Social Security (Scotland) Bill

The Convener

Agenda item 3 is an evidence session on the Social Security (Scotland) Bill with people who attended the your say workshop in the Parliament the week before last. I attended that workshop and thoroughly enjoyed it, and I thank them for the evidence session.

I welcome Norman Gray, Brian Hurton and Moira Sinclair. Thank you very much for agreeing to appear before the committee to report back from the your say event. I know that you found it a bit daunting, but please do not find this meeting daunting. I am sure that the committee will be interested in everything that you have to say. I invite you to say a little bit about yourselves and your experiences and to report back on the event. We will then move to questions.

Norman Gray

Good morning, ladies and gentlemen. I do not receive social security benefits, but this is the third time that I have appeared before the committee to give evidence. The first time was as my son’s representative as we faced up to our fears when he prepared to move from the disability living allowance to PIP, despite the lifetime award of his DLA. The second time was in support of my daughter, who went through the harrowing experience of a PIP assessment following a traumatic head injury. Their experiences further raised my interest in the work of the Social Security Committee and the your say initiative. I am therefore delighted to be here to give my views.

Moira Sinclair

Good morning. I have significant issues with my hips and back. I had the first of many surgeries at the age of 11, and I have been riddled with osteoarthritis. I am currently in receipt of DLA as a lifetime award and I use it to fund a Motability car. That gives me the passport to a blue badge. With both of those in place, I am able to work full time, and I pay more in tax than I receive in DLA. I fully expect the award to be completely removed when I am reassessed for PIP, which will leave me with neither the car nor the badge and with significant difficulties in getting to work.

I became involved with the committee when I responded to a consultation on disability benefits. I, too, am delighted to be here to speak on behalf of those who were at the your say meeting and in general.

Brian Hurton

Good morning. I have attended your say events for the past two years. I have keratoconus, which is a degenerative condition.

My experience of going through the system started when I was put into the work-related activity group because I was classed as fit for work. I appealed the decision and the case took around 12 months to go to tribunal. Under regulation 35, I was put into the support group in less than five minutes, as I would be at risk in a working environment. I decided that I would tell people about my experience and I got involved in the Parliament. I have been going backward and forward ever since.

The Convener

Thank you very much. I ask Norman Gray to read out the report of the your say workshop.

Norman Gray

The submission provides the group’s answer to the various questions that we were asked about the Social Security (Scotland) Bill. I will read out each question and then give our group’s views.

The first question was:

“What are your views on these principles and this approach?”

As a group, we fully support the idea of including the principles in the bill. They should underpin how the new system runs. We particularly support the objective that states that

“respect for the dignity of individuals is ... at the heart of the Scottish social security system”

and that

“social security is ... a human right”.

The next question was:

“Are there other principles you would like to see included?”

There should be an additional commitment to providing information to people and making the application process as clear, understandable and transparent as possible. Meeting people’s individual needs should not be an afterthought, and a range of access methods should be available to reach people in the way that works best for them, as the Government has proposed. Meeting people’s needs should be put ahead of improvements to the system, and the system should have the flexibility to change according to individual needs. There should be an additional objective that gives individuals the right to advocacy and support. The Scottish Government’s commitment not to use private contractors should also be enshrined in the bill.

The next question was:

“Do you agree with the idea of a charter? Is there anything specific you would like to see in this charter?”

We are all positive about the idea of the charter and agree that a yearly report is important for accountability. The charter should state the rights and responsibilities of both sides, not just of those claiming benefits. Specifically, the charter should contain the following: a commitment to clear explanations of decisions and the reasons behind them, transparency about the assessment system and who the decision makers are, and a commitment to putting in place timescales for processes and meeting them. We are particularly supportive of the Government’s commitment to there being a range of different communication channels, and we would like that to be included in the charter. Phone contact should possible be by local or freephone numbers, not as it is at present.

The next question was:

“Do you have any views on the rules that should apply to all benefits?”

Lifetime awards should be reinstated for those with conditions that will not improve. Reviews of on-going claims should happen only when individual circumstances change, and the criteria that are used in decision making should be made clearer. There can always be a responsibility on whoever receives the benefit to report any improvement. There should be more respect for medical professionals and the value of medical evidence in the benefit assessment process. There should be straightforward, consistent appeals procedures. Information should be saved and shared and should not need to be supplied multiple times to the agency. If an appeal is made, the claimant should remain on the benefit until a decision has been taken on the appeal. That would be preferable to using the new short-term assistance for that purpose. If an agency error leads to overpayment and the benefit claimant supplied the correct information, the payment should not be recoverable. Each individual should have a named person who deals with their case to allow for consistency and improved communication.

The Convener

Thank you. I will open with a general question. I was at the workshop, and the evidence that was given there is exactly what you have said here. One of the striking points concerned lifetime awards for debilitating illnesses that mean that people can appear to be all right one week and not all right another week. The evidence that was given at the your say event was that that was not looked upon favourably.

We also heard about condescending remarks being made. Because people took the time to dress properly and have a shower and so appeared well, it was remarked that they must be well. What are your thoughts on that issue, which was raised at the your say workshop? Moira Sinclair mentioned that people should get a lifetime award. How difficult is it to put that idea to the DWP?

Moira Sinclair

It has become more difficult with the move to PIP. There are an endless number of medical conditions that medical professionals tell us will not improve. I am not going to grow a new skeleton any time soon, as far as I am aware. There are also conditions, such as multiple sclerosis and motor neurone disease, that are not only degenerative but mean that people will have good days and bad days. One day, it might take somebody a couple of hours to get up and they can do a few things but, another day, they might be in absolute agony, so nothing is going to happen.

The point that was discussed at the your say workshop was that, when people go to assessments, they make an effort. The feeling was that it is wrong to penalise people for making an effort. We all want to go out in public in a presentable fashion. We all have our mother standing over us saying, “You’re not going out like that! Have you washed behind your ears?” Everyone who goes to the reassessments faces the same issues. Somebody might get up six hours earlier than normal to ensure that they are ready and presentable, but that does not mean that they are coping and that, therefore, their disability is not a problem.

The Convener

Forgive me, but I will interject there. I understand that more questions were asked at the workshop and that Norman Gray has told us about the responses to only some of them. Did the witnesses decide to give the answers to the questions between them? If so, does one of the other witnesses want to pick up where Norman left off? Was that what you had decided to do?

Norman Gray

Yes.

Moira Sinclair

Yes.

The Convener

Sorry about that. Whoever is next can continue.

Moira Sinclair

That will be me.

The next question that we considered was:

“What changes, if any, do you think should be made to the individual benefits in the Bill?”

We started by looking at carers allowance. We think that there should be different arrangements in place to allow those who are claiming carers allowance to combine that better with employment. We also feel that the criteria for carers allowance should be looked at. For example, the fact that it is not available beyond pension age should be looked at, and there should be the option of claiming part of the allowance rather than the current all-or-nothing situation. For many people, the allowance is their only source of income.

We agreed on the importance of an allowance for young carers, although we did not think that it should necessarily be financial. We feel that carers allowance should be a passport to other assistance such as vouchers towards glasses and that kind of thing. More should be done to ensure that we look after the health of carers. We believe that, given the alternatives, carers allowance represents very good value for money for the state.

On DLA and PIP, as we have mentioned, if a lifetime award is in place, that should transfer without the need for reassessment. A transitional process should be in place for those who lose the benefit. Links with other agencies, such as Motability, need to remain, and there should be a greater allowance for mobility issues. There should be more recognition of the fact that many disabled people work and contribute or have done so previously. Also, claimants should not be penalised for pushing themselves to do as much as they can. For instance, making an effort on physical appearance should not be a negative factor when people are assessed.

We thought that it would be worth considering a different system for winter fuel payments whereby vouchers are issued or fuel bills are met directly to ensure that the money is spent on fuel. Those who do not want the vouchers could donate them to charity or to those who need them more.

We were asked:

“What are your thoughts on the proposal to increase the Carers Allowance?”

We are supportive of the increase, but we agreed that it is only a step in the right direction and does not go far enough. Carers allowance should be a living wage. Adding extra entitlements such as glasses vouchers, along with improved arrangements for respite, would help. We believe that it is about not just the money but support and assistance in other areas as well.

09:45  

We were asked:

“What are your views on the proposal of short-term assistance?”

We think that it is a good idea but that it needs to be automatic and to click into place smoothly instead of being a complicated application process. As we mentioned previously, we believe that it may be better to allow people to continue to be on a benefit when they are appealing a decision than to make them switch to a new short-term assistance benefit.

Other ways in which the assistance could be used include during transitional periods such as the loss of PIP or a change in circumstances and when people are forced out of their homes or accommodation—for example, due to flooding. There should also be clarification in the bill about whether money has to be paid back should the appeal be lost.

We were asked:

“Do you agree that discretionary housing payments should continue largely as they are? Do you have any other views?”

We feel that the current system seems to operate as a postcode lottery and that the scheme should be statutory for all local authorities. There should be better information and awareness about the assistance that is available to people, and the application process should be easier.

Brian Hurton

We were asked:

“Do you have any views on the approach to put most of the rules about new benefits in secondary legislation?”

We thought that there were pros and cons to that approach, but we trust that the Government will do the right thing. One of the strengths of the approach that we discussed is that it will make it easier for criteria to be changed once it is better understood how things are working in practice. We are generally supportive. However, there needs to be more clarity around which external bodies the Government is developing the regulations with. They should not be just the usual suspects and should include those who have first-hand experience of the benefits system.

We were asked:

“Is there anything else you want to tell us about the bill?”

We are in agreement that the whole benefit application process needs to be simplified. The use of language is important—for example, in the reference to assistance rather than benefits, which we very much support. The change in name reinforces the principles that the system is supposed to be based on and reinforces that we are to be treated with dignity and respect throughout.

Ruth Maguire (Cunninghame South) (SNP)

The panel said that, for the carers allowance, there should be an option for claiming part of the allowance. Could you expand on that?

Norman Gray

That refers mainly to young carers. Young carers are not looking for financial reward for caring; they need things such as respite care associations, because they miss out so much on life as they go through the caring system. They want a reward or payment in kind rather than a financial payment. That is very important.

Mark Griffin (Central Scotland) (Lab)

Brian Hurton spoke about the group’s views on whether the rules about new benefits should be in primary or secondary legislation. Your submission says:

“We thought that there were pros and cons to this but that we trust that the Government will do the right thing.”

You might trust this Government to do the right thing, but that might not necessarily apply to every Government that comes afterwards. Although you trust this Government, do you feel that some of the good work that is going into the bill should be in primary legislation so that it is safeguarded against a later Government that you might not trust?

Brian Hurton

One of the issues that I brought up was the use of private contractors. One suggestion was that the ban on private contractors should be enshrined so that future Governments can never reverse it and use private contractors when they are in office. We need a guarantee that that ban will never be reversed, as I am concerned about future Governments coming in and taking bits out of the legislation.

Moira Sinclair

Another aspect was that we agree that parts should be in regulation rather than in the bill to make it easier to make changes that will no doubt be required as time goes on. That is partly about the law of unforeseen circumstances. I have no doubt that there will be something that leads us down a path where we want to make a change, and it would be easier to do that if parts were in regulation. That is where we were coming from.

Norman Gray

Another factor is accountability. The Government will have to report to the committee each year on what has happened, so there will be some check on what future Governments are doing. Various checks are built into the bill.

Jeremy Balfour

Thank you very much for coming along. I have a couple of quick questions and I am happy for anyone to answer them. You mentioned transferring from DLA to PIP without any reassessment. Given that the regulations and criteria are different for DLA and for PIP, how would someone be transferred in that way? To give an example from my experience, I went up an award level. If I had been transferred across, I would have been on a lower award than the one that I got under PIP. How do we avoid people not getting the right award? How might that work in practice?

The next question is directed at Moira Sinclair. I am interested in your comment that, if you do not get PIP, you will not get a blue badge. I understand that the test for a blue badge and the test for PIP are different and are assessed differently, so why are you concerned about that? You may or may not lose your DLA or PIP, but why would that affect your blue badge?

Moira Sinclair

Our feeling was that, if people have a lifetime award, it should be transferred from DLA to PIP. We thought that when the criteria were clear—for example, if someone was in the top rates for everything and had gone through various processes—that would transfer, but we were not of the view that absolutely everything should merge into PIP; we were talking about just the top level.

You are right that there is a different assessment for a blue badge. The issue is having to go through that process. At the moment, I can qualify for a blue badge by ticking a box to say that I receive DLA at the higher mobility rate, rather than having to go through the blue badge assessment as a separate process.

Norman Gray

The point about the DLA to PIP transfer is that the two systems can merge together in moving across, but there is a need for an assessment as people move from DLA to PIP. The PIP criteria are sometimes very negative for certain conditions—especially mental conditions. My son has a developmental problem that will never change—it has been the same from birth. He was under great stress because of the transfer. We had about two weeks of very bad behaviour and about two weeks afterwards of unaccountable behaviour from him simply because he thought that he would lose his award. In such cases, it is important to explain that someone’s DLA award will continue into PIP but that they will be reassessed so that we are sure of their level of PIP—that is the main thing.

Jeremy Balfour

As a new member of the committee, I have a supplementary question. On lifetime awards, I fully agree with the comments of all three witnesses. I do not know whether, through the people you have been talking to and meeting, you have evidence to show that people are not getting lifetime awards. My experience as a member of a tribunal was that quite a lot of lifetime awards were given, and I am surprised that people are not getting them. Can you give the committee any evidence to show where people are not getting lifetime awards?

Brian Hurton

I am in receipt of DLA and I am on lifetime awards, but I am still waiting to be put on to PIP, and what will happen is the sort of question that is going through my mind. I get an amount that is based on a low care component and a high mobility component, so if I was going over to PIP without an assessment, I would probably be put into standard care and high mobility. However, what would happen if my care needs changed? I could be given enhanced care. I really do not know about that.

Jeremy Balfour

Thank you.

The Convener

Thank you, Jeremy. Evidence has been given to the committee and the papers are there, but Brian Hurton has answered the question.

Pauline McNeill (Glasgow) (Lab)

Thank you for coming to talk to the committee. I have two quick questions. The first is to Moira Sinclair and is in the same area as Jeremy Balfour asked you about. I want to be clear about why you said that you fully expect your award to be completely removed. Why is that?

Moira Sinclair

I receive DLA at the higher rate for mobility, but I receive nothing for care. With the change of criteria under PIP, mobility components are different. Because I can drag myself 50 yards or whatever, I will lose everything.

Pauline McNeill

What impact will that have on you? You said that you work full time.

Moira Sinclair

Yes—I work full time. The first obvious thing is that the Motability car will go, and then I will have to go through the process of trying to get a blue badge. There are all the transport issues. I can be on a train or a bus, but the issue is standing at the train station or the bus stop and being able to move again afterwards—I can seize up a bit. They are all little things, but I would have to work out how all that would fit together.

Pauline McNeill

In Parliament later today, I will ask the Minister for Social Security a general question about why the ban on using private contractors is not in the bill. Brian Hurton talked about that in his opening remarks and I am interested to know why he is against using such contractors.

Brian Hurton

That is about what disabled people are going through now. We really do not want to go back down that road, to be honest. I would rather have the assessments in public hands, because private contractors are out for profit. I do not want to go into a lot of detail, but a lot of people have had bad experiences of private contracting being used for medical assessments, which should always be in public hands.

Norman Gray

The important thing is that, when the system is out of private hands, we get a consistent approach that is all dealing from the same area and the same source.

My daughter had a bad assessment by one agency. The assessment was inhuman and what she was asked was unfair, especially as she had had a severe head injury. When she appealed the decision and was interviewed by somebody from a different contractor, the assessment was different and was sympathetic. That assessor did not just sit at the computer and ask questions to the computer while the person sat behind them; they interacted with the other person. There is no consistency in how private contractors operate.

Moira Sinclair

We were concerned to make sure that those who are involved in making the decisions base them on medical knowledge and expertise. We felt that that was not always necessarily the case when the assessment was done through a private contractor.

Alison Johnstone (Lothian) (Green)

I thank those on the panel for their evidence and for all the work that they have put in so far. What discussions have you had about the complexity of the current system and how easy it is to get help with applying for benefits? You say that

“there should be an additional objective that gives individuals the right to advocacy and support.”

How easy has it been for people to access support when they need it? How complex do you feel the system is?

10:00  

Brian Hurton

I tried to get an advocacy worker but, unfortunately, I was told that to do so I would have to have learning difficulties. Somebody with extreme learning difficulties can get an advocacy worker to help them to fill out the forms, but that should be widespread, and everyone should be given an advocacy worker to help them to navigate the system. That would be supportive.

Norman Gray

When my daughter applied for PIP, she went to the citizens advice bureau because, as a result of her condition, she could not understand the form. The staff took her through the whole system of applying but then, when she was told that she had an interview with an assessor, they said that they were not allowed to go with her and represent her. She was left on her own, having had all that support to get to that stage. I had to go with her as her advocate. Continuing advocacy is important.

Moira Sinclair

We talked about simplification of the process in general, which led us on to short-term assistance. We really wanted to avoid people having to fill in more and more applications for slightly different benefits, because that is an arduous process that can be complex. The simpler we can make it, the better. That is where our comments came from about making the forms clear and transparent and using language that the normal person can understand.

That led us to discuss the fact that, if someone has provided the information once, that should be it. They should not need to think, “What did I write on that form two years ago? If I write something slightly different, will I get picked up because I’ve contradicted myself in some strange way?” We wanted to make the system as straightforward as possible.

Alison Johnstone

You are all painting a picture of a stressful system that takes a lot of getting to grips with. When people are at their most vulnerable or unwell, that is even more difficult.

Is there a role for the Government in automatically assessing people for support without making them fill in an application form? I am thinking about the medical professionals you liaise with constantly and the information that they hold on you. Could that be used to ensure that you are receiving everything that you are entitled to, without the need to be assessed by non-medical professionals?

Moira Sinclair

I guess that, if that could be done, we would not object to it. If my general practitioner or surgeon or whoever could say, “Yes—tick that box,” to avoid me filling in a form, I would be all in favour of that.

Brian Hurton

Is Alison Johnstone talking about constant reassessment?

Alison Johnstone

I am asking about the fact that people are being asked to fill in numerous forms.

Brian Hurton

When a consultant or GP writes up someone’s medical condition, that should be it. If it is a degenerative condition, it will never improve. Anyone who looks at that information should accept that, so that we do not have to fill out forms all the time.

Constantly being given forms to fill out is really stressful. We have to go through the same rigmarole of explaining our disability; it should be once and that is it. Later, there could be a smaller form to ask whether someone’s condition has changed. Obviously, we would say no—it has not changed. Somebody with a degenerative condition, who has had a lifetime award, should not be constantly reassessed.

Norman Gray

One problem with PIP assessments is that not enough cognisance is taken of doctors’ reports. In some cases, the assessment is done with no reference whatever to the medical reports. One way of saving people from having to undergo a face-to-face assessment would be having the medical report there on the first application. The assessor could determine from the medical report whether a face-to-face interview was required, which would simplify the process and in some way demystify the situation.

Alison Johnstone

When you were asked whether you wanted to tell us anything else about the bill, you said that the whole

“process needs to be simplified”.

You also spoke about the use of language, which I was struck by. You gave the example of

“referring to assistance rather than benefits”.

