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Section 1 — Constitution of Health Boards

Health Boards (Membership and Elections) (Scotland) Bill: Stage 3 – in the Scottish Parliament at 2:55 pm on 12th March 2009.

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Photo of Trish Godman Trish Godman Labour 2:55 pm, 12th March 2009

Group 1 is on the composition of health boards. Amendment 1, in the name of Bill Butler, is the only amendment in the group.

Photo of Bill Butler Bill Butler Labour

I am pleased to speak to amendment 1. Members will be aware that the bill's explanatory notes make it clear that in section 1(2), which replaces schedule 1 to the National Health Service (Scotland) Act 1978, paragraph 2(1) of the new schedule sets out the

"three different types of member" that will sit on a health board.

"These are:

• 'appointed members' (a chairman and other members appointed by the Scottish Ministers); • 'councillor members' (councillors appointed by the Scottish Ministers following nomination by local authorities ... ); and

• 'elected members' (individuals elected as members of the Health Board at an election)."

As amendment 1 makes clear, we are talking about the injection of a directly elected element that is not independent in some theoretical way but which takes part in the board's work, along with two other categories of appointed member. I believe that such an injection of democracy is a good thing. One should seldom quote oneself, but as I said in my submission to the Government's consultation on its proposed local health care bill,

"Direct public elections would allow the public a mechanism to influence service delivery in their area".

I also believe that the public are clearly saying that

"there must be greater openness and transparency, and there must be direct accountability".

After all, the bill is about transparency and direct democratic accountability.

In my consultation response, I also said:

"I have yet to hear a convincing argument as to why the make-up of regional NHS boards should not contain a strong" direct democratic element. Accordingly, I propose that, as amendment 1 provides, 50 per cent plus one of the members of each health board—or, depending on the arithmetic, a simple majority—be directly elected to represent the local communities affected by its decisions.

Boards must have a proper balance between those with expertise, knowledge and experience from working in the health service—something that we should not lose—and those who are most directly affected by any proposed change, by which I mean the public. I feel that the blend of experience and direct accountability for which amendment 1 provides is about right.

Again, I emphasise that I support the retention of local authority members on NHS boards—as a former councillor, I do not have a problem with that—but, as the bill makes clear, the local authority members will not be directly elected to boards but be appointed by ministers.

I was going to finish on that point, but I must not forget the Cabinet Secretary for Health and Wellbeing. I suspect that she had a great say in the Scottish National Party manifesto for the 2011 elections—sorry, I meant for the 2007 elections; I hope it is not for 2011. On page 36, under the heading "Accountable healthcare", appears the following quotation. I will not read out the whole paragraph, but I do not think that I have wrenched the quotation out of its context:

"Sometimes difficult decisions must be made and local people should always be at the heart of the process. To ensure this is the case we will introduce direct elections to health boards. At least half of health board members will be elected by the public."

I could not agree more with the cabinet secretary and the manifesto—on that one specific aspect. It seems to me an unequivocal commitment, and it does not preclude the suggestion in amendment 1, which is for a simple majority. I hope that colleagues across the chamber will support the amendment.

I move amendment 1.

Photo of Ross Finnie Ross Finnie Liberal Democrat 3:00 pm, 12th March 2009

I have no difficulty in acknowledging that Bill Butler's approach has been entirely consistent, both during discussions on his own member's bill and during all the stages of this bill. However, the artificial distinction that he seeks to make could cause real difficulty.

Bill Butler is right to say that people who are elected as councillors in their local authority will then, technically, have to be appointed by the cabinet secretary to the health board, but there is surely a real distinction to be made between an individual who gains legitimacy from being elected to public office by the electorate and an individual who responds to an advertisement, placed by the civil service, inviting people to apply to be appointed to a health board.

If one does not acknowledge that real distinction, one runs into a real problem. One would be saying that people who are elected directly to a health board have greater legitimacy than people who are elected to serve their own constituency. That would be entirely false and a recipe for storing up a real sense of frustration. There would be two entirely different camps, both of whom—the people directly elected to the health board and the people elected to their constituency—ought properly to be able to say, "I represent the public." To introduce an artificial distinction into the bill, in the manner that Bill Butler suggests, is wholly wrong, and I and the other Liberal Democrats will oppose amendment 1. We wish to retain paragraph 2(3)(a) of schedule 1 of the National Health Service (Scotland) Act 1978 as it stands.

