburgh and Berwickshire) (Con) Lochhead, Richard (Moray) (SNP) MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP) Marwick, Tricia (Central Fife) (SNP) Mather, Jim (Argyll and Bute) (SNP) Matheson, Michael (Falkirk West) (SNP) Maxwell, Stewart (West of Scotland) (SNP) McKee, Ian (Lothians) (SNP) McKelvie, Christina (Central Scotland) (SNP) McLaughlin, Anne (Glasgow) (SNP) McLetchie, David (Edinburgh Pentlands) (Con) McMillan, Stuart (West of Scotland) (SNP) Milne, Nanette (North East Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) Morgan, Alasdair (South of Scotland) (SNP) Neil, Alex (Central Scotland) (SNP) Paterson, Gil (West of Scotland) (SNP) Robison, Shona (Dundee East) (SNP) Russell, Michael (South of Scotland) (SNP) Salmond, Alex (Gordon) (SNP) Scanlon, Mary (Highlands and Islands) (Con) Scott, John (Ayr) (Con) Smith, Elizabeth (Mid Scotland and Fife) (Con) Somerville, Shirley-Anne (Lothians) (SNP) Stevenson, Stewart (Banff and Buchan) (SNP) Sturgeon, Nicola (Glasgow Govan) (SNP) Swinney, John (North Tayside) (SNP) Thompson, Dave (Highlands and Islands) (SNP) Watt, Maureen (North East Scotland) (SNP) Welsh, Andrew (Angus) (SNP) White, Sandra (Glasgow) (SNP) Wilson, Bill (West of Scotland) (SNP) Wilson, John (Central Scotland) (SNP)
Abstentions
MacDonald, Margo (Lothians) (Ind)
The result of the division is: For 60, Against 61. There was one abstention but it seems to have disappeared from the screen.
Amendment 31 disagreed to.
Amendment 32 not moved.
Section 6—Prohibition of vending machines for the sale of tobacco products
Group 3 is on prohibition of use of vending machines for the sale of tobacco—exemption. Amendment 1, in the name of Rhoda Grant, is grouped with amendments 2 and 3.
Amendment 1 seeks to allow radio-controlled cigarette vending machines to be retained in licensed premises. Anyone who wishes to purchase something from such a machine must ask a member of staff to activate it. If the member of staff suspects that the person is under 18, they must challenge them in the same way that they have been trained to challenge young people who try to buy alcohol. After the member of staff activates the machine, the customer has 30 seconds to make the purchase before the machine switches off automatically. The machine also switches off immediately after a single purchase.
Amendment 1 does not allow vending machines in unlicensed premises. Should a licensee or their staff sell tobacco to someone under 18, they will be subject to the penalties outlined in the bill and will also lose their right to have a vending machine. Furthermore, under the amendment, the Government will be able to ban machines through secondary legislation if it turns out that the radio-controlled approach does not work.
I have lodged the amendment because I feel that vending machines are a more secure option than the provisions in the bill. Under the bill, licensed premises are not prohibited from selling tobacco products, which may be sold from behind the bar. I am concerned that that will make them more accessible to children. If a bar is family run and has living premises attached to it, the chances are that children will be behind the bar and have access to cigarettes, which not only puts temptation in their way but leaves them open to bullying and coercion. As a result, amendment 1 is more in keeping with the bill's policy intentions.
I note that the Government has not told Parliament when it will implement the legislation. If it does so within months, the companies involved will not have enough time to diversify, consigning their staff to unemployment; if there is a long lead-in time, young people will have less protection over that period.
I find the Government's decision not to accept my proposal for a pilot of the system unreasonable. After all, if it works, it works; if it does not, the minister will be able to move to ban these machines in the same proposed timeframe. If she does not accept the amendment, many people will be concerned about their jobs. She needs to take that prospect seriously and move quickly to work with the companies involved.
That said, of course, the saving of lives will always outweigh the saving of jobs. However, that is not the reason for amendment 1, which is about providing secure sales to protect young people while tobacco is still legally available. The other amendments in the group are consequential to amendment 1.
I move amendment 1.
I will be able to fit in the four members who wish to speak, if they are very brief.
In speaking against amendments 1 and 2, I note that when a very similar amendment to amendment 1 was lodged at stage 2 the committee did not support it.
It is worth bearing in mind that one in 10 of all Scottish 13 to 15-year-olds who smoke regularly access their cigarettes via vending machines. As a result, banning these machines is one of the best ways of ensuring that such a source is not available to them.
I understand the concerns raised by rural communities, where in the absence of a shop the local pub might sell cigarettes. However, under the legislation, those pubs will still be able to store cigarettes behind the counter and sell them to people face to face. The argument that children who live in a pub will be able to access the cigarettes stored behind the counter is somewhat ridiculous; after all, the same argument could be made with regard to access to alcohol, and no one seems to have a problem with that. In that light, I think that the argument is something of a red herring in dealing with what is an important matter.
Moreover, we have no robust evidence to demonstrate that remote-controlled vending machines are a much more secure way of ensuring that young people cannot access cigarettes. I believe that, given the lack of evidence, we should not take such action.
I also note that we do not allow fireworks, solvents, alcohol or other harmful substances to be sold in vending machines. Why should such a deadly product as cigarettes be exempt from that? I believe that we should ban these vending machines and that the bill's approach to the issue is measured and proportionate.
Rhoda Grant has argued the case for radio-controlled vending machines and I, like other members in the chamber, have had the opportunity to view them in operation. However, we need to balance the impact on businesses of a total ban on vending machines with the wider benefit to public health.
The United Kingdom will implement its ban by October 2011, and it is right that we should keep in step with that. Some have argued that an extension of time would help vending machine operators. I do not believe that because the use of existing vending machines would continue without the safeguards that Rhoda Grant's amendments propose, and that would not be desirable.
That all needs to be weighed against the obvious advantages of a total ban. We know that test purchasing, albeit in a rural area, showed that the operators failed in 23 out 25 cases. We need to be mindful of that, and of the Parliament's clear desire to remove the possibility of young people purchasing tobacco inappropriately.
It would be helpful for the minister to address two specific areas. I know that she and her officials have had preliminary discussions with vending machine operators, which is welcome. Will she commit to continuing to facilitate discussions about, in particular, two issues that have been raised: putting dispensing machines behind the bar, and the opportunities in the industry for diversification? Such practical support would start to help and it would further address the sustainability of those businesses, while acknowledging the importance of the Parliament's move towards a total ban. For those reasons, Labour will support the Government in putting public health interests first.
This has been a vexed issue. As is common with many public health measures, there is a balance. In this case, one has to balance the public health benefit against the legitimate and understandable concerns of those in the vending machine industry who are naturally feeling under threat. Liberal Democrats have considered the industry's representations very carefully, and we are not wholly persuaded that the proposed mechanism is entirely foolproof. We share that view with the British Heart Foundation, the Royal College of Physicians of Edinburgh and Cancer Research UK. We believe that public health is the overriding concern in the debate.
Like Jackie Baillie we think that, given the balance of the argument, the Government has issues to address, and it needs to take a sympathetic view of the support and help that might be afforded by the industry department to those who will undoubtedly be affected by the legislation. On balance, we are persuaded that public health has to be paramount. We invite the minister to take our view into consideration.
We support Rhoda Grant's amendments. Tobacco vending machine sales account for less than 1 per cent of tobacco sales in Scotland. The ban will particularly affect remote and rural areas, where many filling stations, village shops and post offices have closed in recent years. In Orkney and Shetland, there has been a 30 per cent reduction in the number of licensed premises. Staff training on the sale of alcohol is the best that it has ever been.
The explanatory notes say that
"The Scottish Government is aware of only one company operating in Scotland",
but the truth is that 14 companies will go out of business, with the loss of 60 jobs, not 14.
On average, cigarettes purchased from a vending machine are 36 per cent more expensive than those that are bought from a shop, so it is unlikely that young people will use those machines.
A vote against amendment 1 will mean that, as secure stockholding units, vending machines will be removed, and the landlord will sell tobacco from behind the counter. It is a proven fact that cigarettes that are sold from behind the counter are readily accessible. In truth, banning remote or radio-controlled vending machines from licensed premises such as pubs, social clubs, golf and bowling clubs, where the clientele is generally aged over 18, makes tobacco more readily accessible. I trust that those who are speaking against remote and radio-controlled vending machines are speaking from the experience of having seen them in operation in the Parliament. They are successfully and effectively used in many European countries, including Spain and Portugal. We support the amendments.
I am sorry that I was not able to attend the demonstration of the remote-controlled machine when it came to Parliament, but I have tried to listen to the arguments on both sides.