There is a benefit cap. We can imagine that, if the language was changed and that was called an assistance cap, there would be an awareness that, although someone needed assistance, they would not get it. That is really important. Do you hope that your input on that subject will be picked up on?

Brian Hurton

I am really pleased that the language is starting to change. I do not like the language that the DWP uses. Disabled people—or whoever—are always classed as a “customer”. To be a customer, someone has to buy a product, but I view myself as a patient of the state. That is what I am: a patient, not a customer.

The language that the DWP uses is demeaning, so I am really pleased that the Scottish Government is getting to grips with changing the language.

Moira Sinclair

Part of the reason why we liked the move to the use of “assistance” harks back to what I understood DLA’s purpose to be originally. It was supposed to level the playing field. It was supposed to account for increased expenditure and difficulties that I might have because of my disability and to get me on a par with everybody else. It is not a benefit, a gain or somebody giving me a gift. It was supposed to be assistance just to get me to the point where I am level with everybody else.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Good morning and thank you for everything that you have contributed so far. It has been illuminating, and it is important for us to hear it all.

I want to ask about the points that you made in response to the question about your views on the rules that should apply to all benefits. You said:

“If an appeal is made, the claimant should remain on the benefit until a decision has been taken on the appeal. This would be preferable to using the new short-term assistance for this purpose.”

Will you elaborate on why you think that that is important?

Norman Gray

The main reason is the problem of stress. When a person has their allowance taken off them while they wait for their appeal, the allowance might or might not be reinstated later, but what happens in between? How does the person cope? It means that there is no continuity; there is only upset. It is not humane. We are talking about dignity being one of the basic principles. When someone’s allowance is stopped, and they are then told, “Oh, no. Sorry—you were right. We’ll continue it”, it is heartbreaking for them.

Ben Macpherson

One of the major injustices in the system for universal credit, which is a reserved benefit, is that advance payments of universal credit have to be paid back in the process thereafter. Did that inform your decision making on how the system could be better?

Norman Gray

It was more about stress levels for people whose allowance is stopped. It puts an awful lot more pressure on the appeal and its outcome. If payment of the allowance was continued throughout the process, that would save an awful lot of problems.

Ben Macpherson

You also said:

“If an agency error leads to overpayment and the correct information was supplied by the person claiming benefits then this shouldn't be recoverable.”

That speaks for itself, but do you want to elaborate on it?

Moira Sinclair

I say in response to the previous question, that we want the appeals process to be slightly quicker than it is at the moment, and that people continuing to receive their benefits during that period might encourage it to be quicker. When a benefit, assistance payment or whatever we call it is withdrawn, that will have implications in respect of a person’s car, their rent payment and so on. Life can move far down the road before the appeal decision comes through: it is not necessarily possible for someone to go back to where they were on the day on which the wrong decision was taken.

On repayments, we completely understand and accept that anyone who has filled in a form for fraudulent purposes or has deliberately misled the agency should pay back every penny, but if the claimant has filled in the form in good faith, has provided all the correct information and then gets a letter that says, “Here is your award,” they should be able to accept in good faith that that is the correct award, and to proceed on that basis. It seems to be very unfair that the agency can try to reclaim the money when it is discovered that a mistake was made on the agency side, through no fault of the claimant and when the claimant has done nothing wrong. The claimant might already have used the money for other purposes, so they will lose during the time that it takes them to pay that back.

Mark Griffin

My supplementary is about payments that are made in error. On top of the issue of claimants being asked to repay whatever was paid in error, concern has been raised by a legal body about the fact that the system that is proposed in Scotland is harsher than the one in the United Kingdom when it comes to claimants being prosecuted and criminalised if they have made a fraudulent claim and been overpaid. Under the UK system, someone who makes a fraudulent claim and receives an overpayment can be prosecuted and given a jail sentence, but there is a burden on the prosecutor to prove that the applicant knew that they were making a fraudulent application.

However, in Scotland, that burden of proof will not apply: the prosecutor would not have to prove that the applicant knew that they were making a fraudulent claim, so the applicant might have made an honest mistake, for which they would be criminalised. I have received representations about that, and I think that other members of the committee have heard evidence that the Scottish system will be overly harsh and could criminalise people for honest mistakes. Do you have any views on that? Should the Government look at the system again to make sure that anyone who makes an honest mistake will not be criminalised for doing so?

Norman Gray

The problem is how we define an “honest mistake”. There might well be an appeal situation in which someone who claims that they made an honest mistake would have to prove that.

Mark Griffin

Under the present UK system, if the state wants to prosecute a person for a fraudulent claim, it must prove that the claim was made dishonestly, whereas under the proposed Scottish system, the state would not have to prove that the claim was made dishonestly, but would have to prove only that an incorrect claim had been made, regardless of whether the motive for doing so was dishonest or honest.

Norman Gray

I still think that there are responsibilities on both sides—the people who apply for benefits and the people who award them. It is quite rational to say that the bill should remain as it is and that repayment would be required, even though that might sound harsh.

Moira Sinclair

That is not an issue that we picked up at the your say workshop: as no one raised it, we cannot comment on it, as a group. However, if that is the case, my view is that it sounds as though the Scottish system might be overly harsh in that respect. Therefore, I would advise that the issue be looked at.

The Convener

The issue is not one that I have come across, and other members do not seem to have come across it, either. However, I am sure that we will look at it, now that Mark Griffin has raised it.

10:15  

Adam Tomkins (Glasgow) (Con)

I have a question about young carers, but before that I would like to pick up on an aspect of the earlier discussion about PIP assessments that arose from the questions that were asked by Pauline McNeill, Alison Johnstone and Jeremy Balfour.

I am trying to understand what you want out of a reformed Scottish equivalent to PIP assessments. I do not want to put words in your mouths, but it sounds almost as if you want the assessment to be based on a medical diagnosis of a condition, which is the job of general practitioner or a surgeon. However, as I understand it, the whole point of PIP is to ensure that assessments are based not on medical diagnosis but on need, because two people with the same medical condition might have quite different needs. It might be that we need to revisit all of that, but the point of the assessment process is not to go over the medical diagnosis, which is the job of the doctor, but to understand the need that is generated by the individual’s condition. Is my understanding right, so far?

Norman Gray

Yes.

Adam Tomkins

I am just wondering how radical your suggestions are. Are you suggesting that we do not need to have that assessment of need and that we should base our disability social security simply on medical conditions, so that assessment essentially becomes the doctor’s job? Is that the force of your position, or am I misunderstanding it?

Moira Sinclair

We are saying that much more emphasis must be placed on medical diagnosis. I accept that there should also be a needs element of the assessment. However, our feeling is that, at the moment, the medical evidence is being forgotten. That thinking led us to state that we believe that people should not be penalised. As you say, two people with the same condition will have different needs. However, the fact that person A is forcing themselves, by whatever means, to do various things that person B is not doing should not mean that person A is punished for that and loses out as a result. At the moment, the system offers a perverse incentive to act like person B. If I were to lie in my bed every morning saying, “It’s too sore—I can’t get out of bed”, I would be better off. That seems to be bizarre.

Adam Tomkins

Yes, it does—to put it mildly.

Norman Gray

I think that you are overstating our position with regard to the role of medical evidence. My point is that the medical evidence should be taken as evidence that an award is required, but there needs also to be a secondary stage involving an assessment of need. We are dealing with individuals, so there needs to be more than simply a statement that the person has something wrong with them. We are all different and, as Mary Sinclair said, two people with the same condition can do different things.

Adam Tomkins

I see that Brian Hurton is nodding. Do you agree with that, Brian?

Brian Hurton

Yes.

Adam Tomkins

So, you all accept that there needs to be a needs assessment that is different from and supplementary to the medical diagnosis, but your argument is that the two need to be viewed together rather than there being a big wall erected between them. Is that correct?

Norman Gray

Yes.

Adam Tomkins

That is helpful, thank you.

When listening to the First Minister announcing her programme for government in Parliament on Tuesday, I noticed that she is no longer talking about a young carers allowance, which I think was a Green Party manifesto commitment that she talked about last year, but is instead talking about a package of support for carers. That is interesting, because it ties in with what you say in your submission about there being

“an allowance for Young Carers”

that is “not necessarily ... financial.” What sort of package of support for young carers do you have in mind?

Norman Gray

Young carers need respite every so often, and people do not always recognise the need for mental respite. My granddaughters care for their mother, and two of them have been away in different weeks on a yacht on the west coast, which has given them a chance to get away from the home environment and enjoy other people’s company, which is a regeneration process for them. It was funded from outwith their home situation. That kind of thing is important—it recognises the needs of the carer and can be adapted to their needs.

It is difficult to state that there is one particular thing that would deal with all young carers; it is more about recognising need and there being something that might provide benefit.

George Adam (Paisley) (SNP)

Good morning. The session has been really good. I was struck by one thing when Brian Hurton was talking about language, although this is not part of my question. If a person was a customer, they could say that they will take their custom elsewhere, but people on benefit will not get that option. What Brian Hurton said was bang on.

As a point to balance what Jeremy Balfour said, while I have been a constituency MSP, nobody has ever come through my door who has been upgraded during the process. I might be extremely unlucky or everybody in Paisley is being targeted, but I have never experienced that.

Moira Sinclair, I think, brought up an issue in respect of the appeals process. People end up going through that process and many get what they appeal for; however, there is turmoil when a person’s car is taken off them if they have a Motability car. In Moira Sinclair’s case, it will affect her working life. If a person’s appeal is successful, they will get their car back. That is very good for my former colleagues in the automotive industry, but it is not so good if we are trying to create a system in which we are trying to help people. Obviously, we need to ensure that we have a system that treats people with dignity and respect, as the Government says, but currently the system does not do that. In effect, it puts people’s lives in complete turmoil.

Brian Hurton

On cars and the Motability scheme, I hope that once the new disability benefit is devolved to the Scottish Parliament, people will, when they have to appeal, be able to retain the car that they need. Everybody is losing their car right now.

Moira Sinclair

In general, the feeling has been that something other than “You’ve lost the claim, so you need to go through the appeal process, apply for short-term assistance”—if it is brought in—“and deal with the consequences”, could be said. All that is unnecessary. We could say, when a person starts their appeal, that their benefit can continue until the appeal ends. That would make the approach much more sensible.

George Adam

I think that Norman Gray mentioned long-term conditions that will not change, and Moira Sinclair mentioned MS and MND in particular. I declare an interest in that my wife has MS. MS is a classic example: the person can walk one day and be fine, but then be in bed for the rest of the week after it. The pressure and stress of the system are triggers for relapses. Adam Tomkins went on about need, but with a lifetime award, a person has proved that the condition will not go away, so it is common sense to use the medical assessment as opposed to talking just about need—although I think that consideration of the two would be combined.

Inclusion Scotland told us that there was a scare about fraudulent use of the old system. However, it said that only under 1 per cent of claims in the old DLA system were found to be fraudulent. We need to strike a balance in the system.

I do not know why the Westminster Government has had a massive experiment with PIP. It is just putting the most vulnerable people in our society under pressure and making them feel undervalued. What do you think of the whole process in general?

Norman Gray

I can understand the problem of moving to the PIP system. The PIP has a broader base than the DLA and it uses different criteria. The problem with PIP is not so much PIP itself, but how assessments and awards have been done, and how, in many respects, outcomes have not been fair. If you look at the number of appeals in the system, that shows that awards are often wrong because so many people end up appealing.

In many ways, PIP has a fairer basis than the DLA when it comes to recognising a person’s needs and requirements—certainly in terms of the mobility award, for example. My son got a low mobility award in his DLA, but was recognised in his PIP assessment as needing a high award—it recognised his problems with moving around much better than the DLA assessment did. The problem is more how the system is being managed than the system itself.

Moira Sinclair

As with everything, there are winners and losers with the move from DLA to PIP. Although the PIP assessment has correctly recognised some of Norman Gray’s son’s needs, it will put me out on the other side. It is about finding a balance.

It is important to recognise that there are good days and bad days. I know what my limits are, so I will do a lot one day if there is something that I really want to achieve, but I might have a difficult week after that. It has to be recognised that illnesses are a bit of a rollercoaster.

Brian Hurton

I agree with Moira Sinclair that there will be winners and losers with PIP, through the UK Government. There are questions that have been missed out—for example, about bathing and washing in the bathroom. Because of my visual impairment, I can easily—and have—cut myself when shaving, but the assessments do not recognise that, so I do not get points for it.

I am not scared at the moment, but I am anxious that it is coming and that I will have to go through the whole carry-on with being re-assessed to get put on to PIP. There are certain things about daily living with visual impairments that do not get recognised in PIP, and I am really annoyed about that.

Norman Gray

Like Brian Hurton, we were concerned about our son’s move from DLA to PIP, but it transpired that some of our fears were not realised. The example that Brian mentioned—about washing himself—was covered very well in the PIP assessment. We were able to put in a long list with riders about what actually happens. For example, they asked our son whether he can wash, and he was able to say, “Yes, but—”, and all the buts were important.

If there is advocacy, that problem will be taken away as people will realise what they are meant to talk about in the terms of the PIP assessment. Again, it is not a matter of the award itself, but how it is applied.

The Convener

The issues of advocacy, transparency and simple language were raised on a number of occasions at the committee’s away day.

Thank you very much for your excellent presentation. There were lots of good answers to our questions.

Norman Gray

Thank you for having us and for listening to our presentations. It is very reassuring to see that the committee has an open view about what it is looking at and what it might determine in the future. We look forward to seeing what emerges, and what our input has been.

The Convener

Thank you very much. We look forward to meeting you again.

10:29 Meeting suspended.  

10:32 On resuming—  

The Deputy Presiding Officer (Christine Grahame)

The next item is a debate on motion S5M-09629, in the name of Jeane Freeman, on the Social Security (Scotland) Bill at stage 1.

14:54  

The Minister for Social Security (Jeane Freeman)

The Social Security (Scotland) Bill comes to the Parliament as the legislative foundation for a new public service for Scotland to deliver a rights-based social security system that is founded on the principles of dignity, fairness and respect. Although it is correct that we will not be responsible for all social security, with the bulk remaining reserved to the UK Government, we will be responsible for 11 benefits, affecting 1.4 million people in Scotland. The foundation that we lay in this bill should therefore be capable of being the foundation for all social security in Scotland, should the time come when our Parliament has that opportunity.

The bill sets out the social contract that extends to everyone in Scotland. It underpins the investment that we believe social security is—an investment that we make in ourselves and in each other. It is a recognition that people across Scotland contribute to our society in many different ways, each of which is valuable and each of which adds to the sum total of our quality of life. Every party and every member of this Parliament now has a direct stake in delivering the contract. Members in this chamber must have confidence that, by the end of the parliamentary process, we will have a social security act that the people of Scotland are confident in and content with. With that in mind, I am pleased that the committee has come to a unanimous agreement to support the general principles of the bill.

As we get on with building a new public service that is the beacon of fairness, accessibility and transparency that we intend it to be, and one that is focused on doing the right thing for those whom it serves, we must all be mindful that it is our shared responsibility and one that demands that we put the people of Scotland first. This is a complex bill that will support the biggest single expansion of devolved Scottish public services since the restoration of this Parliament.

Between the bill being announced in September 2015 and published in June this year, the Scottish Government carried out an extensive consultation and engagement exercise. We did that because, if we want to proceed on the basis of consensus, we need to know what people expect from their social security system, so we asked them. Alongside our published consultation document, we held engagement events in every one of Scotland’s 32 local authority areas. We visited communities and organisations to find out what people liked about the current Department for Work and Pensions system, what they did not like and what they wanted to change.

What came through loud and clear is that what matters to the people of Scotland is how they are treated by their social security system. There can be no doubt that people feel that the existing DWP system does not treat its users kindly. Evidence from our most recent stakeholder survey showed that, when people were asked how they view the current system, 60 per cent of respondents—more than half—rated their experience of the current benefits system as poor or very poor. Only 18 per cent rated their experience as good or very good.

If there is one thing that people are agreed on, it is that our Scottish social security system must treat people better. That is what we have set out to achieve and it is reflected in our bill, which ensures that the system that the bill provides for meets peoples’ rightful expectation that they will be treated with dignity and respect. It does this by ensuring that decisions on social security policy and delivery will be governed by a series of key principles, including the principle that,

“respect for the dignity of individuals is to be at the heart of the Scottish social security system.”

Words and intentions alone are not enough, which is why the bill also provides for a duty to prepare and publish a social security charter. Such a charter will make our principles come alive, translating them from statements of aspiration to focused aims on how we will meet those principles in every aspect of our day-to-day delivery. Our approach will enable the principles to be easily understood by all and embed them in a way that is open to monitoring, reporting and scrutiny.

I believe that, inside and outside this chamber, we all agree that basing our social security system on a set of key principles, supported by a charter to carry the principles off the page and into the day-to-day operation of our social security system, is the right thing to do.

I am pleased and grateful that that agreement is reflected in the committee’s report, which says:

“There has been a universal welcome for the inclusion in the Bill of a set of principles on how the Scottish social security system should operate”.

However, there are clearly some areas where the legislation does not set out some of the policy choices that we have made in a way that properly reflects the intent behind those choices, and we will address those areas. When I appeared before the Social Security Committee on 2 November, I gave a couple of examples of where I believe that we need to make some adjustments to ensure that our policy intent is clearly applied and I am pleased that that is reflected in the committee’s report. The committee has welcomed my assurances on the issue of cash versus payments in kind and on support for provision in relation to independent advocacy.

There are other areas where we need to reflect on what the committee has said in its thoughtful and reflective report and on what stakeholders have said to us. One example is the recovery of overpayments, which we will not pursue in instances of official error, other than in exceptional circumstances. Another is the question of redress when an individual feels that their treatment has not been compatible with the charter. We will use the time between now and the beginning of stage 2 to consider these matters and determine what further action we believe is needed.

There are some instances, too, where we need to explain ourselves better—on the process of redeterminations and appeals, for example. I am keen to have further dialogue and an opportunity to present the evidence, which I believe supports our view that the appeals process that the bill sets out will be very different—in purpose, spirit and practice—to the one that is currently operated by the DWP. After that further dialogue, we will reflect on where matters stand.

Between June—when we published the bill—and my committee appearance in November, I had 70 meetings with more than 50 separate individuals, groups, or organisations. If we are going to reach a consensus—and I believe that we can—on areas where people feel that we have not yet addressed their concerns, we need to keep the dialogue going to find solutions. My door is open and I will actively engage in those further discussions with members and with representatives of the many stakeholder communities that have an interest in the bill.

We are, together, engaged in a complex and complicated task—to ensure that we build a rights-based social security system for Scotland that not only delivers the 11 devolved benefits safely and securely but does so true to the principles that we have set out, and works effectively alongside the United Kingdom system. It is complex and it is complicated, but it is also a golden opportunity.

The prize is a social security system that is there to support the people who need it, when they need it, for decades to come; a new public service that embodies the social contract between the individual and the state, founded on the shared recognition that we all contribute in different ways and that it is right that the state should provide at those times when we are in need.

I am pleased that we have come to this stage in the process in a spirit of agreement. I look forward to the debate and to the next legislative stages. I will work with members and with all those outside this chamber who want to work with me, so that we seize this golden opportunity to deliver a new social security system for Scotland and for the future; a system based on respect and dignity and that delivers for the people of Scotland a new public service of which we can all be proud.

I move,

That the Parliament agrees to the general principles of the Social Security (Scotland) Bill.

The Deputy Presiding Officer

I call Clare Adamson, to speak on behalf of the Social Security Committee.

