Chamber and committees

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?

From what you are saying, then, you have come to the conclusion that, if there were to be a change in conviction rates—particularly in rape cases, given, as you have said, the concern about those rates being low—it would be an increase rather than a reduction. I appreciate that that is not necessarily the intent, but it is quite understandable that people will be worried about the risk of the conviction rate being lowered. Are you satisfied that the risk is low in that respect?

Thank you.

I have a question about part 2 of the bill, if that is acceptable, convener.

Cabinet secretary, you will be aware of a concern that the concept of trauma-informed practice might be seen as simply a slogan and words that are used, rather than practice that is embedded in the system. I am sure that you are concerned about that. Can you outline the work that is being done—or that you are thinking would be done if the legislation were passed—to ensure that trauma-informed practice is embedded in the procedures and rules of court? How do you envisage that work being taken forward?

Miscarriage of justice is a different concept to conviction rates. I am particularly focused on conviction rates in rape cases. Clearly, you have spent a huge amount of time considering those issues, so have you concluded that you do not believe that there will be a risk of lower conviction rates in rape cases if part 4 proceeds as you are proposing?

I welcome the motion from the Greens and will vote for it if we are given the opportunity to do so later today. I also welcome the indication from the Scottish Government that it will support the Scottish Labour amendment

“to review ... due diligence checks”.

It is fitting that we are debating the funding of companies that supply arms and munitions that are used in human rights abuses in Gaza. The Parliament has previously voted for a ceasefire, and I hope that, today, a clear message will be sent in support of international law, and that it is unacceptable that Government agencies should give financial support to companies that supply arms that risk being used as part of multiple and repeated contraventions of international law, which have been, and are, taking place in Gaza and the West Bank.

With regard to the specific companies to which the motion refers, we know that Leonardo manufactured 30 Aermacchi M-345 aircraft for the Israeli Air Force, and that Raytheon supplies smart bombs for the IDF—weapons that are among the most lethal targeting technologies to have been used on Gaza’s so-called safe zones. We know that those companies are among a string of US arms firms that have seen dramatic jumps in their stock prices from the onset of the war. Indeed, executives of those firms have described the past 14 months as a business opportunity.

Not a single company has failed any of the 199 human rights checks that Scottish Enterprise has conducted since 2021, nor indeed any of the 178 checks that were conducted between 2019 and 2020. That includes companies, for example, that the European Center for Constitutional and Human Rights has named for potential complicity in unlawful air strikes in Yemen.

The test that the UK Government applies in relation to arms export licences is whether the use of a component is likely to lead to the abuse of human rights or to be used in a way that is in breach of international law. We know that the targeting of civilians and of facilities such as hospitals, the bombardment of Gaza, the illegal settlements in the West Bank, the use of white phosphorus and the blockade of essential supplies are among the breaches of international law that have taken place in Gaza and the West Bank.

According to responses to freedom of information requests from Amnesty International, in the due diligence process that Scottish Enterprise carries out, the level of checks that it performs on a company is measured only against

“the level of financial support it receives, rather than the company’s involvement with or links to human rights abuses.”

That due diligence process seems to go against the United Nations guiding principles on business and human rights and neglects consideration of the end use of components, which is the central issue. I listened with interest to Richard Lochhead’s contribution in that regard.

I very much hope that, as a result of the debate and the focus that it has brought to the issue, the Government will ensure that there is a full review of the due diligence processes that are used by Scottish Enterprise. The Parliament must be clear in the message that we send that we will honour international law and that we stand in support of human rights and with the people of Palestine.

Thank you, Presiding Officer, for the opportunity to close the debate on behalf of Scottish Labour. We believe that there is a consensus, across the Parliament and the Criminal Justice Committee, on many of the issues that we are debating. The real challenge is why the consensus that exists and has existed for many decades on how our courts deal with criminal behaviour has not been implemented.

Ben Macpherson rightly raised the issue of why we have high levels of crime, particularly violent crime, in Scotland, and those are issues that the Parliament should be engaging with. However, today’s debate is more about how we deal with offending behaviour once it has happened. As the cabinet secretary said, there has been a 60 per cent increase in Scotland’s prison population since 1990. It reduced slightly as a result of a change in policy in relation to young offenders, who were largely taken out of the criminal justice system, but the population has since increased. Scottish Labour does not accept that we have a sustainable prison population. Per capita, we have the highest number of people in prison in Europe and the highest number of people on remand, which is not sustainable.

