ScotGov Delays Care Bill Amendments

Nick KempeOn Thursday 28th March, just before the holiday weekend, the Minister leading on the National Care Service (Scotland) Bill, Maree Todd, wrote to the Convener of the Scottish Parliament’s Health, Social Care and Sport (HSCS) Committee to inform her that the Scottish Government wouldn’t after all be publishing their proposed amendments to the bill before the end of March as promised. Instead, Maree Todd stated “The full text of amendments intended to be lodged at Stage Two; a marked-up version of the Bill as introduced (incorporating the amendments in a highlighted format); an updated Policy Memorandum and Explanatory Notes, will be sent to the Committee no later than June 2024”.The news release came out at the end of the day before the Easter Weekend and as a result there was almost no media coverage. This was unsurprising because the letter represents another U-turn by the Scottish Government and more seriously a breach of the promises Maree Todd had made to the Scottish Parliament.MSPs working through the Scottish Parliament’s Committee system had been raising concerns about the lack of detail about how the NCS bill would work since it was first published. They had also been asking the Scottish Government what amendments it intended to introduce following the Verity House agreement with Cosla, in which it had been forced to agree local authorities should retain some responsibilities for care provision, and the wider co-design process rather than Ministers taking sole control over Care. The Scottish Government’s responses to these requests was consistently evasive before they adopted the position that they would only provide further information once the NCS Bill had passed Stage One.This was without constitutional precedent. The function of Stage One Readings is to decide whether or not the Scottish Parliament endorses the purpose and broad principles of the proposed legislation. In the case of the NCS Bill MSPs were being asked to endorse a bill many of whose provisions were not yet known: effectively the Scottish Parliament was being asked to hand back to the Scottish Government a sheet with blanks where it could add whatever it wanted. It is not surprising many MSPs baulked.The HSCS Committee only agreed to finalise and publish its report recommending the bill be passed at Stage One on condition that the Scottish Government agreed to publish its proposed amendments by the end of March. Maree Todd accepted the Committee’s recommendations in a letter date 28th February - the day before the Stage One debate. Re-assured by this commitment, MSPs approved the bill after the Stage One debate by 15 votes. Four weeks later Maree Todd reneged on that promise.Maree Todd’s justification for this U-Turn is that the Scottish Government has decided to set up an Expert Legislative Advisory Group (ELAG) to consider the Scottish Government’s proposed amendments to the bill. Her letter stated the Scottish Government expected this work to take 8-10 weeks and she offered to work with the HSCS Committee to agree a new timetable to consider these amendments. A slightly different timetable was set out in an email sent out to NCS stakeholders later on 28th March. This stated the Scottish Government expected to be able to provide the information the Scottish Parliament had requested by the end of June.The first meeting of the ELAG, to decide its remit, was on 28th March, the same day as Maree Todd’s letter. Preparations for creating the group had, however, been going on for some time as the Common Weal Care Reform Group knows because we are pleased to be represented along with 60 other stakeholders.Given these timescales, it seems extraordinary that Maree Todd never advised the HSCS Committee back in February that the Scottish Government intended to ask the ELAG to consider the amendments before they were brought back to the Scottish Parliament. Had MSPs known this it is likely they would have had something to say, not least because an initial group of 61 stakeholders to discuss the legislation is unlikely ever to reach agreement. On past performance this will allow the Scottish Government to pick and choose the advice it accepts. The current group does not even include the Care Home Relatives Group, with whom the Scottish Government has been discussing Anne’s Law (the right of relatives to visit family members in care homes.The best that can be said about the whole process by which the Scottish Government has managed the NCS Bill is that it is utterly shambolic and reflects a complete absence of ideas about what needs to be done. With the Scottish Government’s amendments delayed until the end of June at the earliest and with the Scottish Parliament’s summer recess to follow, it very hard now to see how the bill could possibly be ready for the Stage Two debate before this time next year. Meantime the crisis in care gets worse by the day.The less charitable interpretation of the process to date is that this is a Scottish Government which cannot be trusted and may have its own secret reform programme, informed by private sector consultants like KPMG, which it is still hoping somehow to get through the Scottish Parliament.The Common Weal Care Reform Group prepared a comprehensive set of amendments to the NCS Bill as published back in November 2022. We never published our amendments because we anticipated the bill would be revised before the Stage One debate and then, more recently, accepted Maree Todd’s promises to the Scottish Parliament. We therefore restricted ourselves to providing a briefing to MSPs before the debate.We no longer believe it is advisable for anyone with a stake in the NCS to wait. We are planning therefore to publish our proposed amendments to the draft bill - in “highlighted format” just as the Scottish Government was asked to do by the Parliamentary Committee - in the next few of weeks along with an explanation of their purpose. We hope that these will be considered by the ELAG, along with those being proposed by the Scottish Government. Our intention is to promote discussion and ideas among all those with a stake in the NCS, including MSPs. Our message is that it is time the Scottish Government stopped wandering aimlessly through the social care crisis, as if this were a matter outside its control, and that the people needing care and those supporting them need to develop alternative proposals.