Chamber and committees

Absolutely. That is why schedule 3 of the bill links to the Gender Representation on Public Boards (Scotland) Act 2018. That would achieve the gender balance requirements that are crucially important to starting the work on addressing the failures of the current system when it comes to women.

Yes, I saw the comments from Sally Witcher last week. She welcomed the proposal and caveated that with her thinking on whether the timing was right.

For me, there are two aspects to the council. There is the council being there in advance and being able to advise the Government on the creation of the entitlement, and there is the further role that it would have in scrutinising regulations that the Government brings forward and commissioning research into emerging illnesses and injuries.

With regard to employment injury assistance, I think that the membership criteria that I have set out in the proposed bill cover what that would look like.

The cabinet secretary’s commitment to creating an advisory group is a welcome development and a step in the right direction, but that is simply a group that will make recommendations, which we have had in the past. We previously had the disability and carers benefits expert advisory group, which was set up and then disbanded before its recommendations had been implemented. DACBEAG was a working group that was set up to advise on employment injury assistance, among other benefits. It recommended that the council be set up, but that recommendation was never accepted or advanced before the group was disbanded.

I am concerned, therefore, that, although a working group is a step in the right direction, it is not set up in statute. The group can be disbanded just as easily as it was set up, and the membership criteria are not set out in primary legislation, so it is not as defined as Parliament might like it to be. It would potentially not be gender balanced. There is a whole range of questions about what that working group may or may not look like on which we, as a Parliament, do not have clarity. Crucially, it would not be protected—it would not be independent of Government or set up by statute, and it could be disbanded as easily as it was created.

We were really careful about reserved and devolved issues. I absolutely would not want the legislation, if the bill was passed, to go to the Supreme Court—I do not plan on going there in my lifetime. Therefore, I was careful to make sure that the bill did not stray into the territory of the preventative role, which is reserved and is with the Health and Safety Executive.

That said, the work that the council would do would have a preventative role in itself. The research that it would commission would fill the current data gaps in Scotland, and filling data and knowledge gaps and improving awareness and education would have a preventative role. The council would be mandated to have at least one public meeting every year, at which it would publicise its work and improve education on the issues, which would improve prevention.

If the council made recommendations that were accepted by Government and that increased entitlement, given that the budget for employment injury assistance will be demand led, I imagine that, if the Government saw that demand-led budget creeping up, it would look into the issue to see why and would probably take preventative action of its own.

Although the council would not have any direct impact on preventative work, because of the issues around reservation that you mentioned, a lot of its work would, in itself, lead to greater prevention of illness and injury in the workplace.

It would depend on what research the council was carrying out. It could be looking at existing research on, say, cancers in firefighters, on which the Fire Brigades Union has already commissioned a strong body of research. For that particular work, the council could rely on existing research, and the figure would more than cover the costs of interrogating it. I go back to my earlier point that the council would set its own research and work plan independently and would negotiate on that basis with the Government as to what it felt that its costs in a particular year would be.

The member will know from the vote that we had in Parliament in November that there is no disagreement between me and him on devolving employment law, but we are looking specifically at the bill.

There is a specific provision in the bill that gives the council the power to work with other bodies—including the HSE—as it sees fit. Although the HSE has not given oral evidence, it said in its written evidence that it regularly works with the Scottish Government and with other public bodies in Scotland, so it seems that it would be capable of working with the new council and would be willing to do so.

The HSE has observer status on IIAC. It would be open to members to propose an amendment at stage 2 that would mean that HSE would have observer status on SEIAC, too. We could look at that, but the bill already includes a power for the new council to work with others, including the HSE. However, the council would not have a preventative role in and of itself, because of the restrictions to do with reservations.

Anyone could make recommendations, but whether it would be within the council’s power to do so is a different matter. I would argue that I have been very clear about staying within the bounds of the devolution settlement; I do not want the bill’s provisions to end up before the Supreme Court. We have focused mainly on the powers that are within the competence of the Scottish Parliament. That is not to say that we do not agree on the need for further devolution, which could lead to greater enhancements to health and safety at work. However, I am operating within the constraints that the Presiding Officer and the Parliament have set for me on drafting this piece of legislation.

A whole range of occupations have been ignored. The Fire Brigades Union has presented really strong evidence of firefighters suffering from cancers at much earlier ages than the rest of the population because they are being exposed to contaminants. There is clear evidence that shift workers, particularly female shift workers, have a higher incidence of breast cancer and other cancers. There is a strong campaign, which is supported across the parties, on footballers with head injuries. The current system completely ignores a range of workers who have been affected by asbestos, and there is a strange rule that people need to have worked with asbestos itself, which ignores those who worked every day in buildings with asbestos and those who have handled overalls that were covered in asbestos dust.

