Chamber and committees

Brian Whittle’s amendments seek to remove sections 36 to 48 of the bill. They would, in effect, remove the bill’s remaining sections, following my amendments to remove part 1, so I ask committee members not to support them.

Agreement to amendments 123 and 125, which relate to sections 36 and 37, would result in barriers to effective sharing of information and consistent use of information standards across health and social care. That would negatively impact on our ability to improve delivery of high-quality health and care services for individuals.

Amendments 134 and 135 propose the removal of the introduction of the right to breaks for unpaid carers. Establishment of that right has received an overwhelmingly positive response. It is clear that there is support for delivering it, as it will help to ensure that unpaid carers can have a life alongside their caring role, and it is likely to reduce other costs arising from unplanned hospital admissions, failed hospital discharge and additional residential care when caring relationships break down. I remain committed to delivering the crucial right to breaks in order to uphold the health and wellbeing of unpaid carers and to publicly recognise the immense value of the support that they provide.

Amendment 138 would remove provisions related to Anne’s law, which we are absolutely committed to delivering, and for which there is strong cross-party support.

Our amendment 50 includes provision for enabling care home residents to identify an essential care supporter, as has been called for by Care Home Relatives Scotland. I am grateful to that group and others for working with us on that amendment.

Brian Whittle’s amendment 139 would remove section 41, which will extend the reserved contracting process to third sector organisations in health and social care. That process will help those organisations to compete with larger for-profit ones. It will support a flexible mixed-market model for delivering social care, with decisions being made locally based on local needs. Independent and third sector organisations, both for-profit and not-for-profit ones, are and will continue to be important partners in delivering social care for Scotland.

Agreement to Brian Whittle’s amendments would halt reforms in a range of really important areas, which I believe largely command cross-party support. I cannot believe that the member would want us to halt Anne’s law and the right to breaks for carers. I therefore ask the committee not to support any of the amendments in the group.

My amendments 16 and 17, which were debated with the first group of amendments, would have the effect of removing from the bill the complaints provisions in sections 14 and 15. My view is that the complaints service that is provided for by section 14 and the associated regulation-making power that is in section 15 cannot be included without the entirety of part 1 of the bill. A new NCS complaints service will not make sense in isolation.

I make it clear, however, that I am absolutely committed to improving the complaints processes. The independent review of adult social care made it clear that, when things have not worked well for people and their rights have not been met, they must have rapid recourse to an effective complaints system and redress. The NCS that the review proposed would prioritise an improved complaints process.

So far, more than 200 people with lived experience of receiving, accessing or delivering care have been involved in co-design and engagement to consider findings from existing evidence and to identify key priorities for improvements to the complaints processes. That will enable us to identify and drive forward the improvements that are required to ensure that a rights-based approach is taken on complaints.

If the committee supports removal of part 1 of the bill, we will continue to work closely with people who are accessing and delivering care and with our stakeholders in order to identify improvements that should be taken forward. If sections 14 and 15 remain in the bill, I cannot support amendments 97, 71, 98, 72 and 99, all of which relate to complaints.

Amendment 97 seeks to limit the scope of complaints that can be dealt with by the complaints service that is required under section 14 of the bill to care services that are provided by local authorities. That would mean that the complaints service would not be able to receive complaints in all circumstances—for example, it would not be able to do so when someone was accessing social care services via self-directed support options 1 and 2. I believe that it is vital that we not limit the complaints service in that way, and that we ensure that all users of social care services are able to utilise the new complaints service.

Amendment 71 seeks to make it clear that the person who is to be allocated a complaint is not only appropriate, as is currently required by section 14(3), but is the person who will oversee its resolution. Although the amendment seeks to provide clarity, its effect is to confuse the position on who complaints should be passed to. The person who oversees the resolution of a complaint might not be the person who is best placed to address that complaint. That is particularly true when the role of oversight bodies such as the Care Inspectorate and the Scottish Public Services Ombudsman is taken into account. I therefore encourage members not to support amendment 71.

Amendment 72 seeks to define who may make a complaint to the NCS complaints service. However, setting that out in the bill unintentionally risks interfering with existing established legal procedures. The model complaints handling procedure for public body social care complaints that has been set by the Scottish Public Services Ombudsman already defines who can submit a complaint. Although who that is is deliberately broad ranging, it is defined enough to allow only relevant complaints. It includes relatives or representatives of people who use services, as well as people who come into contact with, or are affected by, services.

