Chamber and committees

I do not have a concern about trying to create policy across the four nations in many areas. I think that it makes sense to take, as best we can, a four-nations approach to advertisements for less healthy food, for example. Actually, I believe that the UK Government has not got that issue right; it thinks that it does not need an LCM, but we believe very strongly that it does. I can go into more detail on that later, if anyone so wishes. That said, the policy is one that I can agree with. In a number of areas in the bill, taking, as best we can, a four-nations approach would make sense. However, the Scottish Government’s position—as I have said, the Welsh Government takes a similar position—is that, where policy affects our executive power as ministers, which has been agreed by the UK Government, we cannot be treated simply as consultees. Our consent must be gained. Indeed, that is a fundamental principle of the devolution settlement.

There would not necessarily be huge differences. We are all looking to restrict that advertising online, where possible. As I have said, there are a number of provisions in respect of which it would make sense to have a four-nations approach. That is one of them, for very obvious reasons. However, the principle is that we and the Welsh Government, for example, believe that those are areas of devolved competence and that if we concede that principle on online advertising, it could have an effect on other areas of public health policy above and beyond that. We are all—including Ms Webber, of course—defenders of the devolution settlement, so it is important that those principles are robustly defended by all of us.

It is just a very brief one, convener.

I thank the committee for inviting me here to discuss the United Kingdom Government’s Health and Care Bill. The bill broadly comprises three elements: provisions of the NHS England long-term plan, measures in response to Covid-19 and a rolling back of some of the competition elements of the Health and Social Care Act 2012.

The proposals in the long-term plan, which have been in development for a long time, are not contentious for us, because their effects are confined to England and the English national health service, although we are, of course, always worried about domino effects. Other provisions in the bill have not been as long in development or subject to the usual consultation, and some of them will affect Scotland.

In my LCM, I recommend that Parliament not grant legislative consent to the bill as it stands. The UK Secretary of State for Health and Social Care would be granted powers to act in Scotland without having to seek the consent of the Scottish ministers, even where the actions would impact on delivery of healthcare, which is the responsibility of the Scottish ministers. Moreover, some provisions ignore the reality of there being a separate NHS in Scotland and could, if unchallenged, enable the secretary of state to treat the NHS across the UK as a single unitary entity. That is unacceptable.

I have had a written response to my concerns from Edward Argar, the minister who is leading on the bill, and we are due to speak tomorrow. I hope to see some movement from the UK Government, but until I see willingness to respect the devolution settlement, I am not in a position to change my recommendation to withhold legislative consent. If the UK Government makes suitable amendments, I will bring forward a supplementary LCM.

I look forward to going into the issues in more detail with committee members.

A carve-out is certainly an option that could be discussed. However, there could absolutely be an advantage in working on a four-nations basis in a number of areas, as I have said throughout this session. I have no difficulty in doing that; I do not have any ideological opposition to that, at all. However, as Gillian Mackay rightly said, there are real concerns about how Scottish patient data could be used. It is therefore important that the Scottish ministers are not just consulted. Their consent is required so that, if they have concerns about how that data is being used or about its confidentiality and personalisation, they can effectively stop any practice that they think is not within the values and ethos that they espouse when it comes to data protection.

For me, the important point about international healthcare—I am going to sound a bit like a broken record, but it is important for me to stress this—is that that is an area in which it makes perfect sense to adopt a four-nations approach. From a policy perspective, I absolutely would like to do that. However, from a principle perspective, the Scottish Government and the Scottish Parliament should have a say on such arrangements, because they impact on devolved competence. They impact because it is accepted, including by the UK Government, that reciprocal arrangements—people coming from overseas to access our healthcare and Scots going abroad to access healthcare internationally—are within our devolved competence.

We would not want the UK Government to enter without our consent an agreement that could affect Scottish patients, the Scottish public and the Scottish health service because of people from outside accessing our health service. It is not good enough simply to be consulted. We might then raise issues and concerns, but they could be ignored by the current UK Government or a future one. I know that we can sometimes get into a space in which we think about only the current Governments, but we have to think about future proofing the legislation. It is really important that we are not just consulted on those issues and that our consent is gained. That is a significant concern for me in relation to international healthcare.

