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The Feeley review made it clear that, although there are some areas of good practice, procurement needs to improve: it needs to be ethical, outcome focused, person led, flexible and collaborative, and to embed fair work. Although I am confident that the current suite of procurement legislation already provides the flexibility to deliver most of the improvements that are needed, there are two areas where changes to legislation would be of benefit—first, extending the reserved contracting process to third sector organisations that meet the listed criteria for services and, secondly, providing a new ministerial power to amend the light-touch regime threshold.

Before turning to the detail of my amendments on the reserved contracting process, I take this opportunity to reiterate my appreciation to all providers that deliver vital services to our communities. I am aware that there has been some concern about what this process will mean for the market, so I want to be clear that we need a mix of third sector, for-profit and public sector organisations to provide social care throughout Scotland. The extension of the reserved contracting process will not change that. Providers that do not meet the criteria to participate through that process will still have access to other contract opportunities through different procurement routes.

I turn to the detail of the amendments. Amendment 51 will remove the limit on the duration of contracts that can be made subject to the reserved process. Representatives of the third sector have told us that the five-year limit that was proposed in the bill as introduced would be unhelpful. As a result of amendment 51, the decision on the length of a contract that is subject to the reserved process will be made on a case-by-case basis by the relevant public body.

Amendment 52 is a tidying-up amendment to replace a reference to services being provided

“to or on behalf of the National Care Service”,

in consequence of the removal of part 1 of the bill.

Amendment 53 will broaden the definition of the bodies that will qualify to bid for contracts through the reserved process. That reflects extensive work that has been undertaken with stakeholders to ensure that the criteria fulfil the policy intention of ensuring that third sector organisations, including social enterprises, can bid through the process. I thank all the stakeholders involved for their invaluable feedback.

Amendment 54 will make is a minor drafting adjustment.

Before I move on from the reserved process, I urge members not to support Brian Whittle’s amendment 53A. The purpose of section 41 is to create a process for bidding for certain contracts that is open only to third sector organisations, so that they are not always crowded out by big for-profit companies. Last week, Brian Whittle made it clear in speaking to his amendment 139, which would remove section 41, that he is opposed to that approach in principle. His amendment implies that the state should have no role in providing a level playing field to ensure that the sector has an appropriate mix of for-profit and not-for-profit providers.

Mr Whittle’s amendment 53A is more of the same. It would allow companies that are principally set up to make profit for their shareholders or members to enter the reserved process, provided that they say that they do not intend to use the profits from reserved contracts for private gain. That would still be opening up the reserved process to organisations beyond third sector organisations, which are the organisations that section 41 was designed to benefit. That is understandable from Brian Whittle, who we know is opposed to the whole principle behind section 41, but members who are not opposed to that should vote against amendment 53A.

Finally on this group, I turn to my amendment 55. Procurement legislation details the rules that apply when public sector bodies purchase from external providers. It sets thresholds at which rules, such as requirements for specific competitive processes, apply. The rules depend on the type and value of what is being purchased. For health and social care services, the light-touch regime threshold and rules apply. There is currently no mechanism for changing the threshold of the light-touch regime, and the current threshold has been in place since 2015.

Amendment 55 provides a power to change the threshold by regulations for health and social care contracts. Any future changes to the threshold must be exercised in compliance with international law, including trade agreements, and would be subject to the negative procedure.

I move amendment 51.

Adult support and protection is everyone’s business. We all have a responsibility to support and protect the most vulnerable people in our society, and we want to make it as easy as possible for those at risk of harm to receive the right support at the right time.

For clarity, I note that local health and social care partnerships continue to hold overall responsibility for investigating and supporting adults who might be at risk of harm.

I have heard from a wide range of stakeholders, including those from health, social work and police sectors, that the variation in how adult protection guidance, including profession-specific guidance, is applied across Scotland can leave them unsure of the most appropriate action to take when they have concerns about an adult at risk.

Amendment 58 seeks to address that by clarifying that, where there are concerns about an adult at risk, information can be shared quickly, proportionately and safely between independent healthcare providers, including private providers, and the local authority. It will allow relevant healthcare services to contribute to adult protection committees, which take strategic action on improvements to governance and planning. The amendment will improve consistency and reduce variation in relation to supporting and protecting our most vulnerable adults in Scotland.

I move amendment 58.