Amendment 72 would also limit the scope for using the associated regulation-making power in section 15 in the future. For those reasons, I ask for the amendment not to be supported.

Amendment 98 seeks to establish that a “relevant complaint” is about a

“social service as defined by section 46 of the Public Services Reform (Scotland) Act 2010.”

It would narrow the bill’s wording by removing reference to the NCS, rather than extending it. I understand the intent of the amendment. However, I believe that it is vital that we not limit the scope of the services that are covered in that way, and that we ensure that all users of social care across the sector, whether they receive public or private provision—including those who use services for which integration is key, such as community health and prison social care—are able to utilise the new complaints service and the associated complaints-related regulations where appropriate. I therefore encourage members not to support amendment 98.

Amendment 99 provides examples of what regulations in relation to complaints handling may cover, which includes assessing complaints against a set of principles, providing guidance on handling complaints that are made in relation to the allocation of resources and assessments of eligibility, and providing timescales. Although I welcome and will further consider the examples proposed, the regulation-making power in section 15 is subject to the outcomes of a co-design process, which will enable us to develop and strengthen a consistent complaints system and associated redress. I do not wish to undermine or pre-empt the outcomes of co-design by including examples in the bill. I therefore invite members not to support amendment 99.

As was set out in my statement to Parliament on 23 January, we remain committed to delivering our Scottish national care service. However, I have concluded that we must achieve that without legislating for structural reform at this time, but must instead pursue a different means of delivering on our goals. The result of that decision is that part 1 of the bill, as introduced, requires to be removed. That would be done by amendments 1 to 39, which are in my name.

The removal of part 1 has the most significant impact on the establishment of care boards and the transfer of responsibility for community health, social work and social care services to the Scottish ministers. However, strengthening national oversight and support for the system remains a priority.

We are working to establish for the services an advisory board that will be informed by lived experience. We still intend to pursue several areas of local reform through means other than primary legislation.

We will continue to give further consideration to the national care service principles. In addition, we will proceed with publishing a co-designed charter of rights and responsibilities, independent of the bill.

A revised programme to improve complaint services will also be developed and delivered. Independent information, advice and advocacy is an area in which provision in the bill would still be helpful. Amendment 15 would therefore move section 13 to part 3 of the bill, and we will discuss amendments to it in a later group—I should say that we will discuss those amendments if Brian Whittle’s amendment 96 is not agreed to, because it would remove section 13 from the bill entirely. I urge members not to support it.

Amendments 60 to 68 are technical amendments to the remaining parts of the bill to reflect the removal of part 1. There are competing amendments for changing the bill’s short title to reflect the removal of part 1. It will come as no surprise to members that I invite them to support amendment 67 over amendment 40 from Alex Cole-Hamilton and amendment 158 from Brian Whittle.

Brian Whittle’s proposed short title of “Social Care and Support” would not be an accurate description of the bill, because it refers only to social care, whereas part 2 of the bill is also about healthcare. Alex Cole-Hamilton’s proposal for “Care and Carers” is not technically inaccurate, but it places the emphasis on carers, which, although it is an important element of the bill, is not the only important element. I have therefore proposed “Care Reform” on the basis that it is a broader description.

I move amendment 1.

I am delighted to see that there is widespread support for the principles of fair work, ethical commissioning and ethical procurement in Scotland.

On amendment 100, which was lodged by Jackie Baillie, I am not against the use of principles in legislation. The Government included principles for the national care service in part 1 of the bill, but I am unclear about the benefit of including those principles in legislation and about what consequences they could have on the wider social care system. In particular, and unlike the principles in section 1 of the bill, they do not seem to be focused on people who are receiving care and support.

I will always agree that Scotland’s social care sector will benefit from being an exemplar of fair work. Work is already being done to develop sectoral bargaining with our partners in the social care sector, and we are also working with the UK Government on changes to that area in the UK Employment Rights Bill.

The Scottish Government is providing funding to deliver the real living wage to social care workers who are delivering direct care and commissioned services. That was £230 million in the current financial year and will be £125 million next year, subject to the budget being agreed. Further, an effective voice framework is also being piloted and will be evaluated over the summer before being implemented on a national basis.

