The story of the National Care Service Bill so far, and news of a (possibly) surprising ending.
This blog will consider what has happened over the past few months with the National Care Service (Scotland)Bill (NCS Bill). The latest instalment started when the Scottish Government submitted their proposed draft amendments, ahead of Stage 2 proceedings, included the Minister asking for more time before starting Stage 2, when MSPs lodge and consider amendments to the Bill, and ending with an announcement on 23 January 2025 that Stage 2 consideration will start on 25 February. The stages and process of a bill are explained on the Scottish Parliament’s legislation pages. A timeline for the passage of the Bill so far is included in this blog.
Hub for SPICe blogs on the NCS Bill and how legislation passes through the Scottish Parliament
There is a hub for SPICe material on the National Care Service (Scotland) Bill, which links to the full series of blogs on the Bill’s progress from before it was even introduced to the present. For those who want a deeper dive, the Bill pages on the Scottish Parliament’s website provide links to the various summaries of written evidence and all the Official Reports of Committee and Chamber proceedings. This blog will take us from the Committee’s Stage 1 report, and cover the further call for views, a ‘pre’ Stage 2 phase, with further scrutiny undertaken in autumn 2024, to this latest pause.
Normally, bills move quite quickly from Stage 1, if passed by a majority of MSPs, to Stage 2, when amendments are laid by any MSP and the Committee considers them in a series of formal meetings. However, the NCS Bill has progressed more slowly, with a number of delays during Stage 1, as well as some unusual and additional steps in the process since the Stage 1 Report was published.
Timeline of key dates
Some of the backstory…
Advance notification of the proposed Stage 2 Scottish Government amendments was requested by the Health, Social Care and Sport Committee in their Stage 1 report on the Bill. This slightly unusual request was made partly because the Committee, and stakeholders, were made aware of a significant change in the plans, in the summer of 2023, after the Committee had (or thought it had) taken all of its evidence. See paragraphs 121 – 147 of the Stage 1 Report for a chronological picture of the evidence gathering, the correspondence and the delays during Stage 1. Normally, the Committee would not see Stage 2 amendments until a few days before the amendments are due to be considered. However, the Committee indicated its intention to take further oral and written evidence and wanted to see the proposed amendments to inform this additional evidence-taking.
Changes to accountability arrangements
A fundamental aspect of the Bill as introduced – that the Scottish Government would have direct accountability for social care – was no longer the intention by this stage. This was announced in July 2023, prior to the Committee publishing its Stage 1 report. Local government and Scottish Labour had described the Bill as introduced as a ‘power grab’; a way of controlling local government without transferring to the Scottish Ministers any of local government’s statutory duties in respect of social care. This change in accountability arrangements, to shared accountability, altered fundamental elements of the Bill as introduced. It rendered much of the evidence gathered to that point moot, because it had been gathered on the basis of the Scottish Government taking responsibility for social care.
It was also a dramatic shift from something that might have mirrored the accountability arrangements for the NHS, whereby health boards receive their funding directly from Scottish Government and governance structures and relationships are more direct.
However, this reflection, or comparison, with the NHS is superficial, because, unlike the NHS, there were no proposals in the original Bill (or the proposed draft amendments) to change the market nature of social care, (in which around 75% of provision is not provided by the state, but by private or independent and charitable organisations). Nor were there any proposals to change the underlying facts of social care organisation and delivery in Scotland: that it is means tested and subject to eligibility criteria. It is not free at the point of use, nor would it have been under the proposals.
Stakeholders said during Stage 1 that it was very hard to envisage what the Bill would change in how social care and support is currently organised and delivered, regardless of accountability arrangements. Some however believed that direct accountability would ensure greater consistency and transparency.
Stakeholders did question how the proposals would improve the status quo: staffing shortages, low pay, sustainability of services, integration of health and social care and proper implementation of Self-directed Support? Fears were expressed that it would mainly add another layer of bureaucracy to an already governance-laden landscape.
Despite the continuing reservations, and difficulties for the Committee in agreeing the Stage 1 Report, and a debate on referral back to lead committee led by Scottish Labour on 28 February, the Bill passed Stage 1 on the 29 February 2024. The Scottish Government response to the Stage 1 report was sent to the Committee on 28 March.