I have a brief question that I ask Rhoda Grant to respond to in summing up. Half of us, including the Labour group, have just voted for Richard Simpson's amendments to ban various visual cues that promote the acceptability and acceptance of tobacco and smoking in premises. Why does that argument not apply also to vending machines? Why should we not regard them as a visual cue and take the same approach to them that many of us took in relation to Richard Simpson's amendments?
Before I discuss the amendments in detail, I say that our decision to opt for a complete ban on cigarette sales from vending machines was not taken lightly. I met Scottish vending machine operators in early September last year and I have listened to their concerns and the concerns of the 60 staff who are employed in the sector in Scotland. My officials have continued that dialogue since then. We do not take any job losses lightly.
Will the minister confirm that the explanatory notes were wrong in stating that
"The Scottish Government is aware of only one company operating in Scotland that would be affected by the ban",
and in claiming that a total of 14 staff would have to be made redundant? Does she accept that that was inaccurate?
We discussed that at length at the Health and Sport Committee and in correspondence, and we have explained the reasons. Despite our extensive attempts to contact the body that represents vending machine operators—the National Association of Cigarette Machine Operators—and to get a clear idea of the number of job losses that would be involved, we were unable to do so. Therefore, our initial figures came from Sinclair Collis, which is one of the bigger companies. Some time after that, when the bill was published, NACMO finally got in touch with us after we had left numerous telephone messages for the individuals concerned. My officials went a long way to try to get information from NACMO. The information that we finally received is that we are talking about 60 jobs. The situation did not arise through a lack of effort on our part, but we now acknowledge, as I did to the Health and Sport Committee, that 60 jobs are involved.
We do not take the decision lightly but, as I have made clear throughout the progress of the bill, I have a fundamental problem with a dangerous and age-restricted product such as tobacco being sold from a self-service machine. We have concluded that a complete ban is the only way in which to be sure that under-18s do not access cigarettes from that source. I am pleased to note from the stage 1 report that the majority of Health and Sport Committee members agreed. The committee states that it is yet to be convinced that the system that Rhoda Grant promotes
"could be made to work in practice across the range of situations in which a vending machine might be installed—for example, in crowded city-centre pubs where there are many distractions for bar staff."
Rhoda Grant clearly believes that her amendment 1 is the best of both worlds, but I do not agree. The ban might have an impact on the companies that currently sell tobacco from vending machines, but the bill does not prevent them from selling other products from their machines; nor does it prevent pubs and hotels from using vending machines as a dispensing machine—a secure means of storing tobacco behind the counter.
I am happy to delay commencement until October 2011, in line with the Department of Health's approach. I am sure that no one in the Parliament would want Scotland to lag behind England on a tobacco control measure. There are concerns about how tobacco will be sold from licensed premises after the ban. We will continue to work with trading standards officers, the licensed trade and vending machine operators to provide detailed guidance on how tobacco should be sold to address the access issues that Rhoda Grant raises.
The Scottish Parliament's leading position in the UK on public health would be under threat if amendment 1 were agreed to. I therefore ask Rhoda Grant to withdraw amendment 1 and not to move amendments 2 and 3.
I welcome the minister's comments about working with licensed premises and the machine manufacturers to consider diversification and secure ways of selling cigarettes from behind the bar, which is an important part of the argument. I do not intend to press amendment 1 and therefore will not move amendments 2 and 3.
Does any member object to amendment 1 being withdrawn?
Yes.
The question is, that amendment 1 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con) Brocklebank, Ted (Mid Scotland and Fife) (Con) Brown, Gavin (Lothians) (Con) Brownlee, Derek (South of Scotland) (Con) Carlaw, Jackson (West of Scotland) (Con) Fraser, Murdo (Mid Scotland and Fife) (Con) Johnstone, Alex (North East Scotland) (Con) Lamont, John (Roxburgh and Berwickshire) (Con) McLetchie, David (Edinburgh Pentlands) (Con) Milne, Nanette (North East Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) Scanlon, Mary (Highlands and Islands) (Con) Scott, John (Ayr) (Con) Smith, Elizabeth (Mid Scotland and Fife) (Con)
Against
Adam, Brian (Aberdeen North) (SNP) Alexander, Ms Wendy (Paisley North) (Lab) Allan, Alasdair (Western Isles) (SNP) Baillie, Jackie (Dumbarton) (Lab) Baker, Claire (Mid Scotland and Fife) (Lab) Baker, Richard (North East Scotland) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Brankin, Rhona (Midlothian) (Lab) Brown, Keith (Ochil) (SNP) Brown, Robert (Glasgow) (LD) Butler, Bill (Glasgow Anniesland) (Lab) Campbell, Aileen (South of Scotland) (SNP) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Coffey, Willie (Kilmarnock and Loudoun) (SNP) Constance, Angela (Livingston) (SNP) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Cunningham, Roseanna (Perth) (SNP) Curran, Margaret (Glasgow Baillieston) (Lab) Don, Nigel (North East Scotland) (SNP) Doris, Bob (Glasgow) (SNP) Eadie, Helen (Dunfermline East) (Lab) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Fabiani, Linda (Central Scotland) (SNP) Ferguson, Patricia (Glasgow Maryhill) (Lab) Finnie, Ross (West of Scotland) (LD) FitzPatrick, Joe (Dundee West) (SNP) Gibson, Kenneth (Cunninghame North) (SNP) Gibson, Rob (Highlands and Islands) (SNP) Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) Gordon, Charlie (Glasgow Cathcart) (Lab) Grahame, Christine (South of Scotland) (SNP) Grant, Rhoda (Highlands and Islands) (Lab) Gray, Iain (East Lothian) (Lab) Harper, Robin (Lothians) (Green) Harvie, Christopher (Mid Scotland and Fife) (SNP) Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) Hepburn, Jamie (Central Scotland) (SNP) Hume, Jim (South of Scotland) (LD) Hyslop, Fiona (Lothians) (SNP) Ingram, Adam (South of Scotland) (SNP) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Kelly, James (Glasgow Rutherglen) (Lab) Kerr, Andy (East Kilbride) (Lab) Kidd, Bill (Glasgow) (SNP) Lamont, Johann (Glasgow Pollok) (Lab) Livingstone, Marilyn (Kirkcaldy) (Lab) Lochhead, Richard (Moray) (SNP) MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP) Macdonald, Lewis (Aberdeen Central) (Lab) MacDonald, Margo (Lothians) (Ind) Macintosh, Ken (Eastwood) (Lab) Martin, Paul (Glasgow Springburn) (Lab) Marwick, Tricia (Central Fife) (SNP) Mather, Jim (Argyll and Bute) (SNP) Matheson, Michael (Falkirk West) (SNP) Maxwell, Stewart (West of Scotland) (SNP) McArthur, Liam (Orkney) (LD) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McCabe, Tom (Hamilton South) (Lab) McConnell, Jack (Motherwell and Wishaw) (Lab) McInnes, Alison (North East Scotland) (LD) McKee, Ian (Lothians) (SNP) McKelvie, Christina (Central Scotland) (SNP) McLaughlin, Anne (Glasgow) (SNP) McMahon, Michael (Hamilton North and Bellshill) (Lab) McMillan, Stuart (West of Scotland) (SNP) McNeil, Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Mulligan, Mary (Linlithgow) (Lab) Murray, Elaine (Dumfries) (Lab) Neil, Alex (Central Scotland) (SNP) O'Donnell, Hugh (Central Scotland) (LD) Oldfather, Irene (Cunninghame South) (Lab) Park, John (Mid Scotland and Fife) (Lab) Paterson, Gil (West of Scotland) (SNP) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Robison, Shona (Dundee East) (SNP) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Russell, Michael (South of Scotland) (SNP) Salmond, Alex (Gordon) (SNP) Simpson, Dr Richard (Mid Scotland and Fife) (Lab) Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Somerville, Shirley-Anne (Lothians) (SNP) Stevenson, Stewart (Banff and Buchan) (SNP) Stewart, David (Highlands and Islands) (Lab) Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD) Sturgeon, Nicola (Glasgow Govan) (SNP) Swinney, John (North Tayside) (SNP) Thompson, Dave (Highlands and Islands) (SNP) Tolson, Jim (Dunfermline West) (LD) Watt, Maureen (North East Scotland) (SNP) Welsh, Andrew (Angus) (SNP) White, Sandra (Glasgow) (SNP) Whitefield, Karen (Airdrie and Shotts) (Lab) Whitton, David (Strathkelvin and Bearsden) (Lab) Wilson, Bill (West of Scotland) (SNP) Wilson, John (Central Scotland) (SNP)
The result of the division is: For 14, Against 105, Abstentions 0.