Although I agree with the people-first ethos, the principle of people before profit, although commendable, is not likely to be implementable, and it could have unforeseen consequences. The people of Scotland rely on a variety of services being delivered by a multitude of organisations, including the third, independent and public sectors. To prevent social care provision that is based on profit making would significantly risk the delivery of the support and services that our people need.

On tax avoidance, the Scottish Government recognises that a more robust and fair system of taxation could enhance the commitment to realising the human rights of service users and workers by increasing the available resources. I am not sure, however, that that principle in amendment 100 will achieve the member’s aims, and it could have other unintended consequences for other legislation, including procurement legislation.

There might be a place for such principles in legislation—we can further discuss what they could be—but they must improve the experience of those who are being cared for and supported in Scotland. I am not convinced that the principles that are set out in amendment 100 do so. I ask Jackie Baillie not to press the amendment. If she does, I ask the committee not to support it.

I do not support amendment 101, in the name of Jackie Baillie, on the new social care sector duties. I understand that the amendment’s intention is to create a requirement for ministers to act in accordance with the founding principles that are set out in amendment 100 and the national strategic plan for social care services that is set out in amendment 115.

Although I agree that clarity about our aims and objectives for delivery of social work and social care services would be helpful, the problem is that the amendment would create new statutory duties for ministers in respect of social care services. That goes against the agreement that has been reached that local government will retain responsibility for delivery of social work and social care services, so it is no longer appropriate for ministers to have new duties—even very broad ones, as proposed in the amendment—in respect of them. It could make it less—not more—clear who is responsible for improving services, which is a key demand of people with lived and living experience. The amendment could create a situation in which ministers must take ultimate responsibility for delivery as a last resort, which is not wanted.

I would be happy to work with the member on alternative wording, although I must stress that a new duty for ministers is no longer needed. If there was to be an amendment along such lines, I would want to strengthen and build on health and social care integration. I therefore ask the member not to move amendment 101, but, if it is moved, I ask the committee not to support it.

I recognise that the intention of amendment 102, in the name of Jackie Baillie, is to bring a consistent approach to commissioning, but it is not necessarily the best way to achieve the improvement that we all seek. Ministers are not responsible for social care commissioning, and the amendment misses out the bodies that are. I know that there is an implementation gap between the intent of social care commissioning and what is ultimately delivered.

In partnership with the Convention of Scottish Local Authorities, a working group that includes representation from social care providers, commissioners and people with lived experience is developing principles for ethical commissioning and guidance that all commissioners can use. That work is about focusing on the outcomes for social care users and ensuring that their voices are heard during the commissioning process.

Given the positive steps that are already being taken in relation to ethical commissioning, further provision as set out in amendment 102 is not necessary, but I would be happy to work with the member on an appropriate amendment for stage 3. I therefore ask the member not to move amendment 102, but, if it is moved, I ask the committee not to support it.

The purpose of amendment 103, in the name of Jackie Baillie, is to place a duty on Scottish ministers and relevant public authorities in relation to the code of practice that is proposed in amendment 102, so that they give it due regard in the design, commission, delivery and review of social care services.

As I mentioned, work is already under way on ethical commissioning principles and guidance, which will assist in closing the implementation gap between commissioning intent and what is delivered in practice. However, as with amendment 102, I would be happy to work with the member on an appropriate amendment for stage 3. I therefore ask the member not to move amendment 103, but, if it is moved, I ask the committee not to support it.

In response to amendment 104, in the name of Jackie Baillie, I am committed to delivering ethical procurement and I am confident that we already have the legislative powers to deliver it. Although I sympathise with what the amendment is trying to achieve, it duplicates existing procurement regulations. Procurement legislation and policy, such as the sustainable procurement duty, already provide details on how procurement should be carried out, which include key considerations for public sector bodies.

Scottish ministers are required to publish guidance that is specific to health and social care, which contracting authorities must have due regard to. It is through that statutory guidance that we will embed ethical procurement practices. Therefore, the Government’s position is to oppose amendment 104. It is unnecessary and it risks further complicating the procurement landscape for people, providers and public sector bodies, so I ask members not to support it.

