Section 30 — Section 17C arrangements: persons with whom agreements can be made

Tobacco and Primary Medical Services (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:45 pm on 27th January 2010.

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The Deputy Presiding Officer:

Amendment 36, in the name of Helen Eadie, is grouped with amendments 37 to 45.

Photo of Helen Eadie Helen Eadie Labour

At stage 2, the cabinet secretary said:

"I have sympathy with the motive behind Richard Simpson's amendments, they contain certain key terms such as 'community co-operative', 'social enterprise', 'not-for-profit basis' and, indeed, 'community' that are not defined anywhere in law. I take Helen Eadie's point that there are different forms of community co-operative, but the fact is that we are trying to pass legislation and need to provide a legal definition of such terms.

As I said earlier, I believe that the Government amendments provide a large proportion of the flexibility that members are looking for. If Richard Simpson agrees to withdraw amendment 74 and not move the others in this group, I will be happy to continue the discussion to see whether we can do anything more to close the gap between the Government's position and the views of committee members, certainly Labour committee members. I cannot give an absolute guarantee that we will be successful in that, but I am certainly willing to continue to discuss the matter and see what is possible."—[Official Report, Health and Sport Committee, 18 November 2009; c 2439.]

I waited until the last minute to lodge amendments, to see whether the cabinet secretary would do anything more to close the gap by lodging amendments. There is no evidence from her that there has been any further movement on the issue, so my amendments seek to address the shortcomings that were discussed at stage 2.

At that point, the principal issue from the perspective of the cabinet secretary, on behalf of the Government, was defining those who are eligible to hold a primary medical services contract. At stage 2, the cabinet secretary lodged amendments that expanded the definition to include any company, rather than only a company limited by shares. She said that that will allow many social enterprises, rather than only companies limited by shares, to hold such a contract, as long as they meet the other criteria that are set out in the bill, including that a medical practitioner, for a GMS contract, or a health professional, for a section 17C contract, be one member of the company.

The cabinet secretary informally consulted some voluntary sector representative bodies, which broadly welcomed her amendments. However, reservations have been expressed, and I have consulted further with colleagues in the world of community co-operatives and social enterprises, who welcome my amendments, which would put beyond doubt who would be eligible to establish the arrangements as they are envisaged.

My concern is that the cabinet secretary might unintentionally be opening a loophole by allowing any company to operate, which would provide for companies that do not have community benefit at their heart. At the heart of the matter is the question about what is to be done with the profits. Are they to be reinvested in the community or in the practice, or are they to be shared by the doctors themselves? If the amendments were to be agreed to, the phrase "a qualifying charity" would remove that dubiety by stating clearly that the profits would not return directly to any one individual but would be reinvested in the community and that, at dissolution, the assets would be shared within the charity sector and not be disposed of to any individuals.

During our visit to Kinloch Rannoch earlier this week, Health and Sport Committee members saw at first hand how a community co-operative can empower and address the concerns of remote and rural communities. The community co-operative or "qualifying charity" would employ an appropriately qualified medical team.

The danger of following the lead of the Scottish Government is that doing so will create the unintended consequence of permitting any sort of company to become involved, with a loophole being opened to the private sector that I do not believe represents the intention of Parliament, and which would have exactly the opposite outcome to that which is desired by the British Medical Association.

If Italy can show the way, with 7,000 social or community co-operatives, why do we not follow that approach in Scotland? The Friendly Societies Act 1992 was updated in 2003 to allow the appropriate medical team to serve on the governing body of the appropriate qualifying charity.

I hope that members will give credence to the establishment by the previous Labour Administration of Co-operative Development Scotland, and that they will strike a blow today in order to give a further green light to the establishment of health co-operatives in Scotland.

I say to Mary Scanlon, in the nicest possible way, that we need to test the Government on its assertions. With the changes that the Health and Sport Committee has made to the bill and those that the Parliament is making today, it will not only be the British Medical Association that will benefit from the eventual legislation. If we support my amendments and the Government's amendments, we will enable the wider community to benefit from the bill, and the work of the Health and Sport Committee and the Parliament will have been worth while.

I move amendment 36.

The Deputy Presiding Officer:

I ask members to be a little bit quieter, please.