Little rehabilitation happens in prison. Prisoners do not have access to the programmes that they need that might mean that they do not reoffend, and prison staff are under massive pressure. Many prisoners who are held on remand are either found not guilty or are immediately released when found guilty at trial due to the length of time that they have already spent in custody. We have high levels of reoffending by people who go through the justice system. As Liam Kerr said, that issue is not being dealt with with any urgency.

Our criminal justice system is in crisis, and our view is that that is not sustainable. As has been said by many speakers in the debate, including Rona Mackay, Liam McArthur, Maggie Chapman, Fulton MacGregor and, indeed, the cabinet secretary, the evidence suggests that, for most crimes, non-custodial sentences are the most effective in preventing reoffending. The Parliament has received, and the Scottish Government has commissioned, many reports, statements and policy documents to that effect.

The cabinet secretary spoke about some of the negative impacts of being in prison. I listened to her opening contribution with interest, particularly in relation to the review, because I have to say that the justice team for Scottish Labour became aware of this work only when the motion was lodged, and the only detail that we have had was in the cabinet secretary’s contribution today. There needs to be a genuine open discussion in the Parliament about these issues, and the framework of the justice system in Scotland often prevents that from happening. For example, some of the policy on the sentencing of young offenders—under-25s—was not debated with any seriousness or consequence by this Parliament. I agree with the cabinet secretary’s motion, which says that

“the Parliament has an important role to play in discussing the use of imprisonment and the best means for addressing offending behaviour”.

I hope that that discussion will happen more in the future.

I agree with what the cabinet secretary said about the approach in many Scandinavian countries and what we need to learn from international experience. However, her speech simply repeated what has been said in the chamber on many occasions since the creation of this Parliament. In 2008, the Scottish Prisons Commission, which was also known as the McLeish commission, published its report, “Scotland’s Choice”. The commission examined Scotland’s prison system and prison population and the factors that influence those. It set a target to reduce the prison population to 5,000 people per day and to use more community sentences.

It is unclear how the work that is being proposed today differs from that and other pieces of work that have been commissioned. It would be helpful if the cabinet secretary could respond to that in her summing-up speech. There are not significant differences between Scottish Labour’s position and the Scottish Government’s policy on the use of prison. However, it is clear that the Scottish Government has not taken the action that is required to implement that policy. It would be useful to know why the cabinet secretary believes that the piece of work that she is suggesting today will make the shift to get the action that is needed.

As predicted, the Scottish Government’s recent early prison releases led to high reoffending rates, due to the failure to allow time for effective planning. As Pauline McNeill said, work with offenders in the prison system is vital for offenders who need to be incarcerated, but the courts need to have the confidence to use community disposals, which will be the appropriate disposal on many occasions. The evidence that the Criminal Justice Committee has heard on a number of occasions is that that confidence simply does not exist in the judiciary and the sheriffdoms.

We know that community justice budgets make up less than 5 per cent of the total justice budget. I was pleased that there has been an increase this year, but we know that it still does not provide the levels of funding that are needed to match the ambitions that the Scottish Government has set out over many decades. From responses to freedom of information requests, we also know that, in many cases in which community disposals are made by the courts, they are never implemented.

As Pauline McNeill said, Scottish Labour will give our full co-operation to any attempt to drive the use of community disposals in Scotland where they are appropriate. In particular, we will support any attempts to increase community justice budgets. We are pleased that the debate is happening today, but we are concerned about the lack of focus on victims and the need for restorative justice. Jamie Greene was correct when he said that the word “victim” was not used at all in the cabinet secretary’s opening speech. The cabinet secretary spoke about international comparisons. One of the significant differences between our system and those of many of the countries that she referred to is the role of the victim.

As I said, I believe that there is a great deal of consensus in the debate. I very much hope that we will be able to focus on how the Parliament can start to deliver on that consensus and on making sure that we make the changes in the criminal justice system that will make a difference to communities in Scotland.

To ask the Scottish Government whether it will provide an update on what action it is taking to help local authorities to move families with children out of temporary accommodation into suitable permanent homes. (S6O-04339)