On amendment 105, it is vital that care service providers meet all their legal obligations, no matter how they are funded. Amendment 105 is substantially a duplication of the requirements that are set out in regulation 19 of the Public Contracts (Scotland) Regulations 2015, so it would have no practical effect. As drafted, the amendment would also put requirements on public sector bodies when procuring a wide range of services—it is not limited to community health and social care, which is the focus of the bill, and the reference to social care providers does not achieve that. Therefore, I invite Jackie Baillie not to move amendment 105. If it is moved, I ask the committee not to support it.

Amendment 106 was also lodged by Jackie Baillie. Although I support the establishment of sectoral bargaining arrangements for the social care workforce, I cannot support the amendment. The limitation of legislative competence in relation to employment law means that the Scottish Parliament cannot establish statutory requirements for participation in sectoral bargaining. We have had only a short time to consider the amendment, but we have serious concerns that it is outwith the Parliament’s legislative competence. The Government has not stood still on the important element of fair work. The fair work in Scotland group has been working to develop a voluntary sectoral bargaining model that provides a mechanism for determining pay terms and conditions on a voluntary participation basis.

The Scottish Government is also engaging with the UK Government on the Employment Rights Bill, which we hope can create a legislative basis for a Scottish national social care negotiating body and fair pay agreements in Scotland. I invite the member not to move amendment 106. If it is moved, I ask the committee not to support it.

On amendment 107, which was lodged by Carol Mochan, I am delighted to see the interest in international recruitment. However, the amendment would add an additional burden on social care and would potentially not improve the situation in Scotland for international workers. We already demonstrate our commitment to ethical recruitment through our code of practice for the international recruitment of health and social care personnel in Scotland. In a similar vein to its position on fair work and employment powers, the UK Government continues to resist calls for the responsibility for immigration policy, as far as it affects Scotland, to be passed to the Scottish ministers. Without responsibility for immigration policy, we continue to press the Home Office for robust and regular data on international workers and their visas.

We will continue to do what we can within the Scottish Parliament’s current competence, and policy work is under way in the sector to raise awareness, to support displaced visa holders and to look at improvement and system change. However, as this is an important issue and I agree with the spirit of the amendment, I am happy to look at the issue further and to consider, before stage 3, whether improvements could be made that would require legislation. I invite Carol Mochan not to move amendment 107. If it is moved, I ask the committee not to support it.

On Carol Mochan’s amendment 108, the Scottish Government already publishes fair work first guidance, to which public bodies and other public sector partners should give due regard. Therefore, amendment 108 is not necessary. Again, I invite Carol Mochan not to move the amendment. If it is moved, I ask the committee not to support it.

The intention behind Carol Mochan’s amendment 109 is unclear. It seeks to provide a regulation-making duty for ministers to specify acts and omissions of a contracted provider that constitute a reportable breach of contract in relation to fair work standards. Amendment 109 would result in information being gathered, but no practical action would be enabled as a result. It is therefore challenging to see how and where the proposed provision would exert real change for care workers and supported people, which is what the bill is really about. If the intention behind the amendment is to require standard actions to be taken as a result of contract breaches, I point out that common law already provides long-established remedies for dealing with breaches of contract, which include rights of termination. The procurement rules also include provisions regarding compliance with employment law, and those measures can result in the exclusion of bidders who fail to comply.

Amendment 109 would add little or nothing to existing law other than, perhaps, an obligation to report such a breach and keep a register. It is unlikely that that would have any greater effect on contractor behaviour than the existing measures that are in place, and it would create a further administrative burden with no benefit, despite there being a cost to the public purse. Therefore, I invite Carol Mochan not to move amendment 109. If it is moved, I ask the committee not to support it.

I have sympathy with the intention behind amendment 110, which was also lodged by Carol Mochan, but I do not believe that it is necessary, and we have serious concerns that it is outwith the legislative competence of the Parliament. Contracted providers already have responsibilities to comply with their legal obligations on employment and labour relations, and there are already laws that protect workers’ rights to trade union membership and to participate in trade union activity, so provisions that deal with victimisation already exist. However, the Scottish Parliament does not have the competence to extend the scope or intent of labour laws, even when there is cross-party agreement on delivering fair work. Therefore, I invite Carol Mochan not to move amendment 110. If it is moved, I ask the committee not to support it.

