Scottish Parliament, 27 September 2023

322 contributions from 63 members. The official report.

Wellbeing Economy, Fair Work and Energy

Annabelle Ewing (Scottish National Party, Cowdenbeath)

Good afternoon. The first item of business is portfolio questions on the wellbeing economy, fair work and energy.

Members who seek to ask a supplementary question should press their request-to-speak button or, if they are online, should indicate as much in the chat function by entering “RTS” during the relevant question.

Employment Law Devolution (Impact on Wellbeing Economy)

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

1. To ask the Scottish Government what assessment it has made of the potential impact that any future devolution of employment law to the Scottish Parliament would have on the development of the wellbeing economy. (S6O-02552)

Richard Lochhead (Scottish National Party, Moray)

Securing the full range of powers on employment law would enable the Scottish Parliament to implement the policies that would best meet Scotland’s distinct needs. Those powers would enable us to create fairer workplaces, enhance workers’ rights in Scotland, help to shift the curve on poverty and deliver on our shared ambition for a just transition to a net zero, nature-positive wellbeing economy that is fair, greener and growing.

In our paper “Building a new Scotland: a stronger economy with independence”, we propose a number of specific labour market measures, including a fair national minimum wage set at a rate that better reflects the cost of living and that applies to all ages, and better access to flexible working.

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

Given that both the Scottish and United Kingdom trade union congresses have come out in support of the devolution of employment law, and that a number of Labour Party MSPs have spoken previously in the Scottish Parliament in support of that policy, does the minister have any explanation as to why not a single Labour member of this Parliament signed the motion that the Parliament considered last night in support of the devolution of employment law? The motion did not mention independence; it mentioned only devolution, which is meant to be the settled policy of the Labour Party. Is he aware whether the UK Labour Party still supports the policy of devolving employment policy to the Scottish Parliament?

The Deputy Presiding Officer

I suggest to the minister that he answer the question with reference to matters that fall within his jurisdiction.

Richard Lochhead (Scottish National Party, Moray)

The Scottish Government supports the devolution of employment law, and it asks all parties in the chamber—in particular, the Labour Party, given its members’ past comments on the matter—to support the Scottish Government’s position. Given what Keith Brown has highlighted, it appears that Labour’s enthusiasm for the devolution of employment law is waning—and it seems to be waning because a Westminster election is approaching, which should worry us all in Scotland. I urge the Labour Party to clarify its position and to get whole-heartedly behind the Scottish Government position that the devolution of employment law should happen as soon as possible in the event of a Labour Government at Westminster.

Gender Pay Gap

Marie McNair (Scottish National Party, Clydebank and Milngavie)

2. To ask the Scottish Government whether it will provide an update on what it is doing to tackle the gender pay gap and promote equal pay. (S6O-02553)

Richard Lochhead (Scottish National Party, Moray)

Our 2023 programme for government outlines the direct action that the Scottish Government is taking to tackle gender pay gaps and to promote equal pay in Scotland’s labour markets. That includes action in sectors with historically low pay and job insecurity, where women are disproportionately represented.

From April 2024, adult social care workers who deliver direct care in commissioned services will see their pay increase to a minimum of £12 per hour. Alongside that, we will provide funding to uplift pay in the private, voluntary and independent sector to £12 an hour for those delivering early learning and childcare.

Marie McNair (Scottish National Party, Clydebank and Milngavie)

I welcome the Scottish Government’s efforts to close the gender pay gap with a real determination to make progress. It is clear that the United Kingdom Government is holding progress back, and the Labour Party’s appalling record on equal pay is a concern, too. Does the minister agree that, if we aspire to end the gender pay gap using all the tools that are available, it is essential that employment law be devolved to this Parliament?

Richard Lochhead (Scottish National Party, Moray)

The member gives yet another reason why employment law should be devolved to the Scottish Parliament and why that should happen as soon as possible. The fact that, at 12.2 per cent versus 14.9 per cent, the median gender pay gap for all employees is lower in Scotland than in the UK as a whole—and has been for many years—as well as the fact that the median gender pay gap for full-time employees, too, is lower in Scotland than in the UK as a whole, shows that in areas where we, as a Parliament, have influence, we are making a real difference to people in Scotland who are affected by this issue. Therefore, the more powers that we have, the more positive a difference that we can make.

Hydrogen Technology

Kevin Stewart (Scottish National Party, Aberdeen Central)

3. To ask the Scottish Government what action it is taking to help businesses take full advantage of Scotland’s hydrogen potential. (S6O-02554)

Gillian Martin (Scottish National Party, Aberdeenshire East)

The “Hydrogen Action Plan”, which was published in 2022, is supported by a programme of capital funding that is designed to accelerate the production of renewable hydrogen in Scotland. Funding to date includes more than £7 million in grants offered to projects via the hydrogen innovation scheme. Those projects will drive innovation in renewable hydrogen production, storage and distribution.

The next tranche of the hydrogen investment programme, the green hydrogen fund, will launch later this year. The fund will be open to projects that support renewable hydrogen production from Scotland’s abundant renewable energy resources.

Kevin Stewart (Scottish National Party, Aberdeen Central)

I look forward to those announcements in the future.

How can we build on the successful work on hydrogen-powered transport in Aberdeen, and what can we do to increase the amount of hydrogen refuelling sites throughout Scotland?

Gillian Martin (Scottish National Party, Aberdeenshire East)

Early on in my tenure as minister, I visited the very impressive Aberdeen hydrogen hub. We have invested more than £15 million from our energy transition fund in developing the hub, which aims to accelerate the hydrogen economy in Aberdeen. Indeed, it is leading the way on that, and I know from my visit that local authorities from throughout the United Kingdom have been visiting the model with the aim of establishing it in their areas.

We will continue to work with partners in the public and private sectors to understand and stimulate the demand and the infrastructure needed for hydrogen vehicles. The zero-emission truck task force, which includes Transport Scotland, is exploring the energy infrastructure that is required for heavy goods vehicles, including the consideration of hydrogen refuelling, and we will also be publishing an HGV decarbonisation pathway next year.

The Deputy Presiding Officer

I have a number of requests for supplementaries. I intend to take each of them, so I hope that everyone will be reasonably brief.

Brian Whittle (Conservative, South Scotland)

I think that we will all agree that Scotland is uniquely placed to capitalise on the green hydrogen market. I know that the minister was at an event last night on the supply chain. At a business meeting yesterday morning, I was told that it was really important for the approach going forward to be demand led. What is the Scottish Government doing to create a marketplace for the green hydrogen companies that are now coming to fruition?

Gillian Martin (Scottish National Party, Aberdeenshire East)

There are two markets for hydrogen: the domestic market and the export market. This morning, I was pleased to have a meeting with Graham Stuart of the UK Government, and in answer to my question on injecting hydrogen into the gas grid to make up 20 per cent of the total gas—something that we have been calling for for quite a while—I was told that the UK Government is actively looking at that. That is a use for hydrogen. The distillery sector, which is massive, is also using hydrogen to decarbonise.

The question gives me the opportunity to say that Neil Gray is in Germany at the moment to promote and further Scotland’s hydrogen interests and to support Scottish companies to participate in and benefit from the development of the international hydrogen market. As Mr Whittle will know, Germany has already started work on decarbonising its industry using hydrogen, so that is a great market for us.

Sarah Boyack (Labour, Lothian)

I welcome the minister’s reference to renewable hydrogen, as it is critical that we produce green hydrogen in Scotland. Does she acknowledge the importance of linking to renewable electricity production and creating jobs and opportunities not just in the north-east, as she outlined, but in Grangemouth?

Gillian Martin (Scottish National Party, Aberdeenshire East)

Absolutely—we have a commitment to that. Quite a lot of hydrogen innovation is happening throughout the country. For example, Ms Boyack will be aware of the European Marine Energy Centre in Orkney; when it could not get its tidal energy into the grid, it made hydrogen with it instead. Quite a lot of micro hydrogen production is happening throughout Scotland.

I have been having conversations with the Grangemouth facility about the hydrogen that it intends to produce and, more recently, there have been positive noises about green hydrogen, in particular.

Beatrice Wishart (Liberal Democrat, Shetland Islands)

Shetland is well placed as an energy hub at the centre of the energy-rich North Sea, with the local Orion project aiming to produce wind-powered green hydrogen by 2025. What engagement has the Scottish Government had with that project?

Gillian Martin (Scottish National Party, Aberdeenshire East)

I have not had the pleasure of going up to Shetland yet, mainly because the cabinet secretary went to the Northern Isles in the summer and it did not make sense for us both to go. However, I look forward to engaging with the project—perhaps Ms Wishart would like to invite me.

Claire Baker (Labour, Mid Scotland and Fife)

The empty Longannet site in Kincardine, in my region, has huge potential for green jobs. What recent discussions has the minister had with Scottish Power, which owns the site, about its plans for the site and how it can help advance the Government’s hydrogen ambitions?

Gillian Martin (Scottish National Party, Aberdeenshire East)

I will have to look back at all the engagement that I have had with the owners of the site, and it is entirely possible that Mr Gray has engaged with them, too. I will get back to Ms Baker to let her know what engagement there has been.

Export Statistics (Publication)

Murdo Fraser (Conservative, Mid Scotland and Fife)

4. To ask the Scottish Government whether it will provide an update on when the next set of export statistics will be published. (S6O-02555)

Richard Lochhead (Scottish National Party, Moray)

“Export statistics Scotland” provides the official estimates of the value of Scotland’s exports, and it covers Scotland’s exports of goods and services—excluding oil and gas—internationally and to the rest of the United Kingdom. The next set of statistics will be published on 29 November 2023 and will include data up to 2021. That was pre-announced by the chief statistician in August.

His Majesty’s Revenue and Customs regional trade in goods statistics, which include figures for Scotland, are released quarterly, with the next update, for the third quarter of 2023, due to be released on 14 December. The Scottish Government publishes quarterly manufacturing export statistics for Scotland, with the most recent data covering the period up to quarter 2 in 2023.

Murdo Fraser (Conservative, Mid Scotland and Fife)

The latest set of export statistics were published in December 2021, so there has been a long gap since then. Those statistics showed that Scottish exports to the European Union accounted for 19 per cent of total exports and that we exported three times more—60 per cent of the total—to the rest of the UK. Does that not demonstrate the folly of seeking to align ourselves with the EU at the expense of aligning with the rest of the UK, which is by far the largest market for Scottish exporters?

Richard Lochhead (Scottish National Party, Moray)

For the sake of jobs in Scotland and of the Scottish economy, t

he Scottish Government should be increasing our exports to the rest of the UK and to the rest of the world, including the European Union. Exports to the European Union have, of course, suffered as a result of Brexit, which we did not vote for and which was imposed on Scotland by the rest of the UK. Brexit has led to a decline in many key exports to the European Union. If Scotland were to be a member of the European Union in its own right, that would open up lots of export opportunities for Scotland.

Our exports are performing extremely well. We should congratulate our businesses on that and be proud of it.

The Deputy Presiding Officer

Again, I have received a number of requests for supplementary questions. I intend to take all of them.

