 I welcome everyone to the 30th meeting of the Health, Social Care and Sport Committee in 2022. I've received no apologies to many members this morning just to let you know that Stephanie Callaghan is joining us online. Our first agenda item will continue our consideration of the National Care Service Scotland bill today. We have two evidence sessions on the bill this morning. The first evidence session is focusing on the human rights approach and legislative considerations. I welcome to the committee our three panel members. We've got Jennifer Payton, the policy executive for the Law Society of Scotland. We've got Ayla Davies, the Kings Council for the Faculty of Advocates and Frank Jarvis, legal officer for the Scottish Human Rights Commission. Welcome to you all. I'll start off because one of the principles set out in the bill, it's one of the first things that's actually written in the bill, is the National Care Service regarding investment society that is essential to the realisation of human rights. I would just like to ask all of you, with the bill in front of you, do you think that the provisions on this very high-level framework bill has the potential to address issues in the current system that's led to inconsistencies in the equity and the issues that we've heard, particularly over the last couple of years, where people with human rights maybe haven't quite had a consistent approach throughout the country. Do you think that this framework bill is as a springboard to addressing people's human rights for access and care services? I'll maybe just go take you in the order that I've introduced to you and go to Jennifer, first of all. The Law Society of Scotland considered the bill in line with our statutory objectives to represent the interests of the solicitors profession, which includes our members working in local government and the social care sector, but also with a view to the public interest. The independent review of adult social care called for a paradigm shift of social care support to one underpinned by a human rights-based approach. Our view is that any new legislation relating to social care must contain clear and attributable rights and duties, effective mechanisms for redress, including legal redress, and it must sit alongside work that's under way to integrate human rights conventions. New legislation in this area must be based on and fully embed human rights principles. It must also promote real and effective access to justice for service users and their families, and it must be supported by transparent decision making and robust complaints processes to promote accountability. In our written evidence, we have highlighted a number of areas where we believe that there's a lack of clarity or detail and where we believe that the bill could be strengthened, including around rights and duties. Although the bill is a timely opportunity, we suggest to revisit Scotland's approach to health and social care and human rights in that context until further details are available. The Law Society of Scotland is not able to take a view on whether the bill will meet the stated purposes that you've mentioned. Is that because so much of the detail will happen in secondary legislation as a result of the co-design process with stakeholders? Yes, that's correct. There's so much left to secondary legislation, co-design, that we don't feel we have the detail at the moment to comment on that. Thank you and good morning to everyone. I'm conscious that I will probably be deferring on human rights issues to Frank on my right here. Clearly, there's an opportunity here. Whenever there is legislation brought in that is going to create a framework that is at a more centralised level, there is always an opportunity for inconsistencies to be ironed out. That's to be welcomed, but at this stage it's hard to scrutinise something that is at such a high level. The bill is clearly putting in place a framework. Secondary legislation is clearly going to bring in much of the substance, and that really is the point at which it will be possible to see whether or not you have things like human rights enshrined at a level that is actually workable. One of the things that you will have seen from the response from the faculty that we were concerned about is that at the moment there are, for example, the principles that are enunciated in the bill, but it doesn't carry through in any particular practical way. Certainly at this stage there is a concern that there is an element of setting out ideals, but when you look at the structure of how that is being translated through the bill, it doesn't actually practically work at a level where there will be accountability for any of the principles. Those are issues that I'm sure can be ironed out, but certainly as a starter for 10 it leaves a concern that, although there is a notion of embedding those rights, the practicalities of that really have to be thought through quite carefully about how that will translate. As it stands in social care throughout the country, do you believe that there are gaps in the provision of, for example, things like complaints processes or people being able to challenge the service that they've been given based on their human rights? Do you see that the bill was actually providing a springboard for those gaps to be addressed? Absolutely. I think that that's what has to be welcomed here. It's an opportunity to try and plug those gaps. Certainly what's set out in the bill shows a bold ambition, and it's just taking care to make sure that it's translated through. At this stage that's set out in the bill, the question is once we have more substance and once there's a secondary legislation, will that actually practically work through? Do you agree with the principle of doing the co-design with stakeholders first in order to inform that detail? Obviously the faculty is not in a position to talk about the policy behind it, but certainly I think it's an innovative approach and I certainly want to be welcomed. If that, I think it will be complicated. I suspect it will take some time, but I think it's a very bold way for legislation to be formulated with that kind of co-design. Thank you. Frank Jarvis, over to you. Thank you, good morning. The first thing to say is that there's a very broad shared view between ourselves and the other panellists this morning. To go back to your particular question, whether this bill has the potential to deliver a human rights-based national care service, I think the answer is yes, the potential is there, but I think the question for us, does it require a human rights-based service? Does it even do enough to promote a human rights-based service? I think the answers to those questions are much more difficult. I think we and perhaps there's broad consensus on this, believe that human rights are at the heart or policing human rights at the heart of the new national care service is essential to fixing the generally recognised problems. Key to that shift, and this goes back to Derek Faley's report, is that human rights must be embedded in a way that is consistent, intentional and evident, as well as accountable in practice. I think we need to recognise that delivering a social care system that respects, protects and fulfills people's human rights will require radical change. It can't be assumed that the proposed structural reforms will inevitably deliver the improved outcomes that we all recognise as being necessary. It absolutely can't be a rebranding exercise and business as usual will not suffice. While acknowledging the relevance of human rights as a matter of general principle, we want to see further specification of the objective human rights standards in this bill in order to make it a meaningful vehicle for delivering improved quality and consistency. It is framework legislation and we understand that the main purpose is to provide ministers with the powers necessary to create operational and organisational structures, but we want to see more as to how the powers created are to be exercised and there are opportunities to embed these concrete human rights standards throughout the bill and hopefully we'll get to discuss those particulars in the course of this morning's session. Thank you. I'm going to hand over to my colleague Emma Harper. Thanks, convener. Good morning, everybody. Kind on the back of the human rights questions and aspects, I've got the bill in front of me and on page six chapter three talks about the creation of a national care service charter. I'll be interested in what you think the charter should contain because one of the things is should we link it to the principles in part one which talk about promoting dignity, advancing equality and non-discrimination, so be interested to hear in your thoughts about what the charter should contain. I suppose I know. You're looking right at me, so we'll ask you first. The danger of catching someone's eye. It was one of the comments from the faculty was that we were slightly unclear about quite what the principles were meant to do. They're clear, they're well and unseated but they sit somewhat isolated in the rest of the bill. I think we were somewhat surprised because we had somewhat assumed once you get to this part on the charter that you would see the principles being adopted into the charter because that would have seemed a somewhat seamless way to link them in. So yes, and I think that the simple position would be that that would be, it seems a slightly obvious thing to do. If the principles are meant to be something that are carried through into the service and are meant to be a measure by which the service will be accountable, then the charter would be an easy place to put them to achieve that. In the bill it talks about the charter being reviewed every five years, is that enough time? Should it be longer? Should it be shorter? I possibly shouldn't go into too much detail about it because we're not necessarily the ones to talk about the practical effect of it, but if a charter is put together and it has the right foundations, then actually reviewing it every five years I would have thought would be adequate. Just a final wee quick question. You said it's obvious that the charter should contain what the principles are laid out and so I quite like seeing it laid out right there in the bill as almost like a seamless transition of okay we talk about the principles here's what the national care service is going to do and now here's what the charter will incorporate. So is it's reasonable to be part of this framework bill to have what we've just talked about the charter laid out right there in the bill? Well yes, I mean if the point of the principles is that they're meant to be an overarching guide or a set of principles which will then form something by which the whole service can be accountable, then yes I think that makes a lot of sense. I didn't want to come in on any of the aspects about the charter that Emma has mentioned just to check with our panellists because I'm interested to know whether or not you feel at the moment that something like a charter is something that would have made a difference in a particular regard to people exercising their own rights like say in the pandemic and I think that the experiences of people in the pandemic has probably brought the need for a national care service to the fore. I mean do you think that's been a gap? I mean what's the point in having a legislation if it's not actually addressing issues and gaps? Frank? Yeah I think there is an issue with accountability for delivery of the charter and at present the bill doesn't provide an indication of how delivery of the charter will be monitored or what the consequences would be for care providers if it's not fulfilled. I think there's concern around section 11.4 which makes claim that the charter neither creates nor alters existing rights and responsibilities, it's not clear how that would support accountability and it rather suggests that the charter is a presentational device of repackaging rights that care users already hold. I think accountability would be strengthened if monitoring of the delivery were carried out by an independent body responsible for scrutiny and perhaps also providing redress where rights are not being realised. I think the other point and I think perhaps at some stage we'll need to talk about what we mean when we talk about human rights because the language of the principles and the charter and the bill is from our perspective unfortunately and unhelpfully vague here in that it doesn't specifically reference well-established international treaty standards such as article 19 of the Convention of Rights of Births with Disability, the right to independent living. I think at some point in this session and generally in the work on the bill we need to engage with how those sorts of principles fit with those wider objective standards and I think what we'd like to say is actually done built into the charter so that people are clear on what they can expect. That's what I was going to ask. It's about people being clear as to what they can expect and obviously these rights exist and you've just referenced some of the legislation that's in place that actually outline these rights but is the gap really people's understanding of what their rights are and with a charter that's actually been co-designed by those people be something that maybe is going to be you say it's presentational but easily accessible to people to know what their rights are with regards to the care that they can receive? I think clearly there's a need to provide the frame the bill in a way that provides the co-design process with the flexibility to reach the best outcomes but I think our understanding and I think this is reflected in a lot of the other consultation submissions I think many of the groups and individuals that will be involved in that co-design process will want to see for instance article 19 embedded, embodied, reflected. Certainly that was a key part of the work that Derek Feeley did and that was a participative process in reaching those conclusions. I think we would definitely agree that clarity and understanding is key and to that extent it's not clear that the language used in the bill is helpful. You know the principles talk about enabling people to thrive and fulfil their potential and that sort of relates to the concept of the right to independent living but it feels unhelpfully vague and subjective and it hasn't been scrutinised, examined, explained in the way that these well established legal concepts in the CRPD treaty have been. Similarly section 1e of the principles talks about opportunities sought to continuously improve services and again this seems to relate to the idea of progressive realisation which is a key concept for economic, social and cultural rights in the international framework but does it mean that or does it mean something different? Is it stronger or is it weaker? These new terms don't appear to assist in that sort of piece around clarity and accountability. Okay, thank you. I don't know if anyone else wants to come in. If not, I'll pass over to my colleague Tess White. No for the question. You don't have any other questions on this. Okay, so we'll move on to questions around I suppose the theme that's already established in that stuff is about secondary legislation and that will be led by Evelyn Tweed. I was interested in Ailis comments on approach to the bill being innovative, different, possibly challenging given the co-design aspect to it, which is quite new. I'd like to ask further what merits or risks Ailis thinks might be associated with this framework bill. I suppose in a very general sense the concern at this point is that there's obviously a move to put the framework in place but then there will be this whole process which will put in place the substantive elements of it where there's clearly a lot of decision making still to be done and there's clearly quite a lot of work still to be done in the co-design. I appreciate there's another committee that will be looking at the costing of all that but one concern that we've raised in the response paper is that it then becomes quite difficult. There's a danger that there will be put in place the structure at this point but then it's difficult to keep the momentum going or to have timetabling or to appreciate quite what's going to happen further down the line once the co-design has been gone through. It's to be encouraged to try to embark on doing legislation in this way but I think there is a slight theoretical difficulty with having the framework in place and then not knowing what the substance is going to be. There is a danger that you get left with the structure and then what follows on doesn't quite fit with the structure. I'm sure that those are issues that the committee has already been considering. But there is going to be opportunity as that content, as that secondary legislation comes before us. It's a danger of momentum going but if there's secondary legislation that's going to come out of the co-design and that's going to be coming back to parliament so where is the real danger here because every aspect of the secondary legislation is going to go through scrutiny and consultation. Perhaps danger is in a motive wave of putting it. It's just that obviously putting the framework in place at this stage without knowing what's coming further down the line you can end up then having to come back to revise parts of this which has only become necessary because decisions that are made further down the line will actually change aspects of it in a fundamental way. I suppose from our perspective looking at the framework bill just now everything that we say is caveated by a, well, this looks okay so far. So when I say danger I suppose I'm saying it's difficult to be precise about any scrutiny at this stage. Is the nervousness not just because this is a new way of doing things which actually includes the public more? Perhaps. I suppose with any innovation, with anything that's new, everybody waits with bated breath to see quite how that's going to pan out and as lawyers we're going to be at the more risk of our side of things saying well I hope that all works fine but it's really just flagging up at this stage. Because one of the issues that comes before politicians is that things are done to people and this is actually doing it a different way where people are actually telling us what they want at every stage of legislation. Is that not something to be welcomed? Yes, I mean that aspect of it definitely. I suppose the thing that from a legal perspective is just ensuring that actually we don't end up with ideas at this stage which actually don't translate