Although we whole-heartedly support the aim of maximising the realisation of human rights for workers and people who access care, amendment 111 would not do that. Public bodies are already required to respect, protect and fulfil the rights of citizens, including people who work in and use social care services. The amendment would introduce measures relating to tax avoidance, but such measures raise questions about legislative competence and would be out of the bill’s scope, and the broad range of regulations across the spectrum of human rights that would be placed on ministers would be inappropriate and unachievable.

Amendment 111 focuses on the profit that is made by, and the tax practice of, care providers. There is already a wealth of legislation regarding legal requirements for tax practices, and there are powers in procurement legislation to exclude providers if they have not met their tax obligations and have not self-cleansed, so the amendment would add no further practical application to that which is already available. The amendment also refers only to social care services, so it would risk undermining our existing legislation on integrated health and social care, whereas we should be building on and strengthening that.

Therefore, it is my view that the power could not be used in the way in which Carol Mochan might have intended. Amendment 111 would risk the passage of the bill because of questions about legislative competence, and it is neither necessary nor appropriate, so I invite her not to move it. If it is moved, I ask the committee not to support it.

I understand what Carol Mochan wants to achieve through amendment 112. However, at the moment, there are no agreed fair work indicators, which would need to be agreed with the sector to enable effective and proportionate measurement. The Scottish Government already publishes fair work first guidance, to which public bodies and other public sector partners should give due regard. Furthermore, given that the burden of any new reporting requirements would fall on the social care sector, especially local government, health and social care partnerships and social care providers, it would be useful to consult stakeholders on the need for and the impact of the amendment. I would be happy to work with Carol Mochan on those issues before stage 3, but, for now, I invite her not to move amendment 112. If it is moved, I ask the committee not to support it.

As is the case with amendment 112, amendment 113, which was also lodged by Carol Mochan, would rely on new data—this time, from commissioning authorities on workforce engagement. That would mean that there would be another new burden and cost on the social care sector. Again, I understand what Carol Mochan wants to achieve, so, as I set out in relation to amendment 112, I would like to consult the sector to understand the impact of the amendment, and I would be happy to work with her before stage 3. For now, I invite her not to move amendment 113. If it is moved, I ask the committee not to support it.

As I understand it, amendment 114, which was lodged by Jackie Baillie, would introduce an interpretation section to provide clarity on the terms that are set out in the amendment and used in the new section that she proposes to add. It might well be a useful addition, but we would like to review, following stage 2, what, if any, interpretation section is required. Therefore, I ask Jackie Baillie not to move amendment 114. If it is moved, I ask the committee not to support it.

Brian Whittle’s amendment 146 seeks to place a duty on the Scottish ministers to review ethical commissioning guidelines and to lay a report before the Scottish Parliament once in every five-year period following royal assent. It is unclear what guidelines are being referred to, so I would welcome the member clarifying that. As is set out, our intention is for ethical commissioning principles and guidance to support an improvement in services in a way that is flexible in response to need and can be reviewed and revised easily over time. To place a duty to report on a review of guidelines therefore seems unduly burdensome and not in keeping with the flexible approach to improvement that is our aim, so I invite Brian Whittle not to move amendment 146. If it is moved, I ask the committee not to support it.

I turn to amendments 149, 150 and 151. Jackie Baillie’s amendment 149 and Carol Mochan’s amendments 150 and 151 have the same purpose, which is to provide that any regulations under the proposed new section’s ethical procurement, reportable breaches of contract and fair work indicators are subject to affirmative procedure. Those relate to the earlier amendments 104, 109 and 112, respectively. I ask committee members not to support amendments 104, 109 and 112, f they are moved. If those amendments are not agreed to, amendments 149, 150 and 151 should also not be agreed to. I therefore ask the committee not to support amendments 149, 150 and 151, if they are moved.

As I said in the debate on the previous group, I continue to think that there would be value in having the bill make provision about independent information, advice and advocacy. My amendment 15 will therefore move section 13 into part 3 of the bill.

The amendments in group 2 are about the substance of section 13, and I ask the committee to support amendments 41 and 69 and not to support amendments 91, 70, 92, 93, 94 and 95. In some areas, however, I would like to work with members to look at revising those amendments ahead of stage 3.

