Stage one report on the Social Security (Scotland) Bill: Scottish Government response

Part 1: Principles, Charter and Accountability

The Existing Principles

The Committee welcomes the innovative inclusion in the Bill of a set of guiding principles, especially that "respect for the dignity of individuals is to be at the heart of the social security system".

39. The Scottish Government is pleased that the Committee supports the Bill's principles.

40. A message that has come through strongly in all of the Scottish Government's engagement to date is that people find the existing UK Government welfare system to be stigmatising, adversarial and inhumane.

41. As the Scottish Government has made clear throughout this process, it is determined to build a new system founded on dignity, respect and human rights. The legislative principles are therefore intended to define and embed that more positive, supportive ethos. They are to be a foundation upon which all aspects of the Scottish system will be built.

42. The principles in the Bill are a product of extensive consultation and engagement. The engagement of disabled people in building the new Scottish social security system was commended by the United Nations Committee on the Rights of the Disabled ^[6] . And, as has been acknowledged by human rights organisations, the principles are also reflective of key aspects of the right to social security as is set out in human rights instruments such as the International Covenant on Economic, Social and Cultural Rights, the Universal Declaration of Human Rights and the European Social Charter.

The Committee recommends that the Scottish Government clarify the legal status of the principles contained in the Bill and where appropriate amends the Bill to achieve this clarity.

44. The principles are also intended to offer plain English statements of what people should expect from the system. This, in itself, makes them incompatible (to a degree) with legal enforceability, as enforceable wording must always be expressed in legally precise language.

45. The principles should also be viewed as one part of a much wider legal and human rights landscape. Scotland presently has human rights obligations under 19 separate international treaties and protocols, and the Scotland Act 1998 requires that all Scottish Parliament legislation, and all acts of the Scottish Government, must be compatible with the rights set out in the European Convention of Human Rights ( ECHR).

46. Separately, the Human Rights Act 1998 ( HRA) makes it unlawful for public authorities in Scotland to act incompatibly with the Convention rights. Human rights cases can be heard in the Scottish courts in the event that breaches do occur.

47. And, under the Scottish Ministerial Code all Scottish Ministers have an overarching duty " to comply with the law, including international law and treaty obligations." That includes relevant human rights treaties and covenants such as the European Social Charter and the International Covenant on Social, Economic and Cultural Rights.

48. While it is true that some of the rights set out in these treaties cannot be directly enforced in cases in Scottish courts, they are nonetheless substantive and real. The Scottish Government is strongly committed to giving effect to them and the principles in the Social Security Bill are an excellent example of that. The First Minister's Expert Advisory Group on human rights, being led by Professor Alan Miller, offers a further illustration of the Scottish Government's commitment to continue leading the way on human rights.

49. The Scottish Government believes that legal action in the Courts should always be a last resort. The intention is to ensure that people, and the principles of respect and dignity, are at the very heart of how social security is delivered in the first place. Where mistakes are made or disputes arise, those should be resolved promptly and effectively, in a way that is focused on the needs and rights of individuals. A rights based system is one that listens and adapts to feedback, not one that leaves people with no option but to seek legal recourse.

50. The Bill requires Scottish Ministers to report to Parliament on delivery against the commitments to be set out in the charter. Moreover (and as is explained in more detail at paragraphs 17 to 27 above), the Scottish Government will also reflect on the wider range of issues raised in the DACBEAG's working group's advice, provided on 12 December, which includes the question of whether it might be possible for the independent scrutiny body to be tasked with considering instances where an individual believes that their rights, as set out in the charter, have not been met. As noted above, the Scottish Government will reflect on the working group's advice on these matters and will respond to the group directly.

51. In the meantime, the Scottish Government would welcome views from the Social Security Committee and others on all of the proposals put forward by the working group.

New and Amended Principles ( Advocacy and Advice)

The Committee supports the addition of a principle to the Bill to state that individuals will have the right to independent advocacy under and with regard to the Scottish social security system.

52. The Scottish Government fully recognises that there are some individuals whose reliance on advocacy services is crucial in helping them negotiate their interaction with any public body, at any time, and it is vital that such individuals have a right to receive the support that they need. The Scottish Government agrees with the Committee, and has therefore committed to bringing forward an amendment to the Bill at Stage 2 in order to address this issue.

The Committee recognises that a similar case was made for the inclusion in the Bill of a right to advice and asks the Scottish Government to reflect on this.