through so it goes through the process of that co-design and then actually we discover that what's here doesn't really fit with the substantive part that's going to go in later and that makes the job it's essentially almost like formulating this in two parts. So at the moment we're looking at something which is very high level and there's only so far that you can go with that the real meat of it will come later. Sure. Paul, you have questions. I have a couple of questions. I think maybe following on from that point I like maybe just clarify do you have concerns about the powers that are transferred to ministers as outlined currently in schedule 4 in terms of what they'll be able to do under secondary legislation would be the first part of that question and I suppose the second part is is this also about the delay in terms of getting to secondary legislation that it might not actually achieve the stated aims? Well in relation to the first part I will be careful here because obviously there are policy decisions which have been made and the faculty wouldn't comment on that so I'm sure this committee will have heard many comments about you know the centralisation and certain concerns that are around that and it's not really for the lawyers to comment on that aspect of it and in terms of the way that the secondary legislation has been formulated in the bill we don't have concerns we've flagged up that some of the details of the drafting where we think there could be improvements or aspects which should be considered further and so there are certain nuances for example where there might be some overlap with current legislation in place for the caring spectra and how that will dovetail with the Scottish ministers and the powers that are being imposed in the bill so certain details like that that I think could be looked at again and could be considered more carefully but in terms of how the secondary legislation is incorporated into the bill and the scrutiny that would be afforded the faculty didn't have a difficulty with how that was structured in the bill does that answer the question to the second part there? The second part of the question was actually in relation to part of the faculty's submission just about the concerns about the delay in getting to secondary legislation in order to make the change that's required in the social care space at the moment in terms of things like staffing, improving outcomes and that sort of thing so just wondered if you had comment on that. I mean practically I think it can be seen that there will be some difficulties with that because you have there are some big decisions to be made and in the interim you have that there's not a great deal in the bill about transition perhaps for obvious reasons because decisions haven't been made but it means that there will be a state of flux for a period of time and I think there are going to be some obvious difficulties with that where you have people working in the sector some of whom will remain exactly the same people but with different structures placed on top of that and I know you have witnesses coming from causal after this so I'm sure there will be a great more debate on on that aspect but I think certainly the concern from the faculty is that you can see already that if the co-design process takes time then there's a there's a difficulty there in so far as there's a a lot of state of flux before decisions are made and people are having to continue working in the sector and you have some people where there are clear needs that need to be met and the hope is that that will be met further down the line but the longer it takes the longer those needs are left unanswered so those are practical difficulties. Thank you. I wonder if I might direct a question to Jennifer on behalf of the Law Society. In your submission you said that it's not clear what evidence base suggests that a national service will improve quality and consistency of services. The lack of evidence base also makes this question whether centralisation of what are currently locally delivered services can be justified in terms of the European charter of local self-government. Obviously that's a policy that the government hopes to incorporate into into law so I wonder if you might be able to expand on what impact you think the bill will have on local democracy and accountability. I think beyond what you've quoted from our consultation response I don't think we have considered that to any greater extent as I was already indicated like the faculty we do have to be neutral on the kind of policy considerations at play here but I would be happy to take that back to our working group that have been considering this bill and I can perhaps write to the committee following the session if you'd like me to expand on that. Yeah I think that would be helpful but just briefly through you chair I think it is fair to say that you would question as you said in your submission whether the centralisation agenda will can be justified in those terms. I think we've highlighted that there needs to be a strong and robust evidence base for any change because these are huge changes that are going to have a huge impact on people. For any change on that scale there needs to be an evidence base. I think we would have some concerns about the evidence base at the moment but I don't think I'm in a position today to say anything too much more about the centralisation and local democracy points that you've highlighted but I'm very happy to write after the committee. I've got two questions first to Jennifer Patton and then to Ayla Davies please. The picture I've got in my head is being asked to comment or scrutinise an aeroplane that's going through the air and being built as it's going through the air which makes it very difficult. The Law Society of Scotland has been today very critical of the draft legislation in the written submission about the lack of detail which does make it really hard to scrutinise the bill and if I can quote Jennifer and get your view on this comment it's not clear what safeguards are in place to ensure that co-design is meaningful, effective and timely and that Scottish ministers are appropriately held to account by Parliament for the design and implementation of the national care service. Could you expand on those remarks for us please? I can certainly try. I think our concern around the co-design element is that we welcome this process and as some of the panel have already noted, the involvement of people with lived experience and people who are involved in delivering social care is extremely valuable and we welcome that. We do have concerns that there would appear on the bill, as introduced in any event, to be no statutory guarantee, no statutory basis for the co-design process and therefore no statutory guarantee for meaningful engagement with the full range of stakeholders. We say that noting that co-design is referenced in the principles, our concern about the principles is that they are very broadly drawn and it's not clear at the moment to whom they're addressed and how they'll be supported by attributable duties and mechanisms for accountability. Although we recognise that co-design is supported by the principles, we do have some concerns about the principles, which is the basis for the comments that we've made around co-design. Because this is a framework bill, as you've highlighted, that makes the process that goes on around the secondary legislation even more important because it is where the detail of this will actually come from. What we have highlighted as an area worthy of consideration in our view is that there are consultation duties at various points in the bill, but we believe that those could be strengthened. That would offer a safeguard alongside the co-design process to ensure that there is meaningful engagement. We've highlighted a number of areas where we feel that the consultation duties could be strengthened around strategic planning, around the charter, which we've already discussed a little bit this morning, and around transfer of services. That's the root of the comments that we've made and that you've highlighted around co-design, but we feel that there are aspects of the bill that could be strengthened to, to some extent, mitigate that issue. Thank you. My second question, if I may, is a huge part of the bill will be passed through secondary legislation, sister Eilor for me, with much less parliamentary scrutiny. Can you comment on the appropriateness of the use of secondary legislation in this way, Eilor, please? Although it's secondary legislation, the authority that's given in the bill is quite careful to look at affirmative process in the vast majority of cases so that there is quite a lot of scrutiny that will be able to take place. Whilst we talk about secondary legislation, we should be careful to identify that there is still quite a lot of scrutiny that will happen there. It's not as if this will somehow be done through some quiet route. There are a couple of occasions in the bill where the provisions that are put in place are for the negative route of scrutiny, rather than the affirmative route of scrutiny, but the vast majority is affirmative route, so that does mean that it will be placed before Parliament and there will be time for scrutiny there. Certainly, the faculty didn't have any particular concern about what was being proposed to do it by secondary legislation. The concern that was voiced in the response was really more about how long it might take to get to the point of secondary legislation, what happens in the transition process between, because there isn't a great lot of detail about that in the bill, but the actual mechanism itself, there isn't a criticism about doing it by way of secondary legislation as a matter of principle, because that will still allow for scrutiny. But if you haven't got a product, how can you scrutinise something that isn't in the bill? We can't at this stage. That mechanism further down the line, I think that's perfectly adequately covered in the bill. The concern is simply at this stage that we're looking at something that is absolutely framework, and we're really waiting with bated breath to see what comes further down the line. I don't think that the process can be criticised in the sense of it's not going to afford the ability to scrutinise that further down the line. It's just that there's clearly going to be a transition process, there's clearly going to be a delay in time, there are clearly demands that will be made on services in the meantime, and there will be a sense of a state of flux until we get to that point. Great, and I know that you comment. You wait with bated breath to see what's coming. Thank you. Frank, you've got to come in on that. Yeah, I was hoping to just make a sort of general point on this subject before we moved on. It seems that what we're discussing is what is the appropriate point to embed human rights standards in this whole process, whether primary or secondary legislation, and I think the answer for the commission would be we want it at the foundations, we want it in the primary legislation. I think while we see the value of co-design, we want to give that the flexibility it needs, but are we really arguing that there's a flexibility to produce a care service that doesn't meet international human rights standards? That doesn't seem a particularly useful form of flexibility, and for that reason, I think, including the standards in the primary legislation, doesn't hedge co-design in any problematic way. I think it's also important to recognise that these human rights are no longer a nice to do for Scottish public authorities. The treaty that I referred to before, CRPD, will soon be incorporated in Scotland's own human rights bill, so the establishment of the national care service must anticipate and prepare for those new rights or risk having to retrofit them. So, I think that there's a question about ensuring consistency across the entire legislative programme. Is the fact that they're going to be incorporated in other procedures, Government and Parliament procedures, maybe the reason why it's not referenced in this bill, because that's going to be an overarching, you know, that the incorporation of those rights are going to go across every piece of legislation that we have before us. Do you think that that has to be referenced in the face of the bill? I think it would be valuable to, I think it's a question of consistency and clarity. If we have, in the human rights bill, article 19, right to independent living, and then we have in the national care service bill, sort of clearly analogous, sort of right principles and provisions, that simply presents a headache for understanding how the two relate, and we end up having the interpretive exercise of looking at the bill and, sorry, looking at the care service legislation in light of the new bill, whereas we can ensure that consistency by just adopting the consistent language of human rights standards across the whole programme. Thank you. Can I come to Sandesh and then to Emma? Just on the back of what Tess was talking about, I had a meeting with some disabled groups that provide care to those with disabilities, and they said that once things move into secondary legislation, they will not have the resource to be able to scrutinise that. What are your thoughts on that, Eila? I'm not sure I really have any thoughts on that, in the sense that, obviously, it is a good thing if all invested bodies can scrutinise. I'm not quite sure what they mean by resource, if that means that it's something that they actually wouldn't have the ability to scrutinise it, or that they don't have the resources to have somebody who would formulate a response in a material way. I suppose that, as a general approach, we would all like to see appropriate scrutiny at all levels by all interested bodies. I'm not sure that doing it by way of secondary legislation would alter the ability to scrutinise if they don't have the resource to do it. That, presumably, would be in whatever form the legislation was coming forward, but I'm perhaps missing something that they were telling you about that. It was literally what you had said about not having the ability to go through all of that and put together a coherent argument. To move away a little bit into accountability, we were hearing earlier that it's Scottish ministers as a whole, and that you've got Scottish ministers integrated at having meetings with the care boards. Where do you foresee the accountability lining? I think that, certainly, the way that the bill is framed, the intention is to make the Scottish ministers accountable. In our response, we've flagged up areas where that perhaps needs to be tightened, or it needs to be clearer exactly how that accountability will translate through. For example, when we go back to the issue of the principles, they are enunciated at the start of the bill as a kind of bold, these are our principles. But when you translate that through the practicalities of the bill, they actually don't amount to anything. They're not really anything which are used as a level of accountability or as a measure of accountability. So there are aspects like that where decisions have to be made. If you want to make the principles that will run through and be the principles by which the Scottish ministers are held accountable, then that needs to be made clear in the bill. If they're simply to be something by which people who are using the services can reference what their rights are to be, then they've been shrined in a charter. I think that there are certain elements of the bill at the moment where it's unclear as to how certain ideas are meant to translate through. That's why, in our response, we've flagged up a couple of areas where we think that there needs to be a tightening, or there needs to be a slightly more thought-through process. What we're doing with these principles, for example, if we really do think that those are the measures, then why don't we enshrine them in things like the charter or have them in some of the plans that are going through. The certain decision-making that I think is still to be done about exactly what the level of accountability will be, what the measures of accountability will be, you can see from the bill that the intention is that the Scottish ministers will be accountable. It's the practicalities of exactly how that's translated in the bill that is important. If I may before Emma Cymru come in, one of the issues would be the sanctions of any kind of services falling short of anything that's in the charter. Is that something that any of you would like to comment about? What sanctions should you be if the charter was not complied with? Certainly. I think that perhaps it's worth remembering the sort of gaps in accountability as rights holders, service users experience them with a key strand of the failure review and I think of many other reports and reviews of the current arrangements. I think that the consultation response that we produced highlighted a number of areas where greater accountability could be provided. I think that section 15 on complaints says very little about remedies and sanctions and these are for us really the key vehicle alongside monitoring for accountability against the human rights standards. I think for us it's important not to leave that to to regulations. I think again the complaint process from what little we can glean of it from section 15 it seems to be a sort of point of access, a sort of a means of handling complaints and then passing them to appropriate persons but I think the question for us is well who are the appropriate persons and that we are actually relying on some of the same overburdened and under resourced complaints resolution processes and mechanisms that we already have, you know, sort of civil court claims and the like. The barriers to access and justice for breaches and human rights are already well understood and it's not clear how section 15 is addressing those. I barged in there a little bit Emma, over to you. I think that I was already answered the question actually but the secondary legislation comes through committees all the time. I've been an MSP for six years and we approve affirmative legislation, we scrutinise it, it comes to committees and so I don't for one minute think there won't be appropriate scrutiny on what's coming down the line and I know this is a big piece of work and the framework bill sits out where we're going to go but I do take on board what Sandesh is saying about disabled groups and their perception of not having the ability to scrutinise. I suppose my question is about you know how do we then make sure that the law