For some people, it will seem that everything has been very quiet on the passage of the National Care Service Bill through the Parliament.
This blog will explain what has happened since the Bill was introduced over a year ago, and provide an update on what has been happening since the Health, Social Care and Sport Committee completed its Stage 1 evidence taking. However, the Stage 1 report has not yet been published, and there is a possibility that the Committee might consider further evidence taking.
The SPICe National Care Service Bill hub hosts a range of blogs and briefings on the Bill and related topics, providing background and analysis of the context and proposals.
This is an extended blogpost, so we’ve added a contents popout below.
Introducing the Bill in June 2022
The Bill was introduced in the Scottish Parliament on 20 June 2022, just over a year ago.
There are three stages for a Bill, and Stage 1 is the stage when most of the scrutiny work is done, but its main purpose is to help the Parliament decide whether the “general principles” of the Bill should be agreed to. The stated purpose of the Bill is ‘to improve the quality and consistency of social services in Scotland’. The Committee’s scrutiny was therefore chiefly about whether the provisions – what is proposed in the Bill – would actually improve the quality and consistency of social services in Scotland.
Every Bill is introduced along with a number of other documents: the Explanatory Notes, Policy Memorandum, Financial Memorandum, and Delegated Powers Memorandum (DPM).
The DPM covers the powers the Bill will give to Scottish Ministers to make secondary legislation (regulations) and guidance. This was an important document in the case of the NCS bill because it was introduced as a ‘Framework Bill’. This means that the provisions allow for much of the substance of the bill – the changes that will be made to structures and services – to be left to secondary legislation.
SPICe also produces a briefing on every Bill and the briefing for the NCS Bill is available on the Bill webpage and the SPICe Digital Hub. These briefings are not only an explanation of the bill, what it does and what the various documents say, they also provide a context for, and analysis of, the Bill, as well as raising some questions that might be relevant for those scrutinising or providing evidence on the Bill.
Scrutiny so far
The Scottish Government consulted on its proposals in 2021, and published an analysis in February 2022. This work provides the government with the groundwork for its proposals for the Bill.
As the lead committee for scrutinising the Bill, the Health, Social Care and Sport Committee led the Parliament’s ‘call for views’ on the bill over the summer of 2022.
This closed on 2 September 2022. While a call for views and a government consultation might ask about similar things, their purposes are very different. The parliament’s call for views is to provide the basis for committee scrutiny.
Detailed submissions were made through a survey. You can read the published responses as well as a summary of these responses. SPICe usually publishes a summary of evidence from every call for views, whether for bills or committee inquiries.
Brief comments on the Bill could also be made on the Committee’s engagement website. This was also summarised.
In preparation, the Committee also commissioned comparative research into international models of social care, which was published on 3 October 2022, before formal evidence taking started.
Committee meetings were held by the lead Committee, the Health, Social Care and Sport Committee, in private in June, September and October 2022, before the nine public sessions between October and December 2022. Two meetings were held in private, to consider the draft stage 1 report, early in 2023.This was followed in May by a session with the Minister for Social Care, Mental Wellbeing and Sport, Maree Todd MSP, about the revised timetable for the Bill.
Other Committee interest in the Bill
A number of other committees took evidence on the Bill, and either reported, or wrote, to the Health, Social Care and Sport Committee. These were:
The Finance and Public Administration Committee scrutinises the Financial Memorandum (FM) of every Bill. Details of the scrutiny of the Financial Memorandum can be found on the Committee’s website. It carried out its own call for views on the FM and SPICe produced a separate summary of the 215 submissions received. The Committee Report on the Financial Memorandum was published on 1 December 2022.
The Finance Committee’s report drew some robust conclusions and made some firm recommendations. It highlighted that the costings in the FM did not, and could not, reflect the actual costs of the provisions of the Bill in its current form, as it is a framework bill lacking in details which could entail significant costs. It requested a revised FM prior to the completion of Stage 1.
