Chamber and committees

I listened to what the minister said with great interest. I have to say that we were not able to scrutinise these issues at stage 1, which would have been appropriate, and it is unfortunate that the Scottish Government is lodging such complex amendments at this stage. The issues are of massive concern to the committee and the Parliament. Very few victims opt in to the victim notification scheme. Concerns about that have been raised by victims, victims organisations, MSPs and many others on many occasions.

Amendment 61 relates to the victim’s rights to information. It was initially lodged as a probing amendment, seeking to shift the onus so that the presumption is that victims will be provided with information about, for example, the release of an offender, but also that they would always be given the clear opportunity to indicate that they do not want that information. I suspect that every member of the committee will have spoken to victims who have been greatly concerned about finding out something about their situation, their case and an offender that they have not been told about in the appropriate way or did not get information about until much later.

The amendment would remove from the victim the onus of having to go through what I understand is a complex process to seek and complete a form and submit the completed application. As the minister knows, our understanding of how the process works is that the issue is usually raised only at the beginning of proceedings.

I appreciate that the Scottish Government has looked at the issue, and I listened carefully to what the minister said about her proposed reforms. However, we need to look at introducing an opt-out process, so that victims are provided with appropriate information unless they indicate that they would prefer not to have it, as will be some victims’ preference. We should give them adequate opportunities to explore whether they want to have such information, and we need to get the legal framework correct.

I also listened to what the minister said about children. I have dealt with a number of cases that involved children as victims or, indeed, children whose family members were victims—for example, perhaps the father was the victim. That is not a scenario that my amendment covers, but the minister is absolutely right that we have to get the scheme’s detail right on that. We also have to accept that children often want access to information, which needs to be provided in an age-appropriate way, and that the process might involve family members or guardians. As the children get older, they might wish to have more information, particularly in serious cases in which an offender has received a lengthy custodial sentence or the offence has had a life-altering impact on the family.

I will not move amendment 61 on this occasion, but I am greatly concerned about the detail in the Government amendments that have been lodged and not completely convinced by what the minister has said. If we had had a proper scrutiny process at stage 1, we would have benefited by ending up with far better legislation that would perhaps have received the committee’s full support. It is not acceptable that the Scottish Government has introduced such complex amendments at this stage.

It is not my intention to press the amendment today—I want to withdraw it.

Amendment 67, by agreement, withdrawn.

I will seek to withdraw amendment 60.

Amendment 60, by agreement, withdrawn.

Amendments 86 and 87 not moved.

I am pleased to close the debate on behalf of Scottish Labour. I am grateful to the people’s panel for its time and engagement in considering this national emergency, and to the committees for commissioning the work.

As Bob Doris said, the panel was asked to come to a consensus on an issue that has been identified as a national emergency for a number of years, and on proposals that have been discussed in the chamber on a number of occasions. The report is very interesting in showing us what a group of that nature made of the issue.

Although the issue has been identified as a national emergency for a number of years, the latest figures show a 12 per cent increase in drug deaths from the previous year. As the cabinet secretary said, we lost 1,172 people to drug-related deaths in 2023, and we all know that those deaths were preventable. We owe it to the loved ones of those people who have died to take immediate and radical action. That is what members expects from the Scottish Government.

As a number of members have said, Scotland remains the worst nation in Europe for drug deaths. An emergency of such severity is the result not only of underfunding of drug prevention and rehabilitation services, the criminal legal framework and our health services, but of a far wider societal crisis.

The cabinet secretary accepted the link to deprivation. Carol Mochan spoke about the range of factors involved and the complex nature of the challenges. It will come as no surprise to anyone in the chamber that the mortality rate of people who live in the poorest areas is more than double the Scottish average. The council areas that are bearing the brunt of the crisis are the urban centres and the post-industrial heartlands that have also suffered the sharpest decline in their public services following years of austerity.

