The legislation to create a National Care Service for Scotland has changed almost beyond recognition since the Bill was first introduced to parliament in June 2022. Few would disagree with what the government says it is seeking to achieve. However, ministers have themselves undermined the seemingly endless process of consultation and co-design by making fundamental changes along the way.

healthandcare.scot publisher, John Macgill, argues that the Scottish government should now consider withdrawing the legislation and come back with something better – before the Scottish parliament forces them to.

The Scottish government is committed to creating a National Care Service as part of the manifesto on which they were elected in 2021. At that stage, we were told:

‘To ensure our social care system consistently delivers high quality services across Scotland, we will take forward the recommendations of the independent Feeley review and establish a National Care Service in the next parliamentary term.

‘The National Care service will oversee the delivery of care, improve standards, ensure enhanced pay and conditions for workers and provide better support for unpaid carers.’

The National Care Service (Scotland) Bill that followed was presented as a broad framework that would then allow the detail of the creation of this new organisation to be set out in secondary legislation.

Hundreds of organisations and individuals responded to the consultation, which opened with these words:

‘The Bill allows Scottish ministers to transfer social care responsibility from local authorities to a new national service. This could include adult and children's services, as well as areas such as justice social work. Scottish ministers will also be able to transfer healthcare functions from the NHS to the proposed national care service.’

The problem is that this is no longer what Scottish ministers say they want to do.

Instead, in a move that came as a surprise to many, the Scottish government and the local authorities’ organisation COSLA agreed in July that there will be no transfer of delivery functions, staff or assets.

This month, a letter sent – without any fanfare or news release – to Holyrood’s Health, Social Care and Sport Committee by the Minister for Social Care Maree Todd backtracked on the creation of new care boards

Instead, Scotland's relatively young network of underpowered integration joint boards will be ‘reformed’, a move potentially accompanied by direct funding.

The proposals for a new National Care Service Board, a public body run by ministers, remain intact.

Those of us who suggested this a year ago might be forgiven for wondering why people looking in from the outside seem to have seen things more clearly than those at the heart of delivering the NCS.

Pity the parliamentarians

Ministers have now made their new intentions clear.

However, rather than making things easier or clearer for MSPs on the committees considering the legislation, the fundamental changes to the proposals make things more difficult.

Holyrood's Health, Social Care and Sport Committee have been repeatedly asked to put off writing their final Stage 1 report on the general principles of the legislation.

The current deadline for completing Stage 1 – requiring the committee to write a report and the parliament to agree it – is 31 January 2024.

It is hard to imagine that this timetable will be met.

The committee has asked several times for more information and last month said it was unable to continue its scrutiny of the Bill with the information it had.

Now that they have answers in the form of Ms Todd’s letter, it is clear that the legislation they have been considering since autumn 2022 was looking to deliver on proposals the government is no longer pursuing.

Can the committee really feel properly informed when writing its report if the legislation the original consultation was based on and the witnesses who have appeared before the committee have been giving their views on a different set of proposals?

Earlier this month, a conference heard that social care providers were surprised and concerned that proposals the sector had been consulted on had now “fundamentally changed because of a deal done [with COSLA] which most of us were not party to”.

Speakers at that meeting said the collaborative approach taken by government must continue – particularly keeping up a conversation with the workforce that will have to deliver social care whatever happens.

Costing the new NCS

On the same day she penned her letter to the health committee, Ms Todd also wrote to the Finance and Public Administration Committee, which is tasked with reviewing the budgetary implications of the proposals.

The updated financial memorandum reveals that the planned changes – particularly the decision to scrap plans to create new care boards and move people around – mean the NCS is set to cost far less than the original plans.

The Finance and Public Administration Committee is famously the group whose convener suggested that the whole legislation was a ‘sledgehammer to crack a nut’, and which has repeatedly asked for more information on costings.

In her letter to the committee – accompanied by 115 pages of confusing ‘tracked changes’ to the original Programme Business Case – Ms Todd says the documents ‘show changes based on the Bill as introduced rather than the proposed amended approach’ and should be read in that context.

The committee is used to getting its head around complicated things, but it may find assessing the costs of implementing a new approach based on costings for proposals the government no longer wishes to pursue a particular challenge.

The legislative process used to create new Acts of the Scottish parliament is straight forward compared with Westminster.

Stage 1 looks at the general principles and whether the law being proposed will be workable to achieve the aims. Stage 2 then sees every line scrutinised by MSPs in committees before the whole package gets a final review by the whole of parliament.

The Scottish government says it wants to make amendments to the National Care Service Bill at Stage 2 ‘in response to evidence taken at Stage 1 and ongoing feedback from stakeholders as part of the Scottish government’s co-design programme’.

MSPs would be within their rights not to allow the legislation to complete its first stage as ministers say they don’t now want to deliver much of what the Bill sets out to achieve.

The Scottish government would be wise to consider whether now is the time to withdraw the current bill and publish new, slimmed-down proposals that do what they now say they want to do – rather than doggedly continuing on a path using an out-of-date map.

Read more: Questioning “fundamentally changed” NCS; Millions less needed to deliver NCS; Government abandons plan to create care boards

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