Amendment 1 disagreed to.
Amendment 2 not moved.
Section 12—Tobacco retailing banning orders
We come to group 4. Amendment 19, in the name of the minister, is grouped with amendments 20, 33 to 35 and 24.
I will speak to Government amendments 19, 20 and 24, which all relate to powers in the bill that allow courts to ban from selling tobacco retailers who continually break tobacco sales law. Amendments 19 and 20 increase from 12 to 24 months the maximum period for which a person can be banned from selling tobacco. The amendments are a result of my commitment at stage 2 to consider increasing the maximum period for which a sheriff can ban a person from selling tobacco for second and subsequent offences. Although I concluded that it was not appropriate to limit their powers by restricting sentencing in that way, there is a case for increasing the maximum period.
Amendment 24 corrects a typographical error that was noted by parliamentary clerks.
I note the Government's support for Christine Grahame's amendments 33 to 35. Requiring retailers to display banning notices would bolster the registration scheme and could act as a further deterrent to breaking the law.
I move amendment 19.
I support the Government's amendments and will speak to my amendments 33 to 35. In general, I welcome the requirement to have a register of tobacco retailers. I pursued the idea originally as a bill proposal for a licensing system. I also welcome the fact that tobacco is now almost, but not quite, being put in the same category as other dangerous products, such as alcohol.
Under my amendments, the sign that would have to be displayed would act as an important reminder of the laws prohibiting the sale of tobacco to underage customers—that is, that it is illegal to sell tobacco products to anyone under 18. It would also remind customers that tobacco was available in that shop.
Amendment 33 would place an additional requirement on any shop that is the subject of a banning order to display a sign stating that tobacco may not be sold in that shop as a result of enforcement action. The sign would contain details of the ban's duration and be displayed in a prominent position on the premises.
The display of such a sign would serve three main purposes. First, it would allow customers and the local community to know that the retailer was banned from selling tobacco. Secondly, it would distinguish between shops that choose not to sell tobacco—for example, Lidl in Scotland has decided not to sell tobacco in its stores—and those that are prevented from doing so by a banning order. Thirdly, it would send a powerful message to both retailers and customers that continued breaking of tobacco sales laws, especially those concerning sales to underage customers, which result in fixed-penalty notices and lead to banning orders, might result in the loss of the right to sell tobacco. It is likely that that would have an additional deterrent effect on retailers who might be tempted to break the law.
The subsequent amendments impose proper penalties if the notice is not displayed.
Before I call Richard Simpson, I ask members to be quiet, please.
Labour will support all the amendments in the group. We particularly welcome the added flexibility that sheriffs will have to take the banning order up to 24 months, rather than 12—a period that we felt was just too short. We very much welcome that change. We support Christine Grahame's amendments and pay tribute to her for her original work on tobacco.
Amendment 19 agreed to.
Section 12B—Tobacco retailing banning orders etc: appeals
Amendment 20 moved—[Shona Robison]—and agreed to.
After section 12C
Amendment 33 moved—[Christine Grahame]—and agreed to.
Section 13—Offences relating to the Register
Amendments 34 and 35 moved—[Christine Grahame]—and agreed to.
Section 25—Presumption as to contents of container
Amendment 7, in the name of Mary Scanlon, has already been debated with amendment 4. If amendment 7 is agreed to, I cannot call amendment 21, because of pre-emption.
Amendment 7 not moved.
Amendment 21 moved—[Shona Robison]—and agreed to.
Amendment 8 not moved.
Amendment 22 moved—[Shona Robison]—and agreed to.
Amendment 9 not moved.
Amendment 23 moved—[Shona Robison]—and agreed to.
Section 27—Interpretation of Part 1
Amendment 24 moved—[Shona Robison]—and agreed to.
Amendment 10 not moved.
Section 29—Contractual arrangements for the provision of primary medical services
We come to group 5. Amendment 11, in the name of Mary Scanlon, is grouped with amendments 12 to 14 and 17.
In 2003, Labour, the Scottish National Party and the Liberal Democrats not only supported the inclusion of measures for commercial providers in the Primary Medical Services (Scotland) Act 2004, but robustly defended those proposals against Scottish Socialist Party amendments. Amendment 11 seeks to retain the commonsense approach of the bill that was agreed by all parties but the SSP only six years ago.
Despite commercial providers being able to set up shop, so to speak, in Scotland, none has chosen to do so, to date. Our ageing population, the increased availability of treatments and increased public expectations all result in increasing demand for general practitioner services, year on year. Despite the acknowledged increased need, the BMA and the Scottish Government propose a measure that is designed to prevent the possibility of alternative sources of provision.
Community Pharmacy Scotland—open all hours in every high street and village in Scotland—stated in its written submission:
"There is no guarantee that the existing practice model will survive for another 10, let alone 60 years and without the possibility of alternative methods of provision the situation could arise where medical services could not be provided for people living in ‘hard to doctor' areas such as remote and rural regions or in areas of deprivation within our cities."
The increase in calls to the Scottish Ambulance Service and in accident and emergency presentations are undoubtedly a result of the new GP contract, which has resulted in many, and increasing, numbers of GPs opting out of providing out-of-hours care.
If part 2 of the bill were to be deleted and existing legislation to remain, GPs could hold surgeries in pharmacies, for example. A vote against the amendments would guarantee monopoly provision by one provider that is represented by one trade union negotiating with Scotland.
The European states that have the most successful health care systems have developed successful partnerships with the private and voluntary sectors not only to provide general medical services but to tackle public health issues.
Scotland has no commercial providers, so Helen Eadie and I visited a walk-in centre at Canary Wharf and a health centre in Tower Hamlets that are both run by the independent company Atos Origin. The walk-in centre is open from 7 am to 7 pm and serves 80,000 employees at Canary Wharf, local people and tourists. It has reduced the amount and financial cost of work absenteeism by reducing preventable ill health, and it allows accessible attendance at GP appointments during the working day. The number of people who present to local accident and emergency units has also reduced significantly. Surveys show that 97 per cent of patients have found the care to be good or excellent, and the primary care trust has a member on the Atos board to ensure good partnerships and working relations.
In Tower Hamlets, which is the second-most deprived area in London, the primary care trust discontinued the previous contract for the health centre GPs because they did not meet key performance indicators and did not serve the needs of the community, more than 30 per cent of whom are Bengali. If Atos failed to achieve the required standards for patients, it would simply lose its contract.
The primary care trust confirmed that Atos has better software and better attention to detail. It gives monthly reports to NHS London and has better data management. The health centre regularly meets key performance indicators on issues such as complaint response and generic prescribing. More focus is placed on addressing health inequalities, marketing is better, staff turnover is lower and continuity of care is better, because the provision of doctors and staff is more stable. The centre meets all its targets for health checks, immunisation and screening and the management of chronic disease has improved considerably.
You should finish now, Ms Scanlon.
People often do not present early for diagnosis because taking time off work to see a GP can be difficult, if people commute to work, for example. A walk-in centre allows for early presentation.
I fully support the current independent contracting of GP services in Scotland and commend the excellent work that is done day and daily.
Finally, one regret from the London visit was that we could not see the Atos mobile units in rural areas, because of time constraints.
I move amendment 11.
I use my power under rule 9.8.4A(c) of standing orders to extend the deadline for debating group 5, to allow the debate to be completed.
I will be brief. Liberal Democrats perfectly accept that we voted for the Primary Medical Services (Scotland) Act 2004, but the notion that members who voted for a bill six years ago are not entitled to reflect on current circumstances is nonsense. I have no doubt that I might now have reservations about some bills that I supported—genuinely—in 1999. That is just a fact, so we should not make such points.
Mary Scanlon's argument has been entirely consistent. She and her Conservative colleagues are entitled to support moves in the health service that they believe only the private sector can achieve. Some of her suggestions could be provided in general practice—the bill will not impede that.
The argument is not about whether the private sector provides such services, because GPs in existing practices are members of the private sector. The issue is what model is used in the private sector. Ross Finnie must not confuse the argument.
I am not sure whether that lecture has greatly improved my view on whether to support the amendments—if that was the intervention's intention. I know that David McLetchie always seeks to garner votes, particularly for lost causes.
What is at issue is our perception of the development of general practice. Of course, we all have grave reservations about the outcome of some of the contractual arrangements that have been entered into. However, with the exception of the Conservatives—who take a different, and perfectly legitimate, approach to the issue—members around the chamber see that the objectives can be achieved in a health service that does not necessarily have to accommodate the private sector. The Liberal Democrats will oppose all the amendments in Mary Scanlon's name.