It is political choices that cause communities to crumble. People in desperate situations sometimes see no other option than to turn to drugs, and that is where Governments have let them down. The cabinet secretary and Elena Whitham spoke of the highly toxic drug supply that is in circulation, particularly in Scotland. I welcome the opening of Thistle, the United Kingdom’s first safer drug consumption facility, which I hope will prevent further deaths and create a rise in the number of people who choose to move towards rehabilitation. However, we must recognise that the facility is in Glasgow and it will do little to help those outside Glasgow city who suffer from addiction. As Annie Wells pointed out, the Thistle is a small part of the solution, and the real challenge is how we address the root causes.

I am pleased that the people’s panel made 19 recommendations and that the Scottish Government and the cabinet secretary have indicated acceptance of them all. However, I agree with Maggie Chapman that the problem is not that we do not know what needs to be done but that we need political will.

Alex Cole-Hamilton spoke of the consensus, and I think that there is a consensus across the chamber about what needs to be done. Clare Haughey made an important point about the need for multiyear packages. It is impossible for organisations to plan if they do not know what their funding is. Collette Stevenson spoke about trusted relationships and the importance of lived experience, and that point was also made by Sue Webber. Members have previously discussed the significant issue of stigma.

Audrey Nicoll spoke specifically about the criminal justice aspect. As a member of the Criminal Justice Committee, I am aware of the massive challenge that drugs pose in our justice system.

This is a complex debate. However, we cannot say that we accept what the Scottish Government is doing on the issue. The reality is that the number of deaths continues to get higher, and urgent action needs to be taken to address that.

It has recently been reported that almost 10 per cent of the 2,000 women who have died at the hands of men in the United Kingdom over the past 15 years have been killed by their own sons. What more does the First Minister believe the Scottish Government can do to raise awareness of that risk and improve support for women?

Amendment 89 would require that regulations be brought forward on reporting of the tax and ownership status of publicly owned care services, and amendment 90 seeks to extend freedom of information rights to publicly owned care services. The minister and her officials were kind enough to meet me yesterday and offered to have further discussions before stage 3.

I indicated to the minister that I was not planning on pressing either amendment to a vote today and am very open to discussions about their drafting. There are specific issues relating to the definition of care. I advise that the definition that I seek to rely on is the one that is in the Community Care and Health (Scotland) Act 2002. I would, of course, be happy to discuss the matter.

The background is that we have moved away from having a care sector that was dominated by publicly owned and run organisations providing publicly paid-for care. Of the 42,489 registered care home places in March 2022, 77 per cent were in privately run care homes and 80 per cent of the staff of care homes are in the private sector. There is significant market concentration in much of Scotland, with the 10 largest for-profit care home providers accounting for more than a third of registered places.

A significant number of organisations are registered outside the UK and involve private equity and real-estate investment trusts and US-based hedge funds. Across the UK, the five largest chains amount for nearly 20 per cent of beds, according to work from 2016.

I will give an example that members might be aware of, or might have been involved in as constituency representatives—namely, the collapse in 2011 of Southern Cross Healthcare, which was owned by Blackstone Group. The consequences of that affected 31,000 care home residents, including in the constituency that I represented at the time. Many of those Southern Cross care homes were sold to Four Seasons Health Care, which is owned by Jersey-based private equity firm, Terra Firma. In April 2017, 220 care homes and 17,000 residents were affected when that organisation, too, became bankrupt.

Four Seasons, like many private equity operations, consisted of complex corporate structures. The Financial Times reported that it consisted of 200 companies, arranged in 12 layers, in at least five jurisdictions, including several offshore territories. Tax avoidance and profit shifting were central to the operations.

Both my amendments are based on the principles of transparency, following the public pound and that, where publicly funded care is provided by organisations other than public authorities, there should be freedom of information rights and transparency in relation to tax and ownership. As the committee will be aware, freedom of information rights do not exist outside public authorities. That was particularly evident during Covid, when information that relatives were able to obtain using rights that they had with local authority providers was not available from other providers.