On amendments 91, 92 and 95, which deal with a right to independent advocacy, I am committed to enhancing independent advocacy services as a mechanism for empowering people to have their voices heard and to participate fully in decisions about their care. However, members will be aware that such a right would require a significant expansion of capacity for providers of advocacy support to ensure that they could respond. That would take time to work through and would see a significant cost to the public purse, which must be considered carefully.

Members are also aware of my commitment to listening to the voice of people with lived and living experience, through co-design. Recent analysis of co-design work on independent advocacy has highlighted various issues, and my officials will bring me options as to how we can address those. Some of those solutions may require legislative change, using the regulation-making powers that the Government has introduced in the bill; others may not. Until I have decided which options to take forward, I will look to maintain the provisions as they are, and I therefore ask members not to support amendments 91, 92 and 95.

I offer my support for amendment 69 as part of my commitment to enhancing independent advocacy services. A regulation-making power will allow us to implement the results from co-design and engagement with stakeholders. In that way, we can use the insights that are gathered through co-design and engagement with stakeholders to ensure that the legislation supports improvements to the provision of independent advocacy in Scotland.

Amendment 41 seeks to add to the existing drafting to ensure that, as well as the possibility of independent advocacy connected to public social care services being provided for in secondary legislation in the future, independent advice and independent information can be provided for in that way. At stage 1, stakeholders asked us to make that change, and I am happy to do so. It will mean that we can gain from the insights of professional stakeholders and those with lived and living experience of accessing social care support services, and it will allow us to keep broader options open in the future.

Amendment 41 also updates the reference in section 13 to services that the national care service provides by replacing it with a reference to “public social care services”, which are defined by reference to the enactments that are listed in the schedule to the Public Bodies (Joint Working) (Scotland) Act 2014. I trust that members will be pleased with my response to a request that was made at stage 1 and I will support amendment 41.

If amendment 41 is agreed to, it will pre-empt amendment 70, and I believe that it will achieve what Gillian Mackay was intending with amendment 70—in other words, to clarify the scope of the provision in the light of the structure of the national care service. If that is not the case, I would be happy to work with Gillian Mackay.

On amendment 93, I am sympathetic to what Brian Whittle is trying to achieve in relation to advocacy service standards. I also note that amendments 92 and 95 contain similar provisions. We are all committed to ensuring the delivery of high-quality independent advocacy. However, I have some concerns about the impact that amendments 93, 92 and 95 could have on independent advocacy providers. In particular, amendment 93 appears to apply to all advocacy services, not just those that relate to social care services, and I am not sure that that is Mr Whittle’s intention. Therefore, I ask him not to move amendment 93. Instead, I would welcome the opportunity to work with the members who raised the issue to further consider advocacy service standards ahead of stage 3.

On amendment 94, I appreciate what Gillian Mackay is trying to achieve. Aspects of amendment 94 are also present in amendment 95. The importance of a clear definition of independent advocacy has come through very strongly in our co-design work and our engagement with stakeholders, but we have also heard that definitions of independent advocacy can be inconsistent and that that can limit awareness and understanding of independent advocacy services, thereby making it harder for people to access them. Therefore, I ask Gillian Mackay and Paul Sweeney not to move amendments 94 and 95 but, instead, to work with me on a stage 3 amendment to provide a definition of independent advocacy, once we have had more time to fully consider our options.

I do not agree with Brian Whittle’s proposal to scrap the legislation. I note Sandesh Gulhane and Brian Whittle’s in-principle support for many of our amendments to reform health and social care, and I urge them to vote for those.

With regard to Mr Cole-Hamilton’s proposal, I ask members to instead support use of the words “Care Reform” that I am proposing, as they offer a broader description.

Amendment 1 agreed to.

Section 2—Responsibility for the National Care Service

Amendment 2 moved—[Maree Todd]—and agreed to.

Section 3—Responsibility for improvement

Amendment 3 moved—[Maree Todd]—and agreed to.

Section 4—Establishment and abolition of care boards

Amendment 4 moved—[Maree Todd]—and agreed to.

Schedule 1—Care boards: constitution and operation

Amendment 5 moved—[Maree Todd]—and agreed to.