Scrutiny of the Scottish Government’s proposed amendments in Autumn 2024
The scrutiny of the proposed Stage 2 amendments went ahead in the Autumn of 2024 (two years after the initial evidence gathering), but concerns about the lack of detail to help understanding of what change the Bill would actually deliver on the ground, which had beset Stage 1 consideration, were repeated. Frustrations were amplified during this second/third round of scrutiny because of:
- the further delays;
- because accountability appeared to be unchanged from how it operates now;
- and because the Expert Legislative Advisory Group, which was hurriedly convened following another recommendation from the Committee’s Stage 1 Report, was regarded by the many stakeholders as a failure of co-production of the proposed amendments.
Stakeholders were also troubled by the status of the amendments: would they become the actual proposed amendments for Stage 2? If not, what would the Bill look like when Stage 2 consideration of all amendments started in earnest?
Expert Legislative Advisory Group
This Group was convened in Spring 2024, again following a recommendation in the Stage 1 Report. Up to the 2024 summer recess, the group held nine meetings, led by the Scottish Government, with a wide range of stakeholders, focusing on different aspects of the Bill.
During the 2024 summer recess, the Committee received a letter from a number of stakeholders who had attended the meetings. They wanted to make it clear that:
“our participation in ELAG should not be taken as an indication that we are necessarily individually or collectively supportive of the draft Scottish Government amendments or have co-designed them. This is for several reasons:
• ELAG was expressly not a co-design group. This was contained in its Terms of Reference and was re-iterated by the Scottish Government chair at the start of each meeting.
• ELAG members sought, and received assurances from the Scottish Government that our participation in the group would not be represented to the Committee as expressing support for the amendments.
• The text of the draft amendments was not shared with ELAG members prior to them being sent to the Committee on 24 June. We were shared thematic discussion papers before each meeting, though these did not contain the text of amendments.
• In several cases, the papers did not contain sufficient information for us to be able to provide meaningful comments on the detail of any amendment. An additional barrier to meaningfully engaging in this process is that Easy Read versions provided during meetings contained different information to the standard papers. We communicated this in our feedback in the meetings and in writing.
• Most of the weekly meetings covered a different topic with a different discussion paper, which was circulated a few days in advance. Although we appreciate that some of these time constraints were necessary, it further restricted the quality and detail of feedback we were able to give on the papers, and for representative organisations, restricted the extent to which we were able to consult our members on them. This also contributed to making the meetings inaccessible for some members.
• It is not immediately clear from many of the draft amendments to what extent feedback from ELAG members, or people with lived experience of social care have been reflected in their design.
• Due to the large number of members of ELAG, discussions took place in separate breakout groups. There were no votes taken or attempts to reach a full group position on any of the discussion topics or amendments.”
This had something of a chilling effect on proceedings because the Scottish Government’s position during Stage 1, and its defence of the bill being a ‘framework’ bill, was on stressing how co-design and collaboration were key to making the Bill better. The Scottish Government invested considerable effort and resource into the drafting of a Charter for users of social care. They provided an update on co-design along with the draft Charter, with the draft amendments sent in June 2024. The reported experience of ELAG members challenged the Scottish Government’s claims in relation to co-design.
So why the further pause?
Apart from these continuing issues with the Bill raised by stakeholders, soon after the summer recess in 2024, COSLA withdrew its support for the NCS Bill, even though, only a week before, it had submitted a response to the Committee’s further Call for Views. This second Call for Views on the Scottish Government’s proposed amendments, was launched on 1 July 2024 and closed on 20 September 2024. Committee scrutiny started again almost immediately over September and October 2024, and a summary of written and oral evidence was published on 21 November 2024, along with a detailed overview of draft amendments published. This was all in the hasty preparation for the timetabled start of Stage 2 on 26 November 2024.
Support continued to fall away when the unions also withdrew their support. Both COSLA and union representatives did appear before the Committee to discuss their ongoing concerns, and COSLA highlighted that there had been little discussion about the proposed changes to the Bill. By the end of the scrutiny, all the opposition parties had withdrawn their support, including the Greens, whose membership voted at Conference to withdraw support for the Bill in its current form (whatever that currently is).
A Labour-led debate on 27 November 2024 provided an opportunity to understand the position of all the parties. This came a week after the Minister now responsible for the Bill, Maree Todd, made a Ministerial Statement on the National Care Service. This statement was delivered a week after the Minister wrote to the Committee saying that the government was “not seeking to start Stage 2 consideration of the National Care Service (Scotland) Bill on 26 November, and will work with the committee and Parliamentary Bureau to agree a revised timetable, for the New Year.”
