Health, Social Care and Sport Committee

Meeting date: Tuesday, February 8, 2022

Official Report 611KB pdf

---

Health and Care Bill

---

Legislative Consent Memorandums

The third item is an evidence session on two supplementary legislative consent memorandums related to the UK Health and Care Bill—supplementary LCM-S6-5a, lodged on 9 December 2021; and supplementary LCM-S6-5b, lodged on 27 January 2022.

To give us some feedback on the LCMs, we are joined virtually by the Cabinet Secretary for Health and Social Care, Humza Yousaf, and his Scottish Government officials: Robert Henderson is team leader in the intergovernmental and international relations unit; Jane Hamilton is head of directorate support and intergovernmental relations; and John Paterson is deputy director for food, health and social care in the legal directorate.

Good morning, cabinet secretary. I believe that you have an opening statement.

Thanks very much for the opportunity to speak to the committee, convener. I hope that you and all your committee colleagues are keeping safe and well.

You will know that the Scottish Government lodged a legislative consent memorandum on 31 August for the provisions in the bill which extend to Scotland. At the time of lodging, and in my appearance at this committee on 5 October 2021, I advised that the Scottish Government was not in a position to recommend consent to any of the provisions, despite—as I said a number of times to your committee—being broadly supportive of the policy intentions.

The bill is a skeleton bill; it has nine Henry VIII powers to amend primary legislation through secondary legislation. The UK Government’s reluctance to include appropriate consent requirements was, to me, a direct threat to devolution.

As you may recall, in the previous evidence session in October, I stressed just how important it is to secure the consent of Scottish ministers on devolved matters. It is an integral pillar of the devolution settlement and our respective officials are currently discussing how parliamentary scrutiny of a decision to consent to any such statutory instruments can be achieved. I am therefore pleased to inform the committee that I have successfully negotiated consent requirements for key provisions within the bill. I am now in a position to recommend that the Scottish Parliament grants consent to the following clauses: medicine information systems; information about payments and so on to people in the healthcare sector, which is known as mandatory reporting; food labelling; reciprocal healthcare; professional regulations; the powers of the secretary of state to transfer or delegate functions in relation to arm’s-length bodies; and virginity testing and hymenoplasty offences.

Those provisions touch upon several different policy areas and, of course, I am always supportive of measures that seek to enhance and improve the health of the people of Scotland. It is, however, exceptionally important to note that the delivery of healthcare in Scotland is devolved and I will always challenge the UK Government on any perceived overreach into NHS Scotland.

I must also notify the committee that I was unable to resolve the competence dispute on the advertising of less healthy food and drink provision. I remain supportive of any measures that are designed to tackle obesity, and it is with regret that I note that the UK Government maintains that the matter is entirely reserved.

I am happy to take any questions that you may have.

Thank you very much, cabinet secretary. You have largely answered my questions and it is good to hear that a lot of your previous concerns have been resolved. You mentioned that one in particular is still outstanding and I believe that Sandesh Gulhane has some questions on the advertising aspect of things.

I have a parliamentary process question about the notice that you are able to give Parliament of any regulations that are made in devolved areas where consent is not required and also where consent is required but SI protocol 2 does not apply. Where does Parliament sit in relation to being able to scrutinise those decisions?

Thanks, convener. That is an exceptionally important question from my point of view. The basis of my answer is that wherever we can include some level of parliamentary scrutiny we will do so. I mentioned in my opening remarks that I am keen that my officials continue conversations with the committee clerks and elected members, where appropriate, to discuss what that scrutiny will look like. It can only be to our advantage to have that scrutiny.

You asked a specific question about regulations that are made in devolved areas where there is no consent requirement, such as the food labelling provision and reciprocal healthcare provision, which confers concurrent powers on Scottish ministers. The concurrent powers in reciprocal healthcare in relation to regulations made by the UK Government are subject to the terms of the SI protocol 2 that you mentioned and, therefore, take account of parliamentary scrutiny. Where Scottish ministers make regulations, the Scottish Parliament will be notified by way of a Scottish statutory instrument.