The Delegated Powers and Law Reform Committee scrutinises the powers, (usually) delegated to government ministers, in every Bill. These powers allow the government to make secondary legislation, which is not subject to the same level of scrutiny as primary legislation. Its report was published on 3 February 2023. The report highlights the focus on co-design as the mechanism intended to fill in the detail on the delegated powers detailed in the Bill. The Committee made four conclusions and recommendations including that:
“The Committee does not believe the Bill should progress in its current form. This follows our consideration of the evidence received and of the Bill and Bill documents as introduced.”
Two (SNP) members of the Committee dissented from the report and included in Annexe B is a ‘minority statement by Bill Kidd MSP and Jenni Minto MSP.
The Local Government, Housing and Planning Committee held three evidence sessions on the Bill and wrote a letter to lead committee 14 December 2022
Concerns about the subordinate legislation, and the opportunity to scrutinise it, were highlighted in this letter, as well as concerns about the FM, welcoming the promise of a full business case prior to the completion of Stage 1. The letter states that:
“This should set out how the national care service will improve services and outcomes for people receiving social care, and also how it will improve terms and conditions for the workforce.”
Other issues raised in the letter were about:
- The need for analysis about what elements of the NCS will be delivered nationally, and which locally.
- The need for clarity about the Scottish Government’s analysis that the NCS will be cost-neutral for local authorities, and its intentions regarding powers to transfer assets from authorities.
- The need for clarity about the powers in the NCS to transfer the social care workforce out of local authorities, which the Financial Memorandum describes as being around 75,000 staff.
- The importance of the Bill reflecting the close connections between social care and housing and homeless services.
The Criminal Justice Committee sent a report to the lead committee on 10 February 2023 and issues raised included the frustration from witnesses about the lack of detail making it impossible to make a ‘valid assessment of the possible impact of the NCS on Criminal Justice Social Work services’ and ‘how any future transfer of services in the NCS might impact their delivery and efficiency.’
The Education, Children and Young People Committee also compiled and sent a report from the evidence it heard, to the lead committee, which was published in December 2022. It made over 30 conclusions and recommendations, which echoed views from the other committees – that it was difficult to form a clear view of the impact of proposals with the little detail provided, but also highlighted that the Bill was chiefly about structural change:
“The Committee notes the evidence it heard from stakeholders that structural change in and of itself will not guarantee the improvements sought to children’s services. The Committee heard strong evidence that leadership, culture and strong relationships between teams are crucial to delivering effective integration. Should the Bill proceed, careful thought will need to be given as to how to ensure those elements are captured when designing services for children and young people in future so that the policy intention is delivered.”
Finally, the Social Justice and Social Security Committee held two evidence sessions on the Bill and wrote to the lead Committee in December 2022. It chose not to draw any conclusions or make any recommendations, but highlighted observations, issues and concerns raised alongside the Minister’s responses to these.
Timetable
Under the original plan, it was agreed by Parliament on 5 October 2022 (prior to any evidence being taken) that Stage 1 was to be completed by 17 March 2023.
On 8 March 2023 Parliament agreed that Stage 1 would be extended to 30 June 2023.
Ministerial changes
Kevin Stewart MSP had been the Minister form Mental Wellbeing and Social Care from May 2021 until 29 March 2023, so had been responsible for the Bill through its introduction and the evidence gathering. Maree Todd took over as Minister for Social Care, Mental Wellbeing and Sport from 30 March 2023, and so now has responsibility for the Bill.
On 7 June 2023, after the Maree Todd had been in front of the Committee on 9 May, the Parliament agreed that stage 1 consideration would be extended to 31 January 2024. The Committee received this letter from the Minister on 17 April 2023.
The Committee decided to pause its consideration of the Stage 1 report and not to publish it, given the extensions, which have created the potential and requirement for further scrutiny.
Why the extensions?
In a letter (12 July 2023 and in the meeting with the Committee, the Minister said that the government:
“are using the additional time provided by the extension to the Stage 1 deadline for the NCS Bill to undertake widespread engagement with people with lived experience, workforce representatives, unions, local government and providers. This will ensure we have the information needed to make the Bill as robust as possible, as well as supporting improvements to the social care system ahead of the establishment of the National Care Service.”