Schedule 2—Care boards: application of public authorities legislation

Amendment 6 moved—[Maree Todd]—and agreed to.

Section 5—Financial assistance for care boards

Amendment 7 moved—[Maree Todd]—and agreed to.

Section 6—Strategic planning by the Scottish Ministers

Amendment 8 moved—[Maree Todd]—and agreed to.

Section 7—Strategic planning by care boards

Amendment 9 moved—[Maree Todd]—and agreed to.

Section 8—Care boards’ planning process

Amendment 10 moved—[Maree Todd]—and agreed to.

Section 9—Frequency of planning by care boards

Amendment 11 moved—[Maree Todd]—and agreed to.

Section 10—Meaning of ethical commissioning strategy

Amendment 12 moved—[Maree Todd]—and agreed to.

Section 11—The National Care Service charter

Amendment 13 moved—[Maree Todd]—and agreed to.

Section 12—Further provision about the charter

Amendment 14 moved—[Maree Todd]—and agreed to.

Section 13—Independent advocacy

Those views have been expressed directly to me, too, and I have said to the individuals that I share their disappointment in the lack of progress. For each bill, there are reasons why there has been a delay. For the National Care Service (Scotland) Bill, I think that we will get back on track reasonably soon. I have said that I will update Parliament in the new year on how we will make progress. That is a pause at stage 2. I recognise that it is a pause on a bill that has taken a very long time to come to fruit, but I am confident that we will make progress.

As for the human rights bill, I was involved when we incorporated the United Nations Convention on the Rights of the Child into Scots law. That proved very challenging, as you know. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was caught up in contest and controversy after it was passed because it touched on issues that may be devolved or reserved. It is very challenging to incorporate human rights law because of the devolved nature of our legislature.

As I understand it, progress on the human rights bill has been paused because there is a new Government in the United Kingdom. There is potentially a chance to work on a UK-wide basis on incorporation of some treaties, which would clearly be far preferable to doing that on our own in Scotland. We would not run into the devolved and reserved challenges, and we would make progress across the UK. It is worth taking time on that and spending the time to work with our UK counterparts.

On the LDAN bill, the challenge involves two main areas where there is not consensus. One is the scope of the bill—who is in and who is out. There is no agreement on that, and further work needs to be done to get it right. There is also the issue of how we build in accountability.

I understand that people feel as if they are being let down on all fronts, but we have made significant progress with each piece of legislation, and I am confident that we will continue to make progress. There is broad parliamentary consensus for much of the LDAN bill’s ambition. Between ourselves as parliamentarians, with our commitment to that work, and stakeholders, we can keep its profile high. I am confident that we will legislate in the future and that the legislation will have a simpler and more straightforward passage through Parliament because we will have taken the time to get it right before introducing it.

I think that you started by saying that you cannot make a difference to the things that you do not measure, and then I think that you quoted from the dynamic support register statistics, which were published today. Those statistics show some of the progress that we have made in collecting data on this particular challenge. The data collection that is associated with the dynamic support register has given us a better understanding of who is where in the system and better visibility at the local level. Much of this is a local responsibility, because the statutory responsibility for social care still lies with local authorities. We can tussle all day about whether that is where it should lie, but that is where it lies. The dynamic support register provides visibility in the local system on where people are.

What we see in the latest publication of statistics this morning is, probably not unsurprisingly, an increase in the number of people who are on the local dynamic support register. There were 195 people in hospital and, as you said, 85 of those cases were classified as a delayed discharge. What is particularly vexing is the number of people who have very long stays in hospital. Seventy-two of those people have a length of stay of more than six years. As I said, better visibility means that local systems have better oversight of these cases and are more able to take responsibility and to take steps to sort the problem.

It is not a straightforward problem to fix, as we have seen over a number of years. We have invested extra money. On the back of “Coming Home: A Report on Out-of Area Placements and Delayed Discharge for People with Learning Disabilities and Complex Needs”, we put in £20 million into local systems. We have created the dynamic support register and a practitioner support network. We are looking to create a family support network. We have taken a number of steps as a national Government to try to effect change in the area.