The member is absolutely correct to say that the GDP deflator was used in previous years—from 2011 to 2015—and we then had a number of years when the rates remained static, before we went back to the GDP deflator. Over the past few years, including during the pandemic, there have been above GDP deflator increases. There was an increase of 7.5 per cent in 2021-22, of 10 per cent in 2022-23 and of 9.5 per cent in 2023-24. In 2024-25, we went back to the GDP deflator increase, which, in that year, was 6.68 per cent. Historically, we have used that measure as the benchmark for the uplift, and we are very pleased that we have been able to allocate additional resources to fund free personal and nursing care.

The member will understand that we are operating in an extremely challenging financial context. As such, although there is no doubt that I would have preferred to increase it beyond that, it is simply not possible this year.

I welcome the intention behind Gillian Mackay’s amendments 73 to 80 and 83 to 85, which is to ensure that the new rights to breaks can include the provision of breaks taken together with a cared-for person. Although I consider that the existing provisions do not prevent the carer and the cared-for person from taking short breaks together, I support the amendments to ensure that that is absolutely clear.

I am, however, concerned by one potential consequence of the definition of breaks that is proposed in amendment 85, which is that it could allow local authorities to give effect to the right by providing a carer with breaks that are unrelated to their caring role. I am sure that that was not the intention, so I would like to work with Gillian Mackay ahead of stage 3 to develop a definition that does not risk undermining the right that we are trying to confer.

I am also happy to support amendment 81, which would turn the regulation-making power to make further provisions about breaks into a duty to make regulations. It was always the intention to make regulations, so turning that “may” into a “must” does no harm.

Amendment 82 is intended as a minor drafting amendment to add the word “also” as a consequence of agreement to amendment 81. It is not necessary or helpful as a consequential change and so I do not support it. If Gillian Mackay thinks that it is more than a consequential change, however, I would be happy to discuss with her what she means it to do and how it could be more clearly expressed.

I have a number of concerns about Gillian Mackay’s amendment 131 and Jackie Baillie’s amendment 132, which set rules about how the regulations should define sufficient breaks. In both amendments, there are aspects of the wording that do not work. For example, amendment 131 uses the term “working hours”, which is an employment law concept. That is not how we would draft regulations that are related to unpaid care.

I should also emphasise that I consider a provision that requires recognition of article 24 as drafted raises questions of legislative competence, especially given the reservation of international relations under the Scotland Act 1998.

Amendment 132 talks about a minimum entitlement of a two-week break. It is unclear what is to constitute a break in that context and whether it means two weeks consecutively or cumulatively, and what period it will be for—a month, a year or a lifetime.

Beyond the wording, some of the principles behind the amendments are inconsistent with feedback from carers in our previous consultation. Overwhelmingly, responses favoured personalisation over standardised entitlements. There is also the concern that, by setting rules about what regulations that define sufficient breaks have to say, the amendments would pre-empt the intended consultative process. By imposing rules about what regulations have to say now, we might end up preventing the regulations setting out a definition in the terms that carers, delivery partners and other consultees want to see. Although I cannot support either amendment 131 or 132, I would be happy to discuss what might be possible with Gillian Mackay and Jackie Baillie ahead of stage 3, so that we end up with a definition of “sufficient breaks” in regulations that is workable, that reflects the views that will be expressed through the intended consultative process and which can be adapted in the future, if required.

Amendment 133 is consequential on amendment 131 and, as I do not support amendment 131, I ask members not to support amendment 133.

Finally in this group, I am pleased to support Gillian Mackay’s amendment 88, which would extend the range of information that a short break service statement must contain and so increase transparency around the availability of different types of short break services and what local authorities are doing to meet demand. There are some ambiguities in the drafting of amendment 88, which I would like to resolve at stage 3. I will be pleased to work with Gillian Mackay to do that.

Procurement can and should be the enabler of the much-needed improvements to social care. The light-touch regime provides flexible rules on procuring social care services that are over a certain value. There is currently no way for us to change the value at which the rules apply, and amendment 55 will give us that power.

As I said, we rely on a wide range of service providers to meet the needs of the people of Scotland. I appreciate all the work that they have done and continue to do to deliver those vital services to people.

The reserved contracting process is one of many approaches that can be taken when procuring. The decision on whether to use that process will be made at the local level. The ethical commissioning and procurement principles will be at the centre of all decision making, including decisions on which procurement approach to use.

My amendments 51 to 54 will update the defining criteria of the reserved contracting process and will remove the limitations on contract durations through that process. People in the sector have told us how they would define the third sector, and we have listened to them. My amendments reflect that work.

On that basis, I urge the committee to support amendments 51 to 55 in my name, and not to support Brian Whittle’s amendment 53A.