The last words in 2024 about social care and the NCS were aired in the Scottish Labour debate on 27 November, a week after the Ministerial statement on the NCS was delivered.
And Stage 2 is announced…but…
In January, the Scottish Government put to the Lead Committee that they wished to commence Stage 2 proceedings on 25 February 2025. The Committee has agreed. MSPs from across the Parliament, and the Scottish Government will now be working to formulate their amendments ahead of the deadline for their lodging, a few days before consideration starts on the 25 February.
There are options for the Committee to remain involved in scrutiny during and following Stage 2, although time is tight within the agreed timetable. The Committee can, if it wishes, take further evidence if it appears that the proposals are significantly different from what they have already considered. They can also publish a report at the end of Stage 2, but we are not aware of this having been done before. The Committee could also decide to undertake further scrutiny after Stage 2, if, for example, the Scottish Government announced new measures under the legislation that hadn’t been mooted before Stage 2. However, it has been agreed that Stage 2 be concluded by 28 March. But, as we have seen throughout the passage of the Bill so far, timetabling conventions have not been followed.
SPICe will be following these proceedings closely and will seek to present a clear view of the impact of these amendments, those agreed to and those which are not. After Stage 2 committee-only consideration, a new, amended version of the Bill is published, ahead of Stage 3.
MSPs can propose further amendments to the Bill at Stage 3. These are debated and decided on in the Debating Chamber, and at this stage all MSPs can vote on them.
Stage 3 comprises a Chamber debate on any final amendments and a vote on whether to pass the Bill. If the Bill is not passed, it falls and can’t become law.
Ministerial statement 23 January 2025
The Minister announced that the Scottish Government will remove Part 1 of the Bill. This contains all the substantive sections on structural reform and accountability. What will remain are Parts 2 and 3 of the Bill, Sections 36 – 43, and these will be the focus for any amendments. These sections cover care records, and the intention is to looking at digital approaches to information across health and social care, rights to breaks for carers, Anne’s Law – which will be amended to ensure ‘the Bill gets this right’. It also sounds like the section on procurement will be expanded to develop national standards for ethical commissioning.
In her statement she also acknowledged that ‘change is needed to support the vital role of social workers.’, but with no mention of the mooted National Social Work Agency.
In addition, she will also establish a National Care Service Advisory Board, on an independent, non-statutory basis, chaired by someone with experience of care support or unpaid caring.
Membership of the Advisory Board will include:
people who access and deliver support
trade unions
NHS leadership
local councils
Integration Joint Boards (IJBs)
the third sector
Scottish Government representatives
This board is expected to meet as early as March 2025, and to have a wide remit. It could consider issues such as commissioning, health and care standards, non-residential charging and eligibility criteria for example.
The Charter of Rights, co-designed and presented in draft form in June 2024 will be published.
She did say that Integration Joint Boards will continue to oversee social care and community health, but she will consider changes that can be made in secondary legislation and guidance, as well as the approval of integration schemes to ‘ensure the voice of lived experience is heard’ and to increase accountability and financial transparency. Ministers will work with the proposed National Care Service Advisory Board on these and other care-related issues.
Further information provided by the Scottish Government
The Scottish Government also provided SPICe with a ‘Fact Sheet’, containing further information on the ongoing work in social care. A further blog will cover these, but some headlines include:
Sectoral bargaining
The Fair Work in Social Care Group has been working on sectoral bargaining for social care and is close to putting a model to Scottish Ministers for agreement. The Scottish Government also believe that the UK Government’s Employment Rights Bill also gives a legislative basis for an adult social care negotiating body for pay and terms and conditions.
Pay
The Scottish government will provide funding to local authorities which will enable an increase in the hourly rate for workers delivering direct care in commissioned services to £12.60 from April 2025.
Support and Improvement framework
Provisions on this were included in the package of draft amendments, to ensure adherence to agreed standards. This framework will be developed outwith the legislation, and will be designed to provide targeted support where standards are not being met. The Advisory Board will advise on where Scottish Ministers might use existing powers of guidance, direction and funding as part of this support. The overall aim is to improve consistency and achieve agreement over what ‘good’ looks like.
There are a number of national programmes and priorities outlined in the additional information, but these are the subject for another blog.
Anne Jepson, SPICe