I cannot remember exactly what you said about your opinion on what is happening with the national care service. I am absolutely committed to delivering fundamental change in social care. The status quo is not acceptable and we need to make progress. There is a lot of consensus around what needs to happen in social care, including within the National Care Service (Scotland) Bill. There is generally consensus on the commissioning and procurement of complex care.

I am keen to put on the record why we think that such legislation is needed. It has already been mentioned that even though a number of powerful strategies, ambitions, policy and legislation are in place, we are still slow in making progress in this area. The provision of statutory underpinning for some of the work that we have done is one reason to consider legislation.

Another point to understand is that we are sure that some outcomes are particularly poor for people with learning disabilities and neurodivergent people. There are some really significant differences between that population and the general population. On family, for example, only 5 per cent of people with learning disabilities live with a partner, compared with 56 per cent of the rest of the population. Between 40 and 60 per cent of parents with a learning disability will have their children removed from their care as a result of their being assessed as unable to provide adequate care.

The same population is overrepresented in the justice sphere. About 39 per cent of prisoners have a learning disability or difficulty. It is likely that people with fetal alcohol spectrum disorder are very overrepresented in the justice system. They are 19 times more likely to be imprisoned than people without FASD. There are significantly higher rates of experience of gender-based violence in that population.

People with learning disabilities and neurodivergent people really struggle to fulfil their educational potential, and when it comes to employment, there are significant differences between that population and the general population. For example, around 4.8 per cent of people with learning disabilities are in employment. That rises to about 29 per cent for autistic people but, for the general population, the figure is significantly higher—it is 82 per cent—and more than 50 per cent of members of the general disabled population are employed.

Those are really different outcomes, which all point to the fact that this particular population is really struggling to have its human rights recognised and upheld in every situation, which is why it is so important that we make progress. It is also why legislation is needed, because we really are struggling to effect change without it.

We have spoken a fair bit about data. We have covered annual health checks and, as I said, I am determined to make progress on that. On education, we are currently exploring options to strengthen the existing professional learning opportunities for education staff on additional support for learning. We have also committed to undertaking an analysis of the learning hours that are attributed to additional support for learning content in IT programmes across Scotland.

We have touched on employment a little. In the short term, the Scottish Government will, by the end of this year, respond substantively to the Economy and Fair Work Committee’s inquiry report into the disability employment gap. We will also continue to implement the fair work action plan and the no one left behind approach.

We talked about the work on gender-based violence. There is a commitment to deliver the gender-based violence and learning disabilities steering group action plan. Actions in the plan include improving access to justice and support services for women and girls with learning disabilities. That mirrors the outcomes that were agreed by the steering group.

Jacqueline Campbell spoke about the work that we are doing with parents with learning disabilities, particularly with People First, on ways to support them. That is about early intervention to prevent that particularly tragic unfolding situation in which 40 to 60 per cents of parents with a learning disability are having their children removed. Work is on-going on transitions.

On diagnosis and support, I am asked regularly in Parliament about the access to diagnosis and ND assessments for children and adults. There is a rise in the number of people seeking those diagnoses, which is partly related to the decrease in stigma. In some areas it is a 1,500 per cent rise, which has proved very difficult for local areas to accommodate. We are working with local health boards to put in place access to ND assessments. Those assessments should not be the be-all and end-all. Using the getting it right for every child approach, children in the education system should have their needs met and their rights upheld whether or not they have a diagnosis. However, access to a diagnosis is important. It is not unnecessary, and we are trying to speed up and improve that on the ground.

Work is on-going on mental health law. We recognise the challenge around how learning disabilities and autism in particular are caught up in mental health law and in the definition of “mental disorder”, and we hear that concern. The committee will have heard about that in some of the evidence that it has received. We are very cautious about making changes in case there are unintended consequences, but we are doing a piece of work to see whether there is a better way to approach the issue. A number of recommendations have been made to update mental health law, and while we look at that piece of work, we will certainly consider whether the definition of “mental disorder” is right. Therefore, there is a suite of work.

As I said, at the meetings with the three panels next week, we will get into the detail of that and talk about what work we want to see happening and when we think that it might be possible to feel the tangible difference and the impact of the voice of lived experience on the progress on that work. Therefore, pretty soon, we should be able to speak to the community and come to an agreement on what we expect to see going forward as well as the legislation, which will progress at a slightly slower pace.