Seòmar agus comataidhean

On amendment 139, I think that the problem is one of ambiguity and what could come off the back of it. I talked about the incompatibility with ethical commissioning and procurement and the recommendations of the Scottish Parliament’s Health, Social Care and Sport Committee. In paragraph 89 in the summary of recommendations in the stage 1 report on the bill, the committee says that there is

“an inherent contradiction between reserving the right to participate in procurement by type of organisation, and the principles of ethical commissioning.”

I understand what the minister is trying to do with the provisions, but we have to remove the ambiguity and the potential off the back of that.

I have to say that the attempt to tag on to the bill Anne’s law and rights for unpaid carers is quite disturbing. We all support Anne’s law 100 per cent—we all recognise the need for unpaid carers to have a break—but trying to force the bill through on the back of that is, frankly, disgraceful. If the public knew the way in which the bill has sometimes been dealt with, they would be up in arms. As my colleagues have said, Anne’s law and unpaid carers breaks could have been introduced in secondary legislation three and a half years ago. There is no need for the bill.

The reason why I am asking for the bill to be started again is that I do not believe that, as it is drafted, it will do what it could and should do for those whom it pretends to support.

I press amendment 123.

On amendment 139, I think that the problem is one of ambiguity and what could come off the back of it. I talked about the incompatibility with ethical commissioning and procurement and the recommendations of the Scottish Parliament’s Health, Social Care and Sport Committee. In paragraph 89 in the summary of recommendations in the stage 1 report on the bill, the committee says that there is

“an inherent contradiction between reserving the right to participate in procurement by type of organisation, and the principles of ethical commissioning.”

I understand what the minister is trying to do with the provisions, but we have to remove the ambiguity and the potential off the back of that.

I have to say that the attempt to tag on to the bill Anne’s law and rights for unpaid carers is quite disturbing. We all support Anne’s law 100 per cent, and we all recognise the need for unpaid carers to have a break, but trying to force the bill through on the back of that is, frankly, disgraceful. If the public knew the way in which the bill has sometimes been dealt with, they would be up in arms. As my colleagues have said, Anne’s law and breaks for unpaid carers could have been introduced in secondary legislation three and a half years ago. There is no need for the bill.

The reason why I am asking for the bill to be started again is that I do not believe that, as it is drafted, it will do what it could and should do for those whom it pretends to support.

I press amendment 123.

At stage 1, the committee recommended

“In an effort to strengthen these provisions in the current Bill ... that the Scottish Government refers to the corresponding provisions of the Social Security (Scotland) Act 2018 as a potential template for the independent advocacy provisions of the Bill, in particular, the right to advocacy, the definition of “advocacy services” and the development of advocacy service standards provided by that Act.”

I think that that was because stakeholders were adamant that independent advocacy should be on the face of the bill to enhance parliamentary scrutiny and uphold rights of access to independent advocacy.

I realise that amendments 94 and 95 are reasonably similar, and I am open to working with colleagues at stage 3 on developing a tighter definition of “advocacy”, to ensure that it is not only fully independent of ministers but financially and structurally independent of the organisations that deliver the care.

I move amendment 91.

Once again, I give members the opportunity through my amendments, which seek to leave out sections of the bill, to accept that the bill is not the right approach and to try again to develop the very best legislation, which the sector needs. The bill is now exactly the same as it always was—apart from changes to virtually every section in it.

If we pass the bill as it is, there will be a need further down the line to bolt on other legislation, which is something that never works. Once again, the Scottish Government has failed to recognise that it has become a victim of a sunk-cost fallacy. It is convincing itself that, no matter how bad is the path that it is on, it has spent so much time and effort on getting here that turning back would be unthinkable.

My concern is that we are not going to provide justice for the people whom the bill is trying to help. We will not reform care, and we will not protect those whom the bill proclaims to support in the manner that it could and should support them. From the bill’s very origins, the Scottish Government has been desperate to stress how much engagement it did with stakeholders ahead of the first draft. Even when the number of stakeholders who were against the plan rose well beyond the number of those who supported it, the Government persisted, yet it has lodged stage 2 amendments less than 48 hours before the deadline for doing so, thereby giving MSPs and stakeholders alike virtually no time to review or comment on the proposed changes—never mind to propose improvements.

Having spoken to senior figures in the care sector, I know just how much of a disappointment that has been. Apparently, stakeholder feedback is a priority only when it aligns with the Scottish Government’s view. Even the committee’s report on the bill recommended that stakeholders have a formal opportunity to consult at stage 2. I suppose that, now that the Scottish Government has rendered at least 100 pages of the document irrelevant with the scrapping of part 1, it sees little reason for heeding the rest of it.

