 Welcome everyone to the Health, Social Care and Sport Committee's seventh meeting of 2021. I've received apologies for this morning's meeting from Evelyn Tweed and I'd like to welcome Millie McNair, who's attending as a substitute in Evelyn's absence. Our first item is to decide whether to take item 3 in private and that's to consider the evidence heard in the evidence session with the Cabinet Secretary for Health and Social Care. Our second item today is an evidence session with the Cabinet Secretary for Health and Social Care on the Health and Care Bill, the legislative consent memorandum, and supporting the Cabinet Secretary for Health and Social Care but appearing online with Humza Yousaf. We have Jane Hamilton, the head of business management and intergovernmental relations of the health workforce directorate, Robert Henderson, the head of health and social care of our intergovernmental relations unit, and John Paterson, the divisional solicitor of food, health and social care for the Scottish Government legal directorate. Welcome to you all and welcome cabinet secretary. I believe you have an opening statement. Just a very brief one. Thank you to the committee for inviting me to discuss the UK Government's health and care bill today. The bill broadly compromises the elements provisions from the NHS England long-term plan measures in response to Covid-19 and a rolling back of some of the competition elements of the Health and Social Care Act 2012. The proposals of the long-term plan have been in development for a long time, are not contentious for us as their effects are confined to England and the English NHS, though of course we're always worried about any particular domino effect. Other provisions in the bill have not been as long in development or subject to the usual consultation, and some of those will affect Scotland. In my LCM, I have recommended that the Parliament should not grant legislative consent to the bill as it currently stands. The UK Secretary of State would be granted powers to act in Scotland without having to seek consent of Scottish ministers, even where the actions taken will impact upon the delivery of healthcare, which is of course the responsibility of Scottish ministers. Some provisions ignore the reality of a separate NHS in Scotland and could, if unchallenged, enable the Secretary of State to treat the NHS across the UK as a single unitary entity. That is of course unacceptable. I have had a written response to my concerns from the minister leading the bill, Edward Argar, and we are due to speak tomorrow. I would hope to see some movement from the UK Government, but until I see willingness to respect the devolution settlement, I am not in a position to change my recommendations to withhold legislative consent. If the UK Government makes suitable amendments, I will, of course, bring a supplementary LCM forward, and I look forward to going into those issues in more detail with committee members. Thank you, cabinet secretary. My colleagues have got some detailed questions, but I guess that whenever anything that comes in front of a committee, my main thought is where does the scrutiny function lie of the committee? Of course, Scottish Governments are not consulted in issues that affect healthcare and the NHS in Scotland. It also means that we cannot scrutinise those decisions as well. Is that a fair comment? Yes, a completely fair comment. The consultation process or the lack of consultation thus far has been frustrating, but clearly the central consent will go into the detail no doubt when members ask questions. The fundamental point here is the difference between consulting and consent. Where we have devolved competency, as is recognised by the UK Government in certain areas, and we would challenge that we have competency in other areas too, simply consulting us is a Government, and therefore the process of scrutinising the Parliament partakes in is not good enough. It is about consent. I should say very clearly that the Welsh Government—in my conversations with Eleanor Morgan and the Welsh Health Minister, she is in very much the same space. They are frustrated that in areas of devolved competency they are being told that they will be consulted as opposed to consent. I think that that is really important for us in terms of all those who believe in the devolution settlement, which I suspect is everybody around this table online virtually, but it is also really important for parliamentary scrutiny, as you rightly say. I move on to questions from Paul Cain. Thank you, convener, and good morning. Cabinet Secretary, you touched in your opening remarks on the conversations that you will have with your country part tomorrow, but I am just keen, I suppose, to understand what dialogue has been on-going so far and what kind of response you have had from the UK Government in terms of the issues that you have raised directly that you have referenced in your comments. I thank the member for what is an important question. We have been in dialogue at official level for quite a while. There has been a sense of frustration from my officials that we have not had the detail of what was the bill upon introduction until the day before the bill was due to be introduced, so that was a source of frustration. I then wrote to Minister Argar about two months ago, I think roughly, or maybe even just over two months ago, highlighting what my concerns were in terms of the areas of devolved