It has come to the attention of the Scottish Office that there is a deficiency in the law regulating independent sector residential and day care establishments in Scotland. The result is that certain establishments providing care and support for certain vulnerable groups are not in fact subject to regulatory controls in accordance with policy intentions. The proposed Bill seeks to restore the policy intention.
Residential and day care homes are provided by local authorities and by the independent sector. These are either in the private sector or provided by voluntary organisations. The policy intention since the Social Work (Scotland) Act 1968 was enacted has been that the relevant homes in the independent sector which deal directly with the public should be regulated through registration with the appropriate local authority.
However, an insertion into the 1968 Act by the Registered Establishments (Scotland) Act 1987 had the perverse effect of limiting the policy intention only to relevant independent sector homes which provide their services to clients of a local authority. In other words, those homes which deal directly with the public and do not provide services to local authorities are not in law required to register.
It is difficult to estimate with precision how many establishments may be affected, but we believe the figure is in the region of 140 establishments covering residential care homes and children's homes and, it is thought, a small number of independent schools.
The primary concern is that the law as it now stands is such that a number of homes for vulnerable people do not have the statutory protection of registration. This flies in the face of this Government's, and for that matter the previous Government's, stated intention of providing as much protection for these vulnerable people as possible.
It is therefore considered essential to plug this gap without delay. The most appropriate vehicle for achieving this in the circumstances is by a Private Member's Bill. That is the procedure which I am using this morning.
Secondly, a close examination of the Bill and its legislative background identifies that this is the fourth time that Section 61 has been altered and improved. Tracing the amendments proposed by the Bill takes us through the Social Work Act, the Registered Establishments (Scotland) Act 1987, The Children (Scotland) Act 1995, and now this Bill. There is beginning to be a clear need for consolidation of these Acts.
Thirdly, the Bill proceeded through another place in lamentable order. There was no consideration or scrutiny whatsoever as it went through all stages at 2.30 p.m. on Friday, 24th April. Hansard reports that the only person to speak was Mr. Deputy Speaker, who complained that the Bill was only published on the previous day. Considering the imminent return of the Scottish parliament, this is a fine example of how that unicameral parliament must not act when dealing with legislation.
Fourthly, the Bill establishes regulation-making powers for the Secretary of State in respect of the extension of registration and inspection. However, these new duties fall to the 32 local authorities to implement. There is a risk that we shall see 32 different schemes of registration and inspection. For some of the smaller local authorities--this is my chance to mention Clackmannanshire--there will be very little scope for building up experience, due to lack of numbers. I wonder whether any consideration was given to altering the positioning of the registration and inspection function from local authorities to central government, as is the case with education.
Fifthly, there will be a fear that the process will be prescriptive, with caricature marxist social workers running around altering the character of all establishments into their narrow image. Of course, my colleagues were never like that! I hope that the registration and inspection process will be conducted in a manner whereby the registration and inspection officer will satisfy him or herself that there is a comprehensive system of personal care and support in place and will record a description of exactly what it is. That would allow the process to be one of insistence on minimum standards and allowing for notices-to-remedy to be issued.
Sixthly, as noble Lords who followed the Committee stages of the Children (Scotland) Act will recall, and of Sections 34 and 35 in particular, considerable emphasis was put on the place of the chief social work officer or the Secretary of State to receive and investigate complaints about the conduct of private schools. This role of the local authority and the Scottish Office to act as a receiver of complaints in the last resort will be extended to all the new categories brought within the scheme by the Bill.
Seventhly, this Bill was heralded by the idea that it would bring old folks' homes for the wealthy into the registration scheme. That is rightly achieved by it. Wealth gives no more control over one's environment than reduced means, if one is incapacitated. Families will be afforded some assistance if their dottled relatives are being mistreated or exploited.