society, the faculty of advocates and our human rights commission, how do we make sure then that you're still involved in the process as we take all the legislative board? I mean certainly from the faculty's perspective we're asked to comment on various forms of legislation that will come to us and we have a process by which committees will be formed and obviously that's the process by which I come to give evidence today, is that I was asked to chair one of the committees for this particular bill so effectively anything that's referred to the faculty for scrutiny will be scrutinised at that level. We obviously don't take any policy points, we're looking at it purely from the legal perspective but I suppose there could be a process by which the secondary legislation is also passed by for comment. Quite often there won't be any comment, you know, if there isn't anything to say then there won't be a response to put in but none of these mechanisms are foolproof but at least it's something. Sorry I haven't had the benefit of a minute or two to reflect. I think it's perhaps important not to take engagement for granted, you know, engagement by individuals and organisations always comes at a cost, you know, the cost of time for people with lived experience, cost of resources to organisations. I think if there are organisations who have engaged at this stage and made clear with clear asks and recommendations about how the primary legislation should be amended, whether that's in terms of human rights or other reasons, I don't think it's necessarily, I think there are risks associated in just leaving that to get fixed at secondary legislation, expecting the same people to invest the same resource to make the same points if it hasn't been tackled at the primary stage. I move on to talking about the rights to breaks for carers, Gillian Mackay. Thank you, convener, and good morning to the panel. What are the panel's views on how we can ensure carers are consulted on whether the breaks they are receiving are sufficient, and should a mechanism to support that be included in the bill? Could I go to Frank first on this, please? We've not done a detailed analysis of how rights to breaks should be assessed at this stage, and I suppose in terms of the question that sort of stalks all of these discussions about whether that's in primary or secondary, we've not formed a view on that. I think we certainly want to see an approach which focuses on the personalised support to meet carer-specific needs. It should also require adequate support services to family carers that would include respite childcare, support to parents and practices, social support and counselling services, but how exactly that's realised and at what stage in the process we've not, as I say, developed a really detailed analysis of. In the Faculty of Advocates submission to the committee, they raised concerns about the use of the word sufficient in relation to carers breaks. How, in the panel's opinion, can this wording be strengthened and does the faculty have a view on what mechanism would be most appropriate to determine what qualifies as sufficient? We deliberately didn't put forward a proposal for the mechanism. It's not really for us to sort of say what would be best, but I think what we were trying to flag up was that there was an absence of any mechanism, and if you have wording like sufficient, it's very clearly going to raise issues and disputes about what that means, what would be appropriate in every circumstance. I think that if we can already see at this stage that that will give rise to some disputes, then you have to have a mechanism in place. That can be something as simple as having an expert view for determination, or it could be having some sort of board put in place, but having something that can determine it is obviously going to be necessary. If there are no other questions on that particular theme from colleagues, I'll move on to talk about Ann's Law and questions from Carol Mawkin. I would like just a little bit of feedback information from yourself about Ann's Law. That's the right for care home residents. We're interested to understand that the inclusion of Ann's Law in the bill will make circumstances easier for care home residents to either be visited or visit places during any public health threat. Will the law provide that balance to ensure safety for residents, carers and staff as well? I'd be very interested to hear your views on that. I'm happy to go first on that. I think it's interesting the way you framed that and it's very important that you've picked up on this idea of balance because it is a question of balancing rights. We'd responded to the consultation last year on Ann's Law and we argued that any new guidance or legislation concerning visiting must respect, protect, fulfil the human rights that are engaged in that situation and that's the human rights of residents, the families and the staff of care homes. In order to do that, the domestic provisions need to set out and reflect the human rights considerations because I think something that's perhaps missing from this discussion is recognition that people living in adult care homes and, in fact, all other people in that setting will have, they already have rights so that the people in care homes have the right to see and spend time with those who are important to them because that's an aspect of article 8, the right to private and family life, the European Convention on Human Rights. And where public health needs, as in the course of the pandemic, where public health might seem to require a restriction on visiting, we'd called for individualised risk assessments in order to determine whether any particular restriction was proportionate in the circumstances and that's the reason that it's individualised is because you would need to look at the sort of fact sensitive context of the situation, other means of infection risk prevention and so on. So, obviously we don't know the exact content of the visiting directions enabled by this legislation, but it seems that we risk moving from or replacing the blanket bans that we unfortunately saw during the pandemic with blanket permissions or at least something akin to a presumption that visits will take place. But if we really understand that these individual decisions are, as I say, fact sensitive exercises in balancing, competing rights, then simply loading the scales one way or the other on a legislative basis doesn't necessarily produce better outcomes and I don't think it supports the care home managers to make the human rights based decisions in pandemic or other crises that they need to make. I think perhaps there's insufficient understanding of what caused the problems in the first place. What if the problem wasn't a lack of rights, but the rights people already held weren't being respected and protected? And this goes back to my for annual refrain of accountability, you know, placing visits and rights on an explicit statutory footing. It'll bring benefits in terms of visibility and perhaps public awareness, but on its own it doesn't improve the adequacy and accessibility of mechanisms for review or challenging the decisions of what you actually do when you are prevented from seeing an elderly relative. How does that change by the passing of Anne's law? I suspect that we still face the same problem of enforcing rights and we need to see something that addresses accountability for instance in the complaints process. Okay, so in terms of that last statement that you made, you think that we need to have additional legislation around that or more accountability on how we proceed with this? I think it's very much the accountability piece. It's about mechanisms and I suppose about looking at it from the point of view of the right holder. What does the right holder do when confronted with that situation? And the printing of legislation in and of itself doesn't necessarily change the situation where, as I say, some of those prohibitions on visiting were already breaches of human rights, so we need to understand how that was permitted, why that wasn't challenged, why that wasn't addressed and it's not clear that legislation in and of itself addresses that problem, so it's about mechanisms. Okay, and in terms of Anne's law, I suppose that has highlighted to us the need to make sure that those things are explored? Absolutely, I think that the very, very wide, widely shared recognition that this is a problem that needs addressed, so it's more about the means of addressing that. I should say as well that monitoring is also a valuable piece of work around accountability and again that could be in the bill around complaints. Okay, thank you. I follow up actually on Carol's questions about consistency and isn't it because of an inconsistency geographically has led to the calls for Anne's law because in some areas you would have care homes who were very good at realising people's human rights and I have to declare an interest. My grandmother's care home was one that allowed visiting throughout the pandemic in a very, very safe way, but then you hear of other complaints that are coming from other parts of the country where people were effectively kept away from vulnerable adults and that led to the calls for Anne's law. Isn't ministerial accountability and that ability to have centrally monitored a way of ensuring that those rights are tiered to consistently throughout Scotland? Isn't that the whole point of having the ministerial accountability because of that differentiation and that lack of a consistent application of human rights across the country? I think clearly consistency is an aim. I suppose but you can only where we're talking about balancing competing rights of different individuals holding different rights set against the interests of the population of the whole when considering managing infection risk. You can only have consistency in similar situations and I think the problem is that across the care sector there will be vastly differing situations and circumstances such that it is possible that prohibition on visiting may in very specific circumstances be a permissible interference in that human right because when factoring in the staff's right to life and the interest of the wider public it is a justifiable and proportionate measure. I think it's about recognising that a blanket approach to something like this, whether it's blanket prohibition or blanket visits, is probably not a sufficiently sophisticated and nuanced tool for realising everyone's human rights and where they are in the balance. Is it potentially given again coming back to this idea of people's awareness of their rights but also awareness of which body they go to if they have a complaint? Is that really the issue here as you say the mech coming back to the mechanism? I'm not disagreeing with anything that Frank is saying. I think from a lawyer's perspective we sit there and say well the rights are there anyway you know why wouldn't they be enforced in a certain way. I think with Anzl it was about a swing of the pendulum so the pendulum swung with the pandemic and the concerns about public health and Anzl was a way of swinging that pendulum back to say well actually there's some other rights and now as Frank says those rights were there anyway and does it actually address anything to have that pendulum swinging back but I think your point is that actually sometimes it's important to have something which is a more public voice to those rights making it clear that actually that pendulum has to swing back and I think Anzl did that very effectively so raising it from guidance into legislation just emphasises that point more I think in keeping that high up on the agenda making it something that people can readily identify as a right which is a counter right to the the pandemic sort of sweeping away some of the human rights that people had so from a legal perspective Frank is entirely right this doesn't really actually assist in arguments when it gets down to the nitty gritty of what does the law say but I think it it served a purpose in showing the public that there had to be some balancing of the various rights at play. Thank you colleagues we'll move on to the next theme that we've identified on ethical commissioning and questions led by Emma Harper. Issues have come up previously about national care service and employment and in my work we've seen that social care workers get paid different in different parts of Scotland and if you're doing the same job why aren't you getting paid the same wages for instance and of course we need to have appropriately compensated carers who are doing a vital job so I'm interested to hear if you think that the bill has enough detail to ensure that fair work principles would be realised as part of the national care service because that's something that has came up in various places and it's certainly part of what I've been engaged in locally in Dumfries and Galloway I'm not sure Jennifer wants to go with that one. I suppose I would highlight I think the comments I made earlier about the principles I think I'm just trying to to read the bill very quickly just now but I think there is a reference to sort of valuing contributions within the principles of I can't actually find it in front of me. Yes so the national care services to be an exemplar in its approach to fair work for the people who work for it and on its behalf so there is a reference there in the principles what what I was highlighting earlier is that the principles at the moment are very broadly drawn and it's not quite clear picking up on the points that Isla's already made as well quite how how those will be to whom those will be directed and how they'll be how the mechanisms will work for accountability there so I suppose that would be my main point there is reference in the bill to fair work but it's within the principles and we've already highlighted some concerns around the principles. Okay and you know just thinking about the the issues of the principles of fair work and employment and and supporting people into career pathways and and routes of that supports them as well as the people they're providing care for does the bill help look at how I suppose on the face of the bill how do we make sure that across the whole of Scotland that these principles can be applied it's I know it's early days at the moment but I'm just thinking about how you know we're thinking about like compensation for travel looking at supporting for education somebody who has to cover aspects of employment whether you're employed by one care provider or another so there's these issues when I get down to the detail of okay how are we going to support people to be carers whether it's care home care at home does the bill have enough detail about that it's not an area that we have particularly discussed in our consideration of the bill but I think at the moment what I would say is that we can't take a view on that because the detail isn't here yet but as you've said it is early in the process and that details likely to come out through secondary legislation interestingly I think the ethical commissioning was one of the only parts of the bill where reference was made back to incorporating the principles but one of the suggestions that we have made was that when the strategic plans are being drawn up for the care boards it might be useful to actually have a system for oversight of our comparison of the strategic plans so I think there is potential within the bill in the way it's structured to try to get that kind of consistency by having an overview that will apply across the boards and that would incorporate or it could incorporate that kind of detail at this stage where the framework bill is not going into that type of detail but certainly the mechanisms are there which could be used because I agree I think these are important aspects and keeping that kind of consistency could be important so I think the bill at the moment has some ingredients for that if that were actually translated through to the detail of the bill and certainly a couple of the suggestions by way of for example having the strategic plans with oversight being compared together would allow for that to be facilitated yeah I just wanted to pick up on the comment about the principles in relation to to ethical commissioning because I think this goes back to the idea of the principles needing to reflect human rights standards because if the principles were amended to make explicit reference to for instance the right to have independent living that would have to be built into an ethical commissioning strategy and I suppose one of the key strands of that right to independent living is de institutionalisation and it's difficult to see where that fits if it's not built into the ethical commissioning so we could thread that right through from the principles. I think on fair work as like Jennifer the commission hasn't done detailed analysis of what's there I mean there's not a great deal there I think there's a mention in section 1g but but not a great deal more I think we share our human rights and equalities mandate with the equality and human rights commission and I think they've done a lot more work in this space including submissions to last year's becoming a fair work nation consultation and it seems that the bill there's obviously a lot of detail proposals there that could be reflected in the bill I think just as a final point often when when looking at the bill for us it's useful to start with Fili and put the bill alongside and see where those recommendations find expression and see what's left behind and there may be very good reasons why not everything in Fili is reflected here but there may be some things which are passed on and shouldn't be and and there's clearly a lot more that Derek Fili had to say about fair work than done we see here. Thanks, convener. This committee heard that 80 per cent of the social care workforce are women over 50 and we know from colleagues have touched on this in terms of the other responsibilities that people have outwith their work and very often that includes informal caring and support and I think just on in terms of that point about carers more widely and obviously the framework bill isn't going to do this but do you think it's important that there is a statement of intent around how we support carers around things like paid leave you know rights to that I wonder Frank might want to comment from that and their human rights space. As I say I think we've largely deferred to our sister NHI NHRI in this space and I think so I can't say very much although we'd be happy to write with further information I think other than to say as in it would