I call the minister.
I had expected other contributions to the debate, Presiding Officer.
Mary Scanlon may find this unexpected, but I thank her for lodging the amendments and acknowledge her consistency and sincerity in doing so. Her amendments are similar to the stage 2 amendments that led to a high-quality debate at the Health and Sport Committee; in fact, it was one of the best committee debates in which I have taken part.
That said, we will oppose Mary Scanlon's amendments because their effect would be to delete part 2 of the bill, which would undermine our objective of ensuring that all holders of primary medical services contracts—often the first and only point of contact between a patient and the national health service—are directly involved in the NHS. The bill expects contract holders to demonstrate that, first through the involvement of a medical practitioner or other health care professional, in the case of section 17C contracts, and secondly through the involvement of all contractors in the day-to-day provision or running of the medical services.
Members will be aware that I agreed to a stage 2 amendment that would leave open the possibility of health care professionals other than doctors holding GMS contracts in the future. The Health and Sport Committee asked for that key flexibility, which is most likely to apply to nurses, in its stage 1 report.
The stage 2 committee debate to which I referred was so good because it avoided some of the oversimplifications that have, at times, characterised the debate. Before any member rushes to intervene, I say that I am sure that I have been guilty at times of contributing to that oversimplification.
I agree entirely with the points that Ross Finnie made, and I am sure that he will agree that the debate is not simply about public versus private. In the main, GPs are independent contractors. The bill will not prevent companies from holding contracts, but it specifies the criteria that companies must fulfil, of which the most important are the involvement criteria. The criteria apply consistently to all forms of contract holders.
The best way in which to characterise the debate is that it comes down to a choice between wanting the people who provide our primary medical services to be directly involved in running those services, or saying that it is okay for them to have a more detached and arm's-length relationship with the NHS. Given the importance of primary medical services, I take the former view.
Mary Scanlon referred to a number of the flexibilities to which the commercial model has led south of the border. Ross Finnie was absolutely 100 per cent correct on the matter: in many respects, those flexibilities are to be welcomed, but they neither depend on nor are made more likely by the kind of model that the Tories advocate. For example, there is nothing in the bill to prevent the kind of development of community pharmacies that Mary Scanlon described. An important priority is to prevent patients from unnecessarily turning up at accident and emergency departments. We want to advance that regardless of the contractual arrangements.
Community pharmacies have stated that, for example, high street chemists or Boots the Chemist could not employ GPs to hold surgeries on their premises. Are they right or wrong?
If Mary Scanlon reads the bill, as I know she has, she will see that any contract holder has to satisfy the involvement criteria. If they satisfy those criteria, they can hold a contract. That is the important point in the debate. We are not discriminating between different types of contract holder, but are stipulating involvement criteria, which is fundamental to delivery of the NHS services with which most patients have the greatest amount of direct contact.
If Mary Scanlon chooses to press her amendments—as I suspect she will—for all those reasons and many more, I ask members to vote against them.
I say to the Liberal Democrats that there is nothing to reflect on. There has been no change over the six years since the passing of the Primary Medical Services (Scotland) Act 2004; we have no commercial providers. Helen Eadie and I had to get on to a train to London to find one, because they do not exist in Scotland. I did not refer only to private providers. In recent years, Community Pharmacy Scotland has offered enormous benefits, providing minor ailments services and surgeries on our high streets. It was one of the main opponents of the approach that is proposed, because there cannot be a GP surgery on the high street unless the doctor owns the pharmacy.
The debate at stage 2 was excellent; I thank the cabinet secretary and other members of the Health and Sport Committee for their contribution to it. We should all be proud of that.
Should the opportunities for different types of provision not remain, and should the Parliament ban commercial providers of GP services, we will be denying patients throughout Scotland access to modern health services that are accessible during the working day. I will press amendment 11.
The question is, that amendment 11 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con) Brankin, Rhona (Midlothian) (Lab) Brocklebank, Ted (Mid Scotland and Fife) (Con) Brown, Gavin (Lothians) (Con) Brownlee, Derek (South of Scotland) (Con) Carlaw, Jackson (West of Scotland) (Con) Fraser, Murdo (Mid Scotland and Fife) (Con) Johnstone, Alex (North East Scotland) (Con) Lamont, John (Roxburgh and Berwickshire) (Con) McLetchie, David (Edinburgh Pentlands) (Con) Milne, Nanette (North East Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) Scanlon, Mary (Highlands and Islands) (Con) Scott, John (Ayr) (Con) Smith, Elizabeth (Mid Scotland and Fife) (Con)
Against
Adam, Brian (Aberdeen North) (SNP) Alexander, Ms Wendy (Paisley North) (Lab) Allan, Alasdair (Western Isles) (SNP) Baillie, Jackie (Dumbarton) (Lab) Baker, Claire (Mid Scotland and Fife) (Lab) Baker, Richard (North East Scotland) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Brown, Keith (Ochil) (SNP) Brown, Robert (Glasgow) (LD) Butler, Bill (Glasgow Anniesland) (Lab) Campbell, Aileen (South of Scotland) (SNP) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Coffey, Willie (Kilmarnock and Loudoun) (SNP) Constance, Angela (Livingston) (SNP) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Cunningham, Roseanna (Perth) (SNP) Curran, Margaret (Glasgow Baillieston) (Lab) Don, Nigel (North East Scotland) (SNP) Doris, Bob (Glasgow) (SNP) Eadie, Helen (Dunfermline East) (Lab) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Fabiani, Linda (Central Scotland) (SNP) Ferguson, Patricia (Glasgow Maryhill) (Lab) Finnie, Ross (West of Scotland) (LD) FitzPatrick, Joe (Dundee West) (SNP) Foulkes, George (Lothians) (Lab) Gibson, Kenneth (Cunninghame North) (SNP) Gibson, Rob (Highlands and Islands) (SNP) Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) Gordon, Charlie (Glasgow Cathcart) (Lab) Grahame, Christine (South of Scotland) (SNP) Grant, Rhoda (Highlands and Islands) (Lab) Gray, Iain (East Lothian) (Lab) Harper, Robin (Lothians) (Green) Harvie, Christopher (Mid Scotland and Fife) (SNP) Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) Hepburn, Jamie (Central Scotland) (SNP) Hume, Jim (South of Scotland) (LD) Hyslop, Fiona (Lothians) (SNP) Ingram, Adam (South of Scotland) (SNP) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Kelly, James (Glasgow Rutherglen) (Lab) Kerr, Andy (East Kilbride) (Lab) Kidd, Bill (Glasgow) (SNP) Lamont, Johann (Glasgow Pollok) (Lab) Livingstone, Marilyn (Kirkcaldy) (Lab) Lochhead, Richard (Moray) (SNP) MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP) Macdonald, Lewis (Aberdeen Central) (Lab) Macintosh, Ken (Eastwood) (Lab) Martin, Paul (Glasgow Springburn) (Lab) Marwick, Tricia (Central Fife) (SNP) Mather, Jim (Argyll and Bute) (SNP) Matheson, Michael (Falkirk West) (SNP) Maxwell, Stewart (West of Scotland) (SNP) McArthur, Liam (Orkney) (LD) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McCabe, Tom (Hamilton South) (Lab) McConnell, Jack (Motherwell and Wishaw) (Lab) McInnes, Alison (North East Scotland) (LD) McKee, Ian (Lothians) (SNP) McKelvie, Christina (Central Scotland) (SNP) McLaughlin, Anne (Glasgow) (SNP) McMahon, Michael (Hamilton North and Bellshill) (Lab) McMillan, Stuart (West of Scotland) (SNP) McNeil, Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Mulligan, Mary (Linlithgow) (Lab) Murray, Elaine (Dumfries) (Lab) Neil, Alex (Central Scotland) (SNP) O'Donnell, Hugh (Central Scotland) (LD) Oldfather, Irene (Cunninghame South) (Lab) Park, John (Mid Scotland and Fife) (Lab) Paterson, Gil (West of Scotland) (SNP) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Robison, Shona (Dundee East) (SNP) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Russell, Michael (South of Scotland) (SNP) Salmond, Alex (Gordon) (SNP) Simpson, Dr Richard (Mid Scotland and Fife) (Lab) Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Somerville, Shirley-Anne (Lothians) (SNP) Stevenson, Stewart (Banff and Buchan) (SNP) Stewart, David (Highlands and Islands) (Lab) Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD) Sturgeon, Nicola (Glasgow Govan) (SNP) Swinney, John (North Tayside) (SNP) Thompson, Dave (Highlands and Islands) (SNP) Tolson, Jim (Dunfermline West) (LD) Watt, Maureen (North East Scotland) (SNP) Welsh, Andrew (Angus) (SNP) White, Sandra (Glasgow) (SNP) Whitefield, Karen (Airdrie and Shotts) (Lab) Whitton, David (Strathkelvin and Bearsden) (Lab) Wilson, Bill (West of Scotland) (SNP) Wilson, John (Central Scotland) (SNP)
The result of the division is: For 15, Against 104, Abstentions 0.