Photo of Jackie Baillie Jackie Baillie Labour

I speak in support of amendment 1 in the name of my colleague Bill Butler. Members with a better memory than mine will recall that, during the previous session of Parliament, I was one of the Labour members who supported Bill Butler's proposals for elections to health boards. I pay tribute to him for leading the debate and to the cabinet secretary for getting us where we are today.

Like many members, I am shaped by experience in the constituency. I have witnessed at first hand the dismissive and sometimes arrogant actions of successive heath boards and their contempt for the views of my local community. I therefore strongly believe in amendment 1 and in elections to health boards.

Amendment 1 seeks simply to ensure that directly elected members are in the majority—a simple 50 per cent plus one. In evidence taken by the Health and Sport Committee, it was suggested that the wrong type of person might be elected, that community activists who care about their local health services would somehow not be appropriate, and that strange people might win— people who could not possibly be allowed to be in the majority. We should just look around this chamber: sometimes unusual people do get elected, but that is the will of the electorate—that is democracy. The public are perfectly able to elect sensible people to represent them in public services, and health boards will be no different.

If we are serious about improving the operation of health boards, it is right that there is a majority of directly elected members. I do make a distinction: councillors on health boards are told that they cannot represent—[Interruption.]

Photo of Trish Godman Trish Godman Labour

I am sorry, Ms Baillie. Mr Lochhead, would you mind sitting down? And please do not use electrical equipment when you are in the chamber.

Photo of Jackie Baillie Jackie Baillie Labour

I said that strange people get elected—I rest my case, Presiding Officer.

I think that there is a distinction to be made and, with respect, that Ross Finnie is wrong on this occasion. Having directly elected members is the right place for us to be. I am sure that the cabinet secretary and the Minister for Public Health and Sport, who will have had a hand in the SNP manifesto, can be persuaded of the value of that approach. If they are not, I hope that at least the SNP back benchers will be. It was a promise in the SNP manifesto, and I would hate to see the commitment watered down.

I urge members to be radical and to support Bill Butler's amendment.

Photo of Trish Godman Trish Godman Labour

I call the cabinet secretary to speak to the amendment.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I am grateful for the opportunity to respond to amendment 1. I was tempted to intervene on Jackie Baillie and ask her to name names when she talked about unusual people, but she then did. Obviously, I disagree with her entirely, but I hope that that will be the only discordant note to be sounded this afternoon.

I recognise and pay tribute to Bill Butler's involvement in the issue, and I am glad that he appears to be winning over his colleagues to his way of thinking. We have always been in agreement with him. I intended to quote Bill Butler in my speech, but he got there before me, so I will resist that temptation.

Amendment 1 seeks to make a clear majority of a health board's members directly elected. Although, as evidenced by the bill, I strongly agree that the way in which health boards engage and involve their communities must change—and it will change as a result of the bill—I believe that our approach of having a majority of a board's members drawn from local authorities and direct elections represents the most balanced and sensible way to achieve that goal. That will not only ensure democratic input to and accountability of health boards, which is the rationale behind the bill; it will help to cement the joint working between health boards and councils that is so important in ensuring that we provide integrated services to the public.

Through our approach—and absolutely in line with our manifesto commitment before the election—we will ensure that the majority of a health board's members are democratically elected. They will be either directly elected to the health board or elected as councillors. As a result, health boards will operate better.

I regret that I cannot support Bill Butler's amendment. I suspect that he will not withdraw it, so I ask Parliament to vote against it.

Photo of Trish Godman Trish Godman Labour

I call Bill Butler to wind up and to press or withdraw his amendment.

Photo of Bill Butler Bill Butler Labour

I say to the cabinet secretary that she should never resist the temptation to quote me.

To Ross Finnie, I say that we have a disagreement but we will not fall out over it—well, not too much. The distinction is not between legitimacy and illegitimacy. The bill, as it is outlined in the explanatory notes, recognises three different categories of board member, two of which are appointed directly by the cabinet secretary.