be a general comment that building in some some proposals and standards at this stage I think would be welcome as much as a statement of ambition and intent as for any other reason. Thank you. I think more detail would be helpful because I think this is something that we'll come back to as we progress. I wonder if I can just on a more technical point as well about the bill obviously the bill doesn't outline exactly how and who staff will work for in terms of transfer of staff. We know that NHS staff will remain NHS staff but we're less clear I think in terms of social care staff that are in the employer of the local authority for example I mean is there a sense that without that detail it's harder to I suppose look at how fair work practices can be implemented particularly given though we differ in pay scales terms and conditions. I don't know if I want to comment I appreciate what you said previously. I would say that that probably falls into some of the transition issues that we were concerned about I mean that's there are lofty ideals and I suppose that the concern is just to ensure that actually they don't end up creating cracks and so that example of people who will be working within local authority but actually ultimately their employer may change that that's something which will present challenges in terms of trying to maintain consistency and trying to support them in the workplace. No other colleagues have indicated that they have any more questions I'd like to thank our three panels for the time this morning. We're going to take a suspension to allow our panels to change over thank you. Welcome back we now move on to our second evidence panel today again scrutinising the national care service bill that's before us and this session will focus on local government so if I start with our panelists in the room we've got only one of our panelists joining us online and the other two are in person so in person we have councillor Paul Kelly who's health and social care spokesperson for COSLA and we've got Eddie Fraser chief executive of East Ayrshire council representing solace and joining us online we've got Jackie Buchanan who is the director of legal and democratic services at Angus council and representing solar so welcome to you all. I am going to hand over to deputy convener to start questioning off Paul O'Kane. Thank you very much convener and good morning to the panel. I wonder if I can begin with some questions on essentially what is the lack of detail or what's felt to be the lack of detail which has been left for secondary legislation and I suppose the lack of local accountability that many of you have shared in terms of your submission. I wonder if I can start with the COSLA approach and the COSLA submission. I mean I think it's fair to say that the COSLA submission is very concerning to read in terms of the view of local government to what this bill will do to the provision of services in local government. Indeed I know that there has been unanimous cross party concern at COSLA raised about the bill and that leaders indeed have unanimously agreed that position. I obviously was a councillor for 10 years and I don't recall such unanimity at COSLA particularly through leaders. I wonder if Councillor Kelly can explain how that position was reached and what those concerns are. Thank you and good morning. I'm glad to be here on behalf of COSLA. As you've outlined leaders unanimously across party had very serious concerns on behalf of all local authorities across Scotland at the current format of the national care service. It's clear to us that it's bureaucratic, it's centralisation and it's expensive. We're also extremely concerned by the lack of detail that's contained within the bill as it currently stands. We all round this table know the vital services we're talking about in social care and social work. We know how important they are to the people we represent to the service users and we know the crisis we're facing right now in winter. The transfer of potentially 75,000 staff, which is 29 per cent of local government workforce, with the lack of detail around the finance and what that transfer will mean is extremely concerning to local government, it's extremely concerning to our staff and it's extremely concerning to service users. I think there's a huge element of risk when there is such a lack of detail and a lack of opportunity for committees like yourself to properly scrutinise this, to probably look at the issues we're facing and to properly come forward with a plan that we all want to see to improve social care, to improve social work and to improve the services that people get across Scotland. If I can ask Eddie if Solace would recognise much of what the politicians and the leaders in COSLA have said from an officer level and maybe share what concerns you have. We would absolutely recognise the submission from Solace, and Solace is obviously very aligned to the COSLA submission. Our concerns really are how do we plan going forward. We have no certainty as local authority leaders what our services are going to look like in the next three to four years and in the current circumstances that's really unstabling for social work, for social care, but also for the rest of the council. There seems to be a real lack of understanding about how to intertwine different parts of the council are, how to deliver good social care, you need to be linked to housing, how our social work services and our education services work together, how our legal services, our HR services, everything down to our transport services within a council, they're all interrelated in terms of doing that. So we have no certainty where we are going forward in this framework nature of the bill in terms of planning for it. I think another concern that it may be slightly aside to the question you asked is about will the proposals deliver against what the principles are set out to do, and that's something else that we have a concern about. We all want to see improvements in social work and social care. It's about how you deliver that and whether some of the things that were being proposed here, in terms of centralising things away from local government, are necessary. Can we ever expand further on the point about the practicalities of this legislation? We have a framework bill that obviously has some very clear things to say and will have a very clear effect in terms of local government, but I appreciate from submissions that there's also concern about what's not said in terms of secondary legislation. Inverclyde council, for example, said that leaving so much to secondary legislation will mean that there will be no effect of consultation, no opportunities for expert advice and experience to influence the details, and a lack of transparency and democratic accountability. To be fair to the Government, I think that the Government would contend that there will be a co-design process, but is it your view that that's the wrong way round that, essentially, there should have been a co-design process first and then the bill? Absolutely. I mean, COSLA were only made aware of the details of the bill the day before the bill was published, so it's very, very difficult for COSLA to give an opinion around co-design when there is such a lack of detail about what we are co-designing. It's been far more helpful, I think, to have done that process well in advance, because COSLA and other bodies and other sectors do have a vision for radically changing social care and social work, but we're not given that opportunity to articulate it. So, absolutely, this is a bill that has a complete lack of detail, and the process of scrutinising it is going to be difficult. We've been very clear that we're willing to work with the Government and we do work with the Scottish Government on joint statement intent and a number of other areas to try to make improvements right now. When it comes to this bill, the lack of detail leads us in a position where it's very difficult to comment properly on what the outcome will be. Something that was said there that you have asserted that there will be a lack of scrutiny for this committee on this bill and subsequent secondary legislation. How are you making that assertion? I think it's very hard to properly scrutinise something when there isn't the lack of detail, and I think that there's a seriousness to this in terms of special co-design, where we're delivering vital services of social care and social work, and we all know the pressures that are on those services. So, when you're talking about something as big and involves the transfer of what is 75,000 staff with all the liabilities, the assets, et cetera, that go with it, it's extremely substantial to not have proper detail, so I think that that makes it very, very difficult and will make the job of all committees to properly look at it if you don't have that detail. It's a framework bill that would then allow the co-design to happen, which will then inform the secondary legislation in which that detail would lie. One of the things that I'd like to put to you is that we here, and you probably hear this as well as an elected member, is that the public sometimes feel that things are top-down and done to them, but that process that's gone through is wanting to put the voices of lived experience at the heart of it and co-design it so that that secondary legislation actively meets the needs of people with lived experience. Are you saying that that's the wrong way to do things? I think that the way to do this properly, personally speaking, in terms of through COSLA, is that we would like to have seen more engagement before we got to this stage. All of us around the table, because of Scottish Government, are committed to improving the lived experience of people who use our services. That's vital, but you're talking about a top-down system. I think that, in our opinion, the end of this, if the national care service comes in its current format, will be extremely top-down. It's centralisation. People, as a local councillor... My question to you is that do you think that the co-design element of this, which is going to inform the secondary legislation, is actually the opposite of top-down, because it's going to inform the secondary legislation where that detail is, of which COSLA will be one of the people who asked for their input? You're talking about substantial legislation in the national care service and what you want to put forward, but at the same time you're putting forward that without clear detail. Because of the framework, Bill? Because it was not last week at the finance committee, the lack of detail around the finance aspects of it. COSLA leaders have made a very strong point about not being part of co-design or the strategic board at this stage, because we are very concerned about the transfer of staff, assets and liabilities and what that will mean for service users, for the people with lived experience. So we've got very, very serious concerns and obviously today, as I've stated, serious concerns about the lack of detail in this Bill. Cass, you have some questions on this. Solly Scotland has said that there's very little detail or consideration of the significant implications for local authorities, not only in respect of workforce but also in respect of council assets and liabilities. Would you agree with the assessment and would you like to put on record what effect this Bill will have on local government workforce assets and liabilities? So, at this stage, we can't be certain what it will be because it is a framework build and it gives powers rather than certainty. What would happen, but in some local authorities like my own, we've made conscious decisions on how we deliver services. We have 700 local people who provide for social care services. We also have substantially in-house early years services. Their conscious decisions and areas that can be quite deprived about people getting a decent wage, getting a decent pension and how we deliver that in terms of that. We now have no certainty and the employees have no certainty about their future. We chose at the time of integration of health and social care where one of the areas that decided to go through in looked for that. We now are fully integrated in relation to our social work service, our health services, our local prison, our alcohol and drug services. They all have a joint management team. Potentially, the way that this legislation sits, instead of supporting integration, it would actually disaggregate the management arrangements that we have sitting there. We have particularly concerns around that. Around some of the assets, the assets for us is everything obviously from our buildings right through to we have no certainty over what will happen with our children's homes. We have no certainty of what will happen with our corporate office accommodations. There are very few offices that you'll find in a local authority that only have social work and social care. They tend to have housing and a whole range of other things involved in that as well. It's everything right down to we have a substantial electric fleet of cars that our social care workers use. That's what our garage maintains. If you start taking stripping the assets out of a council, you need to see where that goes. Our legal team spends a considerable part of their time supporting our social workers at court. How viable would be a legal team in a small council if you take away the work of the social work part from that? That's what we mean by cuts right across the whole of a council in terms of how this possibly impacts to us. Their wider issues come up in terms of councils, liabilities and assets, in terms of the accountancy. Again, that would be important to you and you'll have seen from a number of submissions that councils not only fund social work and social care through the Government grant. We also do that through local taxes as well and put it towards that. There's a whole range of uncertainties about where that takes us in terms of a local authority. I know that it's in our papers, but the policy memorandum that I have in front of me mentions what you were talking about earlier about housing. It basically says that a fully integrated national care service would work closely with other services such as housing, homelessness, education, the justice system and the Scottish Prison Service to ensure that everyone has seamless access to the support that they need. I'm hearing the concerns locally as well under Friesen Galloway. I met Shetland council leaders who say they didn't mess with it because it's working in Shetland, but wouldn't we want to learn from what's working in other places as far as health and social care integration and better services that they've achieved and then pick up on that as part of the co-design work to make sure that we do engage in everybody so that this co-design process would involve housing and everything that I've just listed as well? Isn't that the whole point of this, to framework legislation, okay, and then tease out the detail by working together? I think that what we need to realise is that when things work well together that doesn't mean necessarily that they're uniform, and if you look across the country, depending on the geography, depending on the rurality or whether it's urban, you may design things in a different way to do that, but you're absolutely right. I think that in terms of improving social work and social care and integration of health and social care, the way to do that is to see where things work and build an improvement in terms of doing that. I think that what we we can do is you don't need this legislation to achieve the improvement. I think that there is a role for a national care service in setting standards and doing things like national workforce planning, et cetera, so none of our submission says we don't think there's any for a national care service. We do think there's a role for a national care service. I think that that stops when you get down to the issues about locality and actually how you deliver in a local area. It's clear that both integration and delivery of health and care is not uniform across the country. Where there is variation, we we contend what you need is supported improvement rather than legislation that takes the centralisation away from all the local authorities in the country. I want to ask what you said about assets. What part of the bill says that assets are going to be taken away from local authorities? That's not clear to me at all in the bill. It's about accountability. Ministers have accountability for setting the standards that you've just welcomed. What part of the bill talks about assets being transferred? There is a clear paragraph in the bill that gives the Scottish Government the power to transfer assets, as in buildings as well as staff, et cetera, across to Scottish Government from councils. It's a clear paragraph in the bill. That's about the accountability of what happens in those assets. Is that not the case? No, I'm understanding that it's a physical asset that would be transferred. I want to come to Councillor Kelly. In the Clyde Council said that the current lack of detail impacts on our ability to plan for coming years and secure investment in the sector when there are so many unknowns. Could you spell out for us exactly the problem with the lack of detail and what that means for the coming years for not just yourself but for all councils? Absolutely. I've said a few times that our serious concern is in that lack of detail. We're talking about something very significant and we're being asked to consider it without the proper details. We know how important the services are that we deliver at a local level and how important they are to our communities, so it's critical that we get that detail correct. However, when you're looking, you're already talking about 75,000 staff, 75 individuals being transferred over to somewhere that we don't know where that is. We still haven't confirmed the terms and conditions, we haven't talked about pensions, et cetera. The worry that is creating among staff that I'm talking to on a regular basis is significant. At the same time, we've just come out of a pandemic where they've worked harder than any of those key workers alongside our health and green t-health. We all know that. We put that additional burden on to our staff to say that this reform could come in, you could be transferred and we can't give you any clarity about what that will involve or where you could end up, so it's having a huge pressure on staff. However, councils are quite clear, some councils are quite clear, that to put forward legislations that currently is the national care