15:04  

Clare Adamson (Motherwell and Wishaw) (SNP)

I am pleased to be speaking today as convener of the Social Security Committee. I joined the committee last month when Sandra White MSP became a member of the Scottish Parliamentary Corporate Body. I thank Sandra White for her work as convener, particularly in relation to steering the committee through its evidence-taking process. I also thank the clerks for their support as well as the many individuals, organisations and stakeholders who contributed to the evidence that the committee received.

The bill is undoubtedly one of the most important pieces of legislation following the Smith commission and the transfer of new powers to the Scottish Parliament. I am pleased that the committee was unanimous in its support for the general principles. The committee as a whole wants the bill to progress and we want to continue to play our part in improving it through the parliamentary process.

In reaching our decision on the general principles, the committee was mindful of two key factors. The first is the consultative approach that the Scottish Government has taken, which the minister outlined, and the widespread support for that among witnesses and stakeholders. That approach continues through the work of the experience panels and other channels, and the committee welcomes that progress. The second factor that the committee was mindful of is the balance between what is in the bill and what will be brought forward in regulations at later dates. I know that other members are interested in exploring that issue and I will come back to it.

This is a framework bill, the function of which is to create the foundation for the delivery of 11 existing UK social security benefits and to pave the way for Scotland’s new social security system, which will affect more than a million people in our country. Although the committee unanimously approved the general principles, it has identified some areas that require further consideration. I will highlight some of the evidence that the committee received suggesting ways in which the bill could be strengthened or clarified.

The first thing that the bill does is to set out principles. In our evidence, there was particular support for the statements that

“social security is itself a human right”

and that

“respect for the dignity of individuals is to be at the heart of the ... social security system”.

The principles in turn will inform the development of the Scottish social security charter.

A frequent suggestion made in evidence was that the bill should include the right to independent advocacy and advice. The committee concluded that it supports the inclusion of a right to

“independent advocacy under and with regard to the Scottish social security system.”

However, at this stage, the committee has not recommended that the right to advice be added to the bill, although we have asked the Scottish Government to reflect on the evidence received regarding advocacy and advice.

The committee also agreed with stakeholders, including the Scottish campaign on welfare reform, that the bill should state that social security has a role to play in the eradication of poverty.

In further recognition of the evidence received, the committee has also recommended that, instead of the Scottish ministers having a role in ensuring that people are given what they are eligible for under the Scottish social security system, that should be strengthened to become a duty to ensure that people are given the entitlements to which they are eligible.

The committee believes that those additions will strengthen the foundations of our Scottish social security system.

The high-level principles will feed into the development of an accessible and meaningful charter. The committee has drawn the minister’s attention to the importance of ensuring that the charter is available in a range of accessible formats and in a range of locations.

Understandably, much of the evidence to the committee was about the individual forms of assistance. However, the detail of each form of assistance will be brought forward in regulations and the Scottish Government is developing its policy on those. For that reason, the committee did not feel able to make recommendations on the detail of those at this point. However, the Scottish Government has provided illustrative regulations for the best start grant and funeral expense assistance.

The committee welcomed the clarification from the minister that individuals will always have the choice of whether to receive assistance in a form other than cash and that cash will be the default. It was felt that, in that area, the bill was not as clear as the policy memorandum, so we welcome the minister’s undertaking to address that at stage 2.

Because much of the detail about the specific forms of assistance will be in regulations, the committee also considered whether the balance between what is in the framework bill and what will follow in regulations had been appropriately struck. It concluded that the bill does not allow for adequate scrutiny of the detail of the different forms of assistance and noted that it does not make any provision for a super-affirmative procedure or independent scrutiny of the regulations. That was of concern.

One specific way in which scrutiny can be strengthened is the creation of a Scottish body similar to the Social Security Advisory Committee. There is strong support for that among stakeholders. The committee believes that there is a role for a statutory body that is independent of Government and that has an initial focus on assessing draft Scottish social security regulations. The committee also believes that the Scottish ministers should be obliged to consult that body, that the body should report and make its recommendations publicly available and that, if the Scottish Government disagrees with the independent body’s recommendations, it should give its reasons.

Since the publication of the committee’s report, the disability and carers benefits expert advisory group has published its findings and recommendations on how scrutiny could be strengthened. Those include the creation of a statutory advisory non-departmental public body.

The Social Security Committee welcomes the framework bill and supports its general principles. There are a number of issues that will be returned to at stage 2, but the committee looks forward to considering them in detail in the new year.

The Deputy Presiding Officer

Well done on your first go at a convener’s speech. It is quite hard.

15:11  

Adam Tomkins (Glasgow) (Con)

I welcome Clare Adamson to her new position as convener of the Social Security Committee and underscore her thanks to the clerks, who are sitting at the back of the chamber, for their work in helping us to produce the stage 1 report. I also thank the Government for its comprehensive response to that report, which arrived on Friday afternoon, if I am not mistaken.

The Conservatives are supportive of social security devolution. Ensuring that it works well is one of our paramount duties to the people of Scotland in this session of the Parliament. We support the general principles of the bill and will vote for them at decision time, but we have some reservations about the specifics.

To start with, it is important to note that the bill does not explain who will be entitled to what under any of the devolved streams of social security assistance. Ultimately, that is the question that matters most in social security law and the bill does not address it at all. It has been referred to as a framework bill—Clare Adamson just used that phrase—but it is not even that. What we have is a frame, but all the work will be done by regulations. All rules about eligibility and about the value of each form of assistance are to be set in statutory instruments that are to be made under the bill. That gets the balance between primary and secondary legislation wrong. It reserves to the Scottish ministers much more power than UK ministers have under reserved social security law and it cuts Parliament out of the picture to an unacceptable degree. If I were a different sort of politician—

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

Will the member take an intervention?

Adam Tomkins

If I were a different sort of politician I might even call it a power grab, but I will leave that kind of language to others.

Not least because of those concerns, the bill absolutely must be amended to create in statute a Scottish social security advisory committee along the lines that Clare Adamson outlined. It would be that committee’s job to provide expert and independent advice to ministers and, indeed, Parliament on draft regulations. My understanding is that the Government accepts the committee’s verdict that such an amendment is necessary and will seek to amend the bill at stage 2. I welcome that.

I turn to the social security principles in section 1. We support the principled approach to social security that is set out in the bill, but we want to know much more about what the legal status of the principles will be. The same is true with the charter that is provided for in section 2. Will the charter be legally enforceable? Is it a set of political aspirations or legal entitlements?

A broad range of witnesses voiced concerns to the Social Security Committee about that—including those from Leonard Cheshire Disability, SAMH, Engender and the Royal National Institute of Blind People Scotland—and they are right to have done so. Without clarification, as my University of Glasgow school of law colleague Tom Mullen put it in written evidence,

“citizens and their advisers may be unsure what their rights and the Scottish Government’s obligations … are and there”

is likely to be

“wasteful litigation to determine their meaning and effect.”

We need to get those things right at stage 2 to avoid that unnecessary and wasteful litigation.

Ruth Maguire (Cunninghame South) (SNP)

The principles are in plain language so that they can be understood. Obviously, there is a tension in making them legally enforceable, because they would have to be in legally precise terms, which would make them more difficult to understand. How would Adam Tomkins address that?

Adam Tomkins

It is a perfectly reasonable point. There is a trade-off between accessibility of language and legal enforceability. We all say that we want a human rights-based approach to social security. One core element of European human rights is that when one’s rights are breached one has a right to effective judicial protection—not a mere complaint to an ombudsman and not a charter on a wall, but effective judicial protection. If we are serious about saying that we want social security to be founded in human rights, we need to take that on board.

Social security devolution comprises three elements: the streams of assistance devolved in full, the power to top up reserved benefits and the power to create new benefits. The Scottish National Party likes to say that only 15 per cent of social security is devolved, but that is a bit misleading. The truth is that we have devolved 30 per cent of working-age benefits in full, and we have created the power to top up reserved benefits and the power to enact new benefits. The element of that package that is missing from the bill is the power to create new benefits. The bill deals with top-ups, but there is no equivalent provision for new benefits. I have challenged the minister about that before and she has told me that she does not need a provision on new benefits because she has the power to create them already. I am not yet persuaded of that, so I intend to probe the matter further at stage 2. In my view, the bill should include provision on new benefits.

Jeane Freeman

Will the member take an intervention?

Adam Tomkins

If I have time.

The Deputy Presiding Officer

I can give you the time back.

Jeane Freeman

I refer Mr Tomkins to section 28 of the Scotland Act 2016, which provides this Parliament with the competence to create new benefits. It is from there that my stance is taken. We already have the power to create new benefits. There is no need to duplicate that in the bill.

Adam Tomkins

I know that that is the minister’s position and I am sure that it is based on legal advice but, as I said, I intend to probe it further at stage 2.

It is worth making two final points. First, the Scottish ministers are proceeding exceptionally slowly with welfare devolution. For example, we still have no idea at all what kinds or what value of assistance they propose for people with disabilities. We do not know anything at all about how such claims are to be made, assessed or processed. What we do know is that UK ministers think that the SNP is going more slowly than it needs to. As the bill proceeds, that is a matter to which we shall return.

Jeane Freeman

Will the member take an intervention?

The Deputy Presiding Officer

The member is in his last minute.

Adam Tomkins

My last point is on costs. I do not think that the minister referred to the financial memorandum, but the paragraphs on that at the end of the Social Security Committee’s report are important and need to be highlighted. Our concern is that Scottish ministers are devising a very expensive social security system. Of course we want dignity, fairness and respect to be at the heart of that system, but we should treat the taxpayers who pay for all of that with dignity, fairness and respect.

Just last week, in its first report on forecast social security spending, the Scottish Fiscal Commission noted that devolved welfare spending will rise by nearly 50 per cent between 2017 and 2023, moving from £330 million to £470 million. That rise is without knowing anything about what Scottish ministers’ plans are for attendance allowance, disability living allowance, personal independence payments, severe disablement allowance and so on.

The Scottish Conservatives support the general principles of the bill, but we have a number of concerns that we will want to address at stage 2 and as social security devolution proceeds.

15:19  

Mark Griffin (Central Scotland) (Lab)

The past week has been a momentous one for the Parliament, as we begin to exercise powers devolved under the Scotland Act 2016. Labour has concerns about the bill; nonetheless, I am pleased to confirm that we will support its general principles.

As members have said, we owe particular thanks to the 119 individuals and organisations whose detailed advice and guidance led our considerations. I am also grateful to the committee clerks, who aided our stage 1 proceedings on what will be a landmark piece of legislation.

I am humbled by the opportunity that members of this Parliament have today as we set out to build a new social security system that is founded on dignity and respect. Our decisions and the improvements that we make will be critical to improving the lives of disabled, sick and elderly Scots up and down the country for years to come. We have only one first go at this, so it is vital that we get it right—not for the Government or for members, but for the 1.4 million people who will come to rely on the system. For all the statistics, legislative innovation and debate in this chamber, the public—those who rely on the system—will measure our progress against the cruel and inhumane system that currently exists and look to how we use our new powers to work to eradicate poverty.

At the end of the summer, Labour published its response to the bill. We highlighted concern about the risk of placing so much in secondary legislation, and we said that the bill had failed to live up to some people’s expectations. Those were fair comments then, and we look forward to improving and strengthening the bill in the new year, but there has been welcome movement, which means that we can proceed together.

The committee’s report reflects the evidence that we heard about the imbalance between primary and secondary legislation and reiterates that concerns must be addressed in “key areas”: the fundamentals of accountability and scrutiny; the offences that the bill creates, about which there are very serious questions; and the redetermination system, which echoes the discredited UK system and could be a barrier to justice.

It Is welcome that the minister has set out her intention to lodge amendments on a form of superaffirmative procedure and statutory independent scrutiny, thereby accepting the arguments that have been made since the summer and the committee’s recommendations.

There has also been movement on independent advocacy, with the acceptance that individuals should have a right to support to help them to get the most from the system. The work of the Scottish Independent Advocacy Alliance and others has been crucial to that shift, and they should be encouraged by their success.

One of the most reassuring messages that the committee heard was that the innovative approach of including guiding principles in the bill is the right one. During an evidence session, Judith Robertson, from the Scottish Human Rights Commission, reminded us of the

“threat of a good example”.—[Official Report, Social Security Committee, 21 September 2017; c 33.]

She challenged us to enshrine the right to social security in the principles. In acting on that challenge, we would make the bill a world-leading piece of legislation. Clarity of intention would flow from it, creating a backstop in relation to unintended consequences.

I do not have time to run through every aspect of the bill or every improvement that we will propose. Ahead of the Christmas break, Labour will work to ensure that opportunities are not missed in the bill.

I was one of the minority of committee members who refused to accept that the bill should not provide for a ban on private sector assessment. I have instructed the legislation team to devise an amendment that could give legal effect to such a policy. The minister has made it clear that her door remains open; I trust that she will reopen discussions on the measure.

I am also one of the minority of committee members who do not accept the recommendation on redetermination or the Government’s view in that regard. Pauline McNeill, Alison Johnstone and I regard the two-stage process as a barrier to justice. Such an approach is one of the worst vagaries of the current system. We will work to change the bill in that regard.

Take-up, uprating and adequacy of payments will be fundamental to a better system. We welcome the Government’s agreement that the new social security agency should have a duty to ensure take-up, but we should go further. Last week, an inflationary uplift in the higher rate threshold was announced. If such an approach is good enough for half a million top earners, social security recipients, too, should expect uprating to be guaranteed in law. Taking a far more holistic, no-wrong-door approach to how we help people get what they are due would go so much further, so we intend to push for the duty to be strengthened and matched with a mechanism to guarantee annual uprating.

Presiding Officer, you will hear this afternoon that we have a fair amount of work ahead of us. Underlining that work should be our ambition to create a better system than that which exists today. I hope that we come back to that challenge—to go further than others—throughout this afternoon’s debate. Over the coming months, we must embrace that first chance to get things right and make the bill the landmark legislation that the people of Scotland expect.

The Deputy Presiding Officer

We come to the open debate—speeches of six minutes, please.

15:25  

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

I, like others, very much welcome the debate on the bill at stage 1. Others, from the convener of the Social Security Committee to the members who have spoken so far and the Minister for Social Security, have mentioned that the process the committee has gone through—of hearing the evidence and deliberating on the bill—has been very constructive. That process demonstrates the Parliament at its best—listening to stakeholders and to those who engage with the current social security system and thinking of their aspirations for how we can exercise the powers of this Parliament to build a new social security system for the future.

I thank the clerks and all those who gave evidence, particularly those who gave evidence of their experience of the system. I notice that some of those who gave us their insight are in the public gallery today. From the evidence that we heard from them, and from written evidence, it was clear that there are problems in the current system. Through the bill, we have a huge opportunity—with the 15 per cent of social security spending, with the 11 benefits and with the framework that the bill will create—not only to build a new system based on the social contract, but to reimagine and reinforce the idea of social security and what it means.

That is a collective process and a collective investment in ourselves and each other. For me, a big part of that relates to the principles in part 1 of the bill, on which the committee took a lot of evidence. I welcome the Government’s response to the committee’s stage 1 report, which states that the principles are about defining

“the nature and ethos of the new”

social security system. That approach has been welcomed warmly and enthusiastically by stakeholders. It is an important part of the bill.

The principles as they are currently drafted have been welcomed, but there has also been a recognition that new principles would be of benefit. I am glad that organisations such as Advocard in my constituency and others have successfully persuaded the committee and—I think, based on its response—the Government to bring forward a new principle around the right to advocacy. I think that that is the right thing to do.

I pay tribute to the Poverty Alliance, which proposed the addition of a principle that

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

I suggest, instead, that the bill should perhaps state that the Scottish social security system should have a role to play in the eradication of poverty in Scotland. That would clearly attach it to the point that this is the Scottish social security system, as defined in section 7; given that that system will account for just 15 per cent of the social security spend in Scotland, it can have only a limited impact on addressing poverty, which of course we all want to do.

I could say a lot more about the principles, and there have been interesting deliberations so far about the legal status. I completely agree with the position that the simple language of the principles is important, because it makes them accessible; Ruth Maguire rightly pointed that out. The Government, in its response to our report, makes an important point about how the charter will translate the principles into “specific, tangible commitments”. At stage 2, I think that the committee needs to come together with the Government to consider how we can ensure that the relationship between the principles and the charter, and what they mean for people, is very clear.

In the time that I have left, I want to address a point that was raised in written evidence but was not heavily elaborated on in our oral evidence sessions. It relates to part 4 of the bill, which is on discretionary housing payments.

Given that housing and the fear of homelessness come up in the context of social security at the surgeries that I hold and are mentioned regularly in deliberations in the chamber and elsewhere in the Parliament, DHPs play an important role. The Scottish Government has committed to them, and they are used by local authorities to make a meaningful difference on the ground in mitigating the bedroom tax or dealing with issues around the benefit cap or universal credit and the challenging circumstances that those aspects of UK Government welfare reform have put individuals and families in. In my view, as we move to stage 2, we might want to consider the possibility of putting discretionary housing payments on a statutory footing. They could continue to be provided by councils, as they are at present, but we could also consider including in the bill their being provided by the Scottish Government. I will look to probe that as we move towards stage 2.

The whole notion of social security is based on the premise that it is better to give people a hand and to help our fellow citizens than it is to have to pick people up off the floor. The new social security system that we are building together will do that in a more effective and humane way than the current system does. The building of a new system for the 15 per cent of social security spending that we control is an important move, and I absolutely support the general principles of the bill.

15:32  

Jeremy Balfour (Lothian) (Con)

I remind members that I am in receipt of a PIP.

As others have done, I welcome the bill, and I thank the clerks and all those people who gave evidence to the Social Security Committee. However, I think that there is a long way to go at stages 2 and 3, because the bill leaves a lot of uncertainty for people out there who are on benefits or who might go on to benefits in the future.

I understand that the Government’s purpose is to deal with many matters in the regulations that will be produced in due course, but the uncertainty to which that gives rise means that somebody like me who is in receipt of a PIP does not know whether they will be in receipt of a PIP in two, three or four years’ time. The people I talk to tell me that that creates uncertainty with regard to planning and what is going to happen next. That is why, when it comes to stage 2, we need to consider putting more into the bill instead of leaving things to regulations. That way, we will be able to give people clearer guidance on what they can expect in the future. I invite the minister to give an indication in her summing up of when the regulations for the various benefits—particularly those that relate to the DLA, the PIP and the attendance allowance—will be laid out.

The second area that I want to discuss is one that I have previously mentioned in the chamber—the role of the new agency and how it will work. We could have lots of interesting discussions about principles, charters and objectives, all of which are important. Ultimately, however, what is important is how the individual who claims a benefit is treated. There is still a danger that people think that the new agency will be cuddly and soft and will never say no to anyone, but it is clear that it cannot play such a role—its role will be to decide whether someone should get a particular benefit. I will elaborate on that later in my speech.

I am concerned that we might be throwing the baby out with the bath water. For some people, the face-to-face assessment is very beneficial because they have time to talk to somebody face to face and explain what their disability is and how it works. I accept that the present system has its failings, but to say suddenly “We’re never again going to use any private contractor for face-to-face assessments” leaves us, first, with the practical issue of who will do such assessments and who will pay for them; and, secondly, with the issue of whether we will simply rely on medical and professional evidence.