I support Gillian Mackay’s amendments 86 and 87, which seek to ensure that carers can access support on a reasonable timescale, including support under the new right to breaks. Until a carer has an adult carer support plan or a young carer statement, they are unable to access statutory carer support, including short-break support. I acknowledge how essential it is for carers to be supported to take care of their own health and wellbeing while maintaining their caring role, and statutory timescales would support consistency between areas and help promote early intervention.

However, I am well aware of pressures on local carer services. Therefore, when it comes to setting timescales, it will be important to engage with carers and services in order to balance the need for such plans to be prepared in a reasonable time, while not adding to the pressure on services and allowing them to prioritise carers in urgent need. With that in mind, I intend to retain the accelerated timescales that are currently set out in regulations for carers looking after someone with a terminal illness.

I urge members to support amendments 86 and 87.

I am happy to discuss those questions with Dr Gulhane offline. The process, which people have asked us to use to strengthen the powers of the SSSC, is relatively uncontroversial. I am content to discuss any concerns with him between now and stage 3.

As the development of the national care service, the national social work agency and related policies progresses, we must ensure that the appropriate bodies can undertake all necessary activities in a cohesive and complementary way. Amendment 57 provides clarification of a power that Scottish ministers already hold. They can already delegate to the Scottish Social Services Council or authorise other relevant persons to undertake on their behalf any of the functions under section 58 of the Regulation of Care (Scotland) Act 2001. Amendment 57 clarifies that a function can be delegated in part as well as entirely. For example, a function may be delegated only in so far as it relates to a particular workforce.

I move amendment 57.

No.

I cannot support either of the amendments in the group. Amendment 89 would place a duty on ministers to make regulations that would impose requirements on care service providers that are publicly funded, but it is unclear what the limits to that power would be. At face value, the amendment suggests that the requirements could be about anything, which seems to be rather broad.

There are two particular things that amendment 89 says the regulations would have to impose requirements about—“tax status” and “transparency of ownership”. It is unclear what those requirements would be or what could be done to a provider that does not comply with whatever the requirements are.

It is also unclear which services the regulations would apply to. Beyond the challenges that are posed by its drafting, amendment 89 has the potential to cause problems regarding compliance with the United Kingdom Internal Market Act 2020, which Katy Clark’s colleagues at Westminster have refused to abolish.

It might be that some, or all, of what Katy Clark seeks to achieve with amendments 89 and 90 can already be done. Public bodies already have powers to exclude providers through regulation 58 of the Public Contracts (Scotland) Regulations 2015 and regulation 9 of the Procurement (Scotland) Regulations 2016. The powers include the power to exclude providers that have breached their obligations relating to payment of taxes or social security contributions.

My door is always open, if Katy Clark wants to discuss further what can be done to address any specific concerns that she has, but I believe that amendment 89 is the wrong answer to those concerns.

Amendment 90 would extend the requirements of the Freedom of Information (Scotland) Act 2002 to persons

“providing publicly funded care services”.

I understand the desire to improve access to information about care services. I agree that access to information is critical in fostering public trust and ensuring effective delivery of services. That is why the Government has already committed to consulting on extension of the freedom of information law to private and third sector care homes and care-at-home services.

Amendment 90 is not the way to take forward such a change; the right way to take forward change in the area is the existing power under section 5 of the Freedom of Information (Scotland) Act 2002. That allows for and requires specific consultation, thereby ensuring that any extension of freedom of information law would be properly planned and tailored to the sector’s specific needs. It means, in particular, that there would be an opportunity to consult in order to get an appropriate definition of the bodies that we would make subject to the freedom of information requirement.

The expression “publicly funded care services” that is used in amendment 90 is unclear and, I think, might cover more bodies than Katy Clark intends it to cover. Around 11,000 care services are registered with the Care Inspectorate, and many are delivered in partnership with private and third sector providers of varying sizes.

Being subject to freedom of information laws also comes with certain resource implications, which have to be carefully considered when we are deciding which bodies to extend the laws to, especially in the context of a sector that is already facing substantial financial challenges following the recent national insurance hike. I note that the Coalition of Care and Support Providers in Scotland—CCPS—has indicated to the committee that it does not support amendment 90, citing concerns about the resource implications of new obligations being placed on providers.

Therefore, I ask Katy Clark not to move amendment 90. I will be pleased to discuss with her, in advance of stage 3, the work that the Government already has under way on access to information rights in the sector, and the other avenues for making progress on this important issue.