The medicine information systems provision includes a consultation requirement. That will be underpinned by a robust memorandum of understanding that outlines the principles of engagement. The MOU has not been finalised yet, but my officials are collaborating with the UK Government to ensure that, prior to the drafting of regulations, consultation takes place in a meaningful and timely fashion. I stress those words—it has to be meaningful and it must not be last minute. I will write to the committee to provide an update on that when the consultation process has concluded.

The competence dispute on the advertising provision was not resolved. The UK Government maintains that it is entirely reserved and that there is, therefore, no specific requirement for the UK Government to consult Scottish ministers before making any secondary legislation in relation to online advertising of less healthy food and drink. There is, however, a requirement placed on the secretary of state to consult persons that they consider appropriate. As I consider that the online advertising provisions are at least in part devolved, I will write to inform the committee of any UK Government consultation that takes place.

Your second question was about how the committee can scrutinise the Scottish Government position in respect of proposed UK Government regulations that are in devolved areas where there is a consent requirement but SI protocol 2 does not apply. I do not think that there are currently any UK Government regulations in devolved areas where consent is required but an SI protocol does not apply. My officials are in discussion with the Scottish Parliament about how parliamentary scrutiny of a decision to consent to any such SIs could be achieved, but I think that I am right in saying that it does not currently apply in any protocols.

Thank you. I will hand over to Sandesh Gulhane.

Cabinet secretary, do you feel that a unified UK approach to the advertising of unhealthy food and drink would be better than individual approaches?

As I said on 5 October and referenced in my opening statement, I have no objection to the policy principle. A lot of good can be done by tackling the advertising of less healthy food on a four-nations basis. However, it is incumbent on me, in my position in Government and, I suspect, important for all MSPs, that we protect the devolution settlement. We are worried about there being some overreach. It should also be noted that certain stakeholders, including Food Standards Scotland and Obesity Action Scotland, have criticised the UK Government’s definition of “less healthy”. There are understandable differences but I stress again that I am not particularly opposed to the substance of the policy. My concern is the overreach into public health, which I think we all agree is a devolved matter.

Are discussions on-going with the UK Government about that? Do you feel that we might reach resolution and get a unified approach?

I do not think that the UK Government will necessarily accede to that, but discussions will continue. I should have said at the start of my remarks that I am grateful for the personal intervention of the Secretary of State for Health and Social Care. In my previous meetings and correspondence we were not getting very far, but he and I were able to sit down and thrash it out. I am pleased that he compromised in relation to the consent provisions that we were, reasonably, asking for. I will keep the discussions going, but, to be frank, I do not think that the UK Government will change its position.

I will bring in Emma Harper, who is online. [Interruption.] We can see you now.

Thank you, convener. I was just waiting for my camera to come on.

Cabinet secretary, I will pick up on your comments about working with the Secretary of State for Health and Social Care. Obviously, a lot of work has taken place between the civil servants in both Governments. In your opening statement, you outlined that, originally, the bill was encroaching on devolved areas. Will you tell us a little bit about the work that has taken place between the two Governments to achieve legislative consent, and can you confirm that work will continue to ensure that Scotland’s devolution settlement is always considered in future legislation?

I can be relatively brief in answering that. Your question gives me the opportunity to thank my officials, who are on the line. They and their teams have worked incredibly hard behind the scenes trying to ensure that UK Government officials and their counterparts could see that we were not being obstructive or trying to be difficult for its own sake but that we had a genuine concern.

When I came to the committee last October, it was well understood by committee—I think that there was a lot of agreement around the table about this—that the substance of the policy was not necessarily the issue and that it was the lack of consent in areas that were clearly in devolved competency that was the cause of great anxiety.

On the discussions that took place, there was a fair bit of correspondence to and fro; there were also meetings, telephone calls and so on. As I said to Dr Gulhane, I am grateful to Sajid Javid, the secretary of state, for personally intervening. When he and I had a conversation a couple of weeks ago, that is when we began to see movement.