Colin Beattie (Scottish National Party, Midlothian North and Musselburgh)

Will the

minister provide an update on the continued impact that export barriers caused by Brexit are having on business costs?

Richard Lochhead (Scottish National Party, Moray)

The latest business insights and conditions survey, which was published in September, shows that, of the businesses in Scotland that face exporting challenges, more than a third—36.1 per cent, to be precise—named Brexit as the main cause. The survey found that more than a quarter of Scottish businesses face extra costs as a result of Brexit, with 16.2 per cent facing higher transportation costs and 12.5 per cent facing increased red tape.

Furthermore, the latest small business survey, which was conducted between November 2022 and April 2023, reported that half of the small and medium-sized employers in Scotland that predicted a decrease in turnover next year highlighted Brexit as a contributing factor.

The additional barriers and costs of Brexit continue to weigh on the economy as a whole. The Office for Budget Responsibility estimates that UK gross domestic product will be 4 per cent lower in the long run due to Brexit. In Scotland, we have experienced a 38 per cent decline in exports of fruit and veg to Europe and a 45 per cent fall in exports of animal feed to Europe.

Willie Rennie (Liberal Democrat, North East Fife)

One side talks down trade with the United Kingdom and the other side talks down trade with Europe. Instead of revelling in the prospect of new trade opportunities, why do both Governments not work together to break down trade barriers?

Richard Lochhead (Scottish National Party, Moray)

We will, of course, continue to do our best to break down trade barriers. That is why we oppose Brexit. I believe that Mr Rennie’s party also opposed Brexit, although, unfortunately, it appears to have changed its mind because of views in the rest of the UK, irrespective of the damage to Scotland.

As I said before, our strategy is to increase exports to the rest of the UK—we do a lot of work in London, for instance, to promote Scottish exports—the European Union and the rest of the world, and that is the best outcome for Scotland’s economy.

Ivan McKee (Scottish National Party, Glasgow Provan)

The minister will be aware that, in the period since Brexit, Scottish exports, excluding oil and gas, have grown at around twice the rate of exports from the rest of the UK but that UK export growth as a whole has been lagging behind international competitors. Does the minister agree that that demonstrates the folly of Brexit

but also confirms the approach of the Scottish Government, which has a coherent strategy to boost exports that was agreed with industry and is delivering results?

Richard Lochhead (Scottish National Party, Moray)

I absolutely agree with Ivan McKee, and I thank him for his efforts in his previous role to

build up Scotland’s fantastic track record in exports. The value of Scotland’s international goods exports increased by 13.2 per cent in the year ending in June 2023, compared with the previous year, which is greater in percentage terms than the 12 per cent increase experienced by the UK. Therefore, the Parliament should celebrate and be proud of the fact that Scotland is outperforming the rest of the UK on exports and, indeed, inward investment. That is really good news for the Scottish Government’s approach, which involves working in partnership with our business community and enterprise agencies, and it is good news for jobs in Scotland.

Programme for Government (North Ayrshire Economy)

Ruth Maguire (Scottish National Party, Cunninghame South)

5. To ask the Scottish Government what impact the measures in its programme for government 2023-24 will have on the growth of the economy in North Ayrshire. (S6O-02556)

Richard Lochhead (Scottish National Party, Moray)

Our programme for government will increase equality, create a fairer society and drive opportunity for the people and businesses of North Ayrshire. It will promote inclusion and reduce inequality in the area, benefiting in part from our £70 million investment in community-led regeneration. It will also support the delivery of the Ayrshire growth deal, in which we are investing £103 million to transform North Ayrshire and the wider regional economy.

Ruth Maguire (Scottish National Party, Cunninghame South)

A quality job that pays well is one of the primary routes out of poverty. Will the minister outline what action the Scottish Government and partners are taking to ensure that all sizes of companies in my constituency are able to contribute to tackling inequality while growing their businesses?

Richard Lochhead (Scottish National Party, Moray)

As Ruth Maguire will be aware, the Government’s policy is that business is vital to creating a wellbeing economy, and it has a key role to play in Cunninghame South and beyond. That is why we support businesses to be a force for good, putting purpose and fair work at their heart, noting that that benefits productivity and profits as well as people.

As part of our £11.5 million investment in the Ayrshire growth deal, community wealth building and the regional skills and inclusion programmes, we will be supporting local businesses to put fair work first, while supporting local people to ensure that they have the skills that businesses require. We are also working with other organisations, such as Developing the Young Workforce in Ayrshire. The issue that Ruth Maguire raises is central to our economic strategy for the whole of Scotland, including Ayrshire.

Seasonal Agricultural Workers (Fair Work)

Maggie Chapman (Green, North East Scotland)

6. To ask the Scottish Government whether it will provide an update on its work to ensure that seasonal agricultural workers have access to effective worker voice under its fair work commitments. (S6O-02557)

Richard Lochhead (Scottish National Party, Moray)

The Scottish Government is committed to ensuring that agricultural workers have access to effective worker voice under its fair work commitments. In March 2023, we provided funding of £123,000 to support the reopening of the Worker Support Centre. The WSC assists all seasonal agricultural and horticultural workers in Scotland, irrespective of nationality, to access free impartial and confidential information on workplace rights.

Maggie Chapman (Green, North East Scotland)

Migrant workers, particularly those with the seasonal worker visa for horticulture, including in the north-east region, are known to be at risk of exploitation and trafficking. They are not unionised, and they face significant language barriers, are often housed in poor, unregulated housing and struggle to access healthcare. They are at the mercy of their employers, who might, without notice, say that there is no work for them, leaving them stranded without money or options.

What further actions will the Scottish Government take to reduce the risks of trafficking and exploitation and ensure that all workers have access to individual and collective workplace representation?

Richard Lochhead (Scottish National Party, Moray)

As I said in response to the very important issue that was raised by Maggie Chapman, the Scottish Government has funded the Worker Support Centre to assist all migrant seasonal agricultural workers in Scotland. We have produced seasonal workers’ rights information leaflets that include guidance on human trafficking and exploitation, and we have outreach arrangements in place to support workers who speak Ukrainian, Romanian, Russian, Polish or English. Outreach staff are available

at a range of times to talk to workers and provide information or support.

Where it is appropriate, the centre can refer workers to legal charities, the Scottish Government’s agricultural wages enforcement teams and other advisers for further support with a range of issues that they might face.

Maggie Chapman might also be aware that recently published independent research made recommendations to be pursued by both the Scottish and United Kingdom Governments, so a lot of work is under way to ensure that we treat the issue seriously.

Small Modular Nuclear Reactors (Economic Benefits)

Sandesh Gulhane (Conservative, Glasgow)

7. To ask the Scottish Government whether it has undertaken any evaluation of the relative economic benefits of small modular nuclear reactors compared with other forms of energy provision. (S6O-02558)

Gillian Martin (Scottish National Party, Aberdeenshire East)

The Scottish Government does not support the building of new nuclear fission power stations in Scotland under current technologies. Although SMRs are innovative in their size and construction technique, they use the same method of electricity generation as traditional nuclear fission. That means that they carry the same environmental concerns as traditional nuclear power plants, while their economic competitiveness is still to be proven in practice. New nuclear power could take decades to become operational. It would be expensive and so would push up household bills.

As we have set out in our draft energy strategy and just transition plan, significant growth in renewables, storage, hydrogen and carbon capture provide the best pathway to net zero and will offer a climate-friendly energy system that delivers affordable, resilient and clean energy for Scotland.

Sandesh Gulhane (Conservative, Glasgow)

France delivers 70 per cent of its electricity from nuclear energy, which gives it a great base load, and it is now the world’s largest net exporter of electricity. Has the Scottish Government made any estimate of the opportunity cost of Scotland’s not pursuing a similar strategy?

Gillian Martin (Scottish National Party, Aberdeenshire East)

The fact is that existing nuclear power systems are expensive. For example, under the current contract awarded by the United Kingdom Government for the Hinkley Point C station, the electricity that will be generated will be priced at £92.50 per megawatt hour. That is in comparison with electricity generated from offshore wind, which we have in abundance in Scotland and on which we are planning to do an awful lot more. Such electricity is currently priced at £37.35 per megawatt hour.

The member mentioned France. [

Interruption

.] However, let us look at a list of all the European countries—

The Deputy Presiding Officer

Minister, please resume your seat

Gillian Martin (Scottish National Party, Aberdeenshire East)

—that have decided to ditch nuclear power.

The Deputy Presiding Officer

Minister, please resume your seat for a second. I do not need to hear a running commentary from members in a sedentary position while the minister seeks to respond to the question.

Minister, please resume your answer.

Gillian Martin (Scottish National Party, Aberdeenshire East)

I can list those countries. In April, Germany shut down the last of its three nuclear power plants, joining other member states that have no nuclear power stations and that remain opposed to nuclear power. They are Austria, Denmark, Ireland, Italy, Estonia, Latvia, Luxembourg, Malta and Portugal.

Energy Strategy and Just Transition Plan (Publication)

Mercedes Villalba (Labour, North East Scotland)

8. To ask the Scottish Government when it will publish its final energy strategy and just transition plan. (S6O-02559)

Gillian Martin (Scottish National Party, Aberdeenshire East)

The 2023 programme for government confirmed our commitment to publish and start implementing a new energy strategy and just transition plan. We are fully considering the views that were expressed in the consultation that took place earlier this year, and we will provide further details on that shortly.

Mercedes Villalba (Labour, North East Scotland)

When the Scottish Government published its draft strategy, the Scottish Trades Union Congress said that workers had “little faith” in the Government’s plan. In the light of the STUC’s submission to the Government’s consultation, will the minister set out precisely what policy changes have been incorporated into the final strategy since then?

Gillian Martin (Scottish National Party, Aberdeenshire East)

As I have said, the final strategy has not yet been published. However, I recommend that Mercedes Villalba come to the chamber tomorrow to listen to my statement on the vision for Scotland’s future energy, which will give more information about when the energy strategy will be published. She will understand that she is asking for details of a final strategy that has not been published yet.

The Deputy Presiding Officer

Kevin Stewart has a supplementary question.

Kevin Stewart (Scottish National Party, Aberdeen Central)

As is outlined in the draft energy strategy and just transition plan, all the evidence tells us that we can protect and create jobs in Scotland if we get our energy transition right. How will the recent Tory net zero U-turns impact on that transition in the future? Does the minister agree that the Tory backtracking, and the uncertainty that it has caused, could hold back growth in renewable energy jobs and harm our economic future?

Gillian Martin (Scottish National Party, Aberdeenshire East)

Kevin Stewart will be aware of the recent report, “Powering up the Workforce: The future of the UK offshore energy workforce”, from Robert Gordon University, which shows that Scotland has enormous energy potential and that we have the natural resources and skills that are required to lead the global energy transition.

However, Kevin Stewart is right: the UK Government’s backtracking is putting green jobs, inward investment and economic growth at risk. I also highlight the failure to secure any offshore wind projects in the recent allocation round 5. We have made representations, and I believe that the sector has made a great deal of representations, to the UK Government on improvements that we want to see ahead of allocation round 6.