Amendment 11 disagreed to.
Section 30—Section 17C arrangements: persons with whom agreements can be made
Amendment 36, in the name of Helen Eadie, is grouped with amendments 37 to 45.
At stage 2, the cabinet secretary said:
"I have sympathy with the motive behind Richard Simpson's amendments, they contain certain key terms such as ‘community co-operative', ‘social enterprise', ‘not-for-profit basis' and, indeed, ‘community' that are not defined anywhere in law. I take Helen Eadie's point that there are different forms of community co-operative, but the fact is that we are trying to pass legislation and need to provide a legal definition of such terms.
As I said earlier, I believe that the Government amendments provide a large proportion of the flexibility that members are looking for. If Richard Simpson agrees to withdraw amendment 74 and not move the others in this group, I will be happy to continue the discussion to see whether we can do anything more to close the gap between the Government's position and the views of committee members, certainly Labour committee members. I cannot give an absolute guarantee that we will be successful in that, but I am certainly willing to continue to discuss the matter and see what is possible."—[Official Report, Health and Sport Committee, 18 November 2009; c 2439.]
I waited until the last minute to lodge amendments, to see whether the cabinet secretary would do anything more to close the gap by lodging amendments. There is no evidence from her that there has been any further movement on the issue, so my amendments seek to address the shortcomings that were discussed at stage 2.
At that point, the principal issue from the perspective of the cabinet secretary, on behalf of the Government, was defining those who are eligible to hold a primary medical services contract. At stage 2, the cabinet secretary lodged amendments that expanded the definition to include any company, rather than only a company limited by shares. She said that that will allow many social enterprises, rather than only companies limited by shares, to hold such a contract, as long as they meet the other criteria that are set out in the bill, including that a medical practitioner, for a GMS contract, or a health professional, for a section 17C contract, be one member of the company.
The cabinet secretary informally consulted some voluntary sector representative bodies, which broadly welcomed her amendments. However, reservations have been expressed, and I have consulted further with colleagues in the world of community co-operatives and social enterprises, who welcome my amendments, which would put beyond doubt who would be eligible to establish the arrangements as they are envisaged.
My concern is that the cabinet secretary might unintentionally be opening a loophole by allowing any company to operate, which would provide for companies that do not have community benefit at their heart. At the heart of the matter is the question about what is to be done with the profits. Are they to be reinvested in the community or in the practice, or are they to be shared by the doctors themselves? If the amendments were to be agreed to, the phrase "a qualifying charity" would remove that dubiety by stating clearly that the profits would not return directly to any one individual but would be reinvested in the community and that, at dissolution, the assets would be shared within the charity sector and not be disposed of to any individuals.
During our visit to Kinloch Rannoch earlier this week, Health and Sport Committee members saw at first hand how a community co-operative can empower and address the concerns of remote and rural communities. The community co-operative or "qualifying charity" would employ an appropriately qualified medical team.
The danger of following the lead of the Scottish Government is that doing so will create the unintended consequence of permitting any sort of company to become involved, with a loophole being opened to the private sector that I do not believe represents the intention of Parliament, and which would have exactly the opposite outcome to that which is desired by the British Medical Association.
If Italy can show the way, with 7,000 social or community co-operatives, why do we not follow that approach in Scotland? The Friendly Societies Act 1992 was updated in 2003 to allow the appropriate medical team to serve on the governing body of the appropriate qualifying charity.
I hope that members will give credence to the establishment by the previous Labour Administration of Co-operative Development Scotland, and that they will strike a blow today in order to give a further green light to the establishment of health co-operatives in Scotland.
I say to Mary Scanlon, in the nicest possible way, that we need to test the Government on its assertions. With the changes that the Health and Sport Committee has made to the bill and those that the Parliament is making today, it will not only be the British Medical Association that will benefit from the eventual legislation. If we support my amendments and the Government's amendments, we will enable the wider community to benefit from the bill, and the work of the Health and Sport Committee and the Parliament will have been worth while.
I move amendment 36.
I ask members to be a little bit quieter, please.
We will oppose Helen Eadie's amendments 36 to 45 for the simple reason that, if the Labour Party and the Liberal Democrats had the courage to support the legislation that they put through Parliament barely six years ago, as my colleague Mary Scanlon pointed out, there would be no need for the elaborate constructs that Helen Eadie has outlined.
Instead, there has been a complete failure of political will, an appalling act of political cowardice and a failure to recognise that the legislative measures that this Parliament passed in 2004 and the equivalent Westminster legislation were an integral part of the negotiation of the last GP contract, which was done on a United Kingdom basis—a contract which, it turns out, has not served the best interests of patients, particularly in relation to out-of-hours provision, while it has enriched the general practitioners who are its primary beneficiaries and who, as a result of the sucking up and pandering to them by the cabinet secretary, are now trying to close down the alternative option of other people providing superior services at less cost to the taxpayer.
The measures are all about the vested interests of people who want to preserve their monopoly of service provision at taxpayers' expense. The vested interests that the Parliament should be serving are those of the patients who are treated by the NHS, not those of a particular model of provision.
I will address the matter from a different angle.
I am deeply sorry because, as a matter of principle, Liberal Democrats would have no difficulty in including charities and co-operatives, which Helen Eadie has consistently advocated. Indeed, we were very sympathetic to the points that were raised by Richard Simpson at stage 2. However, today's debate is not consideration of the principles of the bill, but stage 3 consideration of amendments. I also deeply regret that the detail that has been provided in today's amendments was not available at stage 2—or between stages 2 and stage 3—when the matters to which I am about to refer might properly have been addressed.
From reading amendment 36, it is clear that "charity" would fit easily as a further category within new section 17CA(1)—which section 30 of the bill will insert into the National Health Service (Scotland) Act 1978—after the categories "a qualifying partnership", "a qualifying limited liability partnership" and "a qualifying company". However, over the page in new section 17CA(2), which provides definitions of what constitutes a qualifying partnership, qualifying limited liability partnership and qualifying company, amendment 37 seeks to insert a definition of what would constitute a qualifying charity that is wholly inconsistent with the other definitions that exist in sections 17CA(2)(a), 17CA(2)(b) and 17CA(2)(c). I cannot see that that will be other than a cause of confusion. More important, the result will be to discriminate against contractors who come under those other categories. Therefore, I do not think that amendment 37 is a competent amendment for a stage 3 debate.
With regret, we cannot support Helen Eadie's amendments 36 to 45 because we do not believe that at this stage—and without proper consideration and consultation—we should include in the bill provisions that we believe would not be effective in law.
The Scottish Government has previously indicated its commitment to co-operatives. We believe that community co-operatives with the appropriate health professionals can provide a suitable model for a PMS contract that would be entirely in keeping with the bill. If the cabinet secretary is not minded to support Helen Eadie's amendments 36 to 45, will she confirm that, if a community co-operative is also a charitable body, it will be eligible to hold a contract under the bill?
I will respond first to Jackie Baillie's question. If a community co-operative is also a charitable organisation—and if entering into the agreement is not at odds with the basis of its charitable status—the community co-operative will be able to hold such a contract provided that it fulfils the involvement criteria that are laid down in the bill. I think that we clarified that point at stage 2.
I thank Helen Eadie for lodging amendments 36 to 45: I certainly respect her motives for doing so. As Ross Finnie does, I have some sympathy for the notion that charities should be able to hold such contracts, but the bill will already allow many charities to enter into GMS or section 17C contracts, provided that the charity fulfils the criteria that apply to all contract holders. However, we will not support Helen Eadie's rather complex amendments partly because—as Ross Finnie and Mary Scanlon have said—her amendments are in very different form to the amendments that we considered at stage 2, so there has not been the opportunity to scrutinise the detail of them.
In addition, amendments 36 to 45 include some inconsistencies that, I believe, could put them outwith the competence of the Parliament. The first inconsistency is that, for a qualifying charity, the amendments do not require that all the trustees of the charity should meet the criteria on involvement in patient care. Instead, the amendments would require that a minimum of one trustee be involved in patient care. That inconsistency would undermine a key principle of part 2, which is that all those who are party to a primary medical services contract should have direct involvement in patient care.