competency. I received his response two months later, which I don't. I understand that I am myself extremely busy with correspondence and will probably be taken longer than I would have liked to, so I understand that these things can take time. However, it is the nature of the response, as opposed to the timing of the response that frustrated me. I am willing to go back to the UK Government to ask if their response can be shared and put into spice for the Parliament scrutiny. I am happy to do that, but I can safely say that even without that being done, the response that I have received does not address the substantial points around devolved competency and consultation versus consent. I do have a meeting tomorrow, so I will be fairly robust in that conversation about the fact that my expectations have not been met. Finally, in a number of the policy areas, there is not much policy disagreement. In a lot of areas, I could see us aligning with the policy intent, but that is about the principle that, where something is within devolved competency, we should not be treated as simply consultees, but our consent should not be followed as a Government, but the appropriate process in Parliament should be followed. The dialogue would continue. I would hope that we would be able to get to some sort of agreement, and if we do, I will bring forward a supplementary answer. In terms of the memorandum of understanding that the Scottish Government has requested, in your view, what should that include and how broad and wide-ranging should that be? Again, I am willing to enter into discussion with the UK Government into more detail about what that should look like. Essentially, it is to underpin any future discussions and consultation between the Scottish ministers and the UK Government when it comes to matters that are reserved. On the devolved issues, we should be asked for our consent, as would be appropriate. I do not think that anybody could argue that. However, where matters are related to reserved issues, I would hope that we would at least be consulted, because it is fair to say that, even if they are fully reserved, there can be implications for the health service up here in Scotland. I would be quite willing to enter into some sort of memorandum of understanding for those reserved matters, so that there could be appropriate and full consultation between the Scottish ministers and the UK Government ministers. Can I bring in Mithie McNair? Mithie, you had some questions around this. On the same theme, good morning, Cabinet Secretary, and welcome your time here this morning. If there is any, what is the most compelling argument that the Westminster Government has made for legislation that has been made on a UK basis? A lot of those areas, I would say that I do not have a contention or concern about trying to create policy across the four nations. On things like advertising for less healthy food, I think that it makes sense as best as possible to have a four nations approach. I believe that that issue in itself, the UK Government has not got right. I think that its belief is that it does not need an LCM. Our belief very strongly is that it does. I can go into the detail of that later if anybody wishes. On something like that, the policy is one that I could agree with. I think that in a number of areas in the bill, it would make sense as best as possible to have a four nations approach. However, the reasons why the Scottish Government and I reiterate the Welsh Government, I know, have a similar position is that, where those areas affect on our executive power as ministers, and that is agreed by the UK Government, we cannot just be treated as consultees. We have to ensure that our consent is gained. That is a fundamental principle of the devolution settlement. Emma, would you like to open your line of questioning? I would like to pick up a wee bit on the detail of advertising of less healthy food and drink products. That might be harmful. You have just said that we want a four nations approach to advertising for less healthy food and drink products. I am interested in how we discern that issue of what is reserved versus devolved, so that we can take forward legislation that does work for us in Scotland as we are trying to tackle obesity or reduce alcohol consumption or, even looking at the report that came out from the British Heart Foundation, there are a number of recommendations. I am just wondering how do we prevent the impingement of taking legislation forward ourselves if this is being effected through the UK Government's legislation? I think that your question gets to the very nub of the issue. If I look at the provisions within the bill, there are effectively three provisions in relation to the advertising of unhealthy food. One is around A530am to 9pm, TV advertising watershed for less healthy food or drink products. That is one part. B, similar advertising restriction for on-demand programme services, which are under the jurisdiction of the UK and regulated by Ofcom. C, a restriction of paid for less healthy food advertising online. It is that third area where we have a difference of opinion with the UK Government. On the first two, we can accept that they are reserved and wholly reserved. I do not think that there is any argument in that respect. On C, in the cases of a restriction for paid for less healthy food advertising online, which is hugely important, as Emma Harper has just mentioned, when