Finance and Parliamentary Business

Annabelle Ewing (Scottish National Party, Cowdenbeath)

We move to the second portfolio, which is finance and parliamentary business. Again, if a member wishes to request a supplementary, they should press their request-to-speak button during the relevant question or enter the letters RTS in the chat function if they are online.

Fiscal Framework

Liam Kerr (Conservative, North East Scotland)

1. To ask the Scottish Government whether it will provide an update on the fiscal framework. (S6O-02560)

Shona Robison (Scottish National Party, Dundee City East)

I am pleased to say that the first review of the Scottish fiscal framework concluded on 2 August, with a joint agreement reached between the Scottish and United Kingdom Governments on changes to the 2016 agreement.

That review has yielded a fair and pragmatic set of changes, providing a sensible and proportionate set of improvements to the fiscal framework. That furnishes the Scottish Government with more effective levers with which to manage the Scottish budget. I welcome the opportunity for a full debate in the chamber in the coming months, in addition to a dedicated committee evidence session.

Liam Kerr (Conservative, North East Scotland)

In her letter of 2 August to the Finance and Public Administration Committee, the cabinet secretary made it clear, as she has done in her answer just now, that she was signing up to the new deal because the arrangements work in Scotland’s favour and the changes that have been made are—as she just said—

“fair and pragmatic and will strengthen the financial management levers available to the Scottish Government”.

Does the cabinet secretary agree that that is exactly the sort of joint working between the Westminster and Holyrood Administrations that the public both wants and deserves, rather than the endless constitutional bickering that so often characterises our politics?

Shona Robison (Scottish National Party, Dundee City East)

John Glen, who is the Chief Secretary to the Treasury, is a bit of an anomaly in the Westminster Tory UK Government, as he actually sits down in a sensible, pragmatic and co-operative way. However, he is the exception to the rule. It is because of that arrangement that we have managed to secure those pragmatic changes to the fiscal framework. Again, I had a very co-operative meeting with the Chief Secretary to the Treasury just last week. It is a shame that the rest of the UK Government does not operate in that manner.

John Mason (Scottish National Party, Glasgow Shettleston)

There was some concern under the previous fiscal framework that we were competing with London and the south-east of England, which puts us in a difficult position. Does the cabinet secretary have any concerns that that will continue to be the case?

Shona Robison (Scottish National Party, Dundee City East)

I am confident that we are well placed to build our fairer, greener economy. Per person, our economy has outperformed the UK’s economy since 2018. The latest data shows that our income tax performance per capita is improving, and is outperforming the rest of the UK in 2022-23.

However, it is clear that the UK economic model is disproportionately weighted towards London, which has an impact on Scotland. I am sure that John Mason would agree that, with the full powers of independence, we would be able to tailor our economic approach to Scotland’s needs and emulate the success of our near European neighbours, who all perform more strongly economically than the UK.

Taxation Policy (Oxfam Report)

Mark Ruskell (Green, Mid Scotland and Fife)

2. To ask the Scottish Government what its response is to the recommendations regarding taxation policy in Oxfam GB’s analysis, “Payment Overdue: Fair ways to make polluters across the UK pay for climate justice”. (S6O-02561)

Shona Robison (Scottish National Party, Dundee City East)

As Oxfam’s “Payment Overdue” report recognises, the regulation of fossil fuel industries and the majority of tax powers remain reserved to Westminster. We will keep pressing the United Kingdom Government to take the urgent action that is needed, especially after its recent backsliding on net zero ambitions.

In Scotland, we are committed to using the powers that we have to meet our world-leading climate targets. We will continue with our progressive approach to tax and working to ensure that we achieve a just transition, which will help us to meet our climate goals, safeguard jobs and protect those on the lowest incomes.

Mark Ruskell (Green, Mid Scotland and Fife)

Transport remains Scotland’s most polluting and highest-emitting sector. An investigation by

The Scotsman

revealed that more than 1,500 empty or nearly empty commercial passenger flights, which are also known as ghost flights, passed through Scottish airports last year. That must change.

Does the cabinet secretary agree with the Oxfam report’s recommendations on the use of taxation to reduce air travel demand? What is her view on implementing a higher tax for more polluting aircraft, such as private jets?

Shona Robison (Scottish National Party, Dundee City East)

We very much recognise the impact of transport on overall carbon emissions, and we are committed to reducing emissions across all modes of transport, including air travel.

We remain committed to introducing the air departure tax, once a solution for the Highlands and Islands exemption has been identified, which, of course, is not an easy process. In doing so, we will carry out a review of the rates and bands of the tax to ensure that they are aligned with our world-leading climate ambitions.

Income Tax Policy (Economic Growth and Job Creation)

Jamie Halcro Johnston (Conservative, Highlands and Islands)

3. To ask the Scottish Government what its assessment is of the effectiveness of its current income tax policies in stimulating economic growth and job creation. (S6O-02562)

Shona Robison (Scottish National Party, Dundee City East)

We have the most progressive tax system in the United Kingdom, which raises additional revenue to invest in public services and Scotland’s economy. Since our five-band system was introduced, in 2018, our economy has outperformed that of the UK. Taking into account population growth, gross domestic product per person has grown by 0.2 per cent in Scotland compared with a fall of 0.8 per cent in the UK, while more than 45,000 working-age people moved from the rest of the UK to Scotland in 2021, with a net in-migration of 5,000 people. That is consistent with findings from our policy evaluation of the 2018-19 income tax reforms, which showed no evidence that they were having a negative impact on the economy.

Jamie Halcro Johnston (Conservative, Highlands and Islands)

When he appeared in front of the Finance and Public Administration Committee on 19 September, David Bell, professor of economics at the University of Stirling, told my colleague Liz Smith that

“where you have differential tax rates between jurisdictions, you will set up incentives that will cause either capital or labour to move. That move might not be instantaneous, but if two distinct tax systems sit close by each other, incentives are created over time.”—[

Official Report, Finance and Public Administration Committee

, 19 September 2023; c 16.]

Given that, under the Scottish National Party-Green coalition, Scotland is now the highest taxed part of the United Kingdom, how is the Scottish Government monitoring for the long term any movements of that nature?

Shona Robison (Scottish National Party, Dundee City East)

As I set out in my first answer, there is no evidence of such movement. People move to Scotland and stay in Scotland because of a range of factors, not least the social contract and the various policies and supports that are available here that are not available elsewhere.

In addition, I remind Jamie Halcro Johnston that, based on the Scottish Fiscal Commission’s figures, the Scottish Government calculates that more than 52 per cent of taxpayers in Scotland pay less than they would if they lived elsewhere in the UK.

Those matters will be kept under review. I have set up the expert group on taxation to inform me in relation to current and future tax policy. The Tories cannot get away from the fact that they want tax cuts, but they still come to the chamber to ask for more public expenditure. There is no system in the world that supports that type of economic model.

The Deputy Presiding Officer

I have received requests from a number of members who wish to ask a supplementary. I intend to accede to each request.

Kenneth Gibson (Scottish National Party, Cunninghame North)

Can the Deputy First Minister quantify the damage that UK Tory tax policies announced in last September’s mini-budget and since have done to Scotland’s economic growth and job creation?

Shona Robison (Scottish National Party, Dundee City East)

The disastrous mini-budget is indicative of the on-going economic mismanagement of the Tory Government, which has given us the highest inflation in the G7. That is causing real hardship to families in Scotland. The UK’s high inflation is part of the reason that the Office for Budget Responsibility is forecasting the largest fall in living standards on record, with real incomes expected to fall by £1,200 by the end of this year.

Michael Marra (Labour, North East Scotland)

Speaking to the Finance and Public Administration Committee last week, Professor David Heald warned:

“We will get into a position whereby national health service consultants ... will start negotiating with their employers for net pay,”—[

Official Report, Finance and Public Administration Committee

, 19 September 2023; c 4.]

and stressed the need to be “very careful”.

When we are in a situation in which we need to attract key talent, such as, in the case of Dundee, breast cancer oncologists, what assessment has the Scottish Government made of the impact of income tax policies on the recruitment challenges in our NHS workforce?

Shona Robison (Scottish National Party, Dundee City East)

These days, it is hard to work out who is Labour and who are the Tories in this chamber. I will say two things to Michael Marra. First, NHS consultants in Scotland are not on strike, as those down south are. Secondly, junior doctors get paid more here in Scotland than they do down south. When doctors come here to Scotland, they will take into account a range of factors, not least the pay and conditions that they get, as well as all the services that they get and the additional elements of the social contract that I explained earlier. What a strange line of questioning for a Labour member in this chamber.

Willie Rennie (Liberal Democrat, North East Fife)

When John Swinney was the long-standing wise and cautious finance secretary, he knew about the careful balance needed to avoid behavioural change. The finance secretary and Deputy First Minister seems very bullish about the tax rises. I thought that the last set of tax rises was an emergency rise, but now the Government is talking about further rises. Is she sure that she is getting the balance right?

Shona Robison (Scottish National Party, Dundee City East)

Let me say clearly to Willie Rennie that no decisions have been made about taxation in any form and they will not be until we get into the budget process. I was describing the set of tax decisions that have already been taken, which have led Scotland to be the most progressive part of the United Kingdom, with five tax bands, which take account of what people earn in terms of the tax that they pay.

We will, of course, very carefully consider all the issues that we should do in concluding what is the right balance between tax and the funding of public services, and making sure that we are able to sustain those public services. Although it seems that Labour members come to the chamber wanting us not to make any additional revenues through taxation or anything else, that poses the question of where the money comes from to pay for the public services and the demands that members across—

The Deputy Presiding Officer

Thank you, cabinet secretary. We will now turn to the next question.

Shona Robison (Scottish National Party, Dundee City East)

—the chamber make on a regular basis.

John Swinney (Scottish National Party, Perthshire North)

From my careful and long-serving perspective, I will ask whether the Deputy First Minister agrees that it is somewhat rich for Jamie Halcro Johnston, as a Scottish Conservative, to come here and complain about differential taxation when his colleagues supported the concept of this Parliament having the powers to vary those taxes and responsibilities in accordance with the needs of people in Scotland. Does she agree that the judgments that individuals will make through the careful behaviour analysis that is undertaken on all those questions will take into account all the benefits of living in Scotland in terms of the availability of public services, lower council tax, access to a range of free services—

The Deputy Presiding Officer

Thank you, Mr Swinney. We will now turn to the cabinet secretary’s response.

John Swinney (Scottish National Party, Perthshire North)

—

and the ability to send their children to school?

Shona Robison (Scottish National Party, Dundee City East)

I agree with every word of that. The important thing is to look at the evidence. As John Swinney absolutely correctly pointed out, the evidence in the round shows that people in Scotland get a range of services that are not available anywhere else in these islands. Actually, those on lower incomes are supported in a way that they are not supported anywhere else in these islands. According to the Scottish Fiscal Commission, 52 per cent of taxpayers in Scotland still pay less than they would elsewhere in these islands.

We have to look at these things in the round and make careful consideration. What we will not do is follow the economic catastrophe and the policies that led to that, which seem to be being articulated and replicated in the chamber. We will certainly not do that, because we know the damage that it does to households and businesses.