Photo of David McLetchie David McLetchie Conservative

We will oppose Helen Eadie's amendments 36 to 45 for the simple reason that, if the Labour Party and the Liberal Democrats had the courage to support the legislation that they put through Parliament barely six years ago, as my colleague Mary Scanlon pointed out, there would be no need for the elaborate constructs that Helen Eadie has outlined.

Instead, there has been a complete failure of political will, an appalling act of political cowardice and a failure to recognise that the legislative measures that this Parliament passed in 2004 and the equivalent Westminster legislation were an integral part of the negotiation of the last GP contract, which was done on a United Kingdom basis—a contract which, it turns out, has not served the best interests of patients, particularly in relation to out-of-hours provision, while it has enriched the general practitioners who are its primary beneficiaries and who, as a result of the sucking up and pandering to them by the cabinet secretary, are now trying to close down the alternative option of other people providing superior services at less cost to the taxpayer.

The measures are all about the vested interests of people who want to preserve their monopoly of service provision at taxpayers' expense. The vested interests that the Parliament should be serving are those of the patients who are treated by the NHS, not those of a particular model of provision.

Photo of Ross Finnie Ross Finnie Liberal Democrat

I will address the matter from a different angle.

I am deeply sorry because, as a matter of principle, Liberal Democrats would have no difficulty in including charities and co-operatives, which Helen Eadie has consistently advocated. Indeed, we were very sympathetic to the points that were raised by Richard Simpson at stage 2. However, today's debate is not consideration of the principles of the bill, but stage 3 consideration of amendments. I also deeply regret that the detail that has been provided in today's amendments was not available at stage 2—or between stages 2 and stage 3—when the matters to which I am about to refer might properly have been addressed.

From reading amendment 36, it is clear that "charity" would fit easily as a further category within new section 17CA(1)—which section 30 of the bill will insert into the National Health Service (Scotland) Act 1978—after the categories "a qualifying partnership", "a qualifying limited liability partnership" and "a qualifying company". However, over the page in new section 17CA(2), which provides definitions of what constitutes a qualifying partnership, qualifying limited liability partnership and qualifying company, amendment 37 seeks to insert a definition of what would constitute a qualifying charity that is wholly inconsistent with the other definitions that exist in sections 17CA(2)(a), 17CA(2)(b) and 17CA(2)(c). I cannot see that that will be other than a cause of confusion. More important, the result will be to discriminate against contractors who come under those other categories. Therefore, I do not think that amendment 37 is a competent amendment for a stage 3 debate.

With regret, we cannot support Helen Eadie's amendments 36 to 45 because we do not believe that at this stage—and without proper consideration and consultation—we should include in the bill provisions that we believe would not be effective in law.

Photo of Jackie Baillie Jackie Baillie Labour

The Scottish Government has previously indicated its commitment to co-operatives. We believe that community co-operatives with the appropriate health professionals can provide a suitable model for a PMS contract that would be entirely in keeping with the bill. If the cabinet secretary is not minded to support Helen Eadie's amendments 36 to 45, will she confirm that, if a community co-operative is also a charitable body, it will be eligible to hold a contract under the bill?

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I will respond first to Jackie Baillie's question. If a community co-operative is also a charitable organisation—and if entering into the agreement is not at odds with the basis of its charitable status—the community co-operative will be able to hold such a contract provided that it fulfils the involvement criteria that are laid down in the bill. I think that we clarified that point at stage 2.

I thank Helen Eadie for lodging amendments 36 to 45: I certainly respect her motives for doing so. As Ross Finnie does, I have some sympathy for the notion that charities should be able to hold such contracts, but the bill will already allow many charities to enter into GMS or section 17C contracts, provided that the charity fulfils the criteria that apply to all contract holders. However, we will not support Helen Eadie's rather complex amendments partly because—as Ross Finnie and Mary Scanlon have said—her amendments are in very different form to the amendments that we considered at stage 2, so there has not been the opportunity to scrutinise the detail of them.

In addition, amendments 36 to 45 include some inconsistencies that, I believe, could put them outwith the competence of the Parliament. The first inconsistency is that, for a qualifying charity, the amendments do not require that all the trustees of the charity should meet the criteria on involvement in patient care. Instead, the amendments would require that a minimum of one trustee be involved in patient care. That inconsistency would undermine a key principle of part 2 of the bill, which is that all those who are party to a primary medical services contract should have direct involvement in patient care.