The conversations will have to continue. There is the unresolved issue that Dr Gulhane asked about a moment ago, and there is the issue of the implementation of a number of the provisions, should the House of Commons pass the bill. Discussions will also have to continue on the MOU, which has yet to be finalised. I would expect to come back to the Scottish Parliament with a further update on that.

It is good to see you this morning, cabinet secretary. I note from our papers that the Scottish Government has done significant stakeholder consultation around virginity testing, perhaps most importantly with third sector partners that have expertise relating to honour-based violence or the wider violence against women and girls agenda.

I will roll two questions into one. First, how will the virginity testing provision be enforced? Secondly, is there a potential risk of criminalising that practice? If so, how would that be mitigated?

That second question is really good. The first one is also good—I do not want to take that away from you—but the second one is important and vital for us to answer.

The first question is perhaps the slightly easier one to answer. Like any offence that is created, we will work closely with the Crown Office and Procurator Fiscal Service and Police Scotland on implementation. That will not be any different to how we deal with any new offence. We will take that forward in the usual way.

The second question is critically important. We cannot find—we are unable to find—any evidence of virginity testing taking place in Scotland. That is not the same as saying that that does not happen; we just not have been able to find any evidence of that.

The criminalisation of the practice intends to ensure a unified approach across all four nations. Therefore, although we could not find evidence of that practice—again, I stress that that does not mean that it is not happening—we would not want a situation to arise in which the other nations of the UK legislate that that is an offence, and Scotland is seen as a safe haven for virginity testing. Although we are unable to find evidence of it taking place, all of us—including the committee members—agree that virginity testing is a form of violence against women and girls. It is completely unacceptable if and where it is happening.

11:15  

With regard to stakeholder engagement, the stakeholders were positive about legislating for the offence, given everything that I have said a moment ago. The only note of caution that was perhaps struck—which I would not overplay—was that we could be in danger of overcriminalising offences in a way that puts a focus on black, Asian and minority ethnic communities. The second point that a number of groups made was that it is fine to legislate, but we have to accompany that with education and working with those communities. We have to get into those communities to eliminate the practice, if it is going on in Scotland in any way, shape or form. The feedback from stakeholder engagement was really good.

Good morning, cabinet secretary. The supplementary LCM notes that there is

“a lack of evidence showing that hymenoplasty is in fact being practised in Scotland.”

Are there any plans to collect more data on that and, more widely, on attitudes towards virginity in Scotland?

The short answer to that is that we should do that, because of what I have just said to Stephanie Callaghan. We are unable to gather evidence around whether virginity testing or hymenoplasty is happening. That is not to say that it is not happening; if it is happening in England and other parts of the UK, I do not doubt that it might be happening in Scotland. That is why the second point that I made to Stephanie Callaghan is important. It is vital that we do that work by involving ourselves in the communities where we think that it could be happening. We have to work with and empower those communities to root out those practices which, as we all accept, are a form of violence against women and girls.

Given that those practices often happen in secret, which means that it is difficult to gather data on them, is there any plan for an awareness-raising campaign around the fact that those practices are now offences, in order to ensure that women and girls who might not be aware that they are offences are well informed and know their rights?

If the bill passes in the House of Commons, we will absolutely do the work on that, perhaps on a four-nations basis, which would make sense if the legislation is across the four nations. We will look at the UK Government’s plans for that marketing and awareness raising and, if we agree with it, we will do it on a four-nations basis but—as is sometimes the case—if it does not quite match the messaging that we feel is appropriate, we will take forward our own awareness raising. There will be awareness raising and, as I keep emphasising, it is really important. We want to work with those communities so that they do not feel unnecessarily targeted. People in all ethnic minority communities would be the first to say that those practices are abhorrent and have no place in any society.

Cabinet secretary, we have exhausted all our questions, so I thank you and your officials for coming to give us an update on that legislation.

At our next committee meeting on 22 February, the committee will receive an update from key stakeholders in the social care sector. We will also take evidence from the Cabinet Secretary for Health and Social Care on three affirmative SSIs.

11:19 Meeting continued in private until 11:59.