Glasgow (Metropolitan Status)

Kaukab Stewart (Scottish National Party, Glasgow Kelvin)

4. To ask the Scottish Government, in light of the on-going local governance review, what discussions the Minister for Community Wealth and Public Finance has had with ministerial colleagues regarding any potential benefits to public services and assets of granting Glasgow metropolitan status. (S6O-02563)

Tom Arthur (Scottish National Party, Renfrewshire South)

The local governance review is a key element of the Verity house agreement and an important opportunity to strengthen local decision making. We are equally committed to delivering regional economic development and will continue to work with regional partnerships as we take forward the recommendations that stem from the regional economic policy review.

We will also continue to work with the Glasgow city region on its ambitions, and I will engage with ministerial colleagues on how work in that space can be expanded to further empower all of Scotland’s regions.

Kaukab Stewart (Scottish National Party, Glasgow Kelvin)

Metropolitan status is given to city regions in other parts of the United Kingdom and in many European nations. Like Glasgow, many of those cities are home to nationally significant infrastructure. In the next two years, Glasgow City Council is investing £3 million in the Clyde tunnel and the upkeep of Glasgow Botanic Gardens, while the Royal Botanic Garden Edinburgh is directly funded by the Scottish Government. Does the minister share my view that there is room for a healthy discussion on the long-term funding settlement regarding national assets in Scotland’s largest city?

Tom Arthur (Scottish National Party, Renfrewshire South)

There is no doubt that the Glasgow city region is a key engine of the Scottish economy. Capitalising on progress made by the Glasgow city region, we will continue to work in partnership with Glasgow City Council and the other local authorities in the region. We support the region in attracting inward investment to support the regional economic strategy, which will help to create a sustainable wellbeing economy and tackle inequality.

The published regional economic policy review contains a recommendation to explore the aggregation of budgets to increase capacity within regions. Officials are scoping out options for delivery.

The Clyde tunnel is on the local road network, and all local authorities are responsible for their road networks. The Royal Botanic Garden Edinburgh operates a total of four gardens and has a statutory responsibility to safeguard Scotland’s national living plant collection and herbarium. It also has a global presence and status in the world of plant-based scientific research and education, which is a very different model from the Glasgow Botanic Gardens.

Pam Gosal (Conservative, West Scotland)

Local authorities across the country face a combined two-year shortfall of £1 billion. Much of the remainder will be dedicated to immediate needs, essential statutory services and workforce shortages. Does the Scottish Government believe that granting metropolitan status to Glasgow city region offers a solution for service and infrastructure challenges?

Tom Arthur (Scottish National Party, Renfrewshire South)

We have no plans to pursue a mayoral or metropolitan model in the style of elsewhere in the UK, but, in many respects, the Glasgow region already functions as a metropolitan area. We are committed to working with all local partners, local authorities and communities to capitalise on Glasgow’s status and look for opportunities through partnership working to generate efficiencies and better, more person-centred delivery of public services.

Programme for Government (Community Wealth Building)

Colin Beattie (Scottish National Party, Midlothian North and Musselburgh)

5. To ask the Scottish Government how the measures set out in its programme for government 2023-24 will support community wealth building. (S6O-02564)

Tom Arthur (Scottish National Party, Renfrewshire South)

Employment of the community wealth-building model of economic development has the potential to improve the impacts of a wide range of measures that are set out in the new programme for government. Specifically, in the year ahead, we will work to ensure that procurement activity continues to contribute to community wealth building in the form of stronger businesses and high-quality jobs. The programme for government also confirms that we will collaborate with our partners in the public, private, third and community sectors on legislative proposals informed by the recent community wealth building public consultation.

Colin Beattie (Scottish National Party, Midlothian North and Musselburgh)

It is clear that the

community wealth building approach is one of our most effective tools in building a sustainable wellbeing economy in which everybody in Scotland can thrive. Does the minister agree that measures taken this year to support our local economies and supply chains will help to lay the groundwork for a comprehensive community wealth-building bill later in the parliamentary session?

Tom Arthur (Scottish National Party, Renfrewshire South)

I agree that the community wealth-building approach is one of the most effective tools that we have to create a sustainable wellbeing economy, support business growth and create fair jobs. We will continue to build on the excellent progress that has been made to date by local authorities working in partnership with communities, businesses, the third sector and wider public sector organisations to support the implementation of the approach.

We will publish the findings of the recent consultation on community wealth-building legislation later in the autumn. The consultation has provided a rich source of ideas and evidence that will help to frame the development of legislative proposals to advance community wealth building in Scotland.

Swimming Pool Support Fund

Douglas Lumsden (Conservative, North East Scotland)

6. To ask the Scottish Government whether the finance secretary plans to allocate to local authorities any funding from the block grant that has arisen as a result of Barnett consequential funding from the United Kingdom Government’s swimming pool support fund. (S6O-02565)

Joe FitzPatrick (Scottish National Party, Dundee City West)

Local sport and leisure facilities, including swimming pools, are vital in supporting the physical and mental health of the nation.

Compared to the less than £6 million of consequentials that the Scottish Government received for swimming pools following the UK budget, the Scottish Government allocated £100 million of additional funding to local government at stage 3 of the budget bill, which was funded in part by those consequentials.

Douglas Lumsden (Conservative, North East Scotland)

It is immoral of the Government to get funding for swimming pools from the UK Treasury and not pass it on for its intended purpose. In Aberdeen, Bucksburn swimming pool was closed and has been stripped back to the walls by the local Scottish National Party council, which is being taken to court by its own citizens over the closure. Is the minister happy that swimming pools in our communities are being forced to close?

Joe FitzPatrick (Scottish National Party, Dundee City West)

The member was a local councillor, so he knows that councillors are democratically elected to make decisions on the priorities in their local communities. It is really important that, as elected members, we respect the democratic mandate of councillors across Scotland.

The money has all been allocated, and the difference is clearly that Mr Lumsden is coming to the chamber and asking the Scottish—

The Deputy Presiding Officer

Minister, please resume your seat. There are members shouting across the chamber; that is not acceptable. The minister has been asked a question and we must listen to his response.

Joe FitzPatrick (Scottish National Party, Dundee City West)

As I said, the money has been allocated. It was allocated to budgets as part of £100 million of additional funding that went to local government at stage 3 of the budget bill.

Mr Lumsden has come here to say that that money should have been ring fenced. I encourage him to speak to his local government colleagues, because I know that they are looking for more flexibility. They are not asking us to ring fence more pots of money. In fact, they are asking for exactly the opposite—more flexibility, so that they can use their democratic mandates to determine what is best for their local communities.

Nuclear Weapons (Removal from Scotland)

Bill Kidd (Scottish National Party, Glasgow Anniesland)

7. To ask the Scottish Government whether it plans to propose a parliamentary debate on the removal of nuclear weapons from Scotland, as proposed in its paper “Creating a modern constitution for an independent Scotland”. (S6O-02566)

George Adam (Scottish National Party, Paisley)

As Mr Kidd knows, any proposals for Government business in Parliament are agreed by the Scottish cabinet, subject to consideration by the Parliamentary Bureau and, in turn, approval by the Parliament.

The Scottish Government’s fourth paper in the “Building a New Scotland” series, “Creating a modern constitution for an independent Scotland” was published on 19 June. The Cabinet Secretary for Constitution, External Affairs and Culture then led a debate on that paper on 27 June.

Bill Kidd (Scottish National Party, Glasgow Anniesland)

I know that time is precious, and I might lodge a members’ motion on that issue, which I hope members from across the chamber will support.

When war is raging on Europe’s borders and the spectre of nuclear escalation is ever present, does the minister agree that it is not only time to have that debate here but across Europe and to start the journey to a nuclear weapons-free Europe, as has happened in areas across the globe? Would he be happy to support Scotland taking a lead on that journey?

George Adam (Scottish National Party, Paisley)

Mr Kidd has been at the forefront of that debate for many years, and of course I agree that a nuclear-free world would be most welcome. It is entirely up to the member if he wishes to lodge a members’ motion. Our Parliament is made all the richer by the varied debate and discussion that we have during members’ business debates and what they bring to the Parliament.

The Deputy Presiding Officer

That concludes portfolio questions on finance and parliamentary business. There will be a short pause before we move on to the next item of business.

Business Motion

Liam McArthur (Liberal Democrat, Orkney Islands)

The next item of business is consideration of business motion S6M-10622, in the name of George Adam, on behalf of the Parliamentary Bureau, setting out a timetable for the stage 3 consideration of the Patient Safety Commissioner for Scotland Bill. I ask any member who wishes to speak against the motion to press their request-to-speak button now, and I invite the minister to move the motion.

George Adam (Scottish National Party, Paisley)

Thank you, Deputy Presiding Officer—I have been waiting in anticipation for 50 minutes for this.

Motion moved,

That the Parliament agrees that, during stage 3 of the Patient Safety Commissioner for Scotland Bill, debate on groups of amendments shall, subject to Rule 9.8.4A, be brought to a conclusion by the time limits indicated, those time limits being calculated from when the stage begins and excluding any periods when other business is under consideration or when a meeting of the Parliament is suspended (other than a suspension following the first division in the stage being called) or otherwise not in progress:

Groups 1 to 3: 40 minutes

Groups 4 to 6: 1 hour 20 minutes

Groups 7 to 9: 2 hours

Groups 10 and 11: 2 hours 15 minutes.—[

George Adam

]

Motion agreed to.

Patient Safety Commissioner for Scotland Bill: Stage 3

Liam McArthur (Liberal Democrat, Orkney Islands)

The next item of business is stage 3 proceedings on the Patient Safety Commissioner for Scotland Bill. In dealing with the amendments, members should have the bill as amended at stage 2—SP bill 19A—the marshalled list and the groupings of amendments. The division bell will sound and proceedings will be suspended for five minutes for the first division of stage 3. The period of voting for the first division will be 45 seconds; thereafter, I will allow a voting period of one minute for the first division after a debate.

Members who wish to speak in the debate on any group of amendments should press their request-to-speak button, or enter “RTS” in the chat function if they are joining us online, as soon as possible after the group is called.

Members should now refer to the marshalled list of amendments.

Jackie Dunbar (Scottish National Party, Aberdeen Donside)

On a point of order, Deputy Presiding Officer. I am finding it very difficult to hear you from up here. I do not know whether there is anything that can be done.

The Deputy Presiding Officer

Well, I could probably speak louder, Ms Dunbar. Thank you very much indeed. That is what I will endeavour to do.

Group 1 is on major incidents. Amendment 9, in the name of Jackie Baillie, is grouped with amendments 10, 17, 18, 20 and 21.

Jackie Baillie (Labour, Dumbarton)

I will speak to amendment 9 and all other amendments in the group. The six amendments are all related and, taken together, they will strengthen the rights of bereaved families in the bill. The amendments seek to ensure that patients who have been seriously injured or harmed in a healthcare setting are never again left struggling to get answers and justice.

This suite of amendments and the ones that follow in group 3 are the basis for putting Milly’s law into effect. Taken together, the amendments will deliver a duty to advocate for those affected by a major incident in a healthcare setting; a patient safety charter for the benefit of patients and their families—which we will come on to—a duty to ensure that patients who are affected by a major incident are aware of the commissioner’s role; a duty to provide affected patients with information and details that will support them; and a duty to provide information to whistleblowers on how to disclose information relating to a major incident.