I am willing to discuss what that should look like in more detail with the UK Government, but its aim is to underpin any future discussions or consultation between the Scottish ministers and the UK Government on reserved matters. We should be asked for our consent on devolved issues—I do not think that anyone would argue that that would be inappropriate—and I hope that we would at least be consulted on reserved matters. After all, even where matters are fully reserved, there can be implications for the health service in Scotland. I am quite willing to enter into a memorandum of understanding with regard to reserved matters to ensure appropriate and full consultation between Scottish and UK Government ministers.

Your question gets to the nub of the issue. In the bill, there are, in effect, three provisions on the advertising of unhealthy food. First, it proposes a watershed for television advertising of less healthy food and drink products, which would be prohibited between 5.30 am and 9 pm. Secondly, it proposes a similar restriction of advertising on on-demand programme services, which also come under the jurisdiction of the UK and are regulated by Ofcom. Thirdly, it proposes a restriction of paid-for online advertising of less healthy food.

We have a difference of opinion with the UK Government in the third area. We accept that the first two areas are wholly reserved; I do not think that there is any argument in that respect. However, we have a different view in respect of the proposed restriction of paid-for advertising online of less healthy food.

As Emma Harper mentioned, it is an important issue, particularly in relation to our target to reduce childhood obesity. I am the stepfather of a 12-year-old. Given the amount of time my stepdaughter spends on her phone, on screens and looking at apps—I must work harder to curtail that—she will end up seeing a lot of advertising on any given day. I think that we can all agree that that is a really important space in which to try to legislate.

Again, we want to have a four-nations approach where possible, but our contention—this is a difference between us and the UK Government—is that we do not believe that online advertising in that respect is reserved. The primary purpose of the provision is to tackle childhood obesity by preventing children’s exposure to paid-for online advertising of less healthy food. We consider that to be a public health purpose, and therefore consider the matter to be devolved. That is where the difference comes from.

I note that the principle is really important. From that perspective, we can see how that could translate into other policy areas, and not just health policy areas. I suspect that, if we were to concede on the principle, there could be implications for other Government policy, too. I have had conversations with the Welsh Government, which is also of the view that the purpose of the provision is a public health one. It believes that the Senedd—the Welsh Parliament, of course—should legislate in that domain. There is a shared position between us and the Welsh Government.

Consultation has been limited. We encourage the UK Government to consult. Obviously, we are consulting, as members would imagine, but the UK Government’s consultation with us has not been as good as the consultation that I have seen on other bills in the past. Our consultation with the NHS and broader NHS and social care partners has been as extensive as it can be, but it is difficult when the detail is given to us with not much advance notice.

I know that a number of stakeholders share our concern about some of the aspects that have been discussed and some aspects that have not been discussed but are in the LCM—for example, in relation to the Human Fertilisation and Embryology Authority. We have a number of concerns, and we will continue our consultation with the UK Government. I hope that we will come to a sensible resolution, and we will certainly do what we can to consult further with NHS colleagues and partners.

That is all in our NHS recovery plan. We will meet that 10 per cent increase for out-patient activity by the end of the parliamentary session. By the end of the session, in-patient and day-case activity should increase by closer to 20 per cent. You will find that on page 5 of the recovery plan, where we go into detail about how we will increase in-patient activity, out-patient activity and diagnostic activity year on year.

I am still waiting for the detail, but I note that the UK Government is due to make an announcement on its plans today and, from what I have heard communicated in the media, my understanding is that it will also try to increase capacity by 10 per cent. I am pleased that the UK Government has seen that ambition in our recovery plan and will try to match it.

I will repeat what I said to Mr O’Kane earlier: we will of course be ambitious, but we will also be realistic about the timescales that it will take to clear those backlogs and get our NHS back to complete normality.

That depends on what system we are talking about, although we obviously have to comply with all the regulations in statute and, ultimately, we are accountable to the Information Commissioner’s Office with regard to how we use that data. That is exceptionally important. Who the data controller is will depend on the system in question, but if it gives Dr Gulhane comfort, I can tell him that we already engage regularly with the ICO on development and introduction of new systems. Moreover, our cybersecurity centre of excellence is working hand in glove with practitioners on the ground not only on our current systems but on the development of new systems.

Of course, I do not need to tell Dr Gulhane any of this—he will be well aware from his other role in primary care that our practitioners on the ground are usually well aware of their responsibilities in handling data. However, I am more than happy to hear suggestions if we need to do more, particularly with regard to the development of new systems.