Jeane Freeman

There is no contradiction between saying, as I have done repeatedly, that we will not use private contractors to deliver one-to-one health assessments because that would be incompatible with the system that we are setting up, and having one-to-one health assessments. Mr Balfour assumes that there will be no such assessments, but I am sure that he will remember my saying in committee that if an individual wishes to have a one-to-one health assessment, it will of course be provided. However, as I have said repeatedly, we will have far fewer such assessments and we will not work on the current presumption of the UK Government that every individual requires a one-to-one assessment, because the information that we will need in order to make the right decisions the first time will already exist in public records that the individual can choose to provide us with.

The Deputy Presiding Officer

I will give you your time back, Mr Balfour, as that was a long intervention.

Jeremy Balfour

Thank you, Presiding Officer.

There are two issues in what the minister said. First, I question whether all the medical evidence that people will require will be there. I ask the minister to go back and look, because about four or five years ago the tribunal service asked for all medical evidence to be provided when a tribunal sat. However, even with that medical evidence before a tribunal, it was found that face-to-face questioning still had to take place. I therefore challenge that presumption by the minister. Secondly, what she said still does not answer the question of who will do the face-to-face assessments. Where are the people out there who have the skills to do that? We need more information on that.

I turn quickly to the issues of advocacy and advice and assistance, because I believe that those are two separate things. Some people will require advocacy, some people will require advice and assistance, and some people will require both. We need to make it clear at stage 2 that there is a distinction between advocacy and advice and assistance, because they are different and will need to occur at different times. In addition, to return to my view of the new agency, we must ensure that both advocacy and advice and assistance are independent of the agency and the Government, that they are properly funded and that people are signposted towards them. Some people will need advocacy through the process, some people will need advice and assistance through the process, and other people’s needs will vary between them. The bill is unclear when it comes to making that distinction between advocacy and advice and assistance.

I welcome the bill, but I think that it can be improved by amendments at stage 2.

15:38  

Sandra White (Glasgow Kelvin) (SNP)

As other members have done, I thank the Social Security Committee’s members and its clerks for the work that they carried out on the bill. I also thank the many groups and individuals—as has been mentioned, some are in the gallery—who took part in the many committee evidence sessions, round-table discussions and other meetings. Without their willingness to get involved, we would not be at stage 1 of this historic bill.

The bill puts people at its heart, with the principles that social security is a human right and that people should be treated with dignity, fairness and respect. It is important to emphasise that. The Scottish Government must also be thanked for the way in which it has approached the bill. It has been proactive and has consulted organisations and individuals from day 1. I thank it for that, as, I am sure, other members do.

The ethos of the bill is based on dignity, fairness and respect, but the bill must also deliver a safe and secure transfer of benefits to the 1.4 million people who rely on them. I say to Adam Tomkins, with regard to his contribution to the debate, that we must remember that the bill is for the 1.4 million people who rely on benefits. As we go through the stages of the bill, we must keep that in mind. We cannot rush things through, which would result in people being missed out. We must make sure that we deliver with the bill. That has been said from the very beginning, and we have to keep it in mind as we go through the bill’s stages.

The minister replied to Jeremy Balfour, but I want to say to Jeremy Balfour that we must ensure that the people from whom the committee heard are listened to. One of the gentlemen from whom it heard is in the gallery today: Brian Hurton suffers from the degenerative eye disease keratoconus—I hope that I have pronounced it correctly—which is a condition that will not improve. He and the many others who gave evidence and who have conditions that will not improve or that will deteriorate should not be subjected to a never-ending round of giving evidence to medical assessors. When we look at the evidence, we see that some assessors are not even medical people. We must make sure that people do not have to go through that after the Social Security (Scotland) Bill is passed. The never-ending medicals and appeals are very debilitating—not just for people’s physical health, but for their mental health. I have faith that the committee, Parliament and the Government will make sure that the new social security agency will ensure that people are not put through that process, which came up in evidence time and again. I thank Brian and others who came forward to give us their evidence.

I want to raise a number of recommendations from the stage 1 report; they have been touched on in previous speeches. The issue of primary and secondary legislation has been raised by many groups, and is mentioned in correspondence that was received by the committee and in its report. I remember that it exercised the minds of committee members. My view at the time was, as I mentioned, that a balance needs to be struck. My concern is that too much detail in the primary legislation, before design or testing have been undertaken, could lead to mistakes, thereby making the provisions in the bill undeliverable. It struck me when reading papers on the bill that changes to rectify such mistakes would need to be made through primary legislation, which is a very long process that could delay implementation of the new social security system. That is something that committee members and Parliament need to consider.

I am pleased to note that the Scottish Government has said that it will lodge amendments to the bill, including on use of the superaffirmative procedure for subordinate legislation and on the establishment of an independent scrutiny body, which will be important.

I want to touch on two other areas. The first is the principles of the bill and the fact that the Scottish Government clarified their legal status. I am concerned about the ethos of the bill, which is about dignity and respect. If I go out and speak to people and ask them about dignity and respect, most know what the words mean. I am concerned that if we start bringing in lawyers and so on to clarify what “respect” means, we will lose from the bill the transparency and the plain speaking that people expect and to which they are entitled. The committee’s members, and I, will consider the matter before stage 2.

The second point is about the charter. It must be available in all languages and in places such as libraries, so that people know exactly what they are entitled to. People’s entitlement and knowing that they are entitled to it is the main purpose of the bill. The charter must be plain, simple and transparent and be available for people to reach out and pick up.

15:44  

Johann Lamont (Glasgow) (Lab)

As members may notice, I have a seasonal lurgy to look forward to as Christmas appears. I warn you that my voice may not last until the end of my speech. Some people might regard that as a blessing. [Laughter.] Exactly.

I welcome the opportunity to participate in this important debate. I am not a member of the Social Security Committee, but I am very grateful for its stage 1 report and for its highlighting of issues in it. I have enjoyed reading about them: its focus is on the key issues rather than on the generalised discussion about social security and powers coming to the Parliament, although such discussions have sometimes been lost in their own right, and have become significant for other issues.

I am also grateful for all the briefings that have been provided, including briefings from groups that give voice to people who will be most directly affected by the bill’s proposals. We should not understate our responsibility for getting things right in the eventual legislation.

It is important to recognise how significant the bill is in the real world. Decisions that are made in Parliament will have a direct impact on individuals and families across our communities. An understanding of the purpose of social security is at the heart of the matter. It is a mark of our decency as a society that we have a social security system that works and which recognises that any one of us might at any time need support.

Adam Tomkins created a false division when he talked about taxpayers being treated with dignity and benefit recipients being treated with dignity. They are often the same people: we should understand that the benefits system is not for people “over there”, but is potentially for all of us at some time in our lives.

I regret that the UK Conservative Government chose to divide people into workers and shirkers, that it created changes in the social security system that are predicated on demonising people who are on benefits, and that it created a complexity that often puts up insurmountable barriers to people who seek the support to which they are entitled. That is unforgivable, but it is also short-sighted and irrational.

The debate and the briefings that we have received reflect that complexity, and take us beyond our comfort zone of the general principles, to test the bill’s workability and effectiveness for people who depend on benefits. That is why it is so important to have greater parliamentary scrutiny than that which is currently proposed; not to give MSPs more time to talk about the issues but to ensure that the proposals are shaped by the people who have lived experience of the process, people who can perhaps see the unintended consequences, and people who understand how aspiration has to be translated into budget choices. We need to see the visibility of the process in order to ensure that we get it right, and it is not good enough, even using the superaffirmative procedure, to have what still remains a “take it or leave it” approach in the parliamentary process. I would prefer an open and transparent role for all the organisations and groups in developing proposals, which can then be decided on.

There are significant issues to do with discrimination that should be explored further. We note what has been said about the difficulties of people with learning disabilities in ensuring that they secure their rights, and we know that many people with learning disabilities are living longer. That is a blessing for all of us, but it means that many parent carers continue to care into very old age. That should be respected, so we should look at age discrimination, too.

We also know that many disabled people are denied the opportunity to achieve their full potential—to work, to study and to play their part in society—because of discrimination that they experience in the social care system. We know that, as a direct consequence of cuts to local government, there is a double whammy for people who need care and people who provide unpaid care. The more services are reduced, the more unpaid care expands. I believe that we all acknowledge what unpaid carers do, but the social security system should, through the bill, result in real changes in their lives.

Equally, the capacity for groups to help and support people through the system—whether through advocacy or whatever—is being limited by the same cuts. We need to see the Government’s proposals in that context.

I understand that the Scottish Government does not have responsibility for all of the social security system, and I welcome the ways in which it has highlighted the issue of dignity in the system, but we need to see social security not just in its social context but in its economic context. The Scottish Government can act in that broader context.

We know that many people who live in poverty are in work. They are often caught in precarious work with limited guaranteed hours and lack of certainty about when they will work. That can lead to chaos in managing family budgets, childcare or care for other people. It is essential that we recognise that for the many people who may, in some circumstances, give up work altogether. The Scottish Government can play a role in creating more secure work and in stopping such jobs being defined as “positive destinations”, when they are nothing of the sort.

I am interested in what dialogue the Government has with businesses that might sign the business pledge about recognising their role in supporting people to work. I am also interested in the dialogue that it has with businesses that get the small business bonus about what is expected of them in relation to rights at work and providing security, because lack of job security often leads to people falling into a situation in which they are unable to manage their budgets effectively.

We know that social security does not stand separate from the economy, and we know that it is not simply about other people. It is about fairness, greater equality and opportunity. If we are to get it right, we will need to recognise not only the needs of the people who seek support at any given time, but the benefits to us all in ensuring that we have an economy and a society that create greater equality and opportunity for everyone.

15:50  

Alison Johnstone (Lothian) (Green)

The bill offers an opportunity to reject decisively more than two decades of welfare reform, and to show that a different way of providing financial support to people who need it is possible.

We must seize this opportunity, because the UK approach is leaving tens of thousands of Scots not knowing whether they can put food on the table for their families. In many cases, they cannot. Figures from the Trussell Trust show us that in 2016-17 it issued 146,000 three-day emergency food parcels in Scotland—48,000 of them to children. Before so-called welfare reform, food banks were not part of everyday life in Scotland.

We must seize this opportunity because, under the current system, households—almost all of them with children—are, because of the benefit cap, told that they have been assessed as needing a certain amount of money to support them, but the amount is arbitrarily capped, in the full knowledge that it is not enough to meet their needs.

We have the opportunity to restore dignity and respect to our social security system. We have the opportunity to reclaim the idea that when we provide a good reliable income for the most vulnerable people in society, everyone benefits. The bill makes a reasonable start towards those goals, but there is much more to be done.

Recognising that social security is a human right is absolutely the correct thing to do, but I am not convinced that that laudable ambition is followed through throughout the bill. I, too, draw the minister’s attention to the charter. One might expect it to be a charter of rights, but it seems to be intended to be more of, as Citizens Advice Scotland has put it, a “performance framework” for the new system. The charter appears not to confer any rights on benefit applicants and recipients. Without a clear statement of rights and a system of redress, should those rights not be respected—

Adam Tomkins

Does Alison Johnstone think that the charter should be legally enforceable in Scottish courts?

Alison Johnstone

One thing on which we can agree is that the status of the charter is entirely unclear. I hope that the Government will confirm—perhaps in the minister’s closing speech, or during the bill’s passage—exactly what the status of the charter is. At the moment, it seems to be fairly meaningless, and the Government cannot claim that the system is built on social security as a human right.

Another aspect of the bill that undermines the rights-based principle of the new system is the proposed redetermination procedure that claimants can use to have a benefit decision reconsidered. The Scottish Government has made some improvements, but in one important respect it duplicates the UK mandatory reconsideration process by creating the same two-stage appeals process that the UK Social Security Advisory Committee in a report last year said

“has deterred some claimants from pursuing disputes when they would have done so under the previous system and would have been successful on appeal.”

The introduction of mandatory reconsideration was intended to achieve—and has achieved—a huge reduction in the number of benefit appeals making it to tribunal, compared with benefits for which MR does not apply. Data from the advisory committee shows a massive 95 per cent decline in jobseekers allowance tribunal appeals since MR was introduced. At the very least, the Scottish Government must explain what strategy it has to stop that from happening again under its proposed plans for redetermination. I implore the minister to listen again to the huge number of organisations that have made submissions to the Social Security Committee arguing that reconsideration will prevent people from accessing justice in the new system.

A few weeks ago, Parliament passed into law legislation that sets challenging new targets for reduction of child poverty. At the urging of Opposition parties, the Child Poverty (Scotland) Act 2017 makes an explicit link to the use of social security, particularly the new devolved social security powers. Now that we have done that, the Government must use those powers to meet the targets.

That being the case, it is surprising that the reduction of poverty is not one of the key principles of the new system. If social security is not about reducing poverty, what is it for? I am glad that the stage 1 report urged the Government to amend section 1 of the bill accordingly. I will lodge an amendment to that effect at stage 2.

Driving up access to benefits will also be key. The Greens will lodge or support amendments on a statutory right to benefits advocacy and to advice services. Those are different services: some people may require one or the other, or both. We also need to consider introducing a ministerial duty to set targets for benefit take-up.

Before closing, I want to discuss uprating of benefits in line with rising costs. Sheffield Hallam University estimates that between 2015-16 and 2020-21 freezing of benefits and uprating of benefits below the rate of inflation will cost 700,000 Scots households more than £450 annually, which is a £300 million cut to benefits each year. That is far and away the biggest benefit cut that is being imposed by the UK Government. Therefore it is disappointing that the bill will currently do nothing to ensure that a future benefits freeze could not easily be imposed by a future Scottish Government. I acknowledge that the current Scottish Government has pledged to uprate disability benefits with inflation. Given the number of people who are claiming them, that is a serious and welcome commitment, but it is only a pledge and there is nothing in the bill to prevent its not being honoured by a future Government. The bill is based on dignity and respect. However, we cannot have those if the benefits are of inadequate value. To have benefits that could diminish in value year on year is not respectful and does not afford dignity.

In conclusion, I believe that the Scottish Government has the very best of intentions, and I acknowledge that it is setting up a genuinely new system rather than simply administering existing UK benefits. However, in doing so, some mistakes have been made. The bill must contain stronger rights for claimants, a better system of appeals, a commitment to reduce poverty and a mechanism to uprate benefits. As William Beveridge said in the 1942 report that set up much of the social security system that we have:

“Now ... is a time for revolutions, not for patching”.

Given all that the social security system and its users have had thrown at them in recent years, we now need a radical, rights-based and forward-looking system. I look forward to lodging amendments at stage 2 and to working with others to help to make that a reality.

The Deputy Presiding Officer

I was hoping that it would be quite a short quote from Beveridge.

15:57  

Alex Cole-Hamilton (Edinburgh Western) (LD)

I start by referring members to my entry in the register of interests: I am the joint owner of a rental flat in Edinburgh for which I receive direct payments of housing benefit from socially renting tenants.

I begin by thanking the Social Security Committee for its work. It is not a committee on which Liberal Democrats have a representative, but we have been paying close attention to its work and the unanimity of acclaim that the stage 1 proceedings will receive tonight is testimony to it. Today represents something of a coming of age for the Parliament, so I am proud to lead the debate on behalf of the Scottish Liberal Democrats this afternoon.

I also thank the Scottish Government for the inclusive approach that it has taken to developing the legislation and for the access that the minister has afforded Opposition members from the start to discuss areas of both common ground and disagreement, such that we will have no hesitation in supporting the bill through stage 1 tonight.

Constructing a social safety net is one of the most important tasks entrusted to any Administration that is empowered so to do, so we do our constituents a disservice if we make it into a political football. We must come to the task soberly, in full cognisance of the social impact to which the right decision can lead or the social cost that might result from error.

When considering the role of the state in providing social security, as Alison Johnstone has just done, I always draw upon the words of William Beveridge, that great Liberal, in particular these ones, which I have reminded members of before:

“The State in organizing security should not stifle incentive, opportunity, responsibility; in establishing a national minimum, it should leave room and encouragement for voluntary action by each individual to provide more than that minimum for himself and his family.”

For me, that precept should form the touchstone of all our efforts in this regard. All our efforts to establish a new Scottish social security system should have the principles of social mobility at their heart.

As parliamentarians, it is not often that we can start from square one, but we have a clean slate here, which is well worth remembering, because it means that we have an opportunity to improve how welfare is managed and to improve the lives of people in this country. It is essential that we take smart decisions to tailor our social security policy and its agency to the needs of our constituents and our country and, above all, that we do so in a manner that is grounded in international human rights law, which we have heard much discussion of today.

I expect that we have all heard shocking and heartbreaking stories about how delayed payments and changes to or errors in the roll-out of universal credit have caused enormous unnecessary stress for people. In many cases, fundamental human rights have been denied. We must set our aim far higher.

Johann Lamont

I am interested in the member’s view in relation to rights. Does he think that it is possible for someone to exercise a right that has not been legally defined?

Alex Cole-Hamilton

The fundamental protection of human rights lies in people’s access to justice, which we do not have in many walks of life in this country; so no, I do not think that that is possible right now.

We are dealing with a form of Government intervention that has been designed to confuse and deter. Unnecessary bureaucracy has been adopted precisely to dissuade applicants from going any further and the eligibility assessments have stripped deserving citizens of their benefits due to misapplication of the rules.

The 1.4 million Scots who will rely on the benefits that we construct are looking to us to do things differently. They will ask whether the culture around the new benefits will change for the better and for things not to be left up to the interpretation of officials. Today and at subsequent stages of the bill’s passage, we owe it to them not to leave those questions unanswered.

The process has been confusing and, sometimes, degrading, so I whole-heartedly support the calls from a vast number of stakeholders for claimants’ right to access the services of a trained independent advocate to guide them and speak for them throughout the process. I also support the call of the Scottish campaign on welfare reform to set out as much as possible of our new social security system in primary legislation, so that future changes that successor Governments might seek to make through regulations have to undergo full parliamentary scrutiny through the superaffirmative procedure.

In that same vein, I recognise the importance of making the mechanism for uprating the benefits a creature of statute, as Alison Johnstone said. We must always plan for less enlightened times and, by locking into law the right to a meaningful uplift of the benefits, we will offer a level of protection to some of our most vulnerable citizens.

I am grateful to the Scottish Government for its sensible and progressive approach to the application of the new powers, but I also wish to sound a note of caution. On a number of occasions, I have heard the minister and her colleagues state that it should not fall to this Government to clear up the messes made by Westminster. I have some sympathy with that point of view, but it cannot be our only response. In some cases, we have the power to help people through the new powers that this Parliament has been afforded, and if there are clear areas of injustice that are within our reach to rectify, we should consider so doing—whether the state pension inequality suffered by women born in the 1950s or the loss of up to 18 years of benefits by those who are widowed at an early age. If the system is failing those people and we have the power to fix it, we must consider doing so.

I will finish on a note of consensus. This coming of age for our Parliament is welcome and will allow us to turn the rhetoric that we often hear in the chamber into meaningful action to deliver assistance to the millions of our fellow Scots who look to us for help.

The Deputy Presiding Officer (Linda Fabiani)

We are a wee bit pushed for time, so I ask members to stick to their six minutes.

16:03  

George Adam (Paisley) (SNP)

As a member of the Social Security Committee, I was going to start by saying that I was a bit surprised at how downbeat the debate has been so far but, apart from the bit in the middle of Mr Cole-Hamilton’s speech that I disagreed with, I thought his idea of the Parliament coming of age was the way that we should look at this—we stand at the dawn of a new day for our Parliament.