I remind members why this is so important. Milly Main was 10 years old and in remission from leukaemia when she tragically lost her life to an infection that was believed to have been caused by the water supply in the Queen Elizabeth university hospital. Her mum, Kimberly, has had to battle to get answers, compounding her pain at what was an unimaginably difficult time. She is not the only family member who has had to fight alone for answers in a situation like that. Louise Slorance, a grieving widow who lost her husband in the Queen Elizabeth university hospital infection scandal and who Greater Glasgow and Clyde NHS Board chose to pay a private company to spy on, is still waiting for a meeting with the health board that was promised by the former First Minister. Both Louise and Kimberly are still awaiting the outcome of the Queen Elizabeth public inquiry. For those of us with even longer memories, I also want to mention the C diff scandal that happened at the Vale of Leven hospital. Those are illustrations of where having a patient safety commissioner with robust powers would have been so important.

Let me address the amendments in turn. Amendment 9 would add to the duties of the patient safety commissioner for Scotland, meaning that they would be required

“to advocate for those affected by a major incident”,

while amendment 20 defines the term “major incident”.

Amendment 17 would introduce a new section to the bill relating to the commissioner’s role once they are made aware of a major incident. That would include making patients affected by major incidents and the families of patients who died as a result of them aware of the commissioner’s role and providing relevant information including sources of support, information on accessing legal advice and representation; details of any investigations or inquiries relating to the incident; and, of course, advice to whistleblowers. Significantly, amendment 17 would also require the commissioner to consider initiating a formal investigation into an incident within one year of becoming aware of it.

My amendments do not seek to hinder the work of the commissioner and, indeed, amendment 17 requires the commissioner to consider initiating a formal investigation but does not require them to carry out that investigation. We are trying to be proportionate.

Amendment 21 defines the term “family member” for the purposes of identifying who should be contacted by the commissioner in the event of a major incident.

Under amendment 18, when the commissioner completed a formal investigation, they would be required to provide a copy of their report into the incident to the police and the Crown Office and Procurator Fiscal Service. That amendment also confirms that the report could be used in legal proceedings.

Under the bill as it stands, the patient safety commissioner does not have the power to make redress or assist those seeking redress, nor do they have power to opine on actions that should be taken in relation to individuals. However, amendment 10 would ensure that major incidents are exempt from that element of the bill.

My amendments would empower the patient safety commissioner to advocate for people who have been failed by the healthcare system. They would ensure that those who are affected by such incidents are supported in knowing their rights and in getting the appropriate help. By empowering the role of the commissioner, we can begin to reset the balance between families and powerful public bodies.

I move amendment 9.

Tess White (Conservative, North East Scotland)

I rise to support Jackie Baillie’s amendments in group 1. The Queen Elizabeth university hospital scandal has haunted families for years—families who are desperately seeking answers from a health board that has pulled down the shutters and said, “Nothing to see here.” We saw the same thing happen in NHS Tayside in the Sam Eljamel case. His medical negligence has had devastating consequences for his patients. Patients and their families should not have to go up against a large public body in order to find out the truth. That is in no way a fair fight.

In 2019, the Scottish Government announced the Scottish hospitals inquiry to look into the QEUH campus and, earlier this month, it announced that there would be a public inquiry into Dr

Eljamel

. Those inquiries are welcome, but they can take years and leave families in limbo. Against that background, it makes sense for the patient safety commissioner to advocate for those who have been affected by a major incident in a healthcare setting, where they believe that it is appropriate to do so. Jackie Baillie’s amendments are, however, a significant expansion of the patient safety commissioner’s remit, with implications for resourcing. If the amendments are successful—and I hope that they will be, after the Scottish National Party and Greens rejected them at stage 2—the commissioner will need to be able to deliver on them. I hope that the minister and Jackie Baillie will be able to address that point.

Jenni Minto (Scottish National Party, Argyll and Bute)

I begin by acknowledging the voices of patients who have been harmed while in the care the NHS or any other healthcare provider, as well as those of their families and loved ones. I can only begin to imagine the grief of those families who have been bereaved, and my heart goes out to them for the devastating loss that they have suffered. Families have spoken clearly and powerfully about how the healthcare system has let them down. In Jackie Baillie’s words, they have had to battle. The best thing that any of us can do now—in fact, the only thing that we can do—is to take every step that is possible to make sure that other families do not suffer the same thing in the future. I record my thanks to Jackie Baillie for her continued support and advocacy for those patients and their families and for working with us towards our common aim of making the bill and the patient safety commissioner as strong as possible.

In these discussions, none of us will ever forget that we all want to make healthcare safer. That has been at the forefront of my mind since I started working on the bill and I know that the same is true for all members in the chamber.

As I noted at stage 2, the patient safety commissioner’s role is to amplify the voice of patients and to drive improvements in safety, however they see fit. The commissioner will have powers to investigate any healthcare safety issue, and listening to patients and their families is a fundamental element of their role. I know from my discussions with her that Jackie Baillie’s amendments seek to strengthen the commissioner even further, to ensure that the voices of those harmed in major healthcare incidents and families who have lost loved ones are heard.

The patient safety commissioner will undoubtedly wish to hear the voices of bereaved families as well as affected patients when they wish to raise an issue relating to patient safety that stems from the sort of incident that Jackie Baillie has described. That is already provided for in the bill. Indeed, as a Government, our key consideration when developing the bill has been to give the patient safety commissioner as much independence as possible, so that they have the most freedom possible to examine any healthcare issue that affects patients and their families.

The most important thing that we can do now is to do our best to ensure that no families see loved ones harmed while in the care of the healthcare system. That is why it is so important that the bill improves patient safety by encouraging openness, learning and co-operation within the healthcare system, so that, when things go wrong, lessons are learned and families do not go through the same things again.

Although I understand the intent behind amendment 10, it is likely to detract from the vital function that I have just described, which is to encourage openness, to ensure that lessons are learned and to prevent the same harms from happening again. Adding to the commissioner’s role a function of providing or assisting with redress for patients and bereaved families, and giving their opinions on the actions that others should take in light of past incidents, risks putting the commissioner into an adversarial role and may encourage healthcare providers to believe that they have to be defensive, as opposed to open, in their dealings with the commissioner.

Focusing the commissioner on openness and learning rather than on redress for past incidents will be the best way of ensuring that, when they look into any healthcare safety issues that are connected to a major incident in which many patients are harmed, lessons are learned and those harms are not repeated.

Similarly, amendment 21 provides an extensive list of definitions of what constitutes family, which I know Jackie Baillie has drafted with the sole intention of ensuring that no family member is excluded from being able to speak to the commissioner or to receive support. However, family means different things to different people, and the family connections that are important to one person will not necessarily be the same as to the next. In addition, some of the language in the amendment on whole-blood and half-blood relationships is outdated. It is more effective not to tie the commissioner up with lengthy definitions of who they should or should not consider in the context of their work. That is a matter for the commissioner’s discretion.

We all share the desire for the patient safety commissioner to be able to look into healthcare safety issues arising from major incidents in which multiple patients are harmed. I have considered carefully how best to achieve that. My view remains that it is more effective to allow the commissioner to be guided by patients on the issues that they look into and the actions that they take. I do not wish to inadvertently tie the commissioner’s hands with regard to the circumstances that they can look into, and I worry that this group of amendments, by adding very specific steps for the commissioner to take in relation to a certain group of incidents, would unintentionally undermine the commissioner’s vital ability to set their own agenda and to look into the issues of most concern to patients.

It remains the case that, following a major incident relating to healthcare safety, the commissioner would have an important role in hearing from those who are affected and considering whether a systemic problem has caused it. I must emphasise again, as this point is very important, that there is nothing in the powers and functions that are already in the bill preventing the commissioner from doing that. I therefore urge members not to support the amendments.

Jackie Baillie (Labour, Dumbarton)

Well, there you go, Presiding Officer. I listened very carefully to the minister’s response, and there is much on which we agree, but the warm words are not a substitute for action. It is one thing to acknowledge the voices of families, but it is another not to listen to them when they describe the action that is required to give the commissioner the powers that the families say are necessary. Therefore, I am genuinely disappointed. I thank Tess White and the Conservatives for their support. I point out to the minister that the First Minister said that he supported Milly’s law, but his Government does not appear to do so. How can he have changed his mind so quickly? Or is he not actually in control of the legislation?

I spent a considerable amount of time engaging with the minister and her officials—time that I thought was well spent but, unfortunately, that does not appear to have been the case. I have listened to her very carefully and I will withdraw amendment 21, because the minister has confirmed on the record that the widest definition of family will be considered, and I am content with that.

However, if the minister thinks that the provision in amendment 9

The Deputy Presiding Officer

The question is, that amendment 9 be agreed to. Are we agreed?

Members:

No.

There will be a division. As this is the first division of the stage 3 proceedings, I will suspend Parliament for around five minutes, to allow members to get on to the digital voting platform.

15:07 Meeting suspended.

15:12 On resuming—

We will proceed with the division on amendment 9. Members should cast their votes now.

The Deputy Presiding Officer

The result of the division is: For 48, Against 58, Abstentions 0.

Amendment 9 disagreed to.

Amendment 10 moved—[Jackie Baillie].

The question is, that amendment 10 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division. Members should cast their votes now.

The vote is closed.

The result of the division is—

Bill Kidd (Scottish National Party, Glasgow Anniesland)

On a point of order, Presiding Officer. I have had issues. There are all sorts of problems with my app. It is now telling me that the vote is closed, but it did not let me vote. I would have voted no.

The Deputy Presiding Officer

Mr Kidd, we can record that, but I encourage members who have an issue to let us know as soon as possible.

Bill Kidd (Scottish National Party, Glasgow Anniesland)

I am sorry. I did not know when to speak up.

The Deputy Presiding Officer

The result of the division is: For 47, Against 59, Abstentions 0.

Amendment 10 disagreed to.

Group 2 is on principles. Amendment 11, in the name of Tess White, is the only amendment in the group.

Tess White (Conservative, North East Scotland)

Amendment 11 requires that the “statement of principles” must consider ways of engaging with NHS staff to seek

“their views on patient safety concerns”.

A similar amendment that, as the minister will remember, I lodged at stage 2 sought to place a duty on the commissioner to “seek the views” of NHS staff in relation to patient safety. In her response at the time, the minister raised concerns that the commissioner is

“already empowered to do so”—[

Official Report, Health, Social Care and Sport Committee,

13 June 2023; c 16.]

and that such an approach could detract from “patients’ voices”. As such, I have softened the approach of the amendment at stage 3 to focus it on how the commissioner can engage with NHS staff, instead of creating a requirement for them to do so.

I am revisiting the amendment, because, in the period between stages 2 and 3, the trial of former neonatal nurse Lucy Letby reached its horrifying conclusion. That deeply distressing case has shocked the public and has shaken the foundations of the healthcare system. Lessons can and must be learned by healthcare providers, especially given that other NHS staff raised the alarm but were overruled by their managers. I know that recourse exists for NHS staff to raise red flags about safety, but, as the Royal College of Nursing has argued, staff do not always feel that their concerns are heard or addressed, as in Lucy Letby’s case.