The second inconsistency is that, under amendment 42, the qualifying charity's trustees would all be required to reside in the area to which the contract related. Such a residency requirement seems to be discriminatory and would create an uneven playing field in respect of bidding for contracts, given that the residency requirement would not apply to other categories of providers. In my view, that lack of consistency in the treatment of contractors would carry the real and significant risk of putting the bill outwith the legislative competence of the Parliament on the ground that the provisions might not be compatible with European Union law, in particular the European treaty principles of equal treatment, transparency and non-discrimination.
Finally, let me reiterate the point that I made at the outset. Under the bill as it stands, many charities will already be able to enter into a GMS contract or section 17C agreement with a health board, albeit that they will need to fulfil the involvement criteria.
Although I understand and have some sympathy with Helen Eadie's comments, I ask members, for the reasons that I have outlined, to vote against her amendments.
I call Helen Eadie to wind up and to press or withdraw amendment 36—please be as brief as possible.
The cabinet secretary's final point was about European Union law. I encourage her to look at the EU law that has recently been established on the formalities of co-operatives and the co-operative movement. We need only look at Italy, which has 7,000 co-operatives, where it is definitely the case—
I respect the point that Helen Eadie makes, but will she concede that my point about legality is not about the legality of social enterprises or co-ops, but about the legality of discriminating through the bill by setting criteria for charities that are different from those for other providers? It is that that would threaten the legality of the bill.
The cabinet secretary needs to ask herself whether all the companies that will be involved in the provision of primary medical services will be subject to the same scrutiny. I do not think that that point holds up. The cabinet secretary is saying that she will allow the private sector to operate differently from the co-operative sector.
I am grateful to Helen Eadie for giving way again, but the point is that under the bill, all potential contract holders must meet the same involvement and eligibility criteria. The bill does not discriminate between potential contract holders, but Helen Eadie's amendments would introduce such discrimination by making special provision for charities.
With respect, if the cabinet secretary truly wanted to empower and enable communities to address the particular social and rural problems that they face, the political will would exist to find a way to do that. I am certain that if we were to study European law carefully—as every member knows, I am not averse to studying European law in some detail, as I have proved on many occasions—[Interruption.]
Order.
In relation to the points that David McLetchie made, it is extremely hypocritical of his party, which instigated a debate about the use of mutual co-operatives in the water industry, to oppose such an approach in the health sector.
Does Helen Eadie acknowledge that if the law remains as it is, her preferred model would be legally possible, as would other options? I am not arguing against her model. We in the Conservative party are saying that if Labour members had the courage to support their own legislation, Helen Eadie's amendments would not be necessary.
David McLetchie's point is a political objection; it is not about the hard realities that people in places such as Kinloch Rannoch and other parts of Scotland face. He wants to score political points—he does not want to address the issues. [Interruption.]
Order.
Ms Eadie, I am afraid that you will have to sum up now.
If the rest of her party was as genuine as Mary Scanlon is in committee meetings, I would give Mr McLetchie some credence, but it is not.
Finally, I turn to Ross Finnie's point about qualification. It is not good enough for his party not to be involved in enabling and empowering communities. When Willie Rennie, Jim Tolson and the electorate in Fife find out what is happening in the chamber today, I am sure that they will read the Official Report with great interest.
Are you pressing or seeking to withdraw amendment 36?
I am pressing it.
I thought so.
The question is, that amendment 36 be agreed to. Are we agreed?
No.
There will be a division.
For
Alexander, Ms Wendy (Paisley North) (Lab) Baillie, Jackie (Dumbarton) (Lab) Baker, Claire (Mid Scotland and Fife) (Lab) Baker, Richard (North East Scotland) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Brankin, Rhona (Midlothian) (Lab) Butler, Bill (Glasgow Anniesland) (Lab) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Curran, Margaret (Glasgow Baillieston) (Lab) Eadie, Helen (Dunfermline East) (Lab) Ferguson, Patricia (Glasgow Maryhill) (Lab) Foulkes, George (Lothians) (Lab) Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) Gordon, Charlie (Glasgow Cathcart) (Lab) Grant, Rhoda (Highlands and Islands) (Lab) Gray, Iain (East Lothian) (Lab) Henry, Hugh (Paisley South) (Lab) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Kelly, James (Glasgow Rutherglen) (Lab) Kerr, Andy (East Kilbride) (Lab) Lamont, Johann (Glasgow Pollok) (Lab) Livingstone, Marilyn (Kirkcaldy) (Lab) Macdonald, Lewis (Aberdeen Central) (Lab) Macintosh, Ken (Eastwood) (Lab) Martin, Paul (Glasgow Springburn) (Lab) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McCabe, Tom (Hamilton South) (Lab) McConnell, Jack (Motherwell and Wishaw) (Lab) McMahon, Michael (Hamilton North and Bellshill) (Lab) McNeil, Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Mulligan, Mary (Linlithgow) (Lab) Murray, Elaine (Dumfries) (Lab) Oldfather, Irene (Cunninghame South) (Lab) Park, John (Mid Scotland and Fife) (Lab) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Simpson, Dr Richard (Mid Scotland and Fife) (Lab) Smith, Elaine (Coatbridge and Chryston) (Lab) Stewart, David (Highlands and Islands) (Lab) Whitefield, Karen (Airdrie and Shotts) (Lab) Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP) Aitken, Bill (Glasgow) (Con) Allan, Alasdair (Western Isles) (SNP) Brocklebank, Ted (Mid Scotland and Fife) (Con) Brown, Gavin (Lothians) (Con) Brown, Keith (Ochil) (SNP) Brown, Robert (Glasgow) (LD) Brownlee, Derek (South of Scotland) (Con) Campbell, Aileen (South of Scotland) (SNP) Carlaw, Jackson (West of Scotland) (Con) Coffey, Willie (Kilmarnock and Loudoun) (SNP) Constance, Angela (Livingston) (SNP) Crawford, Bruce (Stirling) (SNP) Cunningham, Roseanna (Perth) (SNP) Don, Nigel (North East Scotland) (SNP) Doris, Bob (Glasgow) (SNP) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Fabiani, Linda (Central Scotland) (SNP) Finnie, Ross (West of Scotland) (LD) FitzPatrick, Joe (Dundee West) (SNP) Fraser, Murdo (Mid Scotland and Fife) (Con) Gibson, Kenneth (Cunninghame North) (SNP) Gibson, Rob (Highlands and Islands) (SNP) Grahame, Christine (South of Scotland) (SNP) Harper, Robin (Lothians) (Green) Harvie, Christopher (Mid Scotland and Fife) (SNP) Harvie, Patrick (Glasgow) (Green) Hepburn, Jamie (Central Scotland) (SNP) Hume, Jim (South of Scotland) (LD) Hyslop, Fiona (Lothians) (SNP) Ingram, Adam (South of Scotland) (SNP) Johnstone, Alex (North East Scotland) (Con) Kidd, Bill (Glasgow) (SNP) Lamont, John (Roxburgh and Berwickshire) (Con) Lochhead, Richard (Moray) (SNP) MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP) MacDonald, Margo (Lothians) (Ind) Marwick, Tricia (Central Fife) (SNP) Mather, Jim (Argyll and Bute) (SNP) Matheson, Michael (Falkirk West) (SNP) Maxwell, Stewart (West of Scotland) (SNP) McArthur, Liam (Orkney) (LD) McInnes, Alison (North East Scotland) (LD) McKee, Ian (Lothians) (SNP) McKelvie, Christina (Central Scotland) (SNP) McLaughlin, Anne (Glasgow) (SNP) McLetchie, David (Edinburgh Pentlands) (Con) McMillan, Stuart (West of Scotland) (SNP) Milne, Nanette (North East Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) Neil, Alex (Central Scotland) (SNP) O'Donnell, Hugh (Central Scotland) (LD) Paterson, Gil (West of Scotland) (SNP) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Robison, Shona (Dundee East) (SNP) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Russell, Michael (South of Scotland) (SNP) Salmond, Alex (Gordon) (SNP) Scanlon, Mary (Highlands and Islands) (Con) Scott, John (Ayr) (Con) Smith, Elizabeth (Mid Scotland and Fife) (Con) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Somerville, Shirley-Anne (Lothians) (SNP) Stevenson, Stewart (Banff and Buchan) (SNP) Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD) Sturgeon, Nicola (Glasgow Govan) (SNP) Swinney, John (North Tayside) (SNP) Thompson, Dave (Highlands and Islands) (SNP) Tolson, Jim (Dunfermline West) (LD) Watt, Maureen (North East Scotland) (SNP) Welsh, Andrew (Angus) (SNP) White, Sandra (Glasgow) (SNP) Wilson, Bill (West of Scotland) (SNP) Wilson, John (Central Scotland) (SNP)
The result of the division is: For 45, Against 76, Abstentions 0.