Jackie Baillie has spoken this morning about the experience of families during Covid. The Freedom of Information (Scotland) Act, which the Scottish Parliament passed in 2002, was designed to be flexible and to enable, under section 5, the addition of named providers or categories. In reality, that power has rarely been used by ministers. Since Covid, families of care home residents and freedom of information campaigners have been frustrated by the lack of progress.

Members of Parliament expressed their frustration in 2013, when updating of designations under the Freedom of Information (Scotland) Act 2002 resulted in an amendment that required reports from ministers every two years, on use of the section 5 power. Despite that, the power has basically been used to report that no action has been taken. There was a Scottish Government consultation in 2019 on use of the section 5 powers, and care was one of the examples that was focused on. That could have resulted in the extension to care services of designations under the act, but the Scottish Government decided not to progress with that.

In May 2022, the Public Audit and Post-legislative Scrutiny Committee of this Parliament reported, in its inquiry on the operation of the Freedom of Information (Scotland) Act 2002, that public sector bodies that deliver public sector services should be subject to freedom of information rights. The Scottish Information Commissioner has consistently called for the designation of providers of health and social care services as subject to the 2002 act, especially following the Covid pandemic. Repeated polling by the commissioner has shown public support for that principle, and the consultation that I held for my proposed member’s bill on freedom of information reform in 2022 showed overwhelming support for the principle.

I look forward to discussing those matters further with the minister. As I have said, I do not plan to press either amendment 89 or amendment 90 to a vote today, but I just want to say to the minister that there is a great deal of frustration about the delays in extending freedom of information requirements within the care sector—in particular, following experiences during Covid. However, I will discuss the issue further with the minister before stage 3.

In relation to tax and ownership, given the nature of the changes that have taken place in the care sector, we need information about ownership structures and tax status, because we do not want more residents being evicted as a result of care homes with complex and non-transparent ownership arrangements going bust. We should learn the lessons of history in order to ensure that we are not put in that position again.

As I have said, though, I do not plan to press amendments 89 and 90 to a vote.

Amendment 89, by agreement, withdrawn.

Section 41—Reserving right to participate in procurement by type of organisation

Sandesh Gulhane has raised two points. I will attempt to respond to both. His first point relates to both the cost and quality of care that is provided in the private sector. It is, of course, the case that most private care companies and organisations in Scotland provide good-quality care, but the principle must be that, if the public sector is paying for a service, we should have access to a basic level of information about that service. That was the intention behind the 2002 act, but steps have not been taken to extend freedom of information requirements to that sector. As I indicated, a percentage of the sector has been financialised, with Southern Cross Healthcare being just one example. When things go wrong, that can be serious for individuals and for their families. We must have robust models and when we, as taxpayers, are funding care we must ensure that we are satisfied that we are providing some level of service and security for residents.

The second point concerns a live issue that my proposed member’s bill grapples with. To be clear, the bill would require the aspects of a service that are funded by the taxpayer, and the parts of an organisation that deliver publicly paid-for services, to comply with FOI rights. The bill would not affect any parts of an organisation that are funded in other ways. That is the principle for how freedom of information would operate for organisations that provide both public and private sector services.

My amendments are narrowly drafted. Amendment 89 would require ministers, by way of regulations, to

“specify requirements for bodies providing publicly funded care services”

in relation to “transparency of ownership” and “tax status” and would require a higher degree of transparency from bodies that are not publicly owned, but which provide care that is funded by the taxpayer. I think that that addresses Sandesh Gulhane’s point.

Amendment 90 would require the extension of freedom of information regulations to care providers, for the reasons that I have already outlined. I understand from my discussions with the minister yesterday that she is likely to say that a further consultation will take place. I submit that Parliament should communicate a very clear message that we expect transparency when the public pound is being used to pay for care, and that we expect to have freedom of information rights regarding tax and ownership. I look forward to discussing those matters more, as the bill proceeds.