Eighthly, I want to bring some attention to what my noble friend Lady Linklater of Butterstone would have said had she been able to attend this debate. This is about an omission in the Bill. The Children (Scotland) Act brought about the registration and inspection of children's homes and residential schools. It provided for their registration within the terms of Sections 34 or 35. The former dealt with those categorised as children's homes, the latter as residential schools. My noble friend's complaint is that the school she founded, Butterstone, for educationally fragile mainstream pupils is wrongly categorised as conforming to Section 34, as a children's home, and hence being inspected by social work inspectors twice a year, but by education inspectors only once in 10 years. It is a pity that the Bill does not provide a correction to this anomaly, which would allow such a school to be inspected under Section 35 every four years, and hence as a school. Considering that the school takes its pupils through to Highers, it is clearly dealing with mainstream but vulnerable-to-bullying children. Perhaps some thought can be given to this issue.
Finally, the Bill has a spin-off for all establishments which offer accommodation. They have to declare whether or not they offer personal care or support. The decision not to register could be seen as a business liability. This would be a declaration that no personal care or support is offered. Not only will this affect organisations like the Scottish Youth Hostel Association, outdoor centres which offer training and advice, housing associations and criminal justice organisations which run supported accommodation projects, but I imagine that few hotels, guesthouses or B&Bs would want to declare that they offered no personal care. I suspect that the boundary between registration and non-registration will be quite fluid.
The Lord Advocate (Lord Hardie): My Lords, I, too, am delighted to be able to support this small but important Bill. The Government are grateful to my noble friend Lord Hogg for taking charge of the Bill and for his opening remarks.
The Bill aims to deal with what has been described as a flaw in the law relating to the registration of certain establishments under the Social Work (Scotland) Act 1968. I call it a flaw as what is set out in the 1968 Act, following amendment in 1987, is at variance with intended policy and accepted practice. This Bill seeks to bring the law into line with policies subscribed to by this Government and previous governments. My noble friend has already explained the background in more detail.
I want to underline the importance of the registration and inspection procedures undertaken by local authorities. These are designed to ensure that establishments which are in the business of providing personal care are in fact providing good standards of care for their residents, most of whom are vulnerable people of some kind. We have a responsibility to ensure that our youngest and oldest are being properly cared for. Registration is a public indication that a particular establishment and its managers are fit for the purpose of properly looking after the people entrusted to their care.
Our concern today is that the law as it stands is such that approximately 140 residential care homes do not have the statutory protection of registration. This, as I have said, flies in the face of the stated intentions of this Government and the previous government of providing as much protection for these vulnerable people as is reasonably possible. It is essential therefore to take steps without delay.
Scottish Office officials are in discussion with the Convention of Scottish Local Authorities and the Association of Directors of Social Work about the arrangements which need to be made with the establishments affected. Authorities will need to scrutinise their records and will wish to make early contact with the establishments concerned. Thereafter, it will be necessary to make arrangements for them to be formally registered once the Bill reaches the statute book. We hope that these new registrations will be executed with the minimum of bureaucracy and inconvenience for all concerned.
Before concluding, perhaps I may deal with one or two points made by the noble Earl, Lord Mar and Kellie. I note and welcome his support for the proposal. First, as regards the debate in the other place, it is my understanding that the measure had all party support and that leaders of all parties gave approval.
As regards a review and consolidation of the legislation, if the noble Earl wishes to have a discussion with me or to write to me making a formal request for consolidation, I shall consider it as I do any other request. I should have thought that this would have been an ideal topic for the Scottish parliament to undertake early in its life.
We have in hand proposals to revise the 1968 Act as regards the provisions relating to registration and inspection. Guidance is in hand as part of our approach to improving the system and ensuring that there is no fragmentation and that authorities of all sizes apply the same criteria.
I welcome the support and co-operation given already to this Bill by all parties in the other place. Not to support the Bill would be to risk the well being of those who most need our protection. The affected care-home owners would be disadvantaged by no longer being able to rely on the public confidence in their establishments which registration brings.
Lord Hogg of Cumbernauld: My Lords, I do not intend to make another speech which, I am sure, will come as a great relief to everyone. However, I cannot promise that the same brevity will apply to the Scotland Bill which is shortly to be before the House. I am sure that the noble Earl, Lord Mar and Kellie, whom I count among my friends in this House, will return to the matters that he raised and will take up the kind suggestion made by my noble and learned friend the Lord Advocate that he write to him about consultation. I trust that the House will give the Bill a Second Reading.