53. The Scottish Government recognises that advice services play a critical role across Scotland's communities in helping citizens to understand their rights and to seek solutions in a range of areas such as money and debt, housing and homelessness, social security and consumer issues. It is committed to working with the sector to ensure it is able to provide timely, high quality advice to those in need. However, it is of the view that there is not a need for a specific right to advice to be included in the Social Security Bill, given the significant level of local authority and Scottish Government investment already being made in advice services alongside the existing statutory duties (for example, in relation to housing and money advice).

54. In addition, the social security agency will also have a role in providing pre-claim advice and support to individuals claiming devolved assistance. As part of the local delivery network, that support will continue throughout the process of claiming assistance from the agency, which will work to build links with the wider advice sector and signpost or refer individuals to services appropriately to ensure that they are supported.

Duty on Scottish Ministers

The Committee supports the amendment of the fourth principle in the Bill to introduce a duty on Scottish Ministers, rather than a role, to ensure that individuals are given what they are eligible to be given under the Scottish social security system.

55. The Scottish Government agrees with this recommendation. As well as strengthening the principles, the Scottish Government believes that this proposal would more accurately reflect the work that it will take forward to remove stigma and to improve the take-up of assistance. Moreover, it would also ensure that future Governments are also bound by a duty to continue this work, embedding it more deeply into the nature and operation of the Scottish system.

56. Therefore, as well as the inclusion of support for advocacy, the Scottish Government is committed to bringing an amendment to the Bill at Stage 2 to place a duty (rather than a role) on Scottish Ministers to ensure people get what they are entitled to from the Scottish social security system.

The Eradication of Poverty

The Committee supports the inclusion of an additional principle in the Bill that

'Social security has a role to play in the eradication of poverty in Scotland'.

57. The Scottish Government remains ambitious about what could be achieved by the new Scottish system and agrees entirely with the sentiment expressed in the Committee's recommendation. However, it must be recognised that only 15% of welfare spend is being devolved. Crucially, the Scottish Government does not have control of the full range of levers over social security, employability and employment powers to most effectively tackle poverty and inequality and provide joined-up support for people in and out of work. In line with the commitment in the Programme for Government, the Scottish Government will publish a discussion paper in 2018 that makes a case for the devolution of further social security powers.

58. The Scottish Government notes that the socio-economic duty on public bodies is also relevant as it will require the agency to consider what can be done to reduce poverty and inequality, whenever a major decision is made.

Other Principles

The Committee is supportive of the sentiments behind proposals to include principles on anti-discrimination, transparency and accountability, and to amend the second principle on human rights to link it to international law. However, it believes that they are already largely covered by the existing principles and that the way to make them effective is to develop them within the charter.

59. The Scottish Government welcomes the Committee's assessment that the scope of the existing principles is sufficiently broad to encompass many of the more specific proposals made during Stage 1, and further agrees that the role of the charter is also relevant here. The charter will translate the principles into specific, tangible commitments, ensuring that they are carried through to operational delivery.

The Charter

The Committee believes that there is an important role for a charter to set out in clear language what claimants can expect from the Scottish social security system and this is a welcome initiative by the Scottish Government.

60. The Scottish Government is pleased to note the Committee's support and is committed to ensuring that the charter sets out what people are entitled to expect from the system in the clearest possible terms. The Scottish Government noted and agreed with stakeholders (such as Rights Advice Scotland) who provided evidence that for the charter to be accessible, it must be short and simple. This is itself a key part of a human rights approach to social security. If people are to place their trust in the new system and to regard assistance as a stigma-free entitlement, then it is critical that they have a clear understanding of their rights and the specific actions that the system will undertake to ensure they are fulfilled.

61. A key part of this effort is to enlist the support of people with direct experience of social security, not just to identify what should be included in the charter, but also to co-design the language, look and format of the finished product.

62. This strong desire for a clear and accessible charter is likely to be incompatible with some of the arguments that were put forward in favour of making the charter legally enforceable. Such a charter would, by definition, need to be legally precise, contradicting its intended purpose as something separate to legislation that offers a plain English statement of what people are entitled to expect.

63. The Scottish Government believes that, once it is underpinned by parliamentary and independent scrutiny, the charter will ensure that the principles are deeply embedded in operational practice, and that Scottish Ministers are held to account for delivering this.

Redress

The Committee believes that there is a need for a robust mechanism for redress for individuals if they feel their treatment has not been compatible with the Charter. It believes that there is doubt currently over the legal status of the Charter and therefore what this process for redress would be. It recommends that the Scottish Government clarify what this process will be and where appropriate amends the Bill accordingly.