The minister suggested that the commissioner’s hearing from NHS staff could cut across patients’ voices, but I would counter that, in many cases, such processes could be concurrent and complementary. It would, of course, be at the commissioner’s discretion how to amplify the voice of patients while engaging with NHS staff, but the amendment is designed to facilitate that process.

I move amendment 11.

Jenni Minto (Scottish National Party, Argyll and Bute)

As I laid out during my discussion with Tess White at stage 2, and further when we met in September, I do not support her amendment. I agree that, as part of investigating and monitoring potential patient safety issues, the commissioner will wish to hear from staff, but there is nothing in the bill that precludes the commissioner from doing so.

Placing a requirement on the commissioner by way of a principle that the commissioner seeks the views of staff risks cutting across the focus on hearing and amplifying the patient voice. Separate channels and procedures are already in place through which NHS staff can raise concerns about patient safety, including whistleblowing, and I wish to avoid the commissioner cutting across them, too.

The Deputy Presiding Officer

I call Tess White to wind up the debate and say whether she wishes to press or withdraw amendment 11.

Tess White (Conservative, North East Scotland)

I will press the amendment. I am deeply disappointed that the minister has not considered the case of Lucy Letby or the recommendations by the RCN.

The Deputy Presiding Officer

The question is, that amendment 11 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division. Members should cast their votes now.

The vote is closed.

Bill Kidd (Scottish National Party, Glasgow Anniesland)

On a point of order, Presiding Officer—this time as last time. The app is not working, and I would have voted no.

The Deputy Presiding Officer

Thank you, Mr Kidd. I will make sure that that vote is recorded.

The Deputy Presiding Officer

The result of the division is: For 48, Against 58, Abstentions 0.

Amendment 11 disagreed to.

Group 3 is on the charter. Amendment 3, in the name of Jackie Baillie, is grouped with amendments 3A and 4.

Jackie Baillie (Labour, Dumbarton)

I will speak to and move amendments 3, 3A and 4, which are all in my name. I will first cover amendments 3A and 3. Amendment 3 sets out in the bill a requirement for the commissioner to produce a charter for the benefit of patients and their representatives, and to ensure that there is consultation on the charter, including with patients, and that it takes their views into account. I am grateful to Ms Minto and the Government for carefully considering the issues that I raised at stages 1 and 2, and for working with me to ensure that provision for a charter is included in the bill.

Amendment 3 will place on the commissioner a duty to produce a charter that would set out what the commissioner considers to be best practice and appropriate standards that are expected of all healthcare providers, particularly in relation to the importance of engaging with patients and families. The commissioner would be required to take the expectations that are set out in the charter into account when considering a healthcare provider’s handling of any incident.

Critically, the charter will send an important signal to patients and families and to healthcare providers that the requirement to act is on NHS boards and other healthcare providers, and not on patients and families. Those who have been harmed or bereaved should not have to push for answers from healthcare providers, and nor is it acceptable that, in times of pain or grief, patients, families and loved ones should have to struggle to have their experiences acknowledged and their voices heard. That is why it is so important that the amendment makes particular reference to engagement with patients and families.

Engagement means more than simply passing on information, important though that is. It is vital to me—as, I know, it is to all of us in the Parliament—that providers of healthcare listen to and engage meaningfully with families and their representatives about their experiences; that they engage in two-way dialogue with patients and families rather than simply deliver information; and that they use the insights gained from that engagement to strengthen patient safety and continuously improve their services, so that mistakes are not repeated and harm is prevented.

I turn to amendment 3A, which is in addition to amendment 3. Amendment 3A was not agreed with the minister, but, on reflection, I thought that it would be sensible to add it, because it is important that the commissioner has available to them powers of accountability to ensure that private companies that supply medicines and medical devices are captured in the category of person required to provide information in an investigation.

Amendment 3A would allow the commissioner to

“prepare and publish a report on the compliance of a health care provider with the”

patient safety

“charter insofar as such compliance impacts on the safety of health care.”

The amendment is a further attempt to ensure that transparency and accountability are hardwired into the bill. It does not seek to instruct or bind the commissioner, but it would provide them with the option to produce a report if they felt that that was necessary. I therefore urge members to support amendment 3A.

Let me touch briefly on amendment 4. The reasons for the amendment have already been set out, so I urge members to vote for amendments 3, 3A and 4, which will ensure that the commissioner consults on the charter with patients, members of the advisory group and others in the same way as they consult on the principles and the strategic plan.

I move amendment 3.

Amendment 3A moved—[Jackie Baillie].

Jenni Minto (Scottish National Party, Argyll and Bute)

I thank Jackie Baillie for lodging amendments 3 and 4. She is deeply committed to patient safety and has campaigned on the issue for many years. I am grateful for her continued work within and outwith the Parliament to ensure that those who have suffered harm and their loved ones remain at the heart of the bill.

I am delighted that Jackie Baillie and I have been able to work together to find common ground and bring those important amendments to stage 3. Together, amendments 3 and 4 will place on the commissioner a duty to produce a charter that will set out what the commissioner considers to be best practice and appropriate standards expected of all healthcare providers. The commissioner will be required to take into account the expectations that are set out in the charter when considering a healthcare provider’s handling of an incident. The charter will send a powerful signal to healthcare providers that the requirement to act is on them, and not on patients and families. I share Jackie Baillie’s determination that those who have been harmed or bereaved should not have to push for answers from healthcare providers.

Amendments 3 and 4 will underscore the need for meaningful engagement with patients and families. That means much more than just the passing on of information, although that in itself is important. The commissioner will be able to use the charter to set out what is expected of healthcare providers when they engage with patients and families. That emphasises the importance of healthcare providers listening carefully to what patients and families say and of using the insights that are gained from that dialogue to strengthen patient safety and continuously improve their services.

Jackie Baillie has spoken powerfully, and we have heard her. I know that we share the same goal, and I am very grateful that we have been able to work together to get here. I urge members to support amendments 3 and 4.

However, I cannot support amendment 3A, because, after careful consideration, I believe that Jackie Baillie’s amendment 3, which I fully support, will be more effective without further amendment. Amendment 3 already provides that the commissioner is required to look at a healthcare provider’s actions against the expectations that are set out in the charter when considering how the provider has handled an incident, and it does so in stronger terms, setting out that the commissioner

“must take the expectations set out in the charter into account when considering a health care provider’s handling of an incident.”

We can expect that the commissioner will consider the extent to which healthcare providers have met the expectations of standards and good practice, and they can cover that in their reports on an investigation.

Amendment 3A is weaker by comparison, stating only that the commissioner

“may prepare and publish a report on the compliance of a health care provider with the charter insofar as such compliance impacts on the safety of health care.”

The second reason why I cannot support amendment 3A is more closely connected with our shared aim of ensuring that healthcare providers engage meaningfully with patients and their representatives. The amendment states that reports could cover compliance with the charter only

“insofar as such compliance impacts on the safety of health care.”

Arguably, that would include scrutiny of the quality of a healthcare provider’s engagement with patients and families in the report. That is because engagement is a step removed from the actual provision of healthcare where safety issues might arise. That is covered by amendment 3, and Jackie Baillie and I both recognise it as an important element of the commissioner’s role. I do not see the merit of a further amendment that cannot be relied on to allow the commissioner to report on issues of poor communication and inadequate engagement. Therefore, I urge members not to support amendment 3A on the basis that its broad aims are achieved more effectively in Jackie Baillie’s amendment 3.

The Deputy Presiding Officer

Thank you, minister. I call Jackie Baillie to wind up and to press or withdraw amendment 3A.

Jackie Baillie (Labour, Dumbarton)

I look forward to being spoken about again in such terms as the minister has used—very warm they were, indeed. I welcome the engagement. You would think that, if she thought so highly of me, she would think highly of my amendments, too, but I live for that possibility another day.

I join the minister in warmly welcoming the support for amendments 3 and 4, but I cannot help but say that, without the previous amendments, the provision is a watered-down version of Milly’s law. Although it is absolutely a move in the right direction, it will not, on its own, reset the balance between patients, their families and health administrators. I have seen health administrators—not all but many—who are already defensive and already in denial. I have seen health board administrators who dissemble rather than admit fault to patients. Simply passing the bill will not resolve that overnight.

On amendment 3A, many of us in the chamber—I am looking at Jackson Carlaw, in particular—witnessed the transvaginal mesh scandal and campaigned for women who were caught up in that. Very few of us will forget some of the stories that we were told.

The Patient Safety Commissioner for Scotland Bill has its origins in the fact that a UK Government decided that patients’ voices need to be better heard, and it cited cases of women who have transvaginal mesh. The makers of that transvaginal mesh have not really been held to account, so the purpose of the amendment is to ensure that they are included in any consideration. Although I hear what the minister said, amendment 3A would put the ability to hold them to account beyond doubt—it would not be optional but baked into the bill.

Therefore, although I welcome the SNP’s support for amendments 3 and 4, I regret that that does not go far enough in terms of the overall package, and I hope that members across the chamber will pause to reflect on our experience of the women who have suffered as a result of mesh complications and pass amendment 3A.

The Deputy Presiding Officer

Thank you, Ms Baillie. The question is, that amendment 3A, in the name of Jackie Baillie, which seeks to amend amendment 3, in the name of Jackie Baillie, be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The Deputy Presiding Officer

The result of the division is: For 49, Against 58, Abstentions 0.

Amendment 3A disagreed to.

I call Jackie Baillie to say whether she wishes to press or withdraw amendment 3.

Jackie Baillie (Labour, Dumbarton)

I press amendment 3.

Amendment 3 agreed to.

The Deputy Presiding Officer

Group 4 is on the duty to consult. Amendment 12, in the name of Tess White, is grouped with amendment 13.

Tess White (Conservative, North East Scotland)

A

mendment 12 would create a duty for the commissioner to consult the Health, Social Care and Sport Committee, or whichever parliamentary committee is concerned with patient safety, on the principles and on the strategic plan.

Amendment 12 is another amendment that I lodged at stage 2 and have brought back at stage 3. I thank the minister for the opportunity to discuss it with her earlier this month. At the time, the minister shared with me her concerns that amendment 12 would compromise the independence of the commissioner by specifying that they must consult parliamentary committees. She added that the role is first and foremost for patients and their representatives, as she said earlier in the debate.

The commissioner must have the freedom to define their own principles. However, I do not believe that the independence of the commissioner should preclude their consulting parliamentary committees, especially when committees can—and do—act as a bridge between the public and policy makers. The Health, Social Care and Sport Committee is uniquely placed to understand the healthcare system in Scotland and so can support the work of the commissioner.

More widely, members of the Scottish Parliament regularly advocate at health boards on behalf of patients, and provide assistance in complex cases in which a patient’s safety might have been jeopardised. The cases of patients who have experienced use of surgical mesh are cases in point.

The Scottish Conservatives will support Paul Sweeney’s amendment 13, which he has brought forward from stage 2. The Health, Social Care and Sport Committee’s stage 1 report called for the principles to include

“an explicit commitment to listening to and supporting under-represented voices”,

especially in the context of women having been badly let down by the healthcare system. The Cumberlege report made for difficult and distressing reading in that regard.