we talk about particularly our targets around reductions in childhood obesity, for example, being a father or stepfather of a 12-year-old. The amount of time that my stepdaughter spends on her phone and on screen and looking at apps, and I must work harder to curtail some of that, the amount of advertising that she would end up seeing on any given day, I think that all of us can agree that this is a really important space to try to legislate. Again, we are possible to have a four nations approach, but our contention is—this is a source of difference between ourselves and the UK Government—that online advertising, in this respect, we do not believe is reserved. The primary purpose of the provision is to tackle childhood obesity by preventing children's exposure to paid for less healthy food advertising online. We consider that to be very much a public health purpose and therefore a devolved matter. That is where the difference really comes from. I suppose that principle is really important as well. From a principle perspective, you could see how that could translate into other policy areas, not even just health policy areas, but other policy areas as well. If we concede, I suspect, on this principle, it could have implications for other Government policies, too. In my conversations with the Welsh Government, I should say that the purpose of the clauses is a public health one and that the Senate, the Welsh Parliament, should legislate within the domain, so that it is a shared position between ourselves and the Welsh Government. Does that affect labelling of products in a way that health harming products might be products that contain certain chemicals that might be used or not used in the production of our food supply, for instance? Does that legislation affect issues such as the National Farmers Union calling for clear country of origin labelling? Does that legislation lead into that kind of food product labelling? It could well do. I should say that food labelling is accepted as a devolved subject matter. The UK Government is seeking consent in respect of the clause, which would give the Scottish ministers an equivalent power to that, which the Secretary of State would have for England. I do not think that it should have the same impact as the only advertising concerns that we have, but it is certainly something that I will take away to make sure that, as Ms Harper describes, it could not lead into other policy areas in the bill. I welcome the cabinet secretary along today. It goes back to the online advertising there. You mentioned the reasons why you would want to do it, but I was wondering if you had any thoughts about what you might like to do that would be different to the other UK nations approaches. I do not think that there necessarily would be huge amounts of difference. I think that we are all looking where possible to restrict that advertising online. As I said earlier on, there is actually a number of provisions where it would make sense to have a four nations approach. This would be one of them for very obvious reasons, but the principle is that our belief—for example, the Welsh Government—is that those are areas of devolved competency and that it could have an effect if we concede this principle of online advertising. It could have an effect on other areas of public health policy, but even above and beyond public health policy. It is really important, as we all are—I know that Ms Webber is, of course, as well as we all are defenders of the devolution settlement—that it is really important that those principles are robustly defended by all of us. How much of a risk do you think the provisions within the bill pose the confidentiality and safety of patient data? Is there the possibility that Scottish patient data could be provided to private companies? Is that a significant concern? Quite frankly, it is one of the areas where we think consent must be granted as opposed to just consulted upon. For example, we have robust measures in place when it comes to pseudo-anomised patient data, so depersonalised patient data, but that could be at the stroke of a pen in a mere consultation with the Scottish ministers. That data, Scottish patient data that has been depersonalised and anonymised, could be used in a very different way, so I would have real concerns among that. That is why I think it is imperative that we are not just consulted but that our consent is sought. Sue, do you want to ask questions on this particular issue? I am okay. You are fine. I will come to Stephanie Callaghan then. Thank you, convener. Welcome this morning, cabinet secretary. I was going to ask a very similar question to Gillian, and what I am just wondering is, has there been any discussions around an opting out option as far as patient confidentiality and sharing of this is concerned? It is certainly an option that could be discussed, a carve out bidder on a number of those areas. There could absolutely be an advantage, as I have continued to say throughout this session, to work on a four nations basis. I have no difficulty in doing that. I do not come from an ideological opposition to that at all, but it is the principle. As Gillian Mackay rightly said in her question, there are real concerns about how Scottish patient data could be used. Therefore, it is so important that Scottish ministers are not just consulted but our consent is granted so that if we have concerns about how that data is being used and that