Regardless of how members might wish to view my intentions in my amendments to raze the rest of this shadow of a bill, I want to make it clear that I recognise that social care needs serious reform. I want people across Scotland, many of whom are very vulnerable, to have swift and equal access to effective care. However, I see, too, the consequences if we get the early steps towards that wrong. As I have said, it is my firm belief that the best approach is to start again, and I hope that colleagues will agree with me.

Although I propose removal of all sections of the bill, I urge colleagues to give particular consideration to my amendment 139, which seeks to leave out section 41. Not only is it yet another section in which the intention of the Scottish Government is unclear, but I and others, including stakeholders in the care sector, believe that it could be interpreted as a means of excluding any profit-making entity from providing care services. I would, of course, welcome clarification from the minister on that point, but the mere fact that the Government appears to be willing to allow a section that could be interpreted in that way troubles me greatly. It is incompatible with ethical commissioning and procurement and the relevant recommendations of the Scottish Parliament Health, Social Care and Sport Committee; it is incompatible with the Social Care (Self-directed Support) (Scotland) Act 2013; it is incompatible with the need for a sustainable mixed market; and it is incompatible with pre-existing Scottish Government guidance on the procuring of care and support services. It lacks evidence of support of reserved procurement after public consultation, and it highlights significant shortcomings in the Scottish Government’s business and regulatory impact assessment for the bill.

I move amendment 123.

In its stage 1 report, the committee stated that it

“believes that a single electronic health and care record is fundamental to the success of the proposed National Care Service and calls on the Scottish Government to complete this as a matter of urgency.”

I want that to be done by 2027.

In 2018, the Scottish Government produced Scotland’s digital health and care strategy, which drew on the then Health and Sport Committee’s report on technology and innovation in health and social care, in which the committee agreed that data sharing through a single platform that connects with other systems was the best way forward. In that report, the Health and Sport Committee said:

“We recommend any cross-cutting technology, if it is to effectively join up health and social care, must include the social and community care sector and hospices and would expect to see this in the strategy.”

The Scottish Government has not delivered on the rolling delivery plan targets. Seven years on, we are still discussing the importance of healthcare technology integration, rather than simply delivering it.

Amendment 122 seeks to address concerns about data breaches by requiring ministers to report on the cost of such breaches and what steps they will take to prevent further breaches. Including that provision would help the Government to self-reflect and to improve security.

What we are talking about here is the ability of social care to speak to primary care and secondary care, which is fundamental if the bill is to have any kind of success. We are way behind the curve, and we should be setting such targets for the Government.

I move amendment 116.

Given the likely outcome of a vote, I will save the committee time. Disappointedly, I seek to withdraw amendment 125.

I am sorry—I am not moving amendment 125.

Amendment 125 not moved.

Section 37, as amended, agreed to.

After section 37

Amendments 46 to 49 moved—[Maree Todd]—and agreed to.

Amendments 126 and 127 not moved.

Before section 38

Amendment 146 is from a recommendation in our stage 1 report. It states:

“Irrespective of the model of accountability, the Committee believes proposals for the creation of a National Care Service need to be accompanied by a reinforced role for the Scottish Parliament in undertaking regular, structured scrutiny of its implementation and the extent to which it is achieving its defined objectives. To support this reinforced scrutiny role, the Committee calls for the Bill to include provisions enabling the Scottish Government to keep the Scottish Parliament regularly updated on the operation of the National Care Service including, in particular, an assessment of the extent to which this is contributing to improved outcomes for those in receipt of social care.”

Despite its intention, there are real concerns among stakeholders about section 41. Amendment 146 seeks to assure those stakeholders that the guidelines will be reviewed. That will help Parliament to understand the impact of ethical commissioning and interactions with other procurement contracts, if any.

I listened to the minister with a degree of frustration as she contradicted the Scottish Government’s intention and what her own cabinet secretary said. Listening to Sandesh Gulhane, who spoke from the perspective of a healthcare professional, it was clear how unbelievably important it is to have such a platform. I repeat that, in 2018, the Scottish Government produced Scotland’s digital health and care strategy, which drew on the Health and Sport Committee’s report on technology and innovation in healthcare and social care, in which the committee agreed that data sharing through a single platform that connects the other systems is the best way forward.

I should point out that the amendments that have been lodged reflect committee recommendations that were made at stage 1. On lived experience, I should say to the minister that I spoke with the Scottish Independent Advocacy Alliance to make sure that the wording that I used for amendment 91 fits with what it would want.

I am minded to press amendment 91, although, as I said at the start, I am perfectly prepared to work with other members to tighten the definition of “advocacy” to ensure that it is fully independent.