Amendment 36 disagreed to.
Amendments 37 to 39 not moved.
Amendment 25, in the name of Ian McKee, is grouped with amendments 26 to 28.
Again, I exercise my power under rule 9.8.4A to extend the deadline for the completion of the debate on groups 6 to 8. That will reduce the time available for the debate on the motion to agree the bill, so members who are participating in the debate may wish to start changing their speeches and cutting big swathes out of them.
It will be difficult to follow Helen Eadie's spirited contribution, but I will try.
The philosophy of the health service in Scotland is that it is a mutually and publicly owned service. Allowing commercial firms to run GP practices goes against that philosophy and I support part 2 of the bill, which aims to stop that happening. However, there is a loophole, which I seek to close with my amendments. As the bill stands, if a medical practitioner—or other health care professional—regularly performs or is engaged in the day-to-day provision of primary medical services, a health board may enter into an agreement with them to provide primary medical services in that health board area. However, a person or persons could apply for such a contract when the services in which they are personally engaged are hundreds of miles away. Those people could also apply to provide services in many areas, all far from each other. Already, in England, one such combination of professionals runs about 40 GP practices in that way. There is little obvious difference between health professionals engaging in such activities and commercial companies operating in the same way.
Amendments 25 and 27 provide that contractors are acceptable only if their regular involvement in patient care will be by virtue of the agreement being negotiated. Amendments 26 and 28 provide that services that are supplied outside a prescribed geographical area should be disregarded when considering eligibility, unless there are specific circumstances in which that should not happen. Amendments 26 and 28 also prescribe which periods of absence from day-to-day provision of services may or may not be taken into account. For example there is an obvious difference, once a contract has been signed, between absence for some months due to maternity entitlement and absence for a similar period for commercial reasons. If adopted, the amendments will strengthen the bill. I commend them to the chamber.
I move amendment 25.
I am afraid that, under standing orders, I can call only those who have a right to speak on the amendments; therefore, I call the minister.
I shall be brief. The amendments introduce regulation-making powers to allow ministers to specify to what extent the sufficient involvement criteria must be satisfied in relation to the contract being entered into, and to restrict the criteria by reference to a geographical area such as a health board area. They do not require ministers to make the regulations—they give us the power to do so. At stage 2, I undertook to have discussions about stage 3 amendments that would further specify the involvement criteria. These amendments reflect the outcome of those discussions and I am content for the amendments to be agreed to.
The question is, that amendment 25 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP) Allan, Alasdair (Western Isles) (SNP) Brown, Keith (Ochil) (SNP) Brown, Robert (Glasgow) (LD) Campbell, Aileen (South of Scotland) (SNP) Coffey, Willie (Kilmarnock and Loudoun) (SNP) Constance, Angela (Livingston) (SNP) Cunningham, Roseanna (Perth) (SNP) Don, Nigel (North East Scotland) (SNP) Doris, Bob (Glasgow) (SNP) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Fabiani, Linda (Central Scotland) (SNP) Finnie, Ross (West of Scotland) (LD) FitzPatrick, Joe (Dundee West) (SNP) Gibson, Kenneth (Cunninghame North) (SNP) Gibson, Rob (Highlands and Islands) (SNP) Grahame, Christine (South of Scotland) (SNP) Harvie, Christopher (Mid Scotland and Fife) (SNP) Hepburn, Jamie (Central Scotland) (SNP) Hume, Jim (South of Scotland) (LD) Hyslop, Fiona (Lothians) (SNP) Ingram, Adam (South of Scotland) (SNP) Kidd, Bill (Glasgow) (SNP) Lochhead, Richard (Moray) (SNP) MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP) MacDonald, Margo (Lothians) (Ind) Marwick, Tricia (Central Fife) (SNP) Mather, Jim (Argyll and Bute) (SNP) Matheson, Michael (Falkirk West) (SNP) Maxwell, Stewart (West of Scotland) (SNP) McArthur, Liam (Orkney) (LD) McInnes, Alison (North East Scotland) (LD) McKee, Ian (Lothians) (SNP) McKelvie, Christina (Central Scotland) (SNP) McLaughlin, Anne (Glasgow) (SNP) McMillan, Stuart (West of Scotland) (SNP) Neil, Alex (Central Scotland) (SNP) O'Donnell, Hugh (Central Scotland) (LD) Paterson, Gil (West of Scotland) (SNP) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Robison, Shona (Dundee East) (SNP) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Russell, Michael (South of Scotland) (SNP) Salmond, Alex (Gordon) (SNP) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Somerville, Shirley-Anne (Lothians) (SNP) Stevenson, Stewart (Banff and Buchan) (SNP) Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD) Sturgeon, Nicola (Glasgow Govan) (SNP) Swinney, John (North Tayside) (SNP) Thompson, Dave (Highlands and Islands) (SNP) Tolson, Jim (Dunfermline West) (LD) Watt, Maureen (North East Scotland) (SNP) Welsh, Andrew (Angus) (SNP) White, Sandra (Glasgow) (SNP) Wilson, Bill (West of Scotland) (SNP) Wilson, John (Central Scotland) (SNP)
Against
Aitken, Bill (Glasgow) (Con) Alexander, Ms Wendy (Paisley North) (Lab) Baillie, Jackie (Dumbarton) (Lab) Baker, Claire (Mid Scotland and Fife) (Lab) Baker, Richard (North East Scotland) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Brankin, Rhona (Midlothian) (Lab) Brocklebank, Ted (Mid Scotland and Fife) (Con) Brown, Gavin (Lothians) (Con) Brownlee, Derek (South of Scotland) (Con) Butler, Bill (Glasgow Anniesland) (Lab) Carlaw, Jackson (West of Scotland) (Con) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Curran, Margaret (Glasgow Baillieston) (Lab) Eadie, Helen (Dunfermline East) (Lab) Ferguson, Patricia (Glasgow Maryhill) (Lab) Foulkes, George (Lothians) (Lab) Fraser, Murdo (Mid Scotland and Fife) (Con) Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) Gordon, Charlie (Glasgow Cathcart) (Lab) Grant, Rhoda (Highlands and Islands) (Lab) Gray, Iain (East Lothian) (Lab) Harper, Robin (Lothians) (Green) Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Johnstone, Alex (North East Scotland) (Con) Kelly, James (Glasgow Rutherglen) (Lab) Kerr, Andy (East Kilbride) (Lab) Lamont, Johann (Glasgow Pollok) (Lab) Lamont, John (Roxburgh and Berwickshire) (Con) Livingstone, Marilyn (Kirkcaldy) (Lab) Macdonald, Lewis (Aberdeen Central) (Lab) Macintosh, Ken (Eastwood) (Lab) Martin, Paul (Glasgow Springburn) (Lab) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McCabe, Tom (Hamilton South) (Lab) McConnell, Jack (Motherwell and Wishaw) (Lab) McLetchie, David (Edinburgh Pentlands) (Con) McMahon, Michael (Hamilton North and Bellshill) (Lab) McNeil, Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Milne, Nanette (North East Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) Mulligan, Mary (Linlithgow) (Lab) Murray, Elaine (Dumfries) (Lab) Oldfather, Irene (Cunninghame South) (Lab) Park, John (Mid Scotland and Fife) (Lab) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Scanlon, Mary (Highlands and Islands) (Con) Scott, John (Ayr) (Con) Simpson, Dr Richard (Mid Scotland and Fife) (Lab) Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Elizabeth (Mid Scotland and Fife) (Con) Stewart, David (Highlands and Islands) (Lab) Whitefield, Karen (Airdrie and Shotts) (Lab) Whitton, David (Strathkelvin and Bearsden) (Lab)
Abstentions
Crawford, Bruce (Stirling) (SNP)
The result of the division is: For 59, Against 61, Abstentions 1.
Amendment 25 disagreed to.
Amendments 26, 40 and 12 not moved.
Section 31—Eligibility to be contractor under general medical services contract
Amendments 41 to 44, 27, 28, 45 and 13 not moved.
Section 32—Orders and regulations
Amendments 3 and 14 not moved.
Section 35—Short title and commencement
We move to group 8, on the commencement of part 2. Amendment 46, in the name of Jackie Baillie, is the only amendment in the group.