A whole swathe of workers who have become ill, been injured or died as a result of just going to their work has been completely ignored for the past 50 or 60 years. The devolution of the benefit represents a real opportunity to start to address that, but we will be able to do so only if we get people with lived experience in the room and on the council—which must be independent of Government—from the get-go, so that they can make recommendations on setting up the benefit.

Thank you, convener. I appreciate your welcome and the committee’s five weeks of evidence taking on the bill. I appreciate the in-depth look that you are giving it.

I will go into the motivation that lies behind the bill and give the committee a flavour of why I am here in the first place. I started thinking about the bill back when we were in the middle of the pandemic. I was thinking particularly about key workers who caught Covid in the course of their work, some of whom developed long Covid and have not been able to go back to work at all. The motivation was really about how we could get long Covid on to the list of prescribed diseases in order to support those key workers, who did not have the luxury of being able to self-isolate, and how we could support them through the new employment injury assistance, which is about to be delivered by the Scottish Government now that the benefit has been devolved.

However, when I looked deeper into the current scheme, which is industrial injuries disablement benefit, the failings in that system became apparent to me, and it was clear that it is more than just people with long Covid who are in desperate need of support. You have heard evidence about the range of people who are being missed out and left behind by the current system, and about the gendered nature of the entitlement as it stands, in that only 7 per cent of applicants through the prescribed route are women. It is a social security entitlement that essentially fails half of the population.

The current system is also outdated in terms of the types of employment that it covers. It does not reflect modern workplaces in the 21st century. Essentially, it supports the male-dominated heavy industry that existed in the 1960s and 1970s. You have heard compelling evidence from trade unions and workers’ representatives about the types of people who are being missed out, including firefighters, shift workers, care workers and footballers with head injuries. As I said, women are completely ignored by the current system. That is why, taking a step back from the long Covid aspect, I felt that a whole-systems approach was more appropriate and important, and that is how I have come to this point today.

The timing of the introduction of the bill and of the proposed council is important, because the Government and the Parliament will need concrete evidence on what the new benefit should look like, so the council will need to be in place to advise on modernising the benefit before it is fully devolved and delivered. The Scottish Government’s agency agreement with the Department for Work and Pensions says that it must have a business case and a plan in place for how it will deliver the new benefit by the end of March 2025. That is not very far away: it is less than a year and a half away. The Parliament and the Government really need to get on with the job of delivering what the new entitlement will look like.

In the evidence session last week, the cabinet secretary welcomed the wealth of work that we have collated. A lot of work has gone into the bill and the consultation before it. There is no need to reinvent the wheel; there is a ready-made proposal that the Government could adopt. There is a real risk that, running up to the March 2025 deadline, the Government could end up duplicating a lot of that work and having to do so in a hurry, which would probably cost it a lot more money.

The cabinet secretary and I have an outstanding meeting that we need to put in the diary. When we meet, I will say to her that there is a line in the bill that relates specifically to commencement. I am more than happy to discuss and negotiate with the Government what it thinks the best date for commencement is, and whether it would prefer to commence the bill by regulations and leave it entirely within its gift to choose the date. I am absolutely open to the Government on timing. However, as I said, we are fast running out of time.

The cabinet secretary also said that she thought that an advisory council is perhaps one piece of the jigsaw of employment injury assistance. I fundamentally disagree with that. I do not think that the council would be one piece of the jigsaw. It would be the body of expertise and lived experience that would design the jigsaw. It would advise the Government on designing it and putting it together; it would not just be a single piece of the jigsaw.

Members will see from the bill that the council would have the capacity to commission its own independent research. The membership criteria are clear. The council would draw on medical expertise, workers and their representatives and, crucially, those with lived experience of employment injuries and illnesses. There would be a balance of employers and employees on the council.

Finally, the crucial point is that the bill would deliver the Government’s aspiration to be a fair work nation. The Fair Work Convention supports the proposal, because one of the key planks of the ambition to be a fair work nation is giving workers effective voice. It is about giving workers—those with lived experience and real, in-depth knowledge of injuries and illnesses at work—their seat at the table and a voice in designing the new benefit and ensuring that it is what it could and should look like: fit for modern Scotland, 21st century workplaces, and the illnesses and injuries that workers get today and will get into the future.

I look forward to questions. Thank you for the time, convener.

That would require primary legislation like the bill, so it would take a lot longer and would push a lot closer up to the deadline that the Government has for taking over responsibility for the benefit. We would need to mirror the provisions in the bill on membership, the balance of employers and employees, and ensuring that the body included lived experience, so I guess that we would still need primary legislation to implement that. I am not sure how much financial saving there would be from creating a sub-group of SCOSS with essentially the same purpose and function, and it would probably take longer to get to the same point as we would reach by passing the bill.