Councillors and those who are directly elected through health board elections will not be appointed to health boards in the same way and cannot be construed as forming a democratic majority. The system fails the democratic test because councillors are elected at diets of council elections, which is not the case for directly elected health board members. If the electorate for a health board election are disappointed with a councillor, they must wait until the council elections to show that—they cannot get rid of that councillor at a health board election. That fails one of the tests that Tony Benn set out in his Nottingham lectures in 1991—the litmus test of democracy, which is how the electorate can get rid of an elected member. That is a serious point: if the electorate cannot get rid of a board member immediately in a health board election, that member is different—they are appointed rather than directly elected.

I wholly agree with Jackie Baillie because she wholly agrees with me.

I hope that the cabinet secretary, even at this late stage, will think again. It would take only a nod from the cabinet secretary, who is also the Deputy First Minister for Scotland, to give the SNP back benchers the wherewithal to join Labour. We can form a majority today and, if we do, we will have health boards with a simple majority of directly elected members. What could be a more opportune moment than when we have pilots? Pilots could test whether the system works, so I ask the cabinet secretary to think again.

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 1 be agreed to. Are we agreed?

Members:

No.

Photo of Trish Godman Trish Godman Labour

There will be a division. I suspend the proceedings for five minutes to allow the division bell to be rung and members to return to the chamber.

Meeting suspended.

On resuming—

Division number 1

For: Alexander, Ms Wendy, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Butler, Bill, Chisholm, Malcolm, Curran, Margaret, Eadie, Helen, Ferguson, Patricia, Foulkes, George, Gillon, Karen, Gordon, Charlie, Gray, Iain, Henry, Hugh, Jamieson, Cathy, Kelly, James, Livingstone, Marilyn, Macdonald, Lewis, Macintosh, Ken, Martin, Paul, McAveety, Mr Frank, McCabe, Tom, McConnell, Jack, McMahon, Michael, McNeil, Duncan, McNeill, Pauline, McNulty, Des, Mulligan, Mary, Murray, Elaine, Oldfather, Irene, Park, John, Peattie, Cathy, Simpson, Dr Richard, Smith, Elaine, Whitefield, Karen, Whitton, David
Against: Adam, Brian, Aitken, Bill, Allan, Alasdair, Brocklebank, Ted, Brown, Gavin, Brown, Keith, Brown, Robert, Brownlee, Derek, Campbell, Aileen, Carlaw, Jackson, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Don, Nigel, Doris, Bob, Ewing, Fergus, Fabiani, Linda, Finnie, Ross, FitzPatrick, Joe, Fraser, Murdo, Gibson, Kenneth, Gibson, Rob, Goldie, Annabel, Grahame, Christine, Harper, Robin, Harvie, Christopher, Harvie, Patrick, Hepburn, Jamie, Hume, Jim, Hyslop, Fiona, Ingram, Adam, Johnstone, Alex, Kidd, Bill, Lamont, John, Lochhead, Richard, MacAskill, Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Stewart, McArthur, Liam, McGrigor, Jamie, McInnes, Alison, McKee, Ian, McKelvie, Christina, McLaughlin, Anne, McLetchie, David, McMillan, Stuart, Milne, Nanette, Mitchell, Margaret, Munro, John Farquhar, Neil, Alex, O'Donnell, Hugh, Paterson, Gil, Pringle, Mike, Purvis, Jeremy, Robison, Shona, Rumbles, Mike, Russell, Michael, Scanlon, Mary, Scott, John, Scott, Tavish, Smith, Elizabeth, Smith, Iain, Smith, Margaret, Somerville, Shirley-Anne, Stevenson, Stewart, Stone, Jamie, Sturgeon, Nicola, Thompson, Dave, Tolson, Jim, Watt, Maureen, Welsh, Andrew, White, Sandra, Wilson, Bill, Wilson, John
Abstentions: MacDonald, Margo

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 38, Against 77, Abstentions 1.

Amendment 1 disagreed to.