service, the viability of some councils will be in question and their ability to continue as councils will be in question. Councils have been working under substantial cuts over the past few years. That's had a huge impact on the services that we provide. We are quite clear that we are working with the Government around the fuel review. We are working to make improvements. We've got a joint ministerial working group on social care and other areas. We're committed to making these improvements without the national care service current form. We support a national care service around terms and conditions and national standards, but this is not necessary in terms of the changes that we want. I picked up that you said earlier that you were consulted or told about changes the day before this came out. Could you tell me a bit more about what actual meaningful consultation you've had and where you want to see that going in the future? I think that it's quite clear if you are putting something as significant that puts the viability of councils at stake and you give the detail to COSLA, which represents councils, the day before you publish the bill. That is an unacceptable and very difficult position for councils to be in. It also makes it very difficult to represent councils in our opinion on the national care service when there is a complete lack of detail. We're absolutely open to having dialogue with the Scottish Government and we're quite clear that we'd like to see the bill amended so that our staff, our assets, our liabilities are not transferred over and this centralisation doesn't take place. I'm sorry, just on that point that Councillor Kelly made about viability and in terms of those amendments that you mentioned, obviously we're trying to look at the bill in terms of the detail that's outlined in the framework. Are your concerns based around, for example, the kind of, there is no definition of the geographic spread of a care board, that care boards wouldn't necessarily reflect what we have currently in IGBs and then that has an impact potentially on the geography, I suppose, as people understand it, of their local authority and in terms of what their local authority is responsible for? Absolutely, and we're not clear what those geographical care boards will look like. What we're clear about is that a minister will have central control over who's on the care boards and decisions that are taken, so rather having what we have right now, which is local accountability, local democratic direction, that an individual in their local community, if they want to raise something, access to the council or somebody else to discuss the local issues they face, which are differently there, you're in Aberdein or you're down in Annan, there is a variance of how you want your social care and social work to be provided, so our impression is that the care, as it currently is, in the national care service, will not give that local aspect to it in terms of and will not represent that, there's a risk it won't represent that geographical differences that we see across the country. Of course, as we've got one of our panel who's joining us online and Jackie Bacarran, we—if you want to come in at any point, you just have to let us know in the chat box, but I want to bring you in because you haven't come in so far just to sort of maybe give your view on some of the points that were raised in this part before we move on to the next theme. Thank you, I'm happy to do that. Can you hear me okay? We can hear you fine. So, generally, in terms of what's being said, I agree with the two representatives so far. I thought I could start by clarifying a point that was raised in relation to transfer of property, and that is provided for in terms of section 32 of the bill, which details that the Scottish ministers may by regulation transfer properties and liabilities from local authorities, so it is clear in terms of it that that certainly is a proposal. I think that the lack of clarity is something in particular that Solar mentioned in their response, because a lot of the bill talks about powers that may be exercised, so it's not clear definitively that they would be exercised. There's a lack of definition of various aspects of the bill, so it's not clear exactly what's meant by the terminology used. I think that, in addition to that, the nature of the care boards and that we don't know what the geographical area is for each of them or what area of functions each would have makes it incredibly difficult in relation to trying plan, and that's what others have indicated to me. Back to the point about secondary legislation. You'll know yourselves in terms of legislation through the secondary type of process. It allows very little ability to change what's proposed. It's either a case of accepting it or rejecting it, and in relation to vast aspects of the bill that will impact on local authorities, for example the transfer of staff, if that is to happen. That's done through the negative procedure, which again gives no ability to amend what's proposed. I think that that is a concern that's been raised already, but I'm happy to take any further questions, if you'd like to ask anything. I'll reiterate that if a question is asked by any member, Jackie, and you wish to come in, if you've not been directly asked, please use the chat box and put an R in it. I can see that, and I'll bring you in. I'm very conscious of the fact that when you've got someone online, you never want to leave them out. You want to make sure that they have ample opportunity. We move on to the next theme, and that is led by Carole Mawkin. I want to talk a wee bit. I think that you might have answered some of the questions, but I think that just to be clear around the local government and that integration with health and social care, there has been some evidence from the faculty of advocates that there seems an ability to be a lack of that into relationship between the proposed national care boards and local authorities, which was much clearer when we changed the last time to health and social care partnerships. I wanted to just ask about that particular fact, if you felt that that was indeed the case. To be honest, there has been some suggestion that health and social care integration was slow and had a lot of hurdles, and I wonder if you could reflect on that and let us know whether you think that it is the case that there are things that the national care service could bring to the table in terms of getting things integrated a little more easily or faster? I think that just to start on your first point around the care boards relationship then with health and with councils compared to what we have with integration, relationship with health and councils. I am going to say that that is absolutely not perfect. However, what you have is one with the care boards complete uncertainty, as I have mentioned, where the staff are going, what the responsibility will be. You have a centralisation there, where you have NHS boards under ministerial control, you have care boards under ministerial control, and then you have councils with a huge aspect of what they do at a local level taken away from them in terms of and centralised. Whereas what you have right now in integration is you have issues around some culture issues around integration across the country, but you do have some really good partnership working between councils, between integration boards and between health services. I have sat on an integration board, I have sat on the health board and I have been the deputy leader of a council at the same time in North Lanarkshire. I can give good examples of fantastic partnership work over that difficult period of the pandemic and the current crisis that we face. However, you have also got to remember that integration is a big piece of legislation that is very new. It only came in 2014. There are still many issues that we need to address and we are absolutely committed to working with the Scottish Government and committed to the councils to working with all our partners to make improvements around integration, but what we are saying right now is that if there are aspects that do not work at a small scale, then let us make huge, substantial, bureaucratic, expensive centralisation changes, which I do not think will actually help the people that we are here to represent our service users. Whereas right now there is a commitment to progressing with integration, to looking at the different variant models across the country in best practice, but we need to let that run and we need to continue to try to improve integration. I think that what we are seeing is a substantial difference between the Public Bodies Act and the proposed legislation. Within the Public Bodies Act, local authorities remain that accountability for social care and local health boards for healthcare. They are then delegated to that IGIB and the IGIB took that resource and planned for those services on a local basis. That remains that local accountability to health boards and to the councils that clearly in those new proposals actually goes. It is the minister that appoints the board, it is the minister that approves the strategic plan, where just now it is the health board and the councils that endorse the strategic plan. It is the minister that has that accountability so that there is a real change in what we are doing here. Of the new proposals, whoever the chief executives of the new care boards would be, would be responsible to the minister. In some ways that reflects the chief officer role in terms of the IGIB's just now that is accountable to that public body. So, as you said before, I was in this job for 2014 to 2010 when I was a chief officer of an IGIB, but there is a secondary part to that. You are also a director of health and social care and it is that operational side of the director in health and social care that does not seem to be replicated at this time. In that, the era was responsible to the chief executive of the council in terms of social care and it was responsible to the chief executive of the health board for healthcare. For me that is not only healthcare in East Ayrshire, it was also for primary care right across the whole of Ayrshire and Arran. There are two aspects to the current job. The role of the chief officer of an IGIB that does seem to be replicated within the legislation in terms of the chief executive of the new board. There is no where would be actual what I would call the integration of health and social care takes place, which is that operational space. That is not the address now. It is not clear how that would be there. If the new chief executive was not responsible to the chief executive of the health board, how can he be a manager of the health staff that are going to be there if they are not responsible to the chief executive of the local authority staff? How do you do that? The risk is that we go backwards in terms of the integration of health and social care because the number of posts that have been developed, not just of the director of health and social care, but below that to actually bring together, for instance, and mass-sign children's social work and children's health services, alcohol and drug services. These are all jointly managed in many of the partnerships. Unless we have a arrangement that replicates the health and social care partnership, if I can call it that, the delivery arm, rather than just the IJB, which is that strategic planning arm, I think that we have a real problem. I just want to be clear because we mentioned that the bill moves towards centralisation. Could you talk me through just to give me some experience of what would be an alternative to that that might allow us to get to the point that we want in terms of that good integration? I think that we have got to be clear that all local authorities are very committed to and are working with the Scottish Government around improvement, whether that is the terms and conditions of staff, whether that is to how we support our staff. We are absolutely committed to doing lots of joint working around that, but we also need to look at how we retain staff. That is a big issue, the substantial issue that we face. We have to look at the funding that is going into social care to support the work that is being done and on the background of substantial cuts that have been made. Those are things that we need to look at. What we are doing is moving towards, as I have said, a centralisation away from what was as Eddie has also touched on, those local partnerships that are doing a lot of really excellent work across the country in very, very difficult circumstances. I will just reiterate that this is new piece of legislation. We understand there are cultural issues that we need to be addressed, but we are absolutely committed to doing that. We do not need the legislation of the national care service in order to deliver some of those outcomes. I will bring in Stephanie Callahan, who is online. I will go back to what has been said about working in partnership with local authorities, with health boards and others. I absolutely take that on board. The amount of work that has gone on through the integration of joint boards. We are also looking at a situation now where we are talking about that decision making being via co-production and having that voice of lived experience getting parity with what we would call, I suppose, the employees or the people that set strategies there and the possibility that that brings for improvements. I wonder whether you agree with co-production per se. I am also wondering what work is COSLA and councils. What are they carrying out just now to promote and to embed co-production more widely that they are able to bring to the table on that? The service user is vital in everything that we do. Local authorities are there at the forefront of our thinking and our actions. Local authorities are constantly working on co-design, co-production of our services and innovation at a local level. Certainly, our communities are reflecting to us that they want to see decision making taken at a local level. That is something that we are continually working on. As I said, we are working with the Scottish Government on the joint statement of intent with different working groups to look at how we can make improvements to the service right now. I think that it is critical—we are not saying everything is as perfect as it is—that we all know it is not. We all know the crisis that we are facing in the winter, but it is critical that we should be looking at those issues and how we deal with those issues right now and not being distracted by what is essentialisation of services in a bureaucracy, which will be very expensive. We are committed. If anything, local government is very much grounded in local decision making and the service users are being at the heart of it. In councils throughout the country and integration boards are continually out-consulting and listening to the concerns of service users. Is that at the heart of all our decision making? Stephanie, do you want to come back? I will pick up on that. Are you saying that you do not really see the value of the co-production approach through the national care service? I am not quite sure. As I said all along, we have a complete lack of detail. If we had more detail, we would be able to work better on what that looks like. For such a significant piece of legislation, as I have articulated, it would be more helpful to have a much more involved local authorities, much more involved in that process, in that journey and not a day before the legislation was published. When you say centralisation of services, and you have said that a couple of times, the impression given is that services are going to be run from a central position. When, in fact, the framework sets out its ministerial accountability for standards and that services would still be local, would you not agree with that? Or are you still wanting clarity on that? I think that we absolutely want clarity on what care boards will look like and what that will mean, but we are very clear as well that, in terms of the ministerial, these are very clear that care boards will be under the remit of ministers, whereas what we currently have is local decision making, local input, which is really vital. We have talked about the geographical differences across the country that are reflected in different areas, which means that, as I said earlier, in Aberdein or in Anand, there are different requirements and different needs. They are reflected in the current model so that people do have an opportunity to shape their services locally. I am quite clear from speaking to people as a local councillor and my different hats that I wear at a local level, that people want to see their services to be delivered locally and not delivered by decision making that is taken from the minister in Edinburgh, who can decide— There is a difference between delivery and accountability. That is the point that I am making. It is still local delivery, but ministerial oversight on the standards. My impression is that, in the current format of care boards, that will have a substantial impact on local delivery. You are taking staff, assets and significant decision making away from a local level. We are not even clear where the staff are going. Nobody can give us any answer as to where those staff will end up. Will they be through the council, the independent sector, the private sector or the third sector, there is absolutely no clarity. That will have a significant impact on the services that we provide. You have also got to remember that, in the current make-up of councils and decision making integration, social work is aligned alongside local education and local communities. Those really important connections are there, which I think could be lost when you move those staff into an unknown area that is yet to be specified. Tess, you want to ask a question on this. I will come to Emma. Yes, thank you, convener. There are benefits to centralisation, but there are benefits to keeping things local. In the previous panel, we had the Faculty of Advocates. My question is to Councillor Kelly, please. What the Faculty of Advocates said, and I quote, there is clearly a risk that the quality of services previously provided effectively on a local model is diluted when the provision is attempted on a larger national scale. Is that the number of your concern that move to centralisation means control and power and cost goes to the centre at the expense of quality services locally? Absolutely, absolutely. Am I being clear about that? I think that we have stated that we support a national care service that looks at some of