I am very pleased to speak in this debate, which for me is about not just social security but an opportunity for MSPs to make new decisions, implement new procedures and put people at the centre. The devolution of 11 social security benefits through the Scotland Act 2016 is the first time that we, as parliamentarians, have the power to make real changes to the welfare system, demonstrate our strong desire to do things differently, put respect and dignity at the top of the agenda and ensure that the system does not make life harder for our constituents.

The new social security system that the Scottish Government proposes is a big leap forward and paves the way for using the devolved powers over non-income-related disability benefits, including disability living allowance and personal independence payments. We know that the current Westminster model is seriously flawed and about the difficulties involved. The bill heralds a material change in the social responsibilities of the Scottish Parliament. It is a significant moment for Scotland and in the history of devolution, and an important step towards our future growth as a country. The Scottish Government really has a chance to change things for the better and I am confident that the bill will live up to that aim.

Putting dignity and respect at the heart of the bill is of the utmost importance, and those principles are embedded throughout, whether in how entitlement to benefits is determined, in a more just review and appeals system, or in the decision to remove the private sector from disability benefit assessments. The often appalling assessment process is the subject of the most frequent complaints that I hear in my constituency office and I am repeatedly shocked when I hear of the impersonal, cold and calculating way in which my constituents are treated by the DWP. Many come to my office after they have been left confused, frustrated and distressed following their assessment—above all they are left feeling as if they have not been believed or taken seriously. That will not be the case in Scotland.

The bill clearly outlines the seven principles for the social security system and underlying them all, each step of the way, is the Scottish Government’s belief that social security is a fundamental human right. The message of the bill is, “We believe you, we value you and we will take you seriously.” The bill also proposes the creation of a social security charter, which will put that belief into practice. For me, one of the most important aspects of the charter is that it is co-produced with people with disabilities. It is easy for parliamentarians to talk the talk, but the Scottish Government has gone a step further and has actually asked our constituents to join us in creating the legislation that will affect them.

The establishment of the experience panels has given people from all walks of life a voice, and the Government has listened, learned and then implemented. While our counterparts down in Westminster routinely ignore the stream of advice and evidence from stakeholders and claimants alike and are determined to push through the abysmal universal credit system and abhorrent rape clause, no matter the cost to people’s physical and mental health, the Scottish Government is actively seeking suggestions and advice from those who are in receipt of social security right now and from those who are experiencing difficulty in navigating the minefield that is the DWP.

The Government’s recent survey of how experience panel members view the current UK system showed, shockingly, that 60 per cent of respondents rated their experience of the current benefits system as “poor” or “very poor”. That is clearly the side effect of a Westminster Tory Government that is quite happy on its path of austerity and welfare cuts. All I can say is that Westminster might be happy to ignore people, but this Government wants to meet them, hear their story and do all that it can to make the process easier. That is what it really means to put people at the heart of policy.

Once ministers create the charter, the bill will also place an important duty on Government to review policy and to update the Parliament regularly on what has been done to meet expectations and how the system has performed. The bill makes it clear that the consultation activities that have been undertaken to date by no means mark the end of the Government’s engagement with stakeholders and claimants. Unlike the one at Westminster, the Scottish Government fully intends to continue listening, with a view to understanding people’s issues and taking action when it is required.

The latter sections of the bill deal with the framework of the system, the type of benefits to be delivered and how they will be rolled out. One of the top priorities is the safe and secure transfer of the 1.4 million people who rely on the benefits system. Every single one of us has no doubt heard horror stories about the chaotic roll-out of universal credit. One of the main complaints was about the hardship that people were suddenly plunged into by having to wait months for their first payment. The Scottish Government has made it clear that we will have a Scottish agency delivering devolved benefits by the end of this session of Parliament. The timetable and process that have been set out will ensure that we get delivery right, so that those who depend on this vital support do not miss a payment.

The bill is first and foremost about people, and I hope that I have outlined how our Scottish Government has planned to do things differently. However, we are talking about only 11 benefits, and my preference would be for much, much more than that. The most important thing is that the Scottish Government is working to produce a system that is people centred. In this bill and at this time, we have the opportunity to make real changes in people’s lives. Let us ensure that we all remain focused on that as we progress the bill further.

16:09  

Alexander Stewart (Mid Scotland and Fife) (Con)

I am pleased to have the opportunity to speak today on a bill that is rooted in the devolution of social security in Scotland. I am not a member of the committee but I pay tribute to all who took part by giving evidence and supporting the committee in its endeavours.

As Adam Tomkins indicated, we are supportive of the general principles of the bill, which grants legislative competence to the Scottish Parliament in respect of a number of benefits. While supporting those general principles and wanting the bill to work in the interests of everyone in Scotland, we do have some reservations on the specifics.

The bill is based on principles on which we all agree—dignity, fairness and respect. We all expect dignity, fairness and respect for all individuals who require our support and assistance. However, in determining the strength of those principles as part of the bill, it is important to understand how they will work in practice.

Scottish ministers will have a duty to prepare a social security charter and to report to Parliament annually on how the system is performing. However, the bill does not place ministers under a duty to abide by the charter, and that needs to be addressed if the provision is to be included.

Furthermore, it is absolutely right that we take a human rights based approach, but we do not know exactly who will be entitled to what under any of the devolved streams of social security assistance. That carries the risk of the bill not living up to expectations as we set a new path. That is particularly important for a bill under which Scottish ministers will be given wide-ranging powers to define rules about eligibility and to set out in secondary instruments the figures for how much claimants are likely to receive. Further to the idea of managing expectations, Citizens Advice Scotland has also pointed out the importance of clarifying rules around residency so that who is eligible for the devolved streams of social security and what happens when people move over the border is understood.

As has been touched on, it is absolutely vital that the bill provides an acceptable level of scrutiny, particularly when stakeholders have consistently raised concerns about the balance between primary and secondary legislation. While that will allow the Scottish Government the flexibility to adapt the rules depending on how the system develops, the balance should be examined in greater detail during the bill’s passage so that any secondary legislation is adequately scrutinised.

The Social Security Committee has been clear that it has some issues in relation to scrutiny as there is no provision in the bill for a superaffirmative procedure for, or independent scrutiny of, regulations produced under it. That point was echoed by Citizens Advice Scotland, which has called for the new system to have an equivalent body to the UK Social Security Advisory Committee. I look forward to seeing that develop at stage 2.

There is a need for absolute clarity in all future political debate about social security, particularly when we are talking about a bill that gives us the opportunity to transpose powers to Scotland. Although there was scope to do so, it is worth noting that there is no provision in the bill to create new benefits beyond what is covered by the current forms of assistance. As Inclusion Scotland and Poverty Alliance pointed out during the evidence sessions, the bill lacks clarity on how the power to top up reserved benefits will be used. That is an important point. Those organisations understand, because they work with affected individuals. The Parliament needs to take on board their opinions.

If we are to have a meaningful debate, we need to be honest about what powers the Scottish Parliament now has. The bill will be the official marker of the power Scotland now has over social security, as will the system that we endorse.

I reiterate my support for the Social Security (Scotland) Bill at stage 1. However, although we all agree on the general principles of the bill, I hope that the Scottish Government will reflect on the points that have been raised by my colleagues today. We are required to support the social security system and we have an opportunity to set standards; we cannot get that wrong for the individuals who require our support. They want us to make sure that we get it right for them and we need to do so. Let us make bold choices and deliver for everyone as the bill progresses to stage 2. I look forward to that.

16:15  

Ruth Maguire (Cunninghame South) (SNP)

This historic bill establishes the first UK social security system based on the principle that social security is a human right. It is heartening to note the unequivocal support from across the Parliament and from external stakeholders alike for the broad principles and aims that underpin the bill. They are principles and aims that we should all be proud of and which are worth reiterating. The bill seeks to create a society in which those in need of help are supported and not demonised; a society in which our social security system is run for the people and not for profit; and a society in which every person, with no exception, is treated with dignity and respect.

The bill will enshrine those principles in legislation and further establish Scotland’s reputation as a nation that values compassion and empathy and that rejects selfishness and demonisation when it comes to how we treat those in need of a little extra support. When the bill passes stage 1 today, it will mark a hugely positive step forward. There is much to celebrate and to feel optimistic about.

However, at the same time—I regret having to point this out, but it is important to do so—we cannot lose sight of the challenges that remain and the limitations that exist upon the powers of this Parliament. When we discuss social security-related issues from child poverty to disability rights, the regrettable reality is that Scotland is, more often than not, acting with one hand tied behind its back, with UK Government policies taking things backwards as we legislate to move forwards. We must also remember that 85 per cent of welfare powers will remain under Westminster control and that even the powers that are being devolved are being impacted by cuts at the UK level.

I emphasised that point back in November 2016, when we first debated the future of social security in Scotland. If it was an important point then, it is even more important today because, although the bill will make a hugely positive difference to the lives of people in Scotland, it will not—because it cannot—solve all the issues around social security. That is not to detract from the significant difference that the bill can and will make, but we need to remind ourselves to keep a broader perspective on the context in which we are working towards our aims.

Although the bill’s fundamental aims and principles are not in question, in taking evidence, the committee heard concerns from stakeholders about some of the details at this stage, which we have highlighted in our report and which the Government has responded to. The complex issue of the balance of primary and secondary legislation was raised by stakeholders who were concerned about the Parliament’s ability to scrutinise changes. One Parent Families Scotland, for example, argued that more detail in the bill would

“ensure that the legislation is future-proofed so that forthcoming governments can be held to account over any planned changes”.

I appreciate that the Government is considering the issue of that balance carefully, and I acknowledge the risk that, if too much detail goes into primary legislation before design, development and testing have been undertaken, that could lead to costly mistakes or undeliverability. Nevertheless, in everything that we do, our top priority must be the safe and secure transfer of benefits to the 1.4 million folk who rely on them, and we must be mindful of anything that could delay or otherwise adversely affect implementation.

I am glad that the Scottish Government agrees with the committee that regulations should set a time limit within which the agency is required to complete redeterminations. With regard to the two-stage appeal process, the committee accepted that the agency should have the opportunity to correct errors before a case goes to appeal. Although it is right that the focus is on getting the initial decision correct, people’s previous experience of the DWP system means that it will be even more important to actively seek out any part of our process that might discourage people or be a barrier to their appealing and getting what they are entitled to. I therefore welcome the Scottish Government’s commitment to gather further evidence on that and make adjustments if needed.

The issue of social security offences is particularly sensitive, and I support calls for the bill to be clarified in relation to offences and investigations. I do not think that the bill reflects the Scottish Government’s policy statement, and I believe that further consideration is required, particularly of the provisions on “failure to notify”. I ask the Scottish Government to reflect carefully on the evidence and to consider amendments at stage 2 to make the bill clearer.

The bill is a landmark piece of legislation for the Parliament and for our nation. It will affect more than 1 million people across Scotland. We must get it right, and committee scrutiny is crucial to ensuring that we do so. It is a privilege to be involved in scrutinising such a significant piece of legislation, and I welcome the Scottish Government’s initial response to the committee’s report, which clearly takes on board the recommendations. I look forward to further work with committee colleagues at stage 2 as we make different choices on social security in Scotland and show that we can create a fairer and more just society when we take matters into our own hands.

16:20  

Pauline McNeill (Glasgow) (Lab)

The bill to create a new social security system for Scotland is, in my opinion, the most important piece of legislation of this parliamentary session. I agree with other members that it marks a new era for the Scottish Parliament and that we could have life-changing provisions at the end of the process. We have an excellent starting point, which is an intention to depart from the worst aspects of the UK system. We are creating a distinctly Scottish system for the 11 benefits that we will administer, so it is important that we are radical and that the legislation is strong, clear and workable.

I will focus on a few areas where I believe a lot more work needs to be done, beginning with the question of advocacy. I am pleased that the Government has recognised the need for a statutory duty to provide access to independent advocacy, but I want to debate the scope of who will be included in any statutory provision. I am in favour of drawing that provision widely and not narrowly, as might be the Government’s intention, although we have still to hear what that is. I have heard from many advocacy groups that advocacy can be an important aspect of a claimant’s rights and that many advocates have been refused the right to be heard in the assessment process because they do not always have a clear role.

Many people lose out because they cannot navigate the system on their own. From March 2015 to August 2016, the Scottish Government funded four advocacy organisations as part of the welfare advocacy pilot project. Over that period, they worked with more than 1,000 people, helping to provide £2.7 million-worth of benefit entitlements to those people, so the importance of advocacy speaks for itself. According to Inclusion Scotland, independent advocacy is necessary for a substantial proportion of those who will claim Scottish disability assistance.

The second issue that I will address—Ruth Maguire, Alison Johnstone and other members have mentioned it—is the question of mandatory reconsideration and the appeal process. That area of the bill requires considerable reflection to ensure that the process will not prove to be a barrier for claimants. We believe that it should be a one-stage process, which can be achieved by allowing claimants whose application has been unsuccessful to indicate at the outset that they wish to proceed to an appeal.

Until now, mandatory reconsideration has served to block claimants advancing to an appeal. Interestingly, Jessica Burns, a regional tribunal judge, told the committee that the mandatory aspect should be removed. She said that people should

“have the option of asking the agency to think again about the decision, but it should not prevent them from making a direct appeal.”—[Official Report, Social Security Committee, 21 September 2017; c 25.]

That appeal would be to the first-tier tribunal. I welcome the fact that the minister has said that, in the event of the first decision being unsatisfactory, another member of the agency staff will have a fresh look at the decision and that that procedure will be contained in the operational manual. Nevertheless, I want to ensure that it is in the statute, because it is an important feature of the system.

Adam Tomkins

The member has talked about that in committee as well. Has she done or commissioned any research on what the impact would be on our already congested tribunal service if people had an automatic or direct right of appeal without any mandatory reconsideration?

Pauline McNeill

I am more concerned about the number of people who might not be able to come to the end of the process if we do not ensure that it is a smooth one. However, I assure the member that I will address the question at stage 2. I have had discussions behind the scenes with other people who have an interest in the matter.

Sections 27 to 29 deal with appeals, and the claimant has 31 days to appeal. There needs to be more information about whether new tribunal judges will be appointed or whether we will simply be tacking appeals on to the old system. It seems obvious that there should at least be training for new judges; after all, we are creating a new system with a new approach.

There should also be more transparency in the tribunal judgments, which should be published. Each judge should have their decisions in the public domain. If we are going to have a new approach throughout the system, a more radical approach to transparency in decisions would be welcome.

Quite a few witnesses, including Morna Simpkins from the Multiple Sclerosis Society, mentioned that there are no timescales in the bill. I hope that we can address that at stage 2. We might want to consider various timescales for the first decision. Six weeks has been suggested when more evidence is required or it might be four weeks. Whatever our views on that, more work needs to be done on the matter.

In my last 30 seconds or so, I will address overpayments, because that is an important matter. If the social security agency makes an error, there should be no requirement to pay it back. That was said by a Scottish Government official on 16 August at an event that was run by Inclusion Scotland, and I want to ensure that we can rely on that as a key principle. Since then, the Government has stated its intention as being that the overpayment will not be pursued except in exceptional circumstances. However, section 36 clearly says:

“An individual is liable to pay the Scottish Ministers the value of any assistance”.

I simply want to get some clarification at stage 2 and ensure that, if it is the Government’s stated intention for such payments not to be returned, that is reflected in the bill.

I agree with Alison Johnstone that we have the chance to create a radical, rights-based system. I support the general principles of the bill and look forward to the rest of the debate.

16:27  

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

Some people have suggested that the social security system stems from Beveridge. We might reasonably argue that it stems from the Old Age Pensions Act 1908, which was introduced by the Liberal Government that paid the first pensions in 1909. The first political book that I read was a biography of Lloyd George, which I read when I was seven years old.

Alex Cole-Hamilton

He mentions it every year.

Stewart Stevenson

Absolutely.

The important thing about the reference that I am making is that, 100-plus years ago, The Times, which was then known as “The Thunderer”, definitely thundered against the iniquity of paying people without their having put something into a fund—the national insurance provision did not come along until 1911. However, we now have a consensus that we will support the bill, which is, of course, much more wide ranging than the 1908 act. That is a good and proper measure of how far we have travelled in the regard that we have for people in our society. The bill will apply to all of us, because, at different stages of our lives, we have different needs and will, in one way or another, depend on a social security payment.

Johann Lamont mentioned the need for rights to be in legislation, but I am not sure that they need to be. We can exercise rights that are not in legislation. In particular, the modern concept of human rights stems from the work of Eleanor Roosevelt in the aftermath of the founding of the United Nations. In 1948, she wrote:

“while words, ideas and ideals may mean little by themselves, they hold great power when properly disseminated and embraced”.

I hope that the debate spreads the word about what we want to do.

I will pick up one or two particular points. I was not on the committee but I read with interest the excellent report that it produced. In particular, where the bill says “role”, in section 1(d), the report suggests that it should instead say “duty”. We need to be slightly careful when we change a single word, and we must weigh that word. If we say that the Scottish ministers have a duty, we might lock the Scottish social security system out from topping up somebody else’s social security provision financially without our creating a new social security provision. I say “might” because I have not examined the matter in detail, but I hope that others will look closely at that.

Adam Tomkins is, without question, the most experienced constitutional lawyer in the Parliament. I do not think that there would be much debate about that. But—and it is quite a big “but”—he may have inadvertently failed to understand the practical application of our constitutional position. If, as he suggests, we should incorporate into primary legislation more than is currently intended, that would end discussion of the matters introduced in the primary legislation at the end of stage 3. However, debating and discussing those matters in the context of secondary legislation will extend the consideration that the Parliament is able to give them into the committee stages that follow as secondary legislation is introduced. It is particularly apposite that I make that point in relation to Adam Tomkins’s remarks, because—

Adam Tomkins

Will the member take an intervention?

Stewart Stevenson

I will not. It is tit for tat. I may come back to the member if time permits.

Adam Tomkins suggests that the Government is behind the curve in its preparations for what has to follow while insisting that that incomplete and imperfect preparation should be incorporated into the primary legislation. Those two positions are pretty inconsistent.

Legislators—which includes every one of us here—are perfectly capable of making mistakes. In secondary legislation, we have an opportunity to more readily correct those mistakes. I—mea culpa—provide an example from my experience. On 23 April 2012, I signed the Snares (Training) (Scotland) Order 2012. It turned out not to be quite as good as I thought it was when I signed it. Therefore, on 22 May, less than a month later, I lodged the Snares (Training) (Scotland) (No 2) Order 2012, which was a better presentation of the legislation that was required.

Finally—I leave this as a little mystery for colleagues to pursue—I turn to the very first order that I signed as a minister. It was the Port of Cairnryan Harbour Empowerment Order 2007, which I signed on 25 May 2007. I will let members discover why the order is entirely invalid. The good news is that it was never used or required.

This excellent bill is a big and important step forward for the Parliament. Having flexibility in how we deal with the legislation in the future is not about giving the Government flexibility but about giving Parliament flexibility. I welcome the indications that a superaffirmative procedure will be introduced at stage 2, because that will give us an opportunity to have extended consideration of the secondary legislation. It is a proven technique that works very well.

16:33  

Michelle Ballantyne (South Scotland) (Con)

I, too, thank the Social Security Committee and acknowledge the work and evidence that has informed the bill so far.

