Stephen Low recommends that the Scottish Government rips it up and starts again.

The Scottish Government has broken new ground with the National Care Service (Scotland) Bill. Never in the field of parliamentary scrutiny has a piece of legislation been so panned by so many so completely. The Bill was published by Humza Yousaf, Cabinet Secretary for Health and Social Care in June. It is currently being examined by Parliamentary Committees They asked for views, and boy did they get them. Seems a Bill to create an ill-defined system based on outsourcing and delivering contracts not care has found very few friends

From the Shetland Joint Integration Board: ‘Our question is: What in the Shetland health and social care system is so broken that this Bill will fix? We are still struggling to find an answer’ to the Borders: ‘The Scottish Borders Council is entirely supportive of the aim to improve the quality and consistency for Social Work and Social Care services. However, we do not believe that the National Care Service Bill will be successful in achieving this’. And, as is said, all stops in between too.

Amongst those failing to give wholehearted, or often even lukewarm, endorsement are unions, councils (irrespective of political control), and separately, senior council executives, lawyers and accountants, any number of public protection officers groups, a number of big players in the third sector, the Scottish Public Services Ombudsman and many others. Even the Presiding Officer of the Scottish Parliament felt obliged to take a pop saying: ‘We do not consider what is being proposed by way of conferring Ministerial regulation-making powers to be the appropriate approach to this matter’.

It isn’t just that the queue to pronounce inadequacy stretches round several blocks, it is also that the range of criticisms is so broad. This is a case of full spectrum fault finding.

Tellingly even those who are usually on different sides are often making the same criticisms. UNISON and CoSLA (Convention of Scottish Local Authorities), for example, say very similar things about the impact on local democracy and accountability. What the Bill tells us is criticised. The vast amount the Bill does not tell us is criticised even more.

The Bill features a great deal of ‘just trust us and we’ll put the details in later’, and this is not popular. In its response to the Bill, the Law Society of Scotland use the phrase ‘it is not clear’ twenty-seven times. The lack of evidence for the proposals gets a fair few mentions from people too. So where to start? Well, we could try following the money, except …

The Chartered Institute Public Finance Accountants (Directors of Finance Section) responded to the Bill. The restraint in its prose is admirable. The Scottish Government’s assessments for the costs of services being transferred are ‘Inaccurate and incomplete’ and ‘misleadingly uprated’. The Chartered Institute Public Finance Accountants believe they ‘overstate the funding being made available to Local Government for these services in the Resource Spending Review period, and understate the actual costs of providing the services rendering the figures wholly unreliable’.

Scotland Excel is an agency whose purpose is to drive up standards in procurement. There will need to be a lot of that if this shambles actually goes through. It points out: ‘The financial implications and methodology employed to outline these have not been adequately detailed’.  Scotland Excel also says there is not enough clarity about ‘the financial implications of staffing costs in alignment with TUPE requirements, staffing costs where TUPE is only partially applicable’ and ‘the Bill is silent on the additional cost associated with redesigning the commissioning model’.

The Chief Financial Officers of the Integrated Joint Boards also pursue this bemoaning of ‘the lack of robust information to allow for any reasonable professional opinion to be given about the adequacy of the resource to ensure services are effective’ and stating that ‘this work should have been significantly progressed as due diligence prior to publication of the F[inancial ]M[emonrandum] to ensure the public and Parliament can provide informed opinions’ , and there are ‘inaccuracies in some of the statements and gaps’. In addition, the Chief Financial Officers of the Integrated Joint Boards are less than impressed that the Financial Memorandum does not include a business case: ‘This would have then complied with the relevant Audit Scotland guidance’.

The general view from various financially qualified bodies is that Scottish Government planning and design is a case of ‘so far, so unimpressive’. Indeed, in saying ‘Scottish Government’ those who have followed events will be aware a fair amount of what is on display comes courtesy of Price Waterhouse Cooper and KPMG. This begs the question as to whether it’s a case that the Scottish Government does know what it is doing and is just not telling people. Or, is this as lacking in thought as it seems. In other words, cock-up or conspiracy?

Some evidence for the former comes from the way the proposals handle the question of whether Care Boards will be liable for VAT. Or, as the case is, does not. Currently, the Integrated Joint Boards which coordinate service delivery do not pay VAT – this is because they are in part local government bodies and hence exempt. When public bodies move out of local government, they lose that exemption. People might remember that this was the case when Police Scotland was set up – and shortly afterwards started getting demands from HM Treasury. The Scottish Government was warned, not least by UNISON Scotland, that this would happen. It carried on regardless … of cost.

It might be thought that, if for no other reason than to prevent a recurrence of embarrassment, that the Scottish Government might have tried to get this sorted before legislating. Sadly, this is not the case. It is trying do so now though, having handed a contract for £44k to Andersen LLP in order to get an answer. The contract was issued after the Scottish Government published the Bill.