the issues around national standards and leadership and how we support staff. That is absolutely acceptable, but if you move all those important services that have been delivered locally in partnership over to a care body that we are not actually certain who will be involved with it and is under ministerial control, that is a centralisation of those services. As I have said, there are improvements that have to be made at local level. We are absolutely committed to that, but you do not need a national care service in its current proposed format to deliver that improvement. Can I come to Emma Harper? Sure. Just an initial question for Councillor Kelly is, has COSLA reached out to the Government to say that we are here and we want to feed into this before the bill was published? I have taken on the spokesperson role in recent months and I have had continual meetings with ministers and the Scottish Government. We make clear our feelings about the bill and the way that it was published and our feelings about the transfer of our staff and assets and liabilities. Before the bill was published, did COSLA engage with the Government before the bill was published? Absolutely. COSLA is continually engaging with the Government. You knew what was coming. We did not know what was involved in the bill until the day before it was published because it was not shared with us by the Government. If the Government had been willing to share that information with us, we would have absolutely wanted to have that information. If we could have gone back many steps before we came to the publication of the bill and had a more active role for COSLA and councils in the formation of a national care service, some of those issues that we are discussing today could have been more at the forefront. I am keen to pursue the centralisation type thing. To me it is about creating standards. We have just had a care home closed into Friesen Galloway and during the pandemic a couple of care homes had to have NHS teams go in because there were issues with infection control aspects, knowledge skills, standard approach to not wearing your PPE unless you are engaging in patient care, for instance. For me a standardised approach is about fair wages, it is about a level of skill for a certain band in the local authority. It is about making sure that no matter where you are in Scotland you have a standardised approach for the development of a certain knowledge and skills. Is not that part of what would be potentially centralised? And then local delivery is based on the standards that are set across the whole of Scotland? We are absolutely committed, as I said, in our working right now with the Scottish Government around fair work and that can standardise the practice, particularly around things like when you look at social work, where there is retention and recruitment issues. We are absolutely committed to, and as I said before, a national care service that looks at issues around fair work and all the practices that are involved with it. Some of those standards that you have mentioned are something that we would agree with, but what it is in its current format for local authorities is the transfer of our staff, our assets, our liabilities and our functions. Those are really significant things that we think should be delivered at a local level. Do you really think that the Government is going to take away your electric cars, Eddie? If the social care workers who drive the electric cars transfer to either the national care service or, indeed, to another provider, I dare say that the cars will need to follow them in terms of that. We have a real challenge in terms of where this goes, in terms of social care. Social care, the way in which the bill is written, has been clearly clear that local government will need to compete with independent and third sector in terms of future contracts. Quite frankly, we cannot compete if either our staffs stay on the same terms and conditions. That is no better than any other member of local government of the NHS in terms of getting a decent pension paid for, so 20 per cent added on costs in terms of local government for a social care worker for a pension. Our colleagues who work in care homes or work in the third sector do not get that. I am not for a second thinking that we should diminish the terms and conditions of local authority workers. I think that there needs to be investment for the valued colleagues in the independent sector who work in care homes to bring them up. At that point, we can have a discussion. Right now, if there was a contract to come up for a local authority to bid for with a care board, I do not see how we could win that contract. Therefore, to protect our staff, we would need to transfer them into the national care service or the risk is that we would lose a contract and they would transfer over into an independent sector provider for that. There are simple things, but the solution to that is obviously what we talk about in terms of fair work. No matter which sector you work in in social care, it actually is that there is enough resource there so that you can get decent terms and conditions and a decent pension at the end of when you finish working. On to a question from Gillian Mackay about fair work, I believe, because Gillian, you have to go, so I am going to bring you in. That is okay. Thanks, convener, and apologies to everyone. I have to go to the bureau in a couple of minutes. Particularly for Councillor Kelly, you have just referenced geographical variation in terms of delivery and things like that. There is also geographical variation in terms of terms and conditions and working conditions for staff in particular. How would you like to see some of that strengthened within the bill? As we have said, we are committed to the national care service having elements around the fair work and what you have said about looking at the practice across the country. Eddie put an important point about the third sector, the independent sector and how people are paid. Those are workers that, if they are with the council or the third sector or the independent sector, they are all helping our communities, helping our individuals in difficult circumstances and they deserve fair wages and fair work practices and improvements in those practices. That is something that we would like to see within the bill, but you do not need a national care service to do that. We are already working on that right now with the Scottish Government. I will be attending with the Minister of the Joint Ministerial Group on Fair Work and Social Care on Thursday, so we are absolutely committed to doing that right now. Why should we wait for a national care service to put those practices in place? They should be happening right now. Considering what those workers have given us across whether it is council, independent sector or private sector, the work that they have done through the pandemic is currently doing to help some of the most vulnerable in society. They deserve exactly what you are saying around those fair work practices. I appreciate the work that is being done at the joint ministerial working group level and all that, but what work is being done at a COSLA level to make sure that those terms—one of the things that is being looked at through national care services is making that consistent across the country. What is being done in terms of services that are delivered by local authorities to make sure that those terms and conditions are consistent and working conditions are consistent across the country and when those are being contracted out from councils as well, because the variation is wild in some places. I have got to say this with COSLA itself, who I represent, all local authorities. The point that you are making are things that we are continually working on. We want to see improvements and drive-up standards across the workforce, so that is absolutely what they deserve. However, where it brings in national government is that we cannot afford to do this as local authorities. We need the Government to support us in terms of funding this when we are already looking at the substantial cuts that we have had across councils in recent years. That is why we need to work with the Government. It is something that, to be fair, we are on a shared agenda. We want to drive up those improvements, because if we do not, we are going to continue to have the issues around retention and retirement of staff. We want to make social care, in particular, whether we are in with councils or an independent private sector, an attractive job that it is and well rewarded in opportunities to progress. You are absolutely correct, though. That is the focus of councils right now, to make sure that those standards across the country are similar for everyone. I appreciate that. Some of it is around resource, but some of what you referenced earlier was about culture, and culture does not always need a pound sign behind it. What is being done in terms of making sure that the culture that those workers are working in at a consular level is improving? At a council level, culture is really important for our workforce. You are absolutely correct to point that out. I can give you that commitment. We are absolutely committed as councils to improving the culture across the organisation and making sure that everywhere that our workers are working very hard on the front line are supported and given opportunities to improve, and given opportunities to have fair work in paying conditions. That is an absolute commitment, but what we do not need is a national care service to deliver that. That is something that we are working on right now and committed to working with the Scottish Government on. If there is anything specific going on within councils, it would be really useful for the committee to hear about that as well. Absolutely. I will take up the opportunity. Thank you, Gillian. Can I come to Paul? You have a question on the fair work aspect, but you have also got one to pick up on something called co-design, I believe, and then I will come back to Emma, who has some questions on fair work, I believe. I appreciate that we are dipping into different themes, such as the nature of the discussion, which I think is important. Just following on from Gillian's point about trying to achieve fair work principles, trying to improve terms and conditions, I am interested in recruitment, because we know that there is a huge challenge in terms of social care recruitment. I think that there is a suggestion that, through the bill, through the national care service, it could be action taken in terms of looking at recruitment on a kind of more national basis, or having that sort of national campaign. Is your sense, Councillor Kelly, that we need a national care service to do that, or would you rather see interaction between COSLA and the Government to do some national work at the moment in terms of recruitment? Has there been anything that has happened between the Government and COSLA to do that, and what has the Government done? I think that there is a lot of fantastic local recruitment initiatives going on across the country, around the country in terms of councils. Certainly, since I have taken on this role as a spokesperson in the discussions that I have had with the Cabinet Secretary, I have articulated how important I think that a national recruitment campaign would be to support councils, to support social care. In fact, it is vital, because we all know the recruitment issues that are having. I have raised this on a regular basis with the Government, and it is certainly something that we would welcome the Scottish Government support. Again, we do not need a national care service to do that. That is something that we absolutely have to be focusing on right now. National recruitment is vital to encouraging people to get into what is an excellent sector to be involved in in terms of social care and social work. We are trying our very best to put recruitment at the top level in terms of our discussions with the Government. I think that there is a role for a national care service in terms of the wider workforce planning, working along with Scotland's colleges to make sure that the right workforce is coming up through that for us. I think that there is also a place, and we have seen it in the past, where national advertising about social care and the value of social care and how it is a worthwhile profession. However, effective recruitment tends to happen in localities. I think that you will find that not practically every council area has recruitment fairs around social care and all sorts of very local areas, because it tends to be local people who deliver social care there. There is a dual thing. We need to make sure that we are working alongside with the colleges to bring through people with the right qualifications in terms of doing social care, and then national advertising about the worth of social care and local recruitment as well. I think that it really needs to work right across that in terms of it. It has to work at the same time, as we have spoke before, about terms and conditions, et cetera, across social care. I mean, if you are working in something and you are paying into a pension, you are much more likely to stay in that role than if you are actually getting zero us contract and zigzagging out of it. So, terms and conditions is one of the things about, it is not just about recruitment, it is about retention within social care as well. I think that it is really important, you know what for us too. Paul, with your permission, can I bring in Sam Desson who wants to pick up on one of the points and then I will come back to you? Thank you. It is just directly on what you said there about workforce and recruitment. The GP contract was supposed to do that, but it has failed. So, would you be concerned that the national care service in this particular point on workforce and recruitment would lead to the same problem? I think that if the national care service's role was to work with the colleges to make sure that people were going through there and to do national advertising, I think that that was effective. I think that the terms and conditions, because as you know with the GP contract, some of that was about some of the work around people's conditions and whether people could have a right balance between family life and not. I think that it has been interesting over the pandemic but we have moved more to blended ways of working. Some people have been able to do that in terms of the different professions. I do think that there is a role, but I think that the essential bit about recruitment is local. The essential bit is about seeing the value of social care. There is a real challenge, and I know that it is often said, about do we value the social care, do we value the compassion, do we value the skills in social care when we pay people at that level? What is it that we value in societies? One of the real questions around social care, if we really value social care workers, should we be paying them enough so that they then will stay in that and they do not have to do excessive hours or whatever. I think that particularly when we move over into people who do not, who work independently in the voluntary sector, really are they getting terms and conditions similar to local authority in the health sector that keeps them within our career? I wonder if I might return briefly to co-production. For some people, co-production seems to be new, but my sense is that co-production has existed for a long time. The theme that we were talking about was integration and how integration has worked. Integration is still very young, not yet ten years old, but I wonder if I could ask Eddie, for his views as someone who was responsible for the delivery of services through HSCP and now as chief executive, his view on co-production in that space. Particularly when I sat in IGB and it wasn't yesterday but there were carers reps on the table, patient reps, staff side, that co-production running throughout how things were discussed. I wonder if Eddie might comment that. I wonder if I can bring Jackie in, if that's possible, just to get her sense of the structure and how that works and if she wants to comment on the other bits. There's co-production at a whole range of different levels. One of the good things in the bill is the focus on independent advocacy. That helps a person's voice to be there. I think that co-production at a local level can be about visible leadership. Practically in every local authority area you'll have some type of group that is around care experience on people so you hear directly from them about how things can improve and be better. For us it's called a pizza and coke night where local councillors, senior officers, actually sit with care experience on people and learn from their experience. We have our learning disability groups and awareness groups. So again, an example of that a few years ago, our learning disability awareness groups, which is very much both people who work in the sector and people with learning disabilities, work together and actually do things differently together. For instance, I learned to tap dance, so I could tap dance along with the folk with learning disabilities, but it's how you really engage and understand people. It's some of our tea dances for older people and things like that. Yes, it's a social event, but that's also where you'll find some of our senior councillors sitting down at the tea dance and listening to what people is doing. Co-production is also really important with their formal partners, so again, locally we've had a challenge over how we were providing support for young people with complex needs over the summer period. We don't think we've got all the answers to that, so I then do go to partners when they align, so they're going to come in, go to work with people and actually help us improve. So co-production definitely has a place. I think it is a place and a national care service too. I think we should say that a national care service is going to be the place where we set standards and expectations, where those standards and expectations are, which should come from the people who use services and should come up there. I don't think there's any difference between what COSLA, SOLAS and Government is saying on that type of level in terms of the principles. I think it's when it gets down to actually the transfer of the functions and the transfer of the staff and how you deliver it, it's where that then really becomes the difference in terms of where we are, but the ambition to change is there. Again, I've said a few times that some of this can be done outwith the bill, so there