Welsh Government’s legislation needs more focus

The Social Services and Wellbeing (Wales) Bill concluded its passage through Stage 3 Plenary scrutiny last week. The Bill, introduced to the Assembly by the Deputy Minister for Social Services Gwenda Thomas in January 2013, aims to reform and integrate social services to provide a more ‘person-centred approach’ to care and support. It proposes a right to a needs assessment for carers, the introduction of a National Independent Safeguarding Board, and greater consistency of service provision across Wales.

The aspirational nature of the Bill was broadly welcomed by AMs and stakeholders who strongly supported the integration and streamlining of social services. In the introduction to the Bill, and throughout scrutiny, the Deputy Minister emphasised her aim to “transform the way social services are delivered, primarily through promoting people’s independence to give them stronger voice and control”. Again, this was welcomed by AMs and stakeholder organisations.

However, during the scrutiny stages serious concerns were raised about the lack of clarity in the legislation. The most serious concern has been who will be included within the eligibility criteria. Numerous sessions of the Health and Social Care Committee focussed on the gap between information on the face of the Bill and changes that will be left to regulation and guidance.

Other areas of the Bill were also lacking in detail, with AMs consistently asking for clarification. Although the Deputy Minister issued a variety of written statements and documents throughout the process, questions were still being raised about detail in Stage 3. Inconsistencies between the aspirations of the Bill and how it would be implemented were also highlighted, for example the discrepancy between aiming to increase voice and control, and introducing potential charges for advocacy services.

Of course, the process of the Bill was not all negative. The scrutiny stages have shown excellent examples of cross-party working, and the role that stakeholders can play in lobbying for change. Many inconsistencies have been ‘ironed out’ through the process, such as the removal of the provision for charging for advocacy services.

Cross-party engagement has been a feature of the whole scrutiny process. Stakeholders such as the Older Peoples Commissioner for Wales, Age Cymru and the Royal Voluntary Service were all highlighted in the Stage 3 process as organisations which had made strong cases for amendments. These often being agreed and their contribution to the process was welcomed by the Deputy Minister. She has listened to opposition parties and civil society organsations and reflected their views in amendments. The process of the Bill therefore has been a good example of the creation, or refinement, of legislation based on consensus.

At the same time, the Stage 3 scrutiny process underlined the lack of clarity surrounding the Bill. The debates on amendments in Plenary spanned two afternoon sessions and 10 hours (I know, I watched them all). At this stage, the Bill was subject to 332 amendments tabled by the Welsh Government and all opposition parties. In some instances they were technical, but others were aimed at key elements of the Bill such as the definition of wellbeing. The fact that so many amendments were necessary at this stage is a clear indication of how details of the legislation lacked clarity, and were sometimes in contradiction to the stated aims of the Bill.

Having wrangled over and disposed of all these amendments, the Bill is now at the elusive Stage 3 Report Stage, defined by the Assembly as “an additional amending stage…where substantial or significant changes, such as the insertion into a Bill of a new Part or Chapter, has been agreed at stage 3”. So, even after the 332 amendments considered in Plenary, there is still an opportunity for further consideration and yet more amendments.

Stage 3 highlighted the lack of clarity in relation to both the content and process of passing this Bill. For instance, criticism of the lack of eligibility criteria was still being pursued by Kirsty Williams AM who was dissatisfied by previous scrutiny stages. She said there should be an indication of who will be eligible for care and support on the face of the Bill, and raised concerns that those who have ‘moderate needs’ will no longer be eligible for support. The Deputy Minister referred Ms Williams to the policy intent document that she had published in January, but Ms Williams disputed that this outlined the criteria. Throughout scrutiny, Kirsty Williams has raised serious questions about the possibility of AMs voting on social services legislation when they do not know who it will affect. This is a crucial piece of information for voting on a Bill, especially one concerning vulnerable people, and it is unsatisfactory that at Stage 3 these details are not yet available.

A further recurring theme of this stage was the Deputy Minister dismissing amendments as they were not appropriate for this piece of legislation. This happened with William Graham AM’s amendment on whistleblowing, Jocelyn Davies AM’s amendment on zero hours contracts and Lindsay Whittle AM’s amendment on the removal of reasonable punishment. These rebuttals highlight again the wide-ranging nature of the Bill, and the lack of clarity about its purpose.

If the legislation had more clarity, it is less likely that inappropriate amendments would have been tabled. The amendment that got the most coverage from the media, and interest from the public, was Lindsay Whittle’s proposal to ban smacking. Debate on this topic took well over 90 minutes with emotive contributions from a number of Members. The amendment was not passed, but the Deputy Minister committed to looking at this further in the future. In reply, Mr Whittle noted that he was grateful that the amendment had received so much attention and stated “how many people would be talking in the pubs, clubs, bingo halls and bus queues about the Social Services and Well-being (Wales) Bill if we had not discussed the issue that we have discussed today?”

The procedural aspect of Stage 3 also highlighted the complexity of voting for such a huge piece of legislation. In the first session of scrutiny many of the votes were tied with the votes of the Presiding Officer or Deputy Presiding Officer deciding the outcome. The biggest indication of the procedural problems, was when a Labour AM accidentally abstained on a vote allowing Darren Millar AM’s amendment on enshrining the UN Principles of the Older Person to become law. The Deputy Minister spoke against this amendment stating that although she supported the principles, it was inappropriate to include them in the Bill. Due to the mistaken abstention, this amendment was passed and, subject to the report stage and the agreement of the legislation at Stage 4, it will become law.

The Social Services and Wellbeing (Wales) Bill has excellent aspirations. The move to a ‘person-centred’ approach to social services should be welcomed, as should the reform and integration of social services. However, the progress of the Bill raises questions about how legislation is made in Wales. Certainly, it provides an excellent example of cross-party work and stakeholder engagement. Yet questions around the balance between principles on the face of the Bill and subordinate legislation continue. The complexity of the legislation raised questions about the amending and voting stages. Lessons need to be learned if the Welsh Government is to produce future legislation that connects delivery with its aspirations.

Helen Taylor is a PhD Candidate in the Politics Department at Cardiff University.

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