Photo of Trish Godman Trish Godman Labour

Group 2 is on the power to remove councillor members. Amendment 12, in the name of Helen Eadie, is grouped with amendments 13 and 14.

Photo of Helen Eadie Helen Eadie Labour

First, I point out that amendment 12 does not seek to remove ministers' right to dismiss a council-elected health board member whom they have appointed. I acknowledge that the appointment of such members is up to ministers, but it would set quite a precedent if the same ministers decided to remove someone who has been democratically elected on to a council and nominated by the council for membership of the health board.

Ministers might well feel that there were good reasons for taking such a big decision, but such reasons could, at the very least, be perceived as political. As a result, one safeguard would be to make any such move subject to an affirmative, not negative, resolution. There would have to be safeguards given that it would be a very big step.

Although the removal of a health board member might be 100 per cent justified, experience suggests that such matters can become very political and that the people involved might make different claims. After all, ministers might remove a politician who, for example, was not of the same political hue as the Government. If ministers are confident about their decision, they will not be afraid of seeking Parliament's affirmation or otherwise.

As I have said, the provisions should be subject to affirmative procedure. Ministers might have good reason for removing someone from a health board—and Parliament might well agree with them—but I feel that in this case affirmative procedure is the right way to go. As soon as ministers make an appointment, the matter moves into the political arena, because, as I have said, they appoint someone who is already a politician. That has consequences—[Interruption.]

Photo of Trish Godman Trish Godman Labour

Excuse me, Ms Eadie. There is far too much noise in the chamber.

Photo of Helen Eadie Helen Eadie Labour

If such a decision is to be reversed, politicians need to be objective and confident that they are not simply wasting their time on the matter. I believe that ministers in the previous Administration were very objective, and I am sure that, in seeking the Parliament's support and giving Parliament the right to take a view on such matters, ministers can be confident that parliamentarians can be just as objective.

This is an important and controversial matter. There have been few, if any, occasions on which a minister has removed a health board member in such circumstances—it might well have happened, but I must say that I am not aware of it. I hope that members understand that the point is not to take away the minister's right to remove people but that the Parliament should fundamentally and finally decide whether to endorse the decision.

I move amendment 12.

Photo of Ross Finnie Ross Finnie Liberal Democrat

The Liberal Democrat position is entirely consistent with that which we set out on amendment 1. We genuinely see a distinction when it comes to the legitimacy of members who have been elected to a board in the first place, notwithstanding their terms of appointment. Helen Eadie proposes an entirely sensible compromise, which strikes the right balance in recognising that there is an issue with the removal of an elected member. I am grateful to her for forcing me to read section 105 of the National Health Service (Scotland) Act 1978, which her amendment would amend. I cannot say that I found it particularly riveting, but at least I now know what the amendment means.

I hope that members will support amendment 12.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I thank Helen Eadie for lodging amendments 12, 13 and 14. I do not agree with them, but I recognise that judgments on the issues are finely balanced. I understand that Helen Eadie pursued the issue with the Subordinate Legislation Committee, which considered it and decided not to proceed with it.

Members will recall that, at stage 2, I acknowledged the special position that the new category of directly elected health board members would occupy and agreed that they should not be removable at the discretion of the Scottish ministers. Helen Eadie's amendments would set local councillor members apart from the other appointed members of a health board by ensuring that any regulations that specify circumstances in which ministers may determine that a council member is to vacate office are subject to the affirmative procedure.

The existing power in the National Health Service (Scotland) Act 1978 to make such regulations is subject to the negative procedure. It is also worth pointing out that no member of a health board has ever been dismissed under that legislation and that such a move would therefore be quite extraordinary. I dare say that that leaves it open to people such as Helen Eadie to say, "Well, why not agree to these amendments?" but a point of principle is involved.

The way in which local councillor members arrive on a health board is different from how a directly elected member will arrive on it. Currently, local authorities put forward their selected member for ministers to appoint. That process will continue, and the act will put the position of local councillor members on a statutory basis for the first time. That step has been welcomed, but councillor members will still be ministerial appointments, and the Scottish ministers should have the flexibility to remove members whom they have appointed if there are extraordinary circumstances to justify that.