The second inconsistency is that, under amendment 42, the qualifying charity's trustees would all be required to reside in the area to which the contract related. Such a residency requirement seems to be discriminatory and would create an uneven playing field in respect of bidding for contracts, given that the residency requirement would not apply to other categories of providers. In my view, that lack of consistency in the treatment of contractors would carry the real and significant risk of putting the bill outwith the legislative competence of the Parliament on the ground that the provisions might not be compatible with European Union law, in particular the European treaty principles of equal treatment, transparency and non-discrimination.

Finally, let me reiterate the point that I made at the outset. Under the bill as it stands, many charities will already be able to enter into a GMS contract or section 17C agreement with a health board, albeit that they will need to fulfil the involvement criteria.

Although I understand and have some sympathy with Helen Eadie's comments, I ask members, for the reasons that I have outlined, to vote against her amendments.

The Deputy Presiding Officer:

I call Helen Eadie to wind up and to press or withdraw amendment 36—please be as brief as possible.

Photo of Helen Eadie Helen Eadie Labour

The cabinet secretary's final point was about European Union law. I encourage her to look at the EU law that has recently been established on the formalities of co-operatives and the co-operative movement. We need only look at Italy, which has 7,000 co-operatives, where it is definitely the case—

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I respect the point that Helen Eadie makes, but will she concede that my point about legality is not about the legality of social enterprises or co-ops, but about the legality of discriminating through the bill by setting criteria for charities that are different from those for other providers? It is that that would threaten the legality of the bill.

Photo of Helen Eadie Helen Eadie Labour

The cabinet secretary needs to ask herself whether all the companies that will be involved in the provision of primary medical services will be subject to the same scrutiny. I do not think that that point holds up. The cabinet secretary is saying that she will allow the private sector to operate differently from the co-operative sector.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I am grateful to Helen Eadie for giving way again, but the point is that under the bill, all potential contract holders must meet the same involvement and eligibility criteria. The bill does not discriminate between potential contract holders, but Helen Eadie's amendments would introduce such discrimination by making special provision for charities.

Photo of Helen Eadie Helen Eadie Labour

With respect, if the cabinet secretary truly wanted to empower and enable communities to address the particular social and rural problems that they face, the political will would exist to find a way to do that. I am certain that if we were to study European law carefully—as every member knows, I am not averse to studying European law in some detail, as I have proved on many occasions—[ Interruption. ]

Photo of Helen Eadie Helen Eadie Labour

In relation to the points that David McLetchie made, it is extremely hypocritical of his party, which instigated a debate about the use of mutual co-operatives in the water industry, to oppose such an approach in the health sector.

Photo of David McLetchie David McLetchie Conservative

Would Helen Eadie acknowledge that if the law remains as it is, her preferred model would be legally possible, as would other options? I am not arguing against her model. We in the Conservative party are saying that if Labour members had the courage to support their own legislation, Helen Eadie's amendments would not be necessary.

Photo of Helen Eadie Helen Eadie Labour

David McLetchie's point is a political objection; it is not about the hard realities that people in places such as Kinloch Rannoch and other parts of Scotland face. He wants to score political points—he does not want to address the issues. [ Interruption. ]

The Deputy Presiding Officer:

Order.

Ms Eadie, I am afraid that you will have to sum up now.

Photo of Helen Eadie Helen Eadie Labour

If the rest of her party was as genuine as Mary Scanlon is in committee meetings, I would give Mr McLetchie some credence, but it is not.

Finally, I turn to Ross Finnie's point about qualification. It is not good enough for his party not to be involved in enabling and empowering communities. When Willie Rennie, Jim Tolson and the electorate in Fife find out what is happening in the chamber today, I am sure that they will read the Official Report with great interest.

The Deputy Presiding Officer:

Are you pressing or seeking to withdraw amendment 36?

The Deputy Presiding Officer:

I thought so.

The question is, that amendment 36 be agreed to. Are we agreed?

Members:

No.