As my colleague Adam Tomkins said, the Scottish Conservative Party is the party of devolution in this place. Since 2014 and the Smith commission, we have reinforced and expanded the powers of this Parliament, helping to build one of the most powerful devolved legislatures in the world. Three years on, 30 per cent of working-age benefits have been devolved, along with the power to top up reserved benefits and create new ones, paving the way for this new legislation.

The bill will redefine welfare north of the border. Parliament has the opportunity to create a fair, simple system that is accessible and understandable to all. This is an opportunity to take responsibility for how we support people at the most difficult times in their lives. In doing so, we must ensure that the bill is fit for purpose and does not raise expectations only to snatch them away again.

The principles of a new system are certainly present in the bill. The recognition of social security as an investment in people rather than a support, the enshrining of social security as a human right in Scots law, and the embedding of respect for and the dignity of the individual are all welcome, but if we are serious about achieving such outcomes we will need more than just words. I would like to see more detail in the bill, so that the Parliament and the people can be clear about what the devolved powers will deliver.

The Parliament must be part of the decision-making process, and the balance between primary and secondary legislation needs to be addressed as the bill goes through stage 2. On that basis, I welcome the proposal to create a Scottish social security advisory body in statute.

I will focus briefly on an area that is close to my heart: the need for advocacy. Around a quarter of the written submissions to the Social Security Committee called for a legal right to independent advocacy. For a person who is at their lowest, having someone at their side who understands the system and can articulate their position can make all the difference. I accept what my colleague Jeremy Balfour said about the difference between advocacy and advice, but I think that both can take place at the same time.

Advocard, an organisation that supports people in the Edinburgh area who have mental health issues, said:

“to leave the legislation, as it stands, is an erosion of human rights work that has been done previously”.

Citizens Advice Scotland and Inclusion Scotland voiced similar concerns about the issue. I understand that the minister is aware of that evidence and I urge her to ensure that there is adequate provision in the bill for advocacy.

My other concern is slightly more technical in nature, and I have heard no mention of it in today’s debate. The Scottish Government intends to spend £190 million on information technology implementation, while committing to the principle that

“the Scottish social security system is to be efficient and deliver value for money.”

We have seen problems with the development of IT systems, and the Government’s record in that regard does not fill me with confidence. One need only look at the way in which common agricultural policy payments were delivered to become a little worried about the implementation of an IT system that will affect many, many more Scots.

I note that the Scottish Government responded to the Social Security Committee’s request for a further breakdown of IT costs, and I urge the minister to ensure that robust procedures are in place to ensure that the costs do not spiral. The IT system must be delivered within budget, on time and in a condition such that it is fit for use, to avoid scenes similar to those that we witnessed last winter, when farmers were forced to take out loans while waiting for payments. If a similar crisis were to affect social security, the consequences could be disastrous.

The bill has the potential to revolutionise social security in this country. It presents an unprecedented opportunity to create a tailored system, which provides the support that people need, when they need it. If we want the principles of respect, dignity and fairness to be delivered through the bill, we must ensure that we take all the people of Scotland with us. As Alex Cole-Hamilton rightly reminded us, the principle of social security is to help individuals and families to be socially mobile. That is why we must ensure that the new system is delivered promptly and properly, with an appropriate level of parliamentary scrutiny to ensure transparency and fairness. If the Scottish Government does not get the bill right, it will be the people of Scotland who pay for that mistake.

16:38  

Mark Griffin

In my opening speech, I reminded members that our decisions, and the improvements that we make to the bill, will be critical to improving the lives of disabled, sick and elderly people up and down the country, for years to come. I think that the Parliament has sent out a clear message that we all want to get the bill right, for that reason.

If the people who will rely on the system—those who have lived under the existing so-called welfare system—have heard our debate this afternoon, they will have heard that the Parliament is brimming with ideas about how we can build a new social security system of which people can be proud.

Earlier I spoke about some of the areas where we on the Labour side of the chamber hope to work with the Government and perhaps even push it to go a little further. We have focused on those areas for a number of months. I want to welcome Alison Johnstone’s speech and confirm that we will work with the Green Party at stage 2 to improve the bill in some of the areas that she addressed.

The committee was clear and unanimous on one thing that she spoke about: the bill should include the additional principle that

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

In our response, we said that the bill is a route map to cutting poverty in Scotland, and we want that new principle to be included.

The Government’s response, that the socioeconomic duty would be sufficient and that we have only 15 per cent of the powers, requires some reflection. That 15 per cent figure includes pensions and relies on a somewhat strange calculation of welfare spend. The bill does, after all, include powers to make the Scottish social security system more adequate. A top-up of child benefit, which is advocated by the give me five campaign, would not only cut poverty in Scotland but mean that that 15 per cent could become 31 per cent, once pensions were stripped out. I do not remember anyone in the Smith commission arguing for the devolution of pensions, with the looming costs that would come with that. The proposal that I have set out would go further than the UK Government is going and would underline our ambition to use the powers to cut poverty.

We also want to go further than the UK Government by ensuring that equality of outcome for groups that share one or more protected characteristic is embedded in the Scottish social security system. We look forward to having discussions with the minister on that.

I want to touch on how we adjust the definition of what we regard as a terminal illness. I think that it is fair to say that accepting the definition in the Welfare Reform Act 2012 would not set a good example or underline our ambition to create a better system than that which exists today. Marie Curie and MND Scotland are clear that the right to have an application fast-tracked should be included in the bill and that the definition should not be a life expectancy of a short six months. I am told that, although six months is sufficient for 95 per cent of cancer patients, it is just not reasonable for someone with a varying condition such as motor neurone disease.

This chamber has made huge progress on helping those with palliative care needs. To include a better definition on the face of the bill would go further and would ensure that someone who is terminally ill can access the support that they need quickly and in a fair and dignified way.

The tribunal arrangements—which were mentioned by Pauline McNeill—the issue of the offences regime and the provisions in the bill that deal with what happens when things go wrong need forensic and detailed attention. We still take the view that overpayments that are caused by the errors of officials should not be recoverable from an individual, and believe that it would be unacceptable to pass a bill that criminalises those who fail to notify in such cases. We will take advice on how to rectify those provisions, but I hope that the minister will be able to come forward with adjustments ahead of the Christmas break. Those amendments will, of course, require further scrutiny and time to digest.

We will support the general principles of the bill today. In my opening speech, I made the point that we have a fair amount of work ahead of us to get this right for the people who will rely on the new system. I hope that those individuals—the young mum worried about her child being born into poverty, the disabled person with hundreds of pounds of additional costs every month and the pensioner who is worried about their heating bill this winter—will have been reassured by this debate.

16:44  

Adam Tomkins

There was all-party agreement in the Smith commission that we should devolve the aspects of social security that have been devolved. There was no dissent. This debate on social security has been maybe the most consensual debate that we have had in the chamber since the last election, and I think that it is entirely appropriate that all parties in the chamber are agreed that the general principles of the bill should be supported.

Many members who have spoken in the debate, including Alex Cole-Hamilton and George Adam, have said how important a moment this is for our Parliament, and Ruth Maguire said that the bill is landmark legislation. I agree. Pauline McNeill said that we have entered a new era, in which the Parliament will make life-changing decisions. I think that the Parliament has made life-changing decisions in the past, but it is certainly a new era. Mark Griffin was right to say that we will have only one first go at this, so it is important that we get the bill right the first time. I agree with all of that.

Alexander Stewart said that we should make bold choices in the bill, and I completely agree, but it has to be said that we still do not know very much about the bold choices that Jeane Freeman and her ministerial colleagues want to make about devolved social security. There is still a huge degree of uncertainty about who will be entitled to what; there is no clarity on either of those questions in the bill. Jeremy Balfour was right to ask the minister when she proposes to produce regulations, or even draft regulations, that will clarify matters and reduce some of the uncertainty. Perhaps she will respond when she winds up the debate.

The minister and Mr Balfour exchanged views on assessments. It is not the case that medical evidence that is already on record explains what an individual claimant needs by way of a PIP—the medical diagnosis is different from the assessment of need. There will be occasions when the new Scottish social security agency will need to do a face-to-face assessment, even when the claimant would prefer not to have to undergo one. It cannot always be a question of choice for the claimant. Those are just some of the tough choices that will have to be made in the regulations, which we are not allowed to see yet; indeed, we do not even know when we will see them. The sooner the minister can be honest and up front with the Parliament about what those tough choices will have to be, the better our social security system will be.

There has been a lot of comment about effective parliamentary scrutiny. That is the area in which there is a key difference between primary and secondary legislation. I thank my friend Stewart Stevenson for schooling me in constitutional law—or, at least, in the constitutional law that was valid in the day of David Lloyd George—but the point about the difference between primary and secondary legislation was encapsulated by Johann Lamont when she said that she was worried about the use of secondary legislation not because it cuts MSPs out of the question, but because it cuts the people who come and give us evidence out of the question.

Stewart Stevenson rose—

Adam Tomkins

We cannot take evidence on a piece of delegated legislation—even one that is subject to the superaffirmative procedure—to the same extent that we can in a stage 1 inquiry, which goes on for weeks. We do not have procedures that enable us to have parliamentary scrutiny of delegated legislation that goes on for weeks.

The other important point to make—if Mr Stevenson wants to countermand me on this, I will let him in—is that, at the end of a debate on a piece of secondary legislation, even if it is subject to the superaffirmative procedure, all that we can do is say yea or no to it. We cannot amend it. That means that stakeholders or users with lived experience of social security will not be able to come and explain to us, for example, that 90 per cent of the regulation is right but it needs to be tweaked in a number of regards. We do not have that power. That is where there is an important difference between primary and secondary legislation.

Stewart Stevenson

I accept the procedural point that Adam Tomkins makes, but he is wrong in practical terms. I speak from experience. If he consults Ross Finnie, he will find that, on two occasions, Ross Finnie had to withdraw secondary legislation at my instance, to consult stakeholders and to bring back something that met the requirements of stakeholders and of Parliament before it would be agreed. There is precedent for that. There have been multiple committee meetings on certain pieces of secondary legislation. It is up to Parliament to make the time available; it can do so.

Adam Tomkins

Perhaps the Parliament will make a bit more time available to me right now.

The critical aspect of the difference between primary and secondary legislation is that the Parliament cannot amend secondary legislation, so in making primary legislation, we must be absolutely sure that the choices that ministers will put before us in the form of draft regulations or statutory instruments are choices that we just want to say yes or no to, without having the ability to amend them. That is a critical hurdle that the bill does not yet overcome, but which it will need to overcome by the end of stage 2 if we are to support it further.

The Government said in its response to the committee’s stage 1 report that it agrees that there should be a statutory social security advisory committee for Scotland. However, the one point that I want to make to the minister about that is that that committee must have a role in approving regulations or helping Parliament and ministers to approve them; its role should not be to provide redress for individual grievances. Providing redress for grievances is a different function from the function of helping with rule making and law making.

Providing redress for grievances is the second big theme that has emerged during the debate. There is widespread concern across the chamber about the social security charter. There is no point in legislating for a human rights-based approach to social security unless there are remedies when those rights are breached. They do not have to be remedies in a court of law, but they do have to be remedies and they have to be enforceable, whether through an ombudsman or a court of law—there will be a role for the courts to play.

There needs to be sharper clarity in the Government’s thinking, if I may put it so impolitely, about its exact proposals for a system that provides effective redress for grievances. I know that the minister thinks that the new social security agency will never make any mistakes; I share her optimism that it will make as few mistakes as possible. However, from time to time, claimants will not get what they think that they are entitled to and they will want to make complaints about that, so there needs to be an effective complaints machinery. We need much greater clarity than we have had so far about the role of the bill’s principles and the charter in the determination of those grievances.

The Deputy Presiding Officer

I call Jeane Freeman to wind up the debate—eight minutes, please, minister.

16:51  

Jeane Freeman

First, I thank the committee again and, on behalf of myself and the Government, I thank Sandra White for her work as convener of the committee through a substantive part of the stage 1 evidence gathering, which proved to be the foundation of the committee’s report.

I believe that this has been a good debate, in keeping with something that I think we all recognise: this is a historic moment in the life of the Scottish Parliament. I intend to touch on some of the issues raised in the debate. I will not be able to cover them all in the time allowed, but I am sure that members across the chamber will carefully read the Government’s response to the committee’s stage 1 report and recognise in it our openness to considering in more detail many of the issues that have been raised.

I start with some of the points in the committee’s report that Clare Adamson helpfully raised. She mentioned the role that social security could play in the eradication of poverty. I am indeed sympathetic to that point, but I have to add the caveat that we are talking about the Scottish social security system. Members have debated back and forth what our powers actually are—we will have powers over 15 per cent of the total spend on social security in Scotland and 11 benefits. Of course we have a role in the eradication of poverty and of course social security has a part to play in that, but we cannot be held responsible for benefits that we do not have power over, or for powers that we do not have. Ms Adamson also raised the committee’s point that ministers should have a duty to ensure that people are given what they are entitled to. At the moment, as members will know, the bill refers to a “role” for ministers. Again, I am sympathetic to that point. We will return to both those points when we come to Government amendments at stage 2.

I turn to the substantive question of the balance between primary and secondary legislation. There is, of course, a reason for the approach that we have taken as a Government. I take members back to the points that I made in my opening speech, taking us right back to the consultation that we held in 2016 and the consultations that we have had since then. Those consultations have been with not only stakeholder organisations but people with lived experience of the benefits system, key organisations that provide welfare support and advice, our local authorities and many others. All have consistently said to us that one of the fundamental problems with the UK legislation is that it is opaque and incomprehensible at times because it is contained in both primary and secondary legislation. Indeed, a citizen’s advice bureau told me that it takes longer to work through the UK legislation than it takes to provide advice to clients.

Our purpose here is to provide clarity on the foundation of social security in Scotland, with the details in regulations. That is our intent. In my view, putting eligibility criteria on the face of the bill will not best serve the interests of the people who receive benefits. It will not give us enough time to consult, via experience panels, the expert group or any other means, as we have consistently committed to doing. I am not prepared to break that consistent commitment because I am convinced that our approach is the right way to build this new public service and the only way to meet the principles of the bill.

That said, we are of course willing to consider amendments and will look at the issues over the recess. Mr Griffin’s idea was that we would bring forward all the amendments before the recess—by Thursday. I am sure that my officials are watching the debate, and that would have given some of them conniptions. That will not happen. However, we have already begun to set up discussions with Mr Griffin and others that will happen immediately we come back to look at Government amendments.

We have said that we will bring forward amendments to introduce a superaffirmative procedure in recognition of the difficult balance that Mr Griffin acknowledges we have to strike and to set up a body to provide for independent scrutiny. I wrote to the Social Security Committee in June asking for its views on how we might do that and what such a body would do. I have been consistently clear that I want an independent scrutiny body and that I want a duty on ministers—unlike at the UK level—to consult on any regulations or changes in social security that they want to introduce before those are introduced, with no exemptions and no fast tracking.

We asked our expert group to consider that matter and I am very grateful to it for the report that it produced. We will go back to the group in due course. I hope that the Social Security Committee will also give me advice on both that issue and Mr Tomkins’s point about how an individual can seek redress in terms of the charter.

I know that Mr Tomkins understands full well that legal enforceability is always on the table. In this case, it comes from the Scotland Act 1998, which requires that Parliament’s legislation is compatible with the European convention on human rights and with the Human Rights Act 1998, which makes it unlawful for public authorities to act in a way that is incompatible with convention rights.

Mr Tomkins will also know of the report commissioned by the Equality and Human Rights Commission from the University of Ulster, which talks helpfully about how the principles of dignity and respect, which the charter will translate for us, are difficult to enforce judicially and makes some suggestions about how we might do that. I look forward to returning to the committee and discussing with members how we make that possible. It is of course a different form of redress from the complaints procedure that we would expect any well-governed public body or agency to have in place. We need to make that distinction very clearly.

Members ask us to put detail into primary legislation because the alternative cuts out Parliament’s scrutiny. However, that is not compatible with also asking us to put into primary legislation a power to create new benefits. I do not believe that we need such a power, as I have already explained. It would be a very wide-ranging power for ministers to have with no particular scrutiny other than through the scrutiny of regulations. There is a contradiction there.

Mr Macpherson made an important point about DHPs that we will consider—we look forward to discussing it further. We will come back to the matter of redeterminations. On the question of uprating, we have already made a commitment on annual uprating of the benefits under disability assistance. We also said in our response that we welcome the committee urging us to consider how we might review the impact on benefits of rising costs.

The Government has already committed to a significant increase to the carers allowance and to the best start grant, which takes current provision for the first child from £500 to £1,100 and for the second child and all subsequent children from the current position of zero from the UK Government to a total of £800. Therefore, we are already moving in the direction of ensuring that, within the overall restrictions on our budget—I am conscious that Derek Mackay is sitting next to me—we are making significant progress and moving to ensure that individuals receive adequate support through the social security system.

Johann Lamont

Will the minister take an intervention?

Jeane Freeman

I am sorry, but I must press on. I am coming to the points that Ms Lamont made.

I could not agree more with Johann Lamont when she states that a false distinction is being made between those who pay tax and those who are in receipt of benefits, and I am very grateful to her for the important point that she made, which she asked us to consider, about placing social security in a wider context. However, I am also very grateful to George Adam for reminding us all that our first priority in all of this is the safe and secure transfer of 11 benefits in order to ensure that 1.4 million people receive the support that they are entitled to on the day that they expect it and at the right amount.

Finally, I have listened very carefully and made extensive notes. We will consider all the points that have been raised, and we will come back and have discussions at the start of next year. I know from what members across the chamber have said that, at that point, all of us will be looking for solutions to the issues. We will reach consensus as best we can. There might still be points of difference, but our overall objective is to create a social security system that is founded on good legislation and which the people of Scotland can be proud of.

The Presiding Officer (Ken Macintosh)

The next item of business is consideration of motion S5M-09503, in the name of Derek Mackay, on the financial resolution for the Social Security (Scotland) Bill.

Motion moved,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Social Security (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Standing Orders arising in consequence of the Act.—[Derek Mackay]

The Convener (Clare Adamson)

Good morning and welcome to the third meeting in 2018 of the Social Security Committee. I remind everyone to turn mobile phones and other devices to silent mode so that they do not disrupt the broadcasting.

There is only one item on today’s agenda: consideration of the Social Security (Scotland) Bill at stage 2. It has been agreed that we will not proceed beyond part 1 today. There are 13 groups of amendments in part 1 and we may not get through them all this morning as we have to finish at around 11.30 to allow members to get to the chamber for question time.

I welcome the Minister for Social Security, Jeane Freeman, and her accompanying officials to the meeting.

Section 1—The Scottish social security principles

The Convener

Amendment 77, in the name of George Adam, is grouped with amendments 1, 102, 78, 5, 6, and 113.

George Adam (Paisley) (SNP)

I wanted to move amendment 77 for one very important reason—I wanted to be the first committee member to speak. No—in all seriousness, I believe that it is important to set the foundations correctly for the bill. We all know how important it is. It is one of the biggest bits of legislation that the Parliament has produced since this place came into being.

It is important that we set out right from the beginning what we want to do. When people all over the world talk about documents, everybody remembers the founding principles that are mentioned right at the start of those documents, and stating that

“the delivery of social security is a public service”

sets out to everyone exactly what we are trying to achieve.