It is important to stress that, if in an extreme scenario a health minister had to remove a local councillor member from a health board, the local authority would not be left without representation, and nor would the elected majority on the health board be affected, because the local authority would simply nominate another councillor to fill the vacancy.

As I said at the outset, the Subordinate Legislation Committee considered the matter and opted not to pursue it. I ask members to vote against Helen Eadie's amendments, which I assume she will push to a vote. However, it is of course for Parliament to make a judgment on such matters.

Photo of Helen Eadie Helen Eadie Labour

The convener of the Subordinate Legislation Committee is sitting not far from the minister; in fact, he is next to her. The reality is that the views of committee members were finely balanced and that its convener chose to propose to its members that we should not divide on the issue. We did not object to that proposition, as he said that he would have felt very uncomfortable taking a view at that stage. I accepted that on the day and thought that that approach was entirely reasonable.

I remind members that my amendment would not take away the minister's ability to sack someone or remove someone from office. It is about Parliament's right to endorse or not endorse the minister's view, which is fundamentally different from saying to the minister that she should not have the power to remove a councillor member. That is important.

In a matter as important as this, we must decide whether the removal of a councillor member should just go through on the nod, as under the negative procedure, or whether it should be the conscious decision of Parliament under the affirmative procedure, which is what I am asking the Parliament to agree to. It is important that everyone agrees that, irrespective of whether a councillor member is appointed by the minister, the reality is that they are democratically elected by a community and recommended and nominated by a local authority. Very rarely does a local authority appoint someone to a position on a health board unless they are a senior politician, either from the ruling or opposition parties.

Parliament should understand the significance of the amendment, and I hope that it will vote with me. I will press amendment 12 and the consequential amendments if amendment 12 is agreed to.

Photo of Trish Godman Trish Godman Labour

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

Members:

No.

Division number 2

For: Alexander, Ms Wendy, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Curran, Margaret, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Foulkes, George, Gillon, Karen, Gordon, Charlie, Gray, Iain, Henry, Hugh, Hume, Jim, Jamieson, Cathy, Kelly, James, Livingstone, Marilyn, Macdonald, Lewis, MacDonald, Margo, Macintosh, Ken, Martin, Paul, McArthur, Liam, McAveety, Mr Frank, McCabe, Tom, McConnell, Jack, McInnes, Alison, McMahon, Michael, McNeil, Duncan, McNeill, Pauline, McNulty, Des, Mulligan, Mary, Munro, John Farquhar, Murray, Elaine, O'Donnell, Hugh, Oldfather, Irene, Park, John, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Rumbles, Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Margaret, Stone, Jamie, Tolson, Jim, Whitefield, Karen, Whitton, David
Against: Adam, Brian, Aitken, Bill, Allan, Alasdair, Brocklebank, Ted, Brown, Gavin, Brown, Keith, Brownlee, Derek, Campbell, Aileen, Carlaw, Jackson, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Don, Nigel, Doris, Bob, Ewing, Fergus, Fabiani, Linda, FitzPatrick, Joe, Fraser, Murdo, Gibson, Kenneth, Gibson, Rob, Goldie, Annabel, Grahame, Christine, Harper, Robin, Harvie, Christopher, Harvie, Patrick, Hepburn, Jamie, Hyslop, Fiona, Ingram, Adam, Johnstone, Alex, Kidd, Bill, Lamont, John, Lochhead, Richard, MacAskill, Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Stewart, McGrigor, Jamie, McKee, Ian, McKelvie, Christina, McLaughlin, Anne, McLetchie, David, McMillan, Stuart, Milne, Nanette, Mitchell, Margaret, Neil, Alex, Paterson, Gil, Robison, Shona, Russell, Michael, Salmond, Alex, Scanlon, Mary, Scott, John, Smith, Elizabeth, Somerville, Shirley-Anne, Stevenson, Stewart, Sturgeon, Nicola, Thompson, Dave, Watt, Maureen, Welsh, Andrew, White, Sandra, Wilson, Bill, Wilson, John

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 54, Against 63, Abstentions 0.

Amendment 12 disagreed to.