This is worrying for several reasons. A potentially massive financial cost has not been taken into account in what the SNP describes as the biggest reform to public services in half a century. It also reinforces the idea that the Scottish Government is addicted to outsourcing. Perhaps, most worryingly of all it suggests that nowhere within the ranks of the Scottish Government is there anyone who understands tax law.

Objections though go well beyond the financial. Many of those who deliver services are left scratching their heads as they deal with a Bill that looks less a publication from HMSO and more like writing on the back of a fag packet. As the Marie Curie organisation observed accurately: ‘there is very little contained in the Bill itself about what the National Care Service will deliver’ and ‘… nowhere in the Bill or the Policy Memorandum is it defined which health services should be included in the National Care Service’.

The Mental Welfare Commission is left perplexed: ‘Social Work and Social Care are subject to multiple legislative provisions across a complex landscape. The legislative list provided for transfer outlined in Schedule 3 of the Bill does not fully capture the enormity of the wider legislative landscape …Without this consideration, the Bill, as presented, risks facing legislative barriers and may not succeed as intended’.

Edinburgh City Council states that the Bill ‘has not laid out a convincing and evidence-based proposal showing that structural change is the best means of resolving the challenges’. It goes on to list eighteen areas where the Bill should have more detail, adding: ‘Given the significance of the implications for local government, including its workforce and for local democracy, these additional details need to be provided as a matter of urgency.’ All of these concerns are repeated in whole or part by many others.

SOLACE, the collective grouping of senior council officers, has a public protection working group. This consist of senior council officers who work with other agencies including the police on protection issues. It says: ‘Significant risk is being introduced to the system of public protection because these proposals will change the public protection structures without any apparent evidence base to support a case for change’. Their local equivalents echo this.

Many people say that they support the idea of a national care service, but do not see how what is in front of them will make a difference. There are also criticisms made of the Bill’s principles. The Scottish Alliance for Palliative Care, for example, makes short work of how ill thought through a commitment to care that ‘enables people to thrive and fulfil their potential’ is for the end of life care that almost all of us are going to need one day.

The Scottish Human Rights Commission ‘believes the Bill requires further specification of human rights standards in order to make this a meaningful vehicle for delivering improved quality and consistency’. Further dubiety about claims the Bill will deliver a rights-based system comes from the Scottish Public Service Ombudsman. It contrasts the rhetoric of a ‘rights-based system’ with a Bill ‘which links complaints to the service rather than the person, removes existing complaints’ powers and there is a fundamental lack of clarity about the relationship between the new and existing systems in the Bill or the policy document suggesting that this has not been thought through.’

The Scottish Government’s supposed silver bullet for leaving care as a commodity in a market place – indeed, expanding the reach of this market into things like children and families social work – is that the market will operate on the basis of ‘ethical commissioning’. No one seems opposed to ethical commissioning. As plenty people point out though, we are not given very much detail about what is meant by ethical commissioning, and what is there does not inspire confidence.

The Care Inspectorate says that ethical commissioning ‘is relatively undefined and it is unclear how the requirement to commission ethically will be evaluated and enforced.’ The Scottish Association for Mental Health (SAMH) says that the term has no ‘clear definition’. CEMVO Scotland, the national intermediary organisation and strategic partner of the Scottish Government Equality Unit, states that ethical commissioning is not a new idea and its ‘success rate in ensuring there is no violation of rights through commissioning/procurement is low’. The charity for supporting families, Quarriers, observes that: ‘The Scottish Government’s proposals make broad allusions to ethical commissioning, but there is no serious attempt to review existing procurement law’. This is a point also made by the Fraser of Allander Institute.

A more serious point than the merely practical is made about the lack of tangible measures and structures in the legislation. For many, this is more like an abuse of process. How can there be parliamentary scrutiny of proposals that either do not exist or that the Scottish Government has not made public? It’s put most pithily, but far from uniquely, by Parkinson’s UK Scotland: ‘[We do …] not support the Bill as drafted because it enables great changes with insufficient Parliamentary scrutiny. It is the legislative equivalent of a blank cheque, and we believe that it should not be passed in its current form’. Within Holyrood, the same criticism of lack of potential scrutiny is made by the Presiding Officer, who also points out that the Bill breaches all precedent in giving Ministers power over parliament.

UNISON Scotland’s submission to the committees called for the Bill to be withdrawn. In our view, the attacks on democracy, the centralisation, the extension of market mechanisms and the lack of concrete detail all made it unfit for purpose. That so many others are independently making not just these, but many other criticisms show the correctness of that view. The Scottish Government should pull this Bill and start a process of ground up engagement to design something first – and then legislate. As Orange Juice told us forty years ago: ‘Rip it up and start again’. 

Stephen Low is a Policy Officer for UNISON Scotland