I move amendment 12.

The Deputy Presiding Officer

I call Paul Sweeney to speak to amendment 13 and the other amendment in the group.

Paul Sweeney (Labour, Glasgow)

Amendment 13 is in my name. I thank Ms White for indicating that her party will support it.

At stage 2, I was keen to ensure that the work of the commissioner took into account the voices and concerns of groups of people who have perhaps not always been listened to by the healthcare establishment in the way that they should have been.

As I highlighted at stage 2, the evidence that the committee heard at stage 1 about the valproate and mesh patient safety issues that disproportionately affected women was particularly striking. Dr Arun Chopra of the Mental Welfare Commission for Scotland gave evidence suggesting that despite marginalised groups being predominantly affected by patient safety events, people from groups or communities including ethnic minorities are not well represented in patient safety data.

I am grateful to the minister for offering to work with me on amendment 13 to address those concerns at stage 3. The amendment reflects that collaborative work and would, in order to redress that clear imbalance, require the commissioner to give

“particular consideration to groups whose needs are, in the Commissioner’s opinion, under-represented or given insufficient weight in discourses around health care”

when consulting on formulation of the principles that are to inform how the commissioner carries out their functions, and the strategic plan that sets the course and focus of the commissioner’s work.

Jenni Minto (Scottish National Party, Argyll and Bute)

As Tess White mentioned, she and I discussed the intention behind amendment 12 when we met on 4 September. I explained then that I do not believe that it adds value to the role of the commissioner. The commissioner’s role is, first and foremost, for patients and their representatives.

The current wording of the bill already provides for the commissioner to consult and engage widely on the draft statement of principles and the strategic plan. In doing so, the commissioner is to have

“regard to the importance of”

those documents

“reflecting patients’ concerns”.

If it is considered “appropriate”, consultees “may” include committees of the Scottish Parliament.

Of course, I recognise that health committee members have a deep understanding of the healthcare system and that, as representatives of their constituents, they might hear of experiences relating to safety from patients and families, both of which could be helpful to the commissioner’s work. However, the commissioner's consultation powers are already set out and are broad enough to enable consultation of those whom the commissioner deems to be “appropriate”.

It is also worth noting that a duty to consult a relevant committee is not placed on other commissioners in Scotland. I remain strongly committed to the independence of the commissioner: that they should be independent was the clear message during the consultation on the bill, and I do not want to compromise that independence by specifying that the commissioner must, in the course of their work, consult specific parliamentary committees. For those reasons I do not support amendment 12.

However, I support Paul Sweeney’s amendment 13, which is on ensuring that underrepresented groups are heard. A similar amendment was lodged at stage 2, which I supported in principle, so I am pleased to have been able to work with Paul Sweeney since then on the wording of the amendment. I am content that it will now have the intended effect, on which we all agree, of ensuring that the commissioner gives particular consideration to groups whose perspectives are often less heard or not given sufficient weight in discourse on healthcare.

The Deputy Presiding Officer

I call Tess White to wind up and to say whether she wishes to press or seek to withdraw amendment 12.

Tess White (Conservative, North East Scotland)

I will press amendment 12. I am deeply disappointed that the minister has not heard what I have said. The parliamentary committees have huge resources at their disposal for research and holding inquiries. I think that the minister’s decision is a big mistake, and I hope that, if the amendment is rejected, the commissioner, when he or she is in post, will use that facility to his or her advantage for patient safety. I press amendment 12.

The Deputy Presiding Officer

The question is, that amendment 12 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The Deputy Presiding Officer

The result of the division is: For 48, Against 58, Abstentions 0.

Amendment 12 disagreed to.

Amendment 13 moved—[Paul Sweeney]—and agreed to.

Amendment 4 moved—[Jackie Baillie]—and agreed to.

Group 5 is entitled “Special report”. Amendment 14, in the name of Paul Sweeney, is the only amendment in the group.

Paul Sweeney (Labour, Glasgow)

Amendment 14 would give the commissioner the power to create a special report in the event that it appears that recommendations that were made in the initial formal investigation report

“have not been, or will not be, implemented”.

A special report would be sent to the persons or organisations to which the formal investigation report was sent in the first instance, and a copy would be laid before the Scottish Parliament. Furthermore, the report could be made public, if the commissioner considered that to be appropriate.

Bodies cannot be left to mark their own homework on patient safety. There must be an option to escalate matters if recommendations are dismissed or ignored. That seems to be obvious to me and to other members in the chamber. All that we need to do is listen to people with experience. Marie Lyon, from the Association for Children Damaged by Hormone Pregnancy Tests, told the Health, Social Care and Sport Committee that

“Up to now ... people have tended to get away with it. There has never been accountability and there have never been consequences.”—[

Official Report, Health, Social Care and Sport Committee

, 7 February 2023; c 22.]

At stage 2, the minister suggested that the amendment that was lodged then was superfluous, because the bill as drafted allows for the commissioner to publish information on implementation. However, I argue that publication of information and production of a special report are two different things.

Amendment 14 is not a radical amendment. It seeks to bring the powers of the patient safety commissioner broadly into line with those of the Scottish Public Services Ombudsman, who, under section 16 of the Scottish Public Services Ombudsman Act 2002, can lay a special report before Parliament if, following the making of a formal report,

“it appears to the Ombudsman that the injustice or hardship has not been, or will not be, remedied”.

At stage 2, the minister also cited her concern that the commissioner could be at risk of defamation claims, should a special report be created about recommendations that they believed would not be implemented. However, the language of amendment 14 is in line with that of the 2002 act.

Furthermore, I note that section 18 of the bill includes a number of protections from defamation actions. It states that

“any statement in the Commissioner’s report on an investigation has absolute privilege,”

and that

“any other statement made by the Commissioner has qualified privilege.”

In committee evidence, patient safety groups were absolutely clear that there must be accountability and the option to escalate. In moving amendment 14, I urge all members, including the minister, to support it, please, in order to give the commissioner the necessary teeth and capacity to ensure that recommendations are implemented.

I move amendment 14.

Jenni Minto (Scottish National Party, Argyll and Bute)

I do not support amendment 14, which would allow the commissioner to make a special report on any recommendations from a previous report that they felt

“have not been, or will not be, implemented”.

As I said at stage 2, the bill expressly gives the commissioner power to publish information on a person’s response to recommendations that the commissioner has made in an investigation report or, indeed, on any failure to respond. Amendment 14 is therefore unnecessary.

At stage 2, I noted my concern that requiring the commissioner to lay before Parliament a report about actions that

“it appears to the Commissioner ... will not be ... implemented”

could leave them open to defamation actions, because it anticipates or speculates about wrongdoing by others. Therefore, I ask members not to vote for amendment 14.

Paul Sweeney (Labour, Glasgow)

It is very disappointing that the minister, having listened to the points that I made to clarify the purpose of amendment 14, is not minded to accept it.

It is clear that allowing only the commissioner to publish information on implementation is insufficient. That has been broadly recognised. I hear the point that the minister has sought to make. I have considered her position, but I do not think that what is currently in the bill is sufficient, and other stakeholders and groups who have communicated with us during the bill’s progress through Parliament agree. That is why I have brought my amendment back at stage 3.

I press amendment 14.

The Deputy Presiding Officer

The question is, that amendment 14 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The Deputy Presiding Officer

The result of the division is: For 48, Against 58, Abstentions 0.

Amendment

14 disagreed to.

Group 6 is on information gathering and use. Amendment 15, in the name of Paul Sweeney, is grouped with amendments 5, 6 and 8.

Paul Sweeney (Labour, Glasgow)

Amendment 15 seeks a solution to the lack of clarity in section 12 around whether the powers of the commissioner to compel persons or healthcare providers to provide information will also apply to private companies. At stage 2, I lodged a similar amendment, which the minister was not able to support because of concerns about the broader regulation of medicines and medical devices being a reserved matter, despite agreeing with me that manufacturers and suppliers of such items should be included. With the minister’s concerns in mind, I lodged a revised amendment, which would allow the Scottish ministers to add people to or modify the description of people on the list of those from whom the commissioner can require information under section 12.

Further, the proposed section 12(3C) in amendment 15 expressly draws attention to providers of medicine or medical devices in the text. That would allow the Scottish Government time to consider how best, within devolved competence, to include manufacturers and suppliers in the remit of the commissioner’s information compelling powers.

Labour members will support Ms Mochan’s amendment 6, which seeks to add the professional regulator and the Health and Safety Executive to the list of bodies that the commissioner can compel to share information. I can also confirm that Labour will support the technical changes that are set out in amendments 5 and 8, in the minister’s name.

I hope that the revisions made to amendment 15 provide the minister with ample assurance about devolved competence, and I would welcome the support of the Government and members across the chamber for the amendment.

I move amendment 15.

Jenni Minto (Scottish National Party, Argyll and Bute)

Amendments 5 and 8, in my name, relate to wording that was inserted into the bill at stage 2 by Carol Mochan. Following stage 2, the provision in section 12A sits among provisions about investigations by the commissioner. The provision relates instead to amending the Health and Care (Staffing) (Scotland) Act 2019 to require health boards and the Common Services Agency—or, as it is more widely known, NHS National Services Scotland—to provide information to the patient safety commissioner as well as to the Scottish ministers, about the steps that they have taken to comply with the guiding principles for health and care staffing.

Amendment 5 removes the provision in section 12A from the bill, and amendment 8 inserts it into schedule 2, which deals with similar modifications to other legislation. The substantive effect of the wording inserted by Carol Mochan’s amendment at stage 2 is unchanged by that. Amendments 5 and 8 simply move the provision to a more appropriate part of the bill, for the benefit of those using the legislation. I have advised Carol Mochan of those changes, and I thank her for her contribution to the bill. I urge members to support amendments 5 and 8.

I turn to amendment 15, in Paul Sweeney’s name. At stage 2, I was unable to support a similar amendment that Paul Sweeney lodged. As I indicated then, medicines and medical devices are a reserved matter, and the situation is complex. The reservation includes matters relating to the regulation and control of medicines, such as their manufacture, distribution, importation, licensing and marketing. I undertook that my officials would look into that further, and we have carefully reconsidered the information gathering powers in the bill.

Our conclusion is that amendment 15 is not required. Section 12 of the bill contains a general power to seek information, and section 13 contains a wider power for more focused inquiries as part of a formal investigation. The general power to seek information from healthcare providers that is allowed by section 12 is appropriate, because the role of the patient safety commissioner is fundamentally about the safety of healthcare being provided to patients by those providers.

The healthcare providers are the direct interface with patients. Pharmaceutical companies and a range of others are one step removed from that, so it is appropriate that they are covered by the power in section 13, so that information can be compelled from them if and when it becomes necessary during the course of an investigation. If, for example, the commissioner were to instigate a formal investigation into hernia mesh—a subject that I know is of particular interest to Katy Clark—she or he would be able to require information from manufacturers and suppliers of hernia mesh if that information would be relevant to the investigation. Amendment to section 12 is not required.