I lodged amendment 46 in response to the cabinet secretary's letter to all members indicating that a challenge to part 2 has been lodged with the European Commission. Whether or not members agree with part 2—we know the Tories' position on it—the challenge is to be regretted, as it will have the effect of preventing the immediate implementation of the bill. In fairness, the cabinet secretary said in her letter that she would reflect on the outcome of the Commission's process before considering how to proceed. The purpose of amendment 46—which I contend is tightly written in relation to part 2—is to ensure that that part of the act is not introduced until the Commission's process is finished.
I understand that the cabinet secretary may have considered lodging a similar amendment. I am sure that she will tell me that there are unintended consequences to amendment 46. Perhaps, after that, I can respectfully invite the cabinet secretary to set out clearly how she intends to deal with the referral to the Commission.
I move amendment 46.
I thank Jackie Baillie for lodging amendment 46—I know that she is trying to be helpful and I am grateful to her for that.
I wrote to the Health and Sport Committee on 18 January, advising it that the European Commission was looking into part 2 in relation to EU procurement rules and had asked the UK Government, as the relevant member state Government, for information. A copy of that letter is in the Scottish Parliament information centre. We have worked closely with the UK Government in responding to that inquiry, and I emphasise to the chamber that I am confident that the proposals in part 2 do not infringe European procurement law. We have provided a robust response to the Commission in support of that view.
The effect of amendment 46 would be that part 2 could not be commenced while the Commission was pursuing its inquiry. I agree with that in principle. In my letter to the Health and Sport Committee, I gave a commitment that I would have regard to any response from the Commission in planning the commencement of part 2. Indeed, if the bill is passed today, there will be the usual four-week standstill period for royal assent, and the general rule is to allow at least two months to pass after royal assent before commencement. Therefore, there is an initial window of at least three months during which there will be no commencement of the provisions anyway. We hope that we will hear back from the Commission within that period. Although there is no obligation on the Commission to respond within that time, I understand that it aims to respond to such inquiries within 10 weeks. If the Commission has closed the case by that stage, there will be no problem; if it has not, I will continue to have regard to the Commission's position in planning commencement. I give an undertaking to update Parliament on the position before any decision is made to commence. I am sure that Parliament appreciates that it is not in the Government's interest to commence legislation prematurely while there are outstanding inquiries that may result in proceedings being taken.
I do not believe that the amendment is necessary. Further, as Jackie Baillie anticipated, there are reasons why including it in the bill would be problematic. First, Parliament would be including something in the bill that implies that it thinks that the bill is unlawful, which is problematic because Parliament cannot pass bills that are unlawful. Secondly, and more fundamentally, the amendment would leave the door wide open to anyone who wanted to stop the provisions ever coming into force, because all that they would have to do is keep raising spurious complaints with the European Commission. It would also set an unhelpful precedent for future legislation.
Given the assurances and undertakings that I have given the chamber, and the unintended consequences that I have outlined, I ask Jackie Baillie not to press the amendment. If she does so, I ask members to vote against it.
I am content with the clarification from the cabinet secretary. It was important to have that placed on the record. As that has been done, I seek leave to withdraw the amendment.
Jackie Baillie has sought permission to withdraw amendment 5. Is that agreed?
No.
The question is, that amendment 46 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con) Brocklebank, Ted (Mid Scotland and Fife) (Con) Brown, Gavin (Lothians) (Con) Brownlee, Derek (South of Scotland) (Con) Carlaw, Jackson (West of Scotland) (Con) Fraser, Murdo (Mid Scotland and Fife) (Con) Johnstone, Alex (North East Scotland) (Con) Lamont, John (Roxburgh and Berwickshire) (Con) McLetchie, David (Edinburgh Pentlands) (Con) Milne, Nanette (North East Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) Scanlon, Mary (Highlands and Islands) (Con) Scott, John (Ayr) (Con) Smith, Elizabeth (Mid Scotland and Fife) (Con)
Against
Adam, Brian (Aberdeen North) (SNP) Alexander, Ms Wendy (Paisley North) (Lab) Allan, Alasdair (Western Isles) (SNP) Baillie, Jackie (Dumbarton) (Lab) Baker, Claire (Mid Scotland and Fife) (Lab) Baker, Richard (North East Scotland) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Brankin, Rhona (Midlothian) (Lab) Brown, Keith (Ochil) (SNP) Brown, Robert (Glasgow) (LD) Butler, Bill (Glasgow Anniesland) (Lab) Campbell, Aileen (South of Scotland) (SNP) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Coffey, Willie (Kilmarnock and Loudoun) (SNP) Constance, Angela (Livingston) (SNP) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Cunningham, Roseanna (Perth) (SNP) Curran, Margaret (Glasgow Baillieston) (Lab) Don, Nigel (North East Scotland) (SNP) Doris, Bob (Glasgow) (SNP) Eadie, Helen (Dunfermline East) (Lab) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Fabiani, Linda (Central Scotland) (SNP) Ferguson, Patricia (Glasgow Maryhill) (Lab) Finnie, Ross (West of Scotland) (LD) FitzPatrick, Joe (Dundee West) (SNP) Foulkes, George (Lothians) (Lab) Gibson, Kenneth (Cunninghame North) (SNP) Gibson, Rob (Highlands and Islands) (SNP) Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) Gordon, Charlie (Glasgow Cathcart) (Lab) Grahame, Christine (South of Scotland) (SNP) Grant, Rhoda (Highlands and Islands) (Lab) Gray, Iain (East Lothian) (Lab) Harper, Robin (Lothians) (Green) Harvie, Christopher (Mid Scotland and Fife) (SNP) Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) Hepburn, Jamie (Central Scotland) (SNP) Hume, Jim (South of Scotland) (LD) Hyslop, Fiona (Lothians) (SNP) Ingram, Adam (South of Scotland) (SNP) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Kelly, James (Glasgow Rutherglen) (Lab) Kerr, Andy (East Kilbride) (Lab) Kidd, Bill (Glasgow) (SNP) Lamont, Johann (Glasgow Pollok) (Lab) Livingstone, Marilyn (Kirkcaldy) (Lab) Lochhead, Richard (Moray) (SNP) MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP) Macdonald, Lewis (Aberdeen Central) (Lab) Macintosh, Ken (Eastwood) (Lab) Martin, Paul (Glasgow Springburn) (Lab) Marwick, Tricia (Central Fife) (SNP) Mather, Jim (Argyll and Bute) (SNP) Matheson, Michael (Falkirk West) (SNP) Maxwell, Stewart (West of Scotland) (SNP) McArthur, Liam (Orkney) (LD) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McCabe, Tom (Hamilton South) (Lab) McConnell, Jack (Motherwell and Wishaw) (Lab) McInnes, Alison (North East Scotland) (LD) McKee, Ian (Lothians) (SNP) McKelvie, Christina (Central Scotland) (SNP) McLaughlin, Anne (Glasgow) (SNP) McMahon, Michael (Hamilton North and Bellshill) (Lab) McMillan, Stuart (West of Scotland) (SNP) McNeil, Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Mulligan, Mary (Linlithgow) (Lab) Murray, Elaine (Dumfries) (Lab) Neil, Alex (Central Scotland) (SNP) O'Donnell, Hugh (Central Scotland) (LD) Oldfather, Irene (Cunninghame South) (Lab) Park, John (Mid Scotland and Fife) (Lab) Paterson, Gil (West of Scotland) (SNP) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Robison, Shona (Dundee East) (SNP) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Russell, Michael (South of Scotland) (SNP) Salmond, Alex (Gordon) (SNP) Simpson, Dr Richard (Mid Scotland and Fife) (Lab) Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Somerville, Shirley-Anne (Lothians) (SNP) Stevenson, Stewart (Banff and Buchan) (SNP) Stewart, David (Highlands and Islands) (Lab) Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD) Sturgeon, Nicola (Glasgow Govan) (SNP) Swinney, John (North Tayside) (SNP) Thompson, Dave (Highlands and Islands) (SNP) Tolson, Jim (Dunfermline West) (LD) Watt, Maureen (North East Scotland) (SNP) Welsh, Andrew (Angus) (SNP) White, Sandra (Glasgow) (SNP) Whitefield, Karen (Airdrie and Shotts) (Lab) Whitton, David (Strathkelvin and Bearsden) (Lab) Wilson, Bill (West of Scotland) (SNP) Wilson, John (Central Scotland) (SNP)
The result of the division is: For 14, Against 105, Abstentions 0.
Amendment 46 disagreed to.
Schedule 2
Minor and consequential modifications
Amendments 47 and 15 not moved.
Long Title
Amendments 16 and 17 not moved.
That concludes consideration of amendments.