65. However, the Scottish Government does not believe that a legally enforceable charter is the best means of achieving this for three reasons. First, such a charter would by definition require to be legally precise; contradicting its intended purpose as an accessible, plain English statement of what people are entitled to expect.

66. As is set out in more detail in paragraphs 43 to 48, human rights issues are already justiciable and the Scottish Government, in addition to being subject to the legal and political obligations noted in these paragraphs above, is strongly committed to being an exemplar in the recognition and fulfilment of rights.

67. Third, it is questionable how much more redress a legally enforceable charter would deliver in practice for an individual. Legal challenges of this kind are complex and expensive, making it an unrealistic option for most people. Even in circumstances where a legal challenge was successful, it is unclear what a satisfactory judicial remedy might look like. The recent research from the University of Ulster ^[7] seems to back this view; concluding that the Courts ultimately "represent an inefficient means of protecting dignity and respect on a systematic scale" and that "it is through the legislature that most rights will continue to be realised."

68. It is clear that redress comes in different forms, and the appropriate method depends upon the circumstances and nature of the challenge in question. For this reason, it is intended that the Scottish social security system will provide people with multiple methods of seeking redress. First, it will provide the ability to challenge decisions on eligibility for and, where appropriate, the level of benefit payable through a clear and legally robust appeals process. Second, the agency will have equally clear and robust complaints procedures providing the ability to challenge matters such as service delivery standards and day to day interactions with staff.

69. These complaints and appeals procedures will themselves require development in a manner that is consistent with the principles and charter and will be aimed at providing satisfactory redress on the ground as quickly as possible. This will, in turn, be bolstered by onward escalation to the Scottish Public Services Ombudsman ( SPSO) and an independent scrutiny function that can examine whether patterns or rates of complaint are suggestive of the need to address a systemic problem (and that can, subsequently, advise Ministers accordingly).

70. The Scottish Government also accepts that its ambitions for the principles and charter may also imply the need for another, more fundamental form of redress. This may arise where a person wishes to challenge some fundamental aspect of the system ( e.g. the fairness of the appeals process or the nature of medical assessments) that they believe has fallen short of the standards articulated by the principles and charter. The agency's complaints procedures, however robust and consistent with the charter, may be unable to deal with matters of this nature and may also go beyond the current remit of the SPSO.

71. As part of the development of proposals for independent scrutiny (see paragraphs 23 to 25), the Scottish Government is therefore carefully examining the DACBEAG working group's advice, that the independent scrutiny body should have a role to play in protecting people's rights in relation to the charter. The intention is to provide a more accessible, immediate way of allowing the system (and the underlying policy) to flex and adapt to user feedback, and allow the ability to seek change without the costs, delay and anxiety of leaving people no option but to challenge Scottish Ministers in court.

72. The Scottish Government believes that such a function would be an innovative step in the administration of public services in Scotland, one that is strongly reflective of a rights based approach and would provide a new layer of expert, independent assurance that the principles, and the associated charter commitments, are in fact supporting the delivery of a system that lives up to these ideals.

73. While it is right that the details of this should be developed through a process of co-design, the Scottish Government will ensure that the proposals for independent scrutiny brought forward at Stage 2 are capable of supporting such a function. This will also take into account of the views of the Disability and Carer's Benefits Expert Advisory Group.

Accessibility

The Committee supports the view that the charter should be accessible and widely available.

74. The Scottish Government welcomes the Committee's assessment. In line with what is stated at paragraph 60 above, providing people with a clear, transparent and accessible understanding of their rights is key to the delivery of a system that lives up to dignity, respect and a rights based approach.

75. With that objective in mind, the Scottish Government will work with those with direct experience of the system to identify the most effective ways of maximising the accessibility of the charter. This could, for example, include sending out a copy to all benefit recipients; displaying a version in agency buildings and other key public spaces; a programme of targeted communications activity and ensuring it is available in a wide range of formats and languages.

The Annual Report

The Committee is supportive of the creation of an annual reporting procedure to Parliament on the social security system and believes it will contribute to the accountability of the new system.

76. The Scottish Government welcomes the Committee's support. It believes that the scale, complexity and importance of these new powers demands a strong role for Parliament in scrutinising and holding Scottish Ministers to account for the successful delivery of a system that lives up to its legislative principles.

77. The Scottish Government hopes that its further commitments to introduce robust mechanisms for independent scrutiny will reinforce its commitment to transparency and accountability.