I move amendment 89.

Amendment 89 would require that regulations be brought forward on reporting of the tax and ownership status of publicly owned care services, and amendment 90 seeks to extend freedom of information rights to publicly owned care services. The minister and her officials were kind enough to meet me yesterday and offered to have further discussions before stage 3.

I indicated to the minister that I was not planning on pressing either amendment to a vote today and am very open to discussions about their drafting. There are specific issues relating to the definition of care. I advise that the definition that I seek to rely on is the one that is in the Community Care and Health (Scotland) Act 2002. I would, of course, be happy to discuss the matter.

The background is that we have moved away from having a care sector that was dominated by publicly owned and run organisations providing publicly paid-for care. Of the 42,489 registered care home places in March 2022, 77 per cent were in privately run care homes; 80 per cent of staffing in care homes is in the private sector. There is significant market concentration in much of Scotland, with the 10 largest for-profit care home providers accounting for more than a third of registered places.

A significant number of organisations are registered outside the UK and involve private equity and real-estate investment trusts and US-based hedge funds. Across the UK, the five largest chains account for nearly 20 per cent of beds, according to work from 2016.

I will give an example that members might be aware of, or might have been involved in as constituency representatives—namely, the collapse in 2011 of Southern Cross Healthcare, which was owned by Blackstone Group. The consequences of that affected 31,000 care home residents, including in the constituency that I represented at the time. Many of those Southern Cross care homes were sold to Four Seasons Health Care, which is owned by Jersey-based private equity firm, Terra Firma. In April 2017, 220 care homes and 17,000 residents were affected when that organisation, too, became bankrupt.

Four Seasons, like many private equity operations, consisted of complex corporate structures. The Financial Times reported that it consisted of 200 companies, arranged in 12 layers, in at least five jurisdictions, including several offshore territories. Tax avoidance and profit shifting were central to the operations.

Both my amendments are based on the principles of transparency, following the public pound and that, where publicly funded care is provided by organisations other than public authorities, there should be freedom of information rights and transparency in relation to tax and ownership. As the committee will be aware, freedom of information rights do not exist outside public authorities. That was particularly evident during Covid, when information that relatives were able to obtain using rights that they had with local authority providers was not available from other providers.

Jackie Baillie has spoken this morning about the experience of families during Covid. The Freedom of Information (Scotland) Act, which the Scottish Parliament passed in 2002, was designed to be flexible and to enable, under section 5, the addition of named providers or categories. In reality, that power has rarely been used by ministers. Since Covid, families of care home residents and freedom of information campaigners have been frustrated by the lack of progress.

Members of Parliament expressed their frustration in 2013, when updating of designations under the Freedom of Information (Scotland) Act 2002 resulted in an amendment that required reports from ministers every two years, on use of the section 5 power. Despite that, the power has basically been used to report that no action has been taken. There was a Scottish Government consultation in 2019 on use of the section 5 powers, and care was one of the examples that was focused on. That could have resulted in the extension to care services of designations under the act, but the Scottish Government decided not to progress with that.

In May 2022, the Public Audit and Post-legislative Scrutiny Committee of this Parliament reported, in its inquiry on the operation of the Freedom of Information (Scotland) Act 2002, that public sector bodies that deliver public sector services should be subject to freedom of information rights. The Scottish Information Commissioner has consistently called for the designation of providers of health and social care services as subject to the 2002 act, especially following the Covid pandemic. Repeated polling by the commissioner has shown public support for that principle, and the consultation that I held for my proposed member’s bill on freedom of information reform in 2022 showed overwhelming support for the principle.

Cabinet secretary, I appreciate that you said that you are not trying to engineer higher conviction rates; instead, you are trying to modernise the system. However, what is the risk of our having lower conviction rates in rape cases as a result of these changes and the move to two verdicts and a two-thirds majority?