we have concerns about the confidentiality of that data and the personalisation of that data, then Scottish ministers can effectively stop any practice that we think is not within the values and the ethos around data protection that we espouse. Stephanie, do you want to come back in or are you content for me to carry on? No, that's fine. I wanted to, there's one other issue that comes up and that's international healthcare arrangements. I would like to ask you just what the issues are there in terms of reciprocal arrangements with other countries and how that might be impacted if the Scottish Government doesn't have the powers over that or our ability to scrutinise that as a Parliament? For me, the important point about international healthcare, and I'm going to sound a bit like a continued broken record, but it's important for me to stress that it's an area where, again, it would make perfect sense to try to adopt a four nations approach when it comes to international healthcare. From a policy perspective, I absolutely would like to do that. From a principle perspective, however, the Scottish Government and rightly the Scottish Parliament should have a say in such arrangements because they impact on devolved competence, the impact, because it is accepted by, in this case accepted by the UK Government too, of course, that reciprocal arrangements, so people coming from overseas to access our healthcare, Scots going abroad to access healthcare internationally, that is within our devolved competence. What we wouldn't want is the UK Government to enter into an agreement that could affect Scottish patients, Scottish public, Scottish health service, because people from outside, of course, accessing that health service without our consent, and it's not good enough simply to be consulted. We may then raise issues and concerns, but those issues and concerns could be ignored, whether it's by the current UK Government or, indeed, by a future UK Government, and sometimes we can get into a space where we think about just the current Governments that are in place, but we've got to think about future proofing this legislation, so it's really, really important that we're not just consulted on these issues, but our consent is gained, and I think that in international healthcare that is a significant concern that I have. Okay, now come to Emma Harper for a supplementary on that. Just let colleagues know that we are coming to the end of this session. If you want to ask anything, let me know, and I'll come to you. Emma. Thanks, convener. It will be quick. It is just a quick question around the professional regulation issue. What are your concerns around that? In our briefing paper, it says that the UK Government recognises that they might want to reform the overarching system of healthcare professional regulation, so are there concerns around that because we obviously have our own healthcare workforce that we need to support, look after and protect as well? As I've come to find out, regulation of healthcare is an extraordinarily complex landscape. Of course, some of that regulation sits in a reserved space and some of that sits in a devolved space, just depending on the body that is being regulated. In terms of the bill clauses, they form part of a much wider programme of reform of professional healthcare. It's been taken forward by the UK Government with the support of the devolved administrations. I know from my own conversations that the statutory regulators, who would obviously be most affected by that, are generally supportive of the principles of reform. I don't have any particular concerns in that area, but we always keep an eye on those matters as they progress. I'll come to Stephanie Callaghan. Thanks, convener. I noticed that the legislative consent memorandum, the Department of Health and Social Care advice that it's undertaken a gated agreement with around table discussions, smaller discussions and that included the NHS confederation, which covers England, Wales and Northern Ireland. I'm just wondering what consultation if any has actually taken place with the NHS Scotland around us? I would say that it's limited. We would encourage the UK Government to consult and we are consulting, as you'd imagine, but the UK Government's consultation with us has been not as good as I have seen with other bills in the past. Our consultation with the NHS and the broader NHS and social care partners has been as extensive as it can be, but it's difficult when you're not given the detail with too much advance notice. I know from a number of stakeholders that they would share our concern, particularly around some of the aspects that have been discussed, but also some of the aspects that have not been discussed, but are in the LCM around, for example, the human embryology and fertilisation authority, for example. A number of concerns. We have consultation and we will continue with the UK Government. We will also, obviously, as this matter progresses and I hope that we can get to a sensible resolution around this, then we will certainly do what we can to consult further with NHS colleagues and partners. It doesn't look like any other members want to come in, so I thank the cabinet secretary and his officials for the time this morning. On 26 October, the committee will consider the transvaginal mesh removal cost reimbursement Scotland bill and subordinate legislation, and that concludes the public part of our meeting today.