During the stage 1 debate, the minister said:

“The Social Security (Scotland) Bill comes to the Parliament as the legislative foundation for a new public service for Scotland to deliver a rights-based social security system that is founded on the principles of dignity, fairness and respect.”—[Official Report, 19 December 2017; c 22.]

She is right, and that is a noteworthy and meaningful principle. Therefore, the founding principle of the bill should be that social security is going to be a public service. That sets out to the 1.4 million people in Scotland who will use the service how important it is to the Parliament and the Scottish Government. In putting these principles forward, we are showing that we see this as the way forward.

To summarise, it is very important—in any documentation and in anything that we do—to get the founding principles correct. I believe that putting this amendment at the very beginning of the bill would tell everyone exactly what we want from the social security system in Scotland.

I move amendment 77.

Alison Johnstone (Lothian) (Green)

The principles section of the bill—section 1—is absolutely crucial, as my colleague George Adam has just pointed out. Laying out the foundation stones of the system sends out a really clear message that the new Scottish system will not chop and change at will or create uncertainty for applicants and recipients. The minister is absolutely right to take this approach, which I welcome. If every other aspect of the system is going to flow from the principles, which I believe is the policy intention, it is absolutely imperative that they are the right principles.

The principle that the system should reduce poverty, as is outlined in amendment 1, is absolutely key. Social security performs many functions, but one of them is the reduction of poverty on the basis of the belief that poverty is unacceptable. That is one of the fundamental tenets of the post-war social security system, and it should be a fundamental principle of the Scottish system that is now being built.

The principle has already been established in the Child Poverty (Scotland) Act 2017 and, as a result of the work of the committee, that act contains several references to the important role that social security plays in the reduction of child poverty. That being the case, it would be remiss of us not to have, in this bill, a similar recognition that social security is vital to the reduction of poverty. That recognition should be stated up front as one of the core principles of the new system.

Mark Griffin (Central Scotland) (Lab)

I will support the two amendments that have just been spoken to.

The purpose of amendment 102 and the related amendments that I have lodged, which we will come to later in the debate, is to make sure that equality is embedded in the legislation and, therefore, in the Scottish social security system.

My amendments have the support of Engender, Scottish Women’s Aid and the Coalition for Racial Equality and Rights.

When equality is not embedded in policy from the beginning, the danger is that it becomes an add-on—something that happens after the fact but that has not been considered sufficiently to shape the system itself. The take-up of benefits among black and minority ethnic groups in Scotland is not routinely published—indeed, it is not monitored in order to see how significant disparities come about and to determine the best way to address them. I have lodged amendment 102 because we know that many equalities groups—particularly women, BME groups and disabled people—experience higher rates of poverty and, therefore, may depend more on the social security system.

I have lodged amendment 78 to start a debate on the issues that disabled people face in their daily lives, including higher costs. However, I do not intend to press the amendment, which has come about on the back of support from Disability Agenda Scotland. Almost half the people in this country who live in poverty have at least one disabled person in their household. Therefore, we must consider how the Scottish social security system would cover the additional costs of a disability, which can push someone into poverty, and how it would break down the barriers and enable disabled people to get into work and lift themselves out of poverty.

Amendment 78 has the support of Disability Agenda Scotland, Camphill Scotland, the Carers Trust, the Health and Social Care Alliance Scotland, the Scottish Independent Advocacy Alliance and Leonard Cheshire Disability. As I have said, the purpose of the amendment is to start a debate on the poverty that a lot of disabled people find themselves in and how the Scottish social security system could alleviate the situation.

The Convener

I invite the minister to speak to amendment 5 and the other amendments in the group.

The Minister for Social Security (Jeane Freeman)

Good morning, committee. I will start with some of the other amendments in the group. I am pleased to support amendment 77, in the name of George Adam. As Mr Adam has said, we have always intended that the Scottish social security system should be delivered as a public service, and the new principle in amendment 77 fits well with the ethos that is expressed in the other principles.

I am also happy to support amendment 1, in the name of Alison Johnstone. The proposal recognises that the Scottish social security system has a role in reducing poverty, and I understand that the amendment has the support of a wide range of stakeholders, including the Poverty Alliance.

I am grateful to Mr Griffin for his indication that he does not intend to press amendment 78, which I could not support. I do not consider that singling out a group at this point in the bill would reflect the spirit of the other principles. More fundamentally, amendment 78, as it is written, misunderstands the nature of disability assistance and the scope of our ministerial powers in relation to social security. Disability assistance is not designed to be an anti-poverty measure, although I accept that, for some people, it has that effect. It is not means tested and it does not seek to top-up or to replace income—its purpose is to help people who have a disability or a terminal illness with their living costs. The Scottish Government has no control over the forms of assistance that, in my view, could really make an impact on reducing poverty for disabled people, but I welcome the opening of a debate on the issue and I am sure that, through the committee and elsewhere, we will continue to have that debate.

Amendment 102, also in Mr Griffin’s name, seeks to achieve broadly similar goals to those that amendments 5 and 6, in my name, seek to achieve, but the wording of amendment 102 is problematic. Devolved assistance will be capable of delivering equality of treatment, but it will not be possible or appropriate to seek to guarantee exactly the same outcomes for every person purely on the ground that they belong to a specific group. To ignore individual needs in that manner runs contrary to the international human rights framework, which, as a broad rule, puts meeting individuals’ needs at the heart of a rights-based approach.

More technically, amendment 102 is silent on precisely which category of outcome it targets and with what group or other benchmark it seeks equality. That makes it difficult, if not impossible, to discern exactly how the system could live up to such a principle. The amendment also fails to recognise that the term “protected characteristics” can have meaning only if it is used comparatively. As all of us have age, sex and religion—which, for the purpose of legislation, includes having no religion—the use of the term in the amendment does not make sense, because everyone has some protected characteristics.

Mr Griffin will remember that his colleagues Ms Baillie and Ms McNeill lodged similar amendments to the Child Poverty (Scotland) Bill but were persuaded, on the basis of the arguments that I have outlined, not to press them. I hope that Mr Griffin will reach a similar view on amendment 102. However, because equality and non-discrimination are important ideals to capture in the principles, I hope that Mr Griffin and other members will support amendments 5 and 6, in my name.

Amendment 113, in the name of Ms McNeill, seeks to introduce a new principle on matters that we would all agree are important and worthwhile. However, health and mental wellbeing are already strongly reflected in the principles of respect and dignity and in our human rights approach. Those existing principles should facilitate a system that is supportive, accessible and sensitive to individuals’ particular needs. That is already taking shape through the commitments that have been made to local delivery, face-to-face pre-claims advice and the elimination of jargon in correspondence. All of that speaks directly to the realisation of a system that is in keeping with the culture that the amendment envisages. Therefore, I ask Ms McNeill not to move amendment 113.

Pauline McNeill (Glasgow) (Lab)

Amendment 113 seeks to promote health and wellbeing. The social security system has a role in promoting improved health and wellbeing, and section 1 deals with the principles of the system. Evidence that has been provided by the Scottish Association for Mental Health supports the idea that some people who have had the employment and support allowance and personal independence payment have found the experience to be stigmatising and to have had a negative effect on their health. Studies by Heriot-Watt University show that work capability assessments for employment support have had a lasting and negative impact on some people with a mental health problem.

A well-designed social security system must have a commitment to eradicating stigma. I am a wee bit disappointed that the Government will not support specific mention of the importance of promoting mental health and wellbeing in the system, as there is a case for having that specifically in the principles.

Adam Tomkins (Glasgow) (Con)

Section 1 is hugely important as a statement of political principles, but we remain concerned about the legal effect of the principles and will later speak to amendments that seek to clarify that effect.

Some of the amendments in the group will exacerbate those problems—particularly amendment 77, in the name of George Adam. It is completely unclear what including

“the delivery of social security is a public service”

in the bill will do and what difference it will make. The sentiment is clear but the legal effect is obscure, so we will not support the amendment. However, we will support the amendments in the minister’s name.

09:15  

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Mr Tomkins mentions the amendments on the status of the principles, which we will get to in due course. I do not want to speak about the principles in detail now, but it is important to recognise that, as is detailed in the Government’s response to our stage 1 report, they have been set forth to define the ethos and nature of the Scottish social security system.

I will support amendment 77, in the name of George Adam, because clarity and the statement that the Scottish social security system will be a public service are important in describing and explaining the ethos and nature of that system.

I will also strongly support amendment 1, in the name of Alison Johnstone, which is supported by Mark Griffin. It is a helpful amendment that is based on the recommendation that the committee made at stage 1. I definitely think that the Scottish social security system should play a part—it cannot do it by itself—in reducing poverty in Scotland. I am glad to see that we have not retained the word “eradication”, as that would have been problematic from legal and definitions perspectives.

The sentiment of amendment 102, in the name of Mark Griffin, is to make sure that equality is part of the system that we create, which chimes with a lot of the evidence that the committee took and evidence that I took in person at one of the outreach sessions that we had at MECOPP. The minister’s wording on the promotion of the goals of equality and non-discrimination is more holistic and, therefore, more effective, so I urge Mr Griffin not to move amendment 102 and instead to support amendments 5 and 6.

Amendment 78, in the name of Mr Griffin, is problematic in that the Scottish social security system, as created under the Scotland Act 2016, does not have the power to create income replacement benefits. The amendment does not consider that position.

I turn to amendment 113, in the name of Pauline McNeill. Although we should be trying to improve health and mental wellbeing across the public sector, that is primarily a function of the national health service. The promotion of health and wellbeing is already taken into account in the existing principles of dignity, respect and human rights, as Ms Freeman said. Although, on the basis of the evidence that we took, committee members want to enhance the principles that were originally drafted, we need to be careful not to create an exhaustive list that might lose the meaning that I mentioned in my opening point about their setting out the nature and ethos of the Scottish social security system.

Jeremy Balfour (Lothian) (Con)

The Scottish Conservatives will not support amendment 1, in the name of Alison Johnstone, as it places too strong an emphasis on what the social security system and benefits are for. I do not think that the primary reason for having benefits is to contribute to reducing poverty. In fact, I would almost adopt the minister’s words, when she was speaking to another amendment, in saying that benefits are there to help those with a disability or terminal illness to live as normally as possible. That is the key point that we should make about benefits. Their contribution to reducing poverty may be an additional reason for having them, but it is not the primary reason for our giving people benefits. I say that because we have universal benefits such as PIP, which is not means tested in any way. The appearance of such words early on in the legislation could put some people off, because they might think, “I’m not poor, so I shouldn’t apply for this award.”

As a result, I do not think that amendment 1 is helpful; indeed, it deflects from what we want benefits for, which is to allow disabled people—whether their disability is physical or mental—to live as normal a life as possible, to give them the money to live that life and to help their families to get the support that is needed. Reducing poverty might be a secondary effect of benefits, but making it a principle in the bill could steer people away from applying for benefits, because they might say, “I don’t fit into that category.”

Jeane Freeman

I want to make it absolutely clear to the committee that our not supporting amendment 113, in the name of Ms McNeill, should not be taken as an indication that, with regard to the social security system or any other matter in which the Government is engaged, the Government does not have a responsibility to pay proper attention to the importance of mental health and wellbeing. Such a characterisation would be unfair. I made my reasons for not supporting the amendment very clear.

Ms Johnstone’s amendment 1 is important, which is why the Government supports it.

The point has been made that disability assistance such as PIP and disability living allowance is a universal benefit that is not specifically targeted at anything other than providing additional financial support to those with a disability or health condition. However, I would point out that some of the other benefits that we will take responsibility for—for example, the best start grant, funeral expense assistance and others—will assist those who are on low incomes. Certainly, in the Government’s view, it is important that—today and as we move through stage 2 to stage 3—we are mindful of the fact that we are laying the foundations for a social security system that will have responsibility for 11 benefits. Nevertheless, it is my hope that the Government will have responsibility for significantly more parts of the system in the future.

The Convener

I invite George Adam to wind up and indicate whether he wishes to press or withdraw his amendment.

George Adam

I will press amendment 77, but first I want to make a point—I will do so very quickly, because I know that we have quite a lot on today.

Historically speaking, what people remember about documents are the principles. They are the most important part of a document because they allow you to state clearly and succinctly what you want to achieve. Therefore, it is extremely important to make it clear that the social security system is a public service that will serve the people of Scotland as and when they need it, because that sets out exactly what the service is for.

I do not want to get too involved in what has been discussed previously, but this must be how we take the matter forward. People might think that these are just words, but words can be extremely important; indeed, they can change history and people’s lives. On this occasion, we are stating right from the outset the most important point: the service that we are setting up will serve the people of Scotland.

The Convener

The question is, that amendment 77 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
McNeill, Pauline (Glasgow) (Lab)

Against

Balfour, Jeremy (Lothian) (Con)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 7, Against 2, Abstentions 0.

Amendment 77 agreed to.

Amendment 1 moved—[Alison Johnstone].

The Convener

The question is, that amendment 1 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
McNeill, Pauline (Glasgow) (Lab)

Against

Balfour, Jeremy (Lothian) (Con)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 7, Against 2, Abstentions 0.

Amendment 1 agreed to.

The Convener

Amendment 4, in the name of the minister, is grouped with amendments 7, 7A, 7B, 114, 115, 140, 14, 126, 128, 129 and 51.

Jeane Freeman

This is a group on which I hope that we can reach consensus.

Amendments 4 and 7, which are Scottish Government amendments, were prepared in response to the view of the committee and stakeholders that the principle in section 1(d) should be strengthened to say that ministers have a duty rather than a role to promote benefit take-up. In practice, the amendments go considerably further than that by removing the principle and creating a separate and legally enforceable duty.

Amendments 7A and 7B, in the name of Mr Griffin, seek to change amendment 7 to state that ministers simply have a duty to ensure that everyone gets what they are entitled to. Although I am sure that they are intended to strengthen amendment 7, I ask Mr Griffin to consider that they make the duty weaker than what I propose. Ministers already have a duty to give people what they are eligible for. Under section 8 of the bill, it is ministers’ basic duty to determine entitlement to assistance. Amendment 7 requires more than that. It frames the duty as something that requires continuous improvement, with ministers always keeping under consideration what more could be done.

A further problem with amendment 7A is that it would remove the discretion of ministers to take steps that they consider appropriate. To take the amendment through to its logical conclusion, that could mean that ministers should take any necessary steps, within the law, to fulfil the duty. It would remove discretion and the “keep under consideration” part of amendment 7, which would require ministers to continually consider what more could and should be done to increase benefit take-up. That would apply to all future Scottish Governments. Amendment 7 is a very active amendment. Furthermore, the language that amendment 7A seeks to remove fits much better with the upcoming amendments on income maximisation.

Amendment 7B is ambiguous. It defines “other social security assistance” by referring to

“social security schemes other than those listed in exceptions 1 to 10 in Section F1 of Part 2 of schedule 5 of the Scotland Act 1998”,

but those exceptions do not list social security schemes. I ask Mr Griffin to consider not moving his amendments on the basis that what he seeks to achieve is already delivered by amendments 4 and 7.

Ms McNeill’s amendments 126, 128 and 129 are essentially aimed at making life easier for people who apply for assistance by providing them with information about what else they may be entitled to and, where appropriate, treating an application for one form of assistance as an application for another. I am pleased to support all three amendments. However, ahead of stage 3, I will look to discuss with Ms McNeill amending the duty to treat an application for one type of assistance as an application for any other type to make it clear that nothing should be done without the permission of the individual in question. That is in line with the person-centred approach that I have referred to, which I am sure Ms McNeill supports.

Amendments 140, 14 and 51, in the name of Ms Johnstone, seek to achieve something very similar, so it seems that there is broad agreement. I am sure that Ms Johnstone did not intend this, but the wording of her amendment does not meet her intention. In effect, it means that someone in the agency or on behalf of the Scottish ministers, who would have the duty placed on them, would need to consider any application that they received against eligibility criteria for every other form of assistance and make that decision for people. We think that Ms Johnstone would like to ensure that people would have information and that applications would be considered for other types of assistance, which Ms McNeill’s amendments would achieve. I strongly urge Ms Johnstone not to move her amendments, as they would mean that the social security agency would have to judge whether an individual who applied for one type of assistance should be entitled to another.

09:30  

I am pleased to support amendments 114 and 115, in the name of Mr Griffin. As I have outlined, we are serious about achieving improvements in take-up, and our approach to this group of amendments indicates that. I hope that my position on those amendments provides any further reassurance that Mr Griffin needs to reconsider his position on amendments 7A and 7B.

To draw all of that together, the package of measures that we support in the group would provide a robust approach to improving take-up. I know that we all agree that that should be a priority in a system that is founded on the ideal that social security is a right.

I move amendment 4.

Mark Griffin

I will not support amendment 4, in the name of the minister, but I will support all other amendments in the group.

We feel that amendment 4 goes beyond the evidence that was given to the committee. The committee expected a one-word change in removing the word “role” and inserting the word “duty”, and that was included in the committee’s report. With the backing of Citizens Advice Scotland, we seek to reinstate the duty in a revised paragraph.

We feel that “keep under consideration” in amendment 7 is ineffectual wording that waters down any duty. The committee agreed on

“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”.

In its response to the stage 1 report, the Scottish Government said:

“The Scottish Government agrees with this recommendation ... this proposal would more accurately reflect the work that it will take forward to remove stigma and to improve the take-up of assistance.”

It went on to say:

“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.”

My amendments 7A and 7B more accurately and in stronger words reflect the committee’s recommendation and the Government’s response.

In amendment 7B, I have attempted to recognise the minister’s comments at stage 1. She did not think that it would be appropriate for the Government to have a duty to maximise the uptake of benefits that were not its responsibility. That is why the amendment was drafted to say that the Government should have

“a role in encouraging individuals to apply for”

social security assistance that the Government is not responsible for. The amendment attempts to improve the uptake of around £2 billion-worth of benefits that go unclaimed every year, most of which are reserved. We have made the argument before that that money could lift families and communities out of poverty and boost local economies. It was reflected in the debate that we have already had that no such duty can be applied to the Government. The amendment was drafted to accommodate that point.

I appreciate the Government’s support for amendments 114 and 115. They set out wide-ranging requirements for the Scottish Government to make its duty to promote take-up a reality, record progress and set out in detail the areas in which more work is required. They are target based. They require the Government to come forward with measurable outcomes for which statistics should be released regularly.

I ask committee members to support my amendments.

Alison Johnstone

Throughout the stage 1 evidence, we heard much about how the new Scottish system could be more streamlined and easier for claimants to navigate. We are all aware of the complexities of the current system.

In October, Derek Young from Age Scotland told us:

“People would find it extremely advantageous if there were an opportunity to look at the different forms of assessment ... and how the processes could be streamlined. We hear quite a bit from older people who complain about having to answer the same questions several times.”—[Official Report, Social Security Committee, 26 October 2017; c 26.]

In written evidence, NHS Greater Glasgow and Clyde said:

“Glasgow City Council has explored automatic payment of benefits and have successfully implemented this approach for school clothing grants by identifying eligible families.”

Amendment 140 seeks to create a right for individuals who apply for any form of assistance to be considered for all other assistance that ministers have reason to believe they might be entitled to. I see it as a companion amendment to amendment 128, in the name of Pauline McNeill, which seeks to establish that process in the part of the bill that deals with determinations. Amendment 140 is also in the spirit of the minister’s amendment to create a duty on the Scottish ministers to

“keep under consideration what steps they could take to ensure that individuals are given what they are eligible to be given under the Scottish social security system”.

Amendment 140 would be such a step.