Division number 7

For: Alexander, Ms Wendy, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Margaret, Eadie, Helen, Ferguson, Patricia, Foulkes, George, Gillon, Karen, Glen, Marlyn, Gordon, Charlie, Grant, Rhoda, Gray, Iain, Henry, Hugh, Jamieson, Cathy, Kelly, James, Kerr, Andy, Lamont, Johann, 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, Peacock, Peter, Peattie, Cathy, Simpson, Dr Richard, Smith, Elaine, Stewart, David, 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, 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, MacDonald, Margo, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Stewart, McArthur, Liam, McInnes, Alison, McKee, Ian, McKelvie, Christina, McLaughlin, Anne, McLetchie, David, McMillan, Stuart, Milne, Nanette, Mitchell, Margaret, Neil, Alex, O'Donnell, Hugh, Paterson, Gil, Pringle, Mike, Purvis, Jeremy, Robison, Shona, Rumbles, Mike, Russell, Michael, Salmond, Alex, Scanlon, Mary, Scott, John, Smith, Elizabeth, Smith, Iain, Smith, Margaret, Somerville, Shirley-Anne, Stevenson, Stewart, Stone, Jamie, Sturgeon, Nicola, Swinney, John, Thompson, Dave, Tolson, Jim, Watt, Maureen, Welsh, Andrew, White, Sandra, Wilson, Bill, Wilson, John

The Deputy Presiding Officer:

The result of the division is: For 45, Against 76, Abstentions 0.

Amendment 36 disagreed to.

Amendments 37 to 39 not moved.

The Deputy Presiding Officer:

Amendment 25, in the name of Ian McKee, is grouped with amendments 26 to 28.

Again, I exercise my power under rule 9.8.4A to extend the deadline for the completion of the debate on groups 6 to 8. That will reduce the time available for the debate on the motion to agree the bill, so members who are participating in the debate may wish to start changing their speeches and cutting big swathes out of them.

Photo of Ian McKee Ian McKee Scottish National Party

It will be difficult to follow Helen Eadie's spirited contribution, but I will try.

The philosophy of the health service in Scotland is that it is a mutually and publicly owned service. Allowing commercial firms to run GP practices goes against that philosophy and I support part 2 of the bill, which aims to stop that happening. However, there is a loophole, which I seek to close with my amendments. As the bill stands, if a medical practitioner—or other health care professional—regularly performs or is engaged in the day-to-day provision of primary medical services, a health board may enter into an agreement with them to provide primary medical services in that health board area. However, a person or persons could apply for such a contract when the services in which they are personally engaged are hundreds of miles away. Those people could also apply to provide services in many areas, all far from each other. Already, in England, one such combination of professionals runs about 40 GP practices in that way. There is little obvious difference between health professionals engaging in such activities and commercial companies operating in the same way.

Amendments 25 and 27 provide that contractors are acceptable only if their regular involvement in patient care will be by virtue of the agreement being negotiated. Amendments 26 and 28 provide that services that are supplied outside a prescribed geographical area should be disregarded when considering eligibility, unless there are specific circumstances in which that should not happen. Amendments 26 and 28 also prescribe which periods of absence from day-to-day provision of services may or may not be taken into account. For example there is an obvious difference, once a contract has been signed, between absence for some months due to maternity entitlement and absence for a similar period for commercial reasons. If adopted, the amendments will strengthen the bill. I commend them to the chamber.

I move amendment 25.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

I am afraid that, under standing orders, I can call only those who have a right to speak on the amendments; therefore, I call the minister.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I shall be brief. The amendments introduce regulation-making powers to allow ministers to specify to what extent the sufficient involvement criteria must be satisfied in relation to the contract being entered into, and to restrict the criteria by reference to a geographical area such as a health board area. They do not require ministers to make the regulations—they give us the power to do so. At stage 2, I undertook to have discussions about stage 3 amendments that would further specify the involvement criteria. These amendments reflect the outcome of those discussions and I am content for the amendments to be agreed to.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

The question is, that amendment 25 be agreed to. Are we agreed?

Members:

No.

Division number 8

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

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

The result of the division is: For 59, Against 61, Abstentions 1.

Amendment 25 disagreed to.

Amendments 26, 40 and 12 not moved.