is the statement of intent, so there's a joint statement intent between COSLA and Scottish Government about improvement, and indeed there's just been an improvement board for social care and community health that myself, COSLA and Scottish Government all three jointly chair in terms of the things that we can improve now. We recognise that we cannot wait four years for some of these improvements, so there's what we need to do now. There are some of the people through the independent review of adult social care who quite rightly felt stuck in a complex needs system, and again we looked at coming home how some of the people who are stuck in that, how can we move them closer to home and deliver closer to home? Our contention would be as we recognise all the improvements that are required, we just don't think that actually taking responsibility for delivery of that has to move from a local system up to a national system and indeed economy to be delivered through a local system because it actually takes the local third sector, the local housing along with social work and health to actually deliver for the most complex needs. So the ambition is likely very much shared between Scottish Government, local government, but actually the how it's been proposed to be delivered is the issue for us. What Eddie's been speaking about is more on an operational level in terms of health and social care, and I absolutely recognise what Eddie's saying there. I represent solar, which is more a sort of legal body in terms of looking at the legal side of the bill and the legislation. What I can say however is from my personal working with the IJB in supporting the chief officer there in relation to quite difficult challenges that have come up, that we've worked really well together in doing that, ensuring that the governance is effective in relation to any reports that have gone through to the IJB and ensuring that appropriate consultation is there, which again allows things that are complex, difficult and challenging to have each of the stakeholders involved in that. So to that extent it's certainly co-working with them. Thank you. I'd like to come back to the issue of fair work because I believe Emma, you had a question on this before we move on. Yeah, I think probably most have been responded to already, but I just want to say to Eddie that every time you come to committee and give us information no matter what role or what hat you've got on or whatever, your knowledge and everything demonstrates what an asset you are actually, and I just want to say thank you. I'm interested in issues around, so we've got issues obviously ruraly in Dumfries and Galloway. I love the idea of electric cars. I'm pursuing that already with Dumfries and Galloway council, especially when the petrol prices are so expensive, so I think that's absolutely the way we need to go. I'm thinking about the other things around social care like delayed discharge, you'll be able to tackle that and deal with that in your area as well. I'm thinking about recruitment retention. It's not just encouraging young folk out to school, into college. It's also, we've seen that the social care is delivered by mostly women. The average age is about 50 and we've read that they also have other caring roles and responsibilities as well, so in the previous panel it was raised in our papers about people who are doing care, or maybe caring for their own parents or their kids as well. So there are real challenges about recruitment and retention and I'm just wondering what your thoughts are about, like some local authorities pay a lot less than others, so that's part of what we need to consider, I suppose with Paul as well, is fair approaches to recruitment, retention and remuneration. So each local authority has a job evaluation scheme and if we take any role and if we take it through that job evaluation scheme, you'll find that your social care workers, your classroom assistants, your early year workers, et cetera, will be on a band that they will take through. That's why when sometimes it's been talked about what we just give the local, the social care workers a bit more money, then that really challenges councils because if you've already evaluated all these posts and said with the different skills and talents these are equivalent, you know, what do you do with the other folk in early years, what do you do with your classroom assistants, you know, in terms of that. So that's one of the challenges that we have, you know, around that. You're right to say, you know, I think again, many local authorities have looked at social care and tried to look at the skills within social care and actually because we're working so closely with health actually say well they're quite equivalent to that there, you know, it should be actually be changing, you know, and re-evaluating, you know, where they are in terms of that. So I do agree that we have to look at that, but for local authority we have to do that in a way within, you know, and maybe Jackie, you speak better about this than myself, within employment legislation in terms of, you know, how we do that. The wider sense I've already touched on, you know, in terms of do we actually value the skills of social care, do we actually value the skills of compassion, of communication, of patience and all the things that a social care worker has to do and actually sitting with someone with a learning disability, a mental health problem, dementia, get into challenging circumstances where someone has an addiction problem. My question is a wider question about whether we actually value that to the extent that people feel valued and therefore stay within the sector. You're also absolutely right in terms of, you know, the profile of our social care workforce and the profile of our social care and we've got to do also our social workforce is such that unless we actually, you know, make sure that these are attractive and draw people into as years go on and we see increased demand for it, you know, we know our working age population in many areas has gone down. We're heading towards a real crisis and many places would say they've already got that crisis there that they don't have enough social care workers or social workers because sometimes we forget that part of our challenge is having enough social workers to actually complete the assessments before we deliver the social care and actually if you look at some of the pressures out there in the community now, there's more people actually waiting on a social work assessment than there are people actually waiting to get delivered social care. So that is both them and then recently social work Scotland did, you know, certainly, you know, done a report that clearly laid out some of the pressures on the social work profession, you know, setting the bar where they started to say, if you're a social worker and you've got, you know, 35 people to work with, you work 35 hours a week, well, you're not going much time to actually work with people, have you, you know, in terms of that and actually building up the relationships that actually do things differently. That improvement in terms of social work and social care is absolutely undeniable, but it has to be done really working together in terms of how we do that. It has to be clear about how do we really look at, you know, again with legislation, let's say, of direct and support legislation, that many people would say is some of the best in the world, you know, in terms of that, how do we make sure it's implemented? Our model of social care in Scotland sees the vast majority of people cared for at home and in their own homes and again, I know as a committee you've heard about some of the international comparisons, that's not the case in other places. You know, we have really ambitious and we've reached a good place in terms of social care. I come into social care 35 years ago and when I come into social care 35 years ago, our care at home was our home healths who worked 90am to 1pm Monday to Friday, that's what care at home was. People were learning disabilities and mental health problems, lived in big institutions. We have made huge advances in improvements over that period of time and that's why sometimes when you see written down that there's no scope for improvement within the current arrangements, I just think it's people who are short-sighted and don't actually know where we've come from. We've come a huge way for that, it doesn't stop ambition to go further and we should always be ambitious to go further, but we shouldn't forget the improvements that we have made, you know, in this country and actually be proud of some of the services that we've delivered in this country and the legislation that has maybe not been fully implemented. I think they call it that implementation gap, don't they, where you've got good legislation but it's not been fully implemented and I think some of them are the things that we need to look at the improvement rather than look at further structural change. And self-directed support is something that we've looked at here and I know there's a review and it's something that seems to work really really well in some places and not in others and you highlighted that needing to work with colleges, so that's about co-working and co-engagement and I know Dumfries and Galloway College, both at Stranraer campus and De Vries, are doing a great job in looking at future care providers as well. So that's something that, like self-directed support, I don't think people know exactly what it does, what it means and how do we implement it? I think that that's fair and I think the other thing that we do just now is we give two different messages out. We give messages out about the role of empowerment co-production to do self-directed support with individuals in that but at the same time we've got an eligibility criteria, it's rationing, let's call it that. So we're actually sending people out with two messages about go out there and talk to people and get them to talk about what's important in their life to change but there's also a second message in terms of managing resources that's basically eligibility criteria. So there's a mixed message at times to roll out go out there. I think the ironic thing is that if you actually ask people what they want and you help people delivered what they want or you intervene early and get people when they first need it, it can actually cost you less if you do it that way but I do think that we're giving out mixed messages just now between the different things that we're doing. Okay, can I come in on part two of the bill? I mean we don't have a specific theme on part two of the bill to ask you about but that's about the records and the data systems and having the sharing of that data. Do you see that that part of the bill is something that's going to be helpful in terms of integration in terms of I guess having the potential for the care users to have a little bit more agency and also not have to tell their story a million times a million different people because there's different what are your views on that part of the bill? So I think if we can manage to get an integrated health and care record and have that across the country it would be a fantastic thing to have I mean clearly there's a range of boundaries about human rights in terms of that you know someone's you know records if you know cradle to grave both whether that be a health record or a social work record what's relevant for different people to see but just now it can be very difficult to actually maneuver you know across between different systems so in terms of an ambition to actually bring the things together so you can do it again and this is pre-pandemic there were many workers that I know were sitting with two screens you know so you're working on an integrated authority so you're sitting with your local authority screen and your health screen in terms of up with that so but for people in terms of getting integrated care then have an integrated system clearly make sense as long as it has the right boundaries around it you know in terms of making sure people see everything that's relevant you know for them to see so that you know for instance you know it's work staff can actually just click and see what services was somebody getting you know before they went into care and things like that you know like so you know that the district nurse can see what the social care worker's been doing they're different things like that I think are really really relevant in terms of we're going to join up you know care I suppose it is important to remember we talk about integration of health and social care actually when the bill was done it was integration of health and social care from the perspective of the person receiving care so we forget that we bit at the end actually what guddle we're going on over there sometimes it doesn't matter if the person's sitting there actually feels it's joined up and actually when a joined up record might help to achieve that yeah thanks and paul kelly I don't know if you wanted to come in on that because we're nodding a little bit sorry yeah absolutely when we were committed to that that sort of shared record records as Erie's actually outlined but also quite clear we don't need massive structural change of this nature to deliver that and that's something we should be working on right now and I don't know if I can go back on the workforce issues that were raised earlier because I think you make very relevant issues around the nature of our workforce and why we need to get those full work terms and conditions and pay constantly at the top of our agenda but we are as I need to keep reiterating we are working on this with the government where we don't need the national care service to deliver these changes these changes should be happening right now for the workforce and we're absolutely committed to doing that but one of the biggest concerns of the workforce whether it's social care or social work is what is going to happen to us you know if there is a transfer where are we going what's going to happen to our terms and conditions what's going to happen to our pensions and the employability issues and I don't know if that's something that Jackie would want to touch on just I think we mentioned it earlier you know to give that clarity because that is a serious concern that's been raised regularly about what will happen to the workforce bring in Jackie and I'm that prompt and thank you yes I suppose it is looking at Tupi and and how that would impact and just to be clear Tupi is national legislation it's not Scottish legislation and in terms of the bill it talks about that the Scottish minister will determine the terms and conditions if people do transfer over but actually the way it works with Tupi is that employees are transferred over on their current terms and conditions so if you look at that from a practical perspective you're talking about potentially 75,000 employees on different terms and conditions throughout Scotland transferring over to either a care board essentialised a care board that's localised or in fact to in the Scottish department within the Scottish ministers because that seems to be an option in terms of direct control too you would then need to have quite a long leading period to allow for that to happen now at the moment because the bill is not clear exactly what staff would transfer it makes it very difficult to plan for that but for each individual person you need to look at roughly what their role is now there's a rule of thumb and that's not absolutely definitive but it's 50 percent so 50 percent of a person's work relates to the functions that are going to be transferred then essentially they would be considered to be Tupi'd over now what would happen if someone was 60 percent in relation to the functions and then 40 percent not well technically they would need to transfer over and it just leaves a huge issue in terms of then the residual employees left with the local government and in turn how that would work in relation to whoever's going to take the employees on potentially having too many employees you've got huge issues in terms of redundancy you've got issues in terms of claims so if an employee were to move location then they could say well they didn't want to move that's unfair dismissal potentially on the grounds that their terms and conditions have been changed so it's going to take a considerable amount of time and a considerable amount of complexity for all that to work its way through and I think it's compounded by the fact that at the moment there's a great level of uncertainty as to what is intended so is it simply people that are directly providing the service or will it also include support staff in terms of legal HR finance and how in turn will that leave the local authority able to cope in relation to that and this I mean when we had a the only similar scenario I can think of is when we had the change from the the region and district councils over to the unitary authorities and I understand when that happened there was a shadow authority for a year and that was a lot clearer because it's specific where people were moving in relation to where we're very clear what the new bodies were all the functions were transferring over it wasn't this almost high wealth approach in terms of just part of the local authority being transferred over and I think the logistics of that will be you know quite mind boggling really to achieve and I think the impact on staff can't be underestimated where already a lot of staff have been through the impact of recent events in particular Covid and resilience is probably not as high as it could be so I really couldn't see issues in terms of the logistics of it and how that will impact on the people that potentially are moving during that interim period the uncertainty that will create and also an impact on local government that's left without those functions and without delivering those functions we must move on because we are rapidly running out of time some questions around specific transfer specific services Evelyn you have questions and then I'll come to Stephanie thanks convener I'll just roll my questions into one given we're struggling for time a bit good morning sorry good afternoon now panel Eddie I noted your positive comments about what's been achieved so far and that's appreciated I would echo Emma's comments on what you're bringing to committee for us thank you but in your view is there any case for some services transferring rather than others in terms of consistency and quality and also what's your thoughts on the exclusion of homelessness services so I think you know what we see across the