The commissioner’s power under section 13 to require information that might be relevant to a formal investigation extends to any person, including manufacturers and suppliers of medicines or medical devices, subject to the general limitations contained in the reservation of medicines and medical supplies. We consider that, as part of a formal investigation, the power in section 13 is the appropriate context in which to empower the commissioner to require information that might be relevant to a formal investigation from such manufacturers and suppliers. The bill already provides that, so amendment is not required. I therefore urge members not to support amendment 15.

I am also unable to support amendment 6, in the name of Carol Mochan. As my predecessor, Maree Todd, said in her evidence to the committee, professional regulators such as the General Medical Council do not have the same purpose as the patient safety commissioner. It upholds professional standards and will, when needed, take action against individuals, rather than focusing primarily on promoting learning and systemic improvement. I do not want to create a situation in which the bill might impede the willingness of healthcare professionals to be frank and open with the commissioner, and I believe that amendment 6 risks doing just that. It is also important to note that nothing in the bill prevents the commissioner from working with regulators for the benefit of patient safety. I urge members not to support amendment 6.

Carol Mochan (Labour, South Scotland)

Amendment 6 adds two additional bodies to the information-sharing requirements. I understand that the minister was not in favour of the amendment at stage 2, but, again, similar to my other amendments, I believe that it merely attempts to improve relationships and co-operation in the sharing of information.

At the evidence taking stage and in the stage 1 report, although they understood that it might not always be appropriate, professional regulators were of the view that the lists as outlined in section 15(2)(d) could have been extended to include professional regulators to allow information sharing in situations

“where there is a concern that would be suitable for us to follow through on and investigate.”

Regulators recognise that it should be only when appropriate. As I said at stage 2, I found that suggestion to be reasonable, and I maintain that position. I urge the minister to think about that suggestion, because it would allow a broader scope of the provision of the information sharing that we want to be included in the amendment.

As we know, the Scottish Public Services Ombudsman stated that the current list is fairly narrow. I have said previously that it is not our intention to extend the list beyond manageable levels, nor to extend it in a way that might impede healthcare professionals’ willingness to be frank and open with the commissioner. As the minister suggested, that is her difficulty with the amendment.

The amendment takes solid steps towards ensuring information sharing and duty of co-operation. I had hoped that the minister would accept the amendment in the way that it was offered, as an enhancement of information sharing.

Tess White (Conservative, North East Scotland)

I also suggest that the minister reconsiders that point. The Scottish Conservatives lodged an amendment on information sharing at stage 2 with input from the GMC, which the minister said she would not support since it was unsuccessful. I understand that the minister has provided assurances to the GMC on how the commissioner and regulatory bodies will work in practice and share information. As the minister will not support Carol Mochan’s amendment 6, I seek clarity and assurances from the minister on that point. The Scottish Conservatives will support all the amendments in the group.

Paul Sweeney (Labour, Glasgow)

Although Labour is minded to support the Government’s amendments in the group, it is disappointing that the Government is not minded to reciprocate on what I think are very reasonable, rational and logical adjustments to the bill that would make it clear and provide reassurance to a number of stakeholders who are deeply concerned about the potential for their genuinely held sense of injustice to be addressed.

Members of the Health, Social Care and Sport Committee, and those members of the Citizen Participation and Public Petitions Committee who are in the chamber, will be alive to those concerns, certainly in the case of mesh implants. The very nature of the concerning complaint is about the manufacture and testing of the product by the manufacturer. Therefore, putting that in the bill would provide great reassurance to those individuals who are affected that there will be capacity to look at that.

Although the minister seems to have stood back from her points about devolved competence and has provided some degree of reassurance that there will be scope to draw in individual organisations during the course of investigations when the primary focus of them will pertain to manufacturers, in the instance of mesh manufacture, for example, it seems obvious and logical to have that in the bill. Similarly, where there are clear interfaces with regulatory bodies, such as the General Medical Council, to have that stated explicitly in the bill would be reasonable.

I press amendment 15.

The Deputy Presiding Officer

The question is, that amendment 15 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The Deputy Presiding Officer

The result of the division is: For 49, Against 58, Abstentions 0.

Amendment 15 disagreed to.

Section 12A—Information under the Health and Care (Staffing) (Scotland) Act 2019

Amendment 5 moved—[Jenni Minto]—and agreed to.

Section 15—Confidentiality of information

Amendment 6 moved—[Carol Mochan].

The Deputy Presiding Officer

The question is, that amendment 6 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The Deputy Presiding Officer

The result of the division is: For 49, Against 58, Abstentions 0.

Amendment 6 disagreed to

.

Group 7 is on co-operation with other bodies. Amendment 7, in the name of Carol Mochan, is grouped with amendment 16.

Carol Mochan (Labour, South Scotland)

I am pleased to speak to amendments 7 and 16, in my name. It is important to note that the amendments are intended to achieve a common goal, which I think the minister and I share, of ensuring that there is strong co-operation between the patient safety commissioner for Scotland and other bodies. I have lodged amendment 7 to express my view, as I did at stage 2, that the extent of that co-operation between the patient safety commissioner for Scotland and other bodies must be far reaching and to ensure that duties exist both ways.

Having said that, I understand that the minister had concerns at stage 2. To allow further protections to be put in place, in the event that those concerns are still held, I have lodged amendment 16 to help to allay any fears about amendment 7. I believe that amendment 16 separates the Scottish bodies from section 15(2)(d) and applies the duty to co-operate only to them. I hope that that may allay any fears surrounding competence.

As I did at stage 2, I refer the minister to the stage 1 report, which highlighted the Scottish Public Services Ombudsman’s comments with regard to the clarity in the bill on the relationship between the patient safety commissioner for Scotland and the broader landscape. I think that the amendments that I have lodged today assist the bill in addressing such concerns. I repeat my point that amendment 16, in particular, has been drafted to overcome the minister’s concerns at stage 2, while maintaining the same spirit of ensuring strong co-operation in the exercise of functions that I know we both hope to achieve.

I move amendment 7.

Jenni Minto (Scottish National Party, Argyll and Bute)

Amendments 7 and 16 from Carol Mochan seek to add a duty on certain organisations to co-operate with the commissioner in the exercise of their functions and for the commissioner to reciprocate.

As I explained during the bill’s stage 2 debate, this Parliament does not have legislative competence to impose a statutory duty on the Patient Safety Commissioner for England, and that is still the case. When viewed in conjunction with Ms Mochan’s amendment 6 in group 6, amendment 7 also poses a legislative competence risk, since the Health and Safety Executive is reserved and we cannot impose a duty on it. For that reason I cannot support amendment 7.

With regard to amendment 16, which appears to be an evolution of amendment 7—I thank Carol Mochan for explaining that—I consider that specifying certain bodies carries a risk of limiting the current intentionally broad expectation that all public authorities with responsibilities and functions relating to the delivery of healthcare in Scotland will co-operate in the exercise of the commissioner’s functions. I believe that amendment 16 risks creating confusion rather than clarity.

Therefore, I ask members not to support the amendments.

Alison Johnstone (Presiding Officer, Lothian)

I call Carol Mochan to wind up and to press or withdraw amendment 7.

Carol Mochan (Labour, South Scotland)

It is disappointing that the minister will not accept amendment 16, which was lodged to allay fears about competency. We have been assured that that could be the position, should the minister choose to accept the amendment. With that in mind, I choose to press amendment 7.

The Presiding Officer

The question is, that amendment 7 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 46, Against 62, Abstentions 0.

Amendment 7 disagreed to.

Amendment 16 moved—[Carol Mochan.]

The question is, that amendment 16 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 49, Against 58, Abstentions 0.

Amendment 16 disagreed to.

Amendment 17 moved—[Jackie Baillie.]

The question is, that amendment 17 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division. Members should cast their votes now.

The vote is now closed.

Gillian Martin (Scottish National Party, Aberdeenshire East)

On a point of order, Presiding Officer. My app did not reload. I would have voted no.

The Presiding Officer

Thank you, Ms Martin. We will make sure that that is recorded.

Michael Matheson (Scottish National Party, Falkirk West)

On a point of order, Presiding Officer. My app did not work. I would have voted no.

The Presiding Officer

Thank you. We will make sure that that is recorded.

The Presiding Officer

The result of the division is: For 50, Against 58, Abstentions 0.

Amendment 17 disagreed to.

Amendment 18 moved—[Jackie Baillie.]

The question is, that amendment 18 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 50, Against 58, Abstentions 0.

Amendment 18 disagreed to.

We move to group 8, which is on the meaning of healthcare. Amendment 19, in the name of Paul Sweeney, is the only amendment in the group.

Paul Sweeney (Labour, Glasgow)

Amendment 19 seeks to include social care services in the definition of healthcare under section 21.

When I lodged a similar amendment at stage 2, I made it clear that it would not widen the commissioner’s remit to include social care in its entirety but would instead enable the commissioner to consider social care in their investigations only when those services intersect with the elements of healthcare that fall within the commissioner’s remit.

The minister could not support my amendment at stage 2. Instead, she confirmed on the record that there is nothing in the bill that would prevent the commissioner from dealing with healthcare provided in a social care context. I welcomed that clarification and withdrew my amendment. However, on reflection and having consulted with stakeholders, I think it important, for the avoidance of any doubt, that the clarification be in the bill.

As the minister previously suggested that my earlier amendment might cause doubt as to whether the bill’s reference to healthcare included healthcare provided in contexts other than social care, I have worked on this amendment to address her validly raised concerns. In the light of that effort, I would welcome the Government’s support in clarifying the remit of the commissioner in the bill.

I move amendment 19.

Jenni Minto (Scottish National Party, Argyll and Bute)

I am not able to support amendment 19. Members will recall that, in its stage 1 report, the Health, Social Care and Sport Committee called on the Scottish Government to confirm that the commissioner would be able to address matters arising at the intersection of health and social care. At stage 2, I was very happy to confirm that the commissioner could look at patient safety issues wherever healthcare was being provided, including in social care settings.

I reiterate that in the chamber today. The commissioner’s role is about safety in healthcare. I make it absolutely clear that there is nothing in the bill that would prevent the commissioner from dealing with healthcare provided in a social care setting or any other setting. I therefore urge members not to support amendment 19, which, rather than clarifying that point, risks creating doubt over whether the reference to healthcare includes healthcare that is provided in contexts other than social care, such as schools, prisons or, indeed, anywhere.

The Presiding Officer

I call Paul Sweeney to wind up, and to press or withdraw amendment 19.

Paul Sweeney (Labour, Glasgow)

I am not persuaded at all by the minister’s point. For example, we, in this Parliament, named the committee the Health, Social Care and Sport Committee for good reason: to reflect the span of the activities that are carried out and to have a particular focus on those interfaces, which are critical to patient safety.

I cite from my casework the recent example of an elderly patient who was subject to delayed discharge from an acute hospital into a social care setting, which jeopardised their safety to the point where, unfortunately, a hospital-acquired infection caused premature death. Such examples highlight an issue of patient safety that pertains to the interface of acute hospitals and social care settings, and it should be clarified in the bill.

The amendment is benign in its intent. The idea behind it is to clarify the definition. As a result, I do not think that it confuses things—it clarifies them.

I will therefore press the amendment, and I hope that members will support it.