What is the Scottish Government doing with the extra time?
With the public and other stakeholders
The government has said that (12 July):
“Between June and August 2023, we are holding nine regional forums across Scotland to enable people to participate in co-design in their local communities. There will also be five online events in August.”
You may remember that the concept of “co-design” was much discussed during earlier scrutiny. The government’s response to the challenge that the Bill as introduced lacked detail and could not therefore be scrutinised, or properly costed, was that the content and detail was to be co-designed. The SPICe blog How do you design a public (national care) service? (17 November 2022) sought to address what co-design was, and pointed out that it wasn’t, as some believed, co-production, consultation or collaboration.
In the letter of 17 April, the Minster said that the Scottish Government would:
“continue and deepen our co-design activity, in line with the five themes of:
- information sharing to improve social care support
- keeping social care support local
- realising rights and responsibilities
- making sure your voice is heard
- valuing the workforce”
The Committee might decide to carry out more scrutiny on this further work that the government is doing over the summer.
With local government and unions
On 23 February, UNISON wrote to the lead Committee highlighting the lack of clarity around the ‘Transfer of Undertakings Protection of Employment Rights’,(TUPE) and pension arrangements for staff, if they were moved from local authority to care board employment. The day before, the Royal College of Nursing called for a pause to the Bill, as did the Coalition of Care and Support Providers in Scotland, in January 2023.
The bill proposals shift the responsibility for social care from local government to new bodies under the direct control of Ministers – care boards. Representatives of local government and COSLA, as well as Chief Officers of integration boards expressed concern about accountability, delivery, and especially the status of social work and social care staff under the proposed new arrangements.
More recently, following the issuing of the letter of 12 July, UNISON issued a statement asking for more involvement by the government and COSLA on the revised proposals for shared accountability for the NCS.
Additionally, UNISON published their own vision for a national care service, using some of the Bill’s provisions. The Minister, Maree Todd, and the First Minister, met with unions and COSLA to seek consensus on the issues and “to deliver on the urgent improvements needed to strengthen the delivery of integrated health and social care for people”.
The Minister’s letter of 12 July says:
Minister’s letter of 12 July says:
“An initial consensus proposal between the Scottish Government and Cosla (on behalf of local government) has been formed on a partnership approach that will provide for shared legal accountability. This will improve the experience of people accessing services by introducing a new structure of national oversight to drive consistency of outcomes, whilst maximising the benefits of a reformed local service delivery. It would provide Scottish Ministers, local authorities and NHS boards with overarching shared accountability for the care system. Local Government will retain functions, staff and assets.”
A statement put out by COSLA also highlights this approach, which indicates a change to the original proposals.
This consensus on strengthening the delivery of integrated care, of shared legal accountability and confirmation of the retention of staff in local government reflects something of a change which, if the “general principles” of the Bill are agreed to at Stage 1, could see reflected in amendments to the Bill at Stage 2.
The Bill makes no reference to integration of health and social care. It proposes the setting up a near parallel infrastructure of care boards alongside health boards. This potentially risks undermining some of the efforts toward the complex integration of health and social care (via joint governance arrangements between health boards and local authorities) that has been underway at least since the Public Bodies (Joint Working) Scotland Act 2014 was enacted. Audit Scotland wrote in detail about the risks, complexities and challenges of structural reform in its submission to the call for views on the Bill, as well as the complexity of current integration governance arrangements.
In its assessment of integration, Audit Scotland had repeatedly observed that the pace of change was not rapid enough, but the governance landscape, established by the 2014 Act, created a complex picture of accountability which sometimes hampered progress and the blending of budgets.
It will be interesting to see what emerges from the months of further work and collaboration that the Scottish Government has undertaken with stakeholders, and what the (new) vision for a National Care Service looks like in the coming weeks and months.
Anne Jepson
Senior Researcher, SPICe
27 July 2023