country and understand you know why people looking externally look at you know what's delegated to i gibs and they see inconsistencies and what's delegated to i gibs that's because in local systems you know people have looked and seen what fits that local environment and I think it's interesting we then look at regulators you know when they come in and look at things like adult protection child protection um mappa you know look when they come in and look at that what they actually say is what the local structures are actually don't then say if you use x structure it's better or y structure it's better it's actually about you know leadership and relationships that actually deliver you know in local communities but it is about the local you know relationships in terms of of how you do that so the fact that in in East Ayrshire you know we have older people children's services justice alcohol and drugs and everything within the i gib that suits our setup and that suits our arrangements there you may be in another local authority where that doesn't fit and it doesn't fit with the historic arrangements that were already strongly established in terms of there may be a children's services unit that was already established so that there can be different things that fit that doesn't necessarily mean one's right and one's wrong it's what fits the the local arrangement when you start to talk about homelessness and then again we spoke earlier in complex need the involvement of housing that's where I do think it's really important that things are within a local system in terms of how we do that you know it's so where I sit you know in terms of a council chief executive I have ultimate responsibility both for the delivery of social care through the i gib and for the housing service so actually you know that at my you know corporate management team every week I have both the people responsible for all them and they don't need to be integrated because they're there in the work as a corporate team and similarly that and I know it's a burden because I've done it for the years you know like the i gib chief officers also sit in the health board you know like corporate teams and actually their role there is to see about that interface between community health acute health and primary care so their roles there I think what I would put back to us I don't think the structure matters I think it's about the local leadership and the local you know like delivery and accountability that matters in terms of that so homelessness justice mental health problems they're clearly really entwined you know like together in terms of of where we are there but different areas in their local systems can make it work and they make it work through local leadership in their local systems thank you and I'll come to Stephanie thank you convener sorry I was just waiting for the right one there so I'm going to touch again on the the co-production aspect because this really is at the heart of it and it also means co-designing services as well so you know it not being enough now to listen to what people are saying and then hand down policy design and delivery but they need to actually keep directly involved in lived experience all the way through that so Eddie I want to ask you about the the transfer of services you know should children's services and justice social work should these be being transferred at the same time and what your views are on the proposals to undertake further consultation on that and I'm also wondering what are the top risks that you've identified just now for transfer of services and any opportunities that you see for improvements as well thanks so as I reflected you know just just a moment ago in terms of you know like if services are going to transfer you know like you know how they should transfer you know again I think that would be very much down to how local systems work I mean again a way back and I was looking when I first done it back in 2012 I was a chief social work officer and we're first starting to talk about integration of health and social care and I wrote you know the letter to my chief executive to say that I think that all services you know that in our system should be integrated and go in there within that local system I have to emphasise to say that was within that local system where myself as chief social worker separately chief officer had the local authority chief executive as my line manager and we worked within that local system and I think that's important to say it was within that system right now if we were going to say you know that there was definitely going to be a transfer across in terms of you know adult social care and adult social work do I think we should take our children's services and our justice services out of that likely not but I do have to say I would rather wait and see but some of the consultation you know like you know it does and some of the you know the looks at terms of it that does because I do think this is that the local arrangements and how you actually deliver things locally is the real real important thing here I just can't emphasise enough that I think this is about local leadership local accountability that's how things are delivered that the fact that you know people will say if we move to ministerial oversight if we call it centralisation that that will deliver you know uniformity and improvement I have to say there's no there's no what example you know of that if we look at variants across our health services just now but as ministerial oversight there are local issues and local health boards that cause difficulties so again it's not an up or down it's just a fact that that's where things are and so we need to do improvement you know we do that there I think we should be so committed not just to you know co-production but your right co-design and then find models that we actually continue oversight about so what's working so again like I've said you know I think some of your legislation that we have there is the best in the world around things like you know self-directed support the bigger question is how do we go in and make improvement about what that looks like I think often people look at self-directed support and think because a lot of people are not taking direct payments it's not working that's not the case you know there are many people you'll get and you'll offer all the options and they'll actually say to you I quite like option three are you going to take responsibility and get you know the personal cares to come in and see mum you know a couple of days a week or or three times a day or whatever that's still self-directed support that's one of the legitimate options of it but it has to be honest it has to be something that people are genuinely offered all the options then that's the one that they choose to do and we continue to you know have an oversight of that I think people's ambitions change over time so that's why I think you're right when you said about not just doing co-production but co-design and also people being involved you know at that table in terms of oversight I think one of the things people speak about often is about in IGIBs there being a differentiation between voting members and none you know voting members at IGIBs where the four in my instance four councillors and four NHS none execs have votes and other people don't have votes I suppose I have to then reflect that in the seven years I was a chief officer on IGIB whenever once had a vote you know it's so you know and everyone was able to speak up and say what they wanted to do so you know the thing about people having a real say is just so important in terms of that and how people are then you know empowered to have that say so when you actually do sit down you know at whatever the new board table is you're a representative or something and it's not your individual views that's coming across and that goes for whoever you are you know it's sitting at that table I think these are really important things in terms of how we do that so there are a range of different ways that it can be done but the commitment to do it is something that should be there and I think it's something that we are national care service one of the oversights would be the question all the time as you know that to any local arrangement tell me how you're doing co-production tell me how you're doing co-design and that should be one of the questions asked regularly Eddie it strikes me when I'm listening to you that you're talking about really good practice and it's the way it should be but there may be parts of the country where it isn't working in the way that you described I mean do you see an opportunity with this legislation to actually have that consistency of approach and standards and again that agency of the people with lived experience to be constantly around the table with the people that are offering them support I think you know that the this legislation gives that opportunity to have a clarity of that national framework of expectation about what should be there and it should also then say because no one in health or care gets up out of their bed to do a bad job every day they don't do it so if things are no working in an area what people need is supported improvement they don't need blame you know they need help out of that they need understanding of why is it no working as well here because every area they'll have some things that are working well and some things that are no working well and then they need supported improvement in terms of of doing that so so I do think actually been clear and sent and you know and I think both causal submission and solace submission have been clear that we do think there's a role for a national care service and setting that national framework and standards and then it's about how locally are people accountable to their local population for delivering against that one of the dangers here is that the responsibility and accountability to your local population gets lost in this you have accountability just now to your local population in the new arrangement your accountability is not there your accountability is back up through the minister and I think that's one of the things we need to be clear about about how do we set a standard hold people to account for a standard but that accountability has to be to your local community thank you we move on to some questions around the sort of like the idea of that local accountability sandesh you have a question around that and then anyone else i've got a test usage but you're fine paul because a lot of it has been discussed throughout the whole bit i'll go to sandesh version and i'll come to paul and we must wrap up thank you so the bill aims to provide consistency across social care in scotland so my question is have you seen any evidence that this will this bill will indeed improve quality and on the back of that looking at one size fits all models for example when we came to the vaccination programme where you had a centralised service and that was great if you lived in an urban area but a disaster if you lived in rural areas do you foresee issues like that happening in terms of evidence have we seen any evidence that moving these services and the functions et cetera over to centralised model will that improve the quality of service users which is the most important thing for all of us no we haven't seen any evidence that it will i think there's significant risks we were just talking about the transfer of services these are services that are supporting some of our most vulnerable individuals and that lack of clarity i think leads to significant risk around social care and social work and that is an unacceptable position and quite frankly we can focus on some of the issues we've discussed around differences across the country and practices across the country without needing a sort of structural change at this level about the national care service and we are committed to focusing on that so that's something i don't think is required i think the vaccination programme where you've referenced the sort of different geographical issues between the rural and urban well we we see that in services as well and that's why at a local level as i've said a few times whether you're in Aberdeen or Annan you know there are differences in the services that we can give and that's the way it should be so that those services are replicating the local requirements of that area that is in danger of being lost when you're moving to a central model that's under the control of a minister and it's not locally accountable so can i just pick you up on that when you say a minister that's not the case that we heard it's all ministers so there doesn't seem to be a minister is that your understanding as well so that's to say all ministers would be then in control yeah absolutely the care board but it's more about the point of that that is there for decision making taken at a national level where we think it's best served at a local level and can evidence why that is the case despite some of the difficulties in the system thank you i wonder if i can just ask something of eddie briefly following up from a point and then i've got a final question but um eddie i think what you outlined in in your final contribution in the previous section was about the alternative which is local government national government working together to try and find those national standards and implement that as a national care service would you see parallels in terms of what happened with the proposed education scotland bill in 2017 where there was proposed legislation that would have sought to make ministers responsible for improvements in education through regional improvement collaboratives obviously what then happened is that legislation was taken away and there was actually collaboration and co-design with all the partners to create what we now recognise as ricks which obviously are are run regionally but through local accountability and committees do you see that that might be a process that we would want to learn from in this space i think it's a process we want to learn from you know because again you know what this is about in both instances is a joint commitment between you know scottish government and local government port for improvement and it was the same way earlier it's a joint commitment between scottish government and local government towards improvement it's slightly more complicated than this because we need to remember although we focus a lot on the social work social care part of this community health services and if you look at the financial memorandum also fall under you know the strategic you know oversight of the new care boards as well so health colleagues have to be fully engaged in terms of this as well and it's again when we get to that continuum about what's a health need what's a social care need what's wellbeing we need to be really careful we're no separating wellbeing away from social care and you know like health because if we do we're just going to have bigger demands on social care and health rather than you know actually do the prevention thing that some of this is intended you know like to do so the short answer sorry is yes i see their parallels because the parallel is about a joint commitment for improvement you know in that case education in this class social work social care and i can finally convener and perhaps more to councillor kelly i think what we've heard this morning is you know you represent coslas concerned that there might be wholesale transfer of services from local government into a body that is a national care service i've heard it described by people as councils essentially becoming providers and just being a provider as part of a larger framework do you think that there's a principle at stake here in terms of local government we heard from the law society and their submission that they are concerned that a national care service there's a lack of evidence essentially which would question whether centralisation of what's currently delivered locally can be justified in terms of the european charter of local self-government and the reason i bring that up is there's a commitment a shared commitment by government and cosla to that charter so do you think the principle of that is at stake is at stake in terms of what what it's currently proposed because you are seeing a third of council staff assets liabilities transferred over to care bodies as a care board is such so that that very much is at stake and going back to your point about evidence that there is a lack of evidence to say why this will improve the service user and that's what we're all committed to and that's a serious concern for councils and also we believe at a local level where we have the good partnership working with integration and health we can deliver for our local communities and it's been shown through the pandemic and we're committed to making improvements right now which doesn't require national care service working with the Scottish Government and some of the stuff we discussed around fair work and funding etc and finally Emma you had kind of a brief question and then we must wrap up sure just a quick one and i'm trying to get my head round what dr golhany said about the rollout of vaccines being a disaster in rural areas when it was the central approach which isn't my experience because i was a vaccinate in galloway in the rollout was fabulous for a rural area so what i'm trying to think about this whole issue where everybody's saying it's centralised versus local ministers will have accountability but the delivery of the care should be done locally because of rural urban different aspects island and things is that what this needs to deliver I think there's a risk there that what you're saying in terms of you know that might be what you think this will deliver but there's a serious risk when you take the staff and our functions out of the local area you unconnect them to things like education communities and the other services we provide integration etc you are losing the ability to react to those local issues and that is a serious concern so from our point of view i'm not sure it would deliver what you're saying in terms of that these care boards they are going to be under national government decision making control that that will reflect the local issues of the communities we represent thank you we must wrap up we've rapidly run out of time i want to thank all our panelists for the time this morning it's been very helpful at our next meeting the committee will continue our scrutiny of the national care service scotland bill the further two evidence sessions but that does conclude our meeting today thank you all