I know that the minister shares the intentions behind the amendment because she has made a very similar proposal to improve the interface between the Scottish system and other systems at the United Kingdom and local levels. Just last week, on 24 January, the minister proposed the excellent idea of sharing an application that was made for Scottish benefits with another agency—the Department for Work and Pensions or a local authority—for another benefit provided by it, so that multiple applications do not need to be made. Amendment 140 proposes something similar—as I believe, does Pauline McNeill’s amendment 128—but for within our Scottish system. When someone applies for one benefit, they should be considered for any other benefits that ministers think that they might be entitled to.

The minister or other committee members might have reservations about the wording. I am happy to discuss how that might be improved at stage 3.

What I propose in amendment 140 is uncontroversial. It is about helping people, some of whom find the benefits system really difficult to navigate, to ensure that they receive everything to which they are entitled. That is a theme that runs through the bill.

Pauline McNeill

We are discussing a very important part of the bill. From what has been said so far, it is clear that there is some common ground between us all in a desire to design a progressive system that ensures that someone who asks for assistance is given support to find out what other assistance they might be entitled to. We know that there is a huge issue about unclaimed benefits.

Amendment 128 specifies that

“Where it appears to the Scottish Ministers that an individual who has applied for a particular type of assistance may be entitled to another type of assistance described in Chapter 2, the application may be treated ... as an application for that other type of assistance as an alternative, or in addition”.

I welcome the minister’s support for amendments 126, 128 and 129. I am delighted about that, and I give a commitment to work with the Scottish Government at stage 3.

In previous debates, the minister has raised the concern that individuals should be clear about what is being done in their name every step of the way. I am happy to work with ministers at stage 3 if any adjustments need to be made in that respect.

Amendment 129 is important because it specifies that the claimant must be informed where it appears to ministers that they may qualify for other benefits.

Ruth Maguire (Cunninghame South) (SNP)

I am a bit concerned about amendments 7A and 7B, which I find ambiguous. Despite Mark Griffin’s explanation, I am not sure what he is trying to achieve. My reading of them suggests that they would dilute amendment 7, in the minister’s name, and I would be concerned about that loss of continuous improvement.

I would also like to speak to amendment 14, in the name of Alison Johnstone. I fully agree with the thinking behind it, but I believe that it is covered by amendments 114 and 115. The bit of amendment 14 that is problematic for me is about setting targets for take-up. I hope that the target for take-up would always be 100 per cent and that we would measure against that. I would be interested to hear from the minister whether we have baseline take-up at the moment.

Adam Tomkins

My party’s intention is to support the amendments in the name of the minister in this group, but not the amendments in the names of Mark Griffin, Alison Johnstone or Pauline McNeill. It seems to us that a number of the Opposition amendments in this group are overly prescriptive and do not need to appear in primary legislation. For example, amendments 128 and 129, in the name of Pauline McNeill, would be better in the operating manual of the new Scottish social security agency than in primary legislation, and amendments 114 and 115, in the name of Mark Griffin, on income maximisation strategy, seem to us to be overprescriptive for primary legislation. We are not opposed to the policy intent underpinning those provisions, and indeed we would encourage that policy intent, but we do not see the need for them to be in primary legislation.

I pause to note amendment 140, in the name of Alison Johnstone, which I understand the minister is not supporting. That is an indication of just how difficult it is going to be to navigate the meaning of section 1, which states that Scottish social security will be a rights-based system. Alison Johnstone’s amendment probes the extent to which that rights-based system will become a reality. If I have understood the minister correctly, the Government does not intend to support that amendment, and that illustrates the real difficulty that we are going to have in implementing the legislation once it is passed, in terms of knowing what is a right within the Scottish social security system and what is not.

George Adam

I echo the words of my colleague Ruth Maguire. I think that I know what Mark Griffin is trying to achieve with amendments 7A and 7B, and that is part of the problem. I am not totally convinced of their purpose. If they are about eligibility and income maximisation, amendments 114 and 115 achieve those things anyway, so I am not too sure what he is trying to achieve with them, which is what puts me in doubt at this stage. If I am confused, there is probably something confusing about the amendments. I might just be in a state of confusion all the time, right enough, and that is for others to judge and not for me to comment on, but my point is that if I am struggling to understand what the amendments are trying to achieve, that is a problem. I will therefore not be supporting amendments 7A and 7B.

Jeane Freeman

Let me start with amendments 4 and 7, in my name, which I believe go beyond what has been asked by stakeholders, by not only transforming the role to promote take-up into a duty but placing it in a distinct, legally enforceable position in the bill, in a manner that requires Scottish ministers to continuously consider what more can be done as part of on-going policy improvement.

On amendments 7A and 7B, making a principle a duty does not make sense, in my view. Mr Tomkins has already touched on this, but the principles are not the place to impose legal duties. I am happy to support Mr Griffin should he move amendments 114 and 115, which would strengthen the duty that Scottish ministers will have to ensure maximum possible take-up of Scottish social security assistance. I am also happy to support Ms McNeill’s amendments 126, 128 and 129, as I have said, and I am grateful to her for her indication that we could work together before stage 3 to ensure that individuals retain decision making in that exercise.

I would ask Ms Johnstone not to move amendments 140, 14 and 51. I do not believe that amendment 140 is a companion amendment. The problem is that it requires the agency to make the judgment, and I believe firmly that, in a rights-based system, the decision and the choice should remain with the individual. Ms Maguire also touched on the question of targets, and it is the case that we would have a limited baseline to start from in terms of benefit take-up.

We would, of course, look to the DWP for the current position on benefit take-up. As members know from discussions elsewhere on the matter, the DWP does not routinely collect such statistics, and in those that it collects, it does not routinely distinguish between Scotland and the rest of the United Kingdom. Therefore, there would be a practical difficulty in meeting the requirements of amendment 14, and I am not keen to support amendments that I do not believe we would be able to deliver on. There is also the question of what target would be set. Given that I am sure that all of us would set a target of 100 per cent, amendment 14 would not take us much further forward.

That said, I think that the package of amendments that we have lodged, along with those that we are minded to support, will create the strongest possible duty on the Scottish ministers to maximise the uptake of Scottish assistance.

09:45  

The Convener

The question is, that amendment 4 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

Against

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)

The Convener

The result of the division is: For 6, Against 3, Abstentions 0.

Amendment 4 agreed to.

Amendment 102 moved—[Mark Griffin].

The Convener

The question is, that amendment 102 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 3, Against 6, Abstentions 0.

Amendment 102 disagreed to.

Amendment 78 not moved.

Amendments 5 and 6 moved—[Jeane Freeman]—and agreed to.

Amendment 113 moved—[Pauline McNeill].

The Convener

The question is, that amendment 113 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 3, Against 6, Abstentions 0.

Amendment 113 disagreed to.

Section 1, as amended, agreed to.

After section 1

The Convener

Amendment 57, in the name of Adam Tomkins, is grouped with amendment 138.

Adam Tomkins

At paragraph 143 of the committee’s stage 1 report, we recommended

“that the Scottish Government clarify the legal status of the principles contained”

in section 1

“and where appropriate amends the Bill to achieve this clarity.”

We made that recommendation unanimously because we took evidence, principally from academic lawyers, that there was likely to be grave doubt about the legal status of the principles. My amendment 57 is designed to avoid what would otherwise be, I think, wholly unnecessary and very expensive and potentially quite protracted litigation designed to obtain an answer from the tribunals or the courts to the question, “What is the status of these principles?”

Professor Mullen, my colleague at the University of Glasgow law school and one of Scotland’s leading administrative lawyers, said in written evidence to the committee:

“If the legal status of the principles is not clarified, citizens and their advisers may be unsure what their rights and the Scottish Government’s obligations under social security legislation are and there may be wasteful litigation to determine their meaning and effect.”

That is in our stage 1 report, but I want to read it into the record for today. My amendment 57 is designed to ensure that we do not have to endure that unnecessary and, as Professor Mullen puts it, “wasteful” litigation to ensure their meaning and effect.

The wording of amendment 57 is drawn from wording that we already have on the statute book in the Criminal Justice (Scotland) Act 2016, which provides for the legal status of codes of practice on police searches that are to be made by ministers.

Amendment 57 takes a similar approach to that taken in section 75 of the Criminal Justice (Scotland) Act 2016, and says that courts or tribunals in relevant proceedings

“may take the Scottish social security principles into account when determining any question arising in the proceedings to which the principles are relevant”,

but that

“Breach of the principles does not of itself give rise to grounds”

for a fresh legal action.

That, I hope, will clarify the legal doubt that exists with regard to section 1 of the bill, meet the concerns that Professor Mullen and others put to us at stage 1, and satisfy this committee’s unanimous recommendation in paragraph 143 of our stage 1 report that this issue needed to be put right at stage 2.

I move amendment 57.

Mark Griffin

I lodged amendment 138 because I felt that, without any link to the principles, there was a real gap around ensuring that the principles are enforced and that ministers are bound by them.

We have been in discussion with the Government about amendment 138. I understand that how it is drafted could have unintended consequences and that there is a potential for payments to claimants to be stopped as a result of a court decision. I will not be moving the amendment at this point because of those unintended consequences, and before stage 3 I hope to explore further with members and the Government how we can go about closing that accountability gap in relation to placing a duty on ministers to abide by the principles.

Ben Macpherson

I am glad that Adam Tomkins lodged amendment 57, because it covers a really important point that we need to consider. Both he and I asked questions on this matter during stage 1.

We are creating an important and leading piece of legislation in terms of the devolution of powers to the Scottish Parliament and the Scottish people. It is an innovative and forward-looking approach to have these principles within a piece of legislation. The importance of that cannot be stressed enough.

Their inclusion is defining the ethos and nature of the system within the legislation of creation, in a similar manner—to my mind—to what was done in the creation of this Parliament under the Scotland Act 1998, which stated in section 1:

“There shall be a Scottish Parliament.”

To me, the principles in section 1 of the bill that we are debating today set the tone, character, ethos and nature of the Scottish social security system. They are principles that should be made easily accessible to individuals all across Scotland who will be interacting with the system. Therefore, I welcome their position at the beginning of the bill, where they define the nature, value and ethos of the social security system.

The place for considering the principles’ legal status and their relationship with individuals and their rights is in the charter. That is why I am not inclined to support Adam Tomkins’s amendment 57. However, I absolutely support his amendment 61, on the charter.

I am glad that Mr Griffin has decided not to move amendment 138 and thank him for that. As he stated, it could have potential unintended consequences for claimants and cohesion.

Pauline McNeill

I want to speak to amendment 57, because if it is passed at stage 2 it will create a really important section of the bill. Often, courts are not clear what sources or references are competent for them to use. The amendment makes it absolutely clear that any

“court or tribunal in civil or criminal proceedings may take the ... social security principles into account when determining any question”.

It is important to note that the second part of the amendment says that

“Breach of the principles does not of itself give rise to”

grounds for legal action. That is an important caveat. I am always in favour of clarity where the courts are concerned. There is less scope for the courts to make things up if they have a parliamentary reference. The provisions in amendment 57 will prove to be a useful aspect of the bill when it comes to determining how to apply the principles in the cases that I am sure will arise in the future.

Ben Macpherson

In my earlier remarks, I should have touched on the fact that if we give the principles the sort of legal effect that amendment 57 envisages, we will need to go through them afresh and think about how we create a large set of complex legal definitions around them. There is a whole set of possible unintended consequences.

Pauline McNeill

I do not see it that way, because of the way that amendment 57 is worded. If it had said that the courts “must” take the principles into account, that would be different. That is my reading, and I am sure that Mr Tomkins will talk about that when he sums up.

I can envisage a situation in which it might be argued that the principles are not a competent reference point for a court or tribunal. Amendment 57 provides some clarity. It is because of the proposed subsection 2 that I am inclined to support it, because that says that breach of the principles does not give rise to grounds for any legal action.

I do not believe that, as the amendment stands, we would have to go back and provide any further detail on the principles, but that is just my view.

10:00  

Jeane Freeman

On the basis of my intention to support Mr Tomkins’s amendment 61 on the enforceability of the charter, which we will come to later, I invite him not to press amendment 57. Section 2 makes it clear that the charter is the expression of the principles in concrete terms. Therefore, it is right that judges take that into account, and that is why I will support his amendment on the charter when we come to it. However, I do not support amendment 57.

The principles define the ethos of social security in Scotland. They are high-level statements because they express ideals that are intended to hold over time, but what upholding those ideals looks like will change, in practical terms, as society changes.

That is where the charter comes in. Its purpose is to translate the principles into the specific actions that ministers must take, and the standards that they must meet, to ensure that the principles and ambitions are realised. The charter is the bridge between the ethos and the services that people will receive on the ground. Every five years, through a process of consultation with the people of Scotland, the charter will be looked at again. Where necessary, it will be updated so that it continues to reflect what society thinks the principles should mean in practice.

In addition to informing the charter, the principles will inform social security regulations, as members will see when we discuss the amendments on the independent Scottish commission on social security. The commission will assess and report on whether proposals for regulations are consistent with the principles. The commission’s report will then form part of the Parliament’s consideration of the draft regulations. The principles will be translated through that process, with people who have direct experience of the current system, into standards that are outlined in the charter and into legal rules through regulations. Therefore, by taking account of the charter and applying the regulations, courts and tribunals will already be part of the system for upholding the principles.

In my view, it is neither necessary nor appropriate for judges to look behind the charter to the principles. By doing so, they would be substituting the views expressed through the charter with their own views about what the principles mean. I do not believe that the judiciary would thank us for giving it that job.

Like Mr Macpherson, I am grateful to Mr Tomkins for raising those issues, as he has done consistently, because it is important that they are debated, and that we are all absolutely clear. As I have said, it is right that courts and tribunals have a role in ensuring that the standards that are set by the Scottish people are met. That is why I will support amendment 61, in the name of Adam Tomkins, in relation to the charter. However, it should not be for the judiciary to look behind those standards, so I invite Mr Tomkins not to press amendment 57.

I am grateful to Mr Griffin for not moving amendment 138, and welcome the opportunity of a discussion with him in advance of stage 3 to see whether we can find an appropriate way to meet his intention.

The Convener

I invite Mr Tomkins to wind up and to press or withdraw amendment 57.

Adam Tomkins

This has been a really important debate and I am grateful to the minister and all the members who have spoken in it. It is important because, as the committee said in its stage 1 report, we believe

“that the current confusion on the legal status of the principles contained in the Bill is not helpful and that their status must be clarified.”

There is no other amendment at stage 2 that clarifies the legal status of the principles, so I will press amendment 57. I will do so because the amendment provides the clarity that we are seeking without being overly prescriptive.

It is very important that, as legislators, we do not tell courts how to decide cases. Amendment 57 does not do that, because it provides that courts or tribunals “may” take the principles into account in proceedings when they deem them to be “relevant”, so it leaves all the discretion in the hands of the courts and tribunals; it does not tell courts and tribunals how to decide individual cases.

We are translating political principles that we all share—notwithstanding the fact that we come from different political perspectives—into law. In moving amendment 77, which was the first amendment on which we voted, Mr Adam referred to principles in documents. The bill is not a document; it will be an act of Parliament, a statute and a law. It is incumbent upon us, as lawmakers, to ensure that courts and tribunals, and the people who will use them, have clarity and not vagueness about the meaning of the words that we put on to the statute book in Scotland. In the committee’s stage 1 report, we took the unanimous view that section 1 does not have that clarity, and amendment 57 seeks to bring it.

I very much welcome the support from Mr Macpherson and the minister for amendment 61, on the charter, to which we will come, but legal clarity on the charter and legal clarity on the principles are both important; they are not substitutes for one another. Amendment 61 will do work that is different from the work that will be done by amendment 57. For that reason, I press amendment 57.

The Convener

The question is, that amendment 57 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Balfour, Jeremy (Lothian) (Con)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)
Tomkins, Adam (Glasgow) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 57 agreed to.

Amendment 138 not moved.

Amendment 7 moved—[Jeane Freeman].

Amendment 7A moved—[Mark Griffin].

The Convener

The question is, that amendment 7A be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 3, Against 6, Abstentions 0.

Amendment 7A disagreed to.

Amendment 7B not moved.

Amendment 7 agreed to.

The Convener

Amendment 8, in the name of the minister, is grouped with amendments 9, 58, 59, 112, 139, 39 and 75. I invite the minister to move amendment 8 and to speak to all the amendments in the group.

Jeane Freeman

I am grateful for the opportunity to open the discussion on this group of amendments. I start by stressing the areas on which I think that we all agree.

We agree on the importance of independent advocacy and advice, we agree that it is vital that people have a right to receive information about how to access the support that they need when interacting with the new social security agency and we agree that there should be a statutory duty on ministers to ensure that people know about the independent advocacy and advice services that are available. All that said, I take this opportunity to ask Jeremy Balfour not to move his amendments 58, 59 and 75 because—as other members and I know—there remain disagreements among stakeholders about the appropriate definition of the group of people who should receive that support.

I well understand the difficulty, and I am sure that Mr Balfour and colleagues do, too. It is not easy, but I want us to try to reach agreement. I ask Mr Balfour not to proceed on the basis of disagreement, but to work with us to see whether we can reach an agreement with stakeholders and representative organisations in advance of stage 3. I think that an agreement can be reached, but I want us to use our time before stage 3 to get this right and ensure that we provide support for those who need it.

As things stand, amendment 9 sets out the Scottish Government’s starting point—our baseline, if you will—that we are prepared to move on, if we can reach an agreement in advance of stage 3 on how far we need to move. Amendment 9 provides a specific right to advocacy and places the Scottish Government under a direct duty to ensure that sufficient advocacy services are available. We have used the definition of “mental disorder” set out in the Mental Health (Care and Treatment) (Scotland) Act 2003 as our starting point—I stress that this is only a starting point—to define the group who will have the statutory right to advocacy.

I consider that individuals covered by the definition in the 2003 act, which includes those with learning difficulties, mental illness or a personality disorder, are those who would most benefit from an advocate to assist them in discussions with the social security agency. However, I realise that there might be others who do not fall into that category but who require such advocacy and, as I have said, I am open to further discussion with regard to developing the definition in advance of stage 3.

I believe that our proposals are further strengthened by amendment 39, which establishes a right for an individual to have “a supporter” if they need or want one. A supporter could be a friend, a family member or someone from any of the excellent organisations that provide independent advocacy and advice services across Scotland. As I have heard—indeed, Pauline McNeill raised this during the stage 1 debate—the right to a supporter is not consistently honoured in health assessments under the current DWP system. That runs contrary to our rights-based approach. If we truly want our system to have fairness, dignity and respect at its heart, we should give people the right to have a person to support them when they need it.

Amendments 58, 59 and 75, in the name of Mr Balfour, also address the issue of advice and advocacy. Amendment 58 would put in the bill a right for independent information and advice to be provided to anyone applying for—or thinking about applying for—Scottish social security assistance. Although I agree with the intent in principle—indeed, it is similar to the aims of my amendment 8—Mr Balfour’s amendment provides a list of information and advice topics that should be provided, and I do not think that we should restrict what information and advice should be provided. I believe that providers of independent advice, who are, by definition, independent from the system, should be allowed to advise on any aspect of social security, as well as operate in a manner that best serves their clients. Moreover, much of what is listed in amendment 58, such as the assistance that an individual is entitled to or the content of the social security charter, is covered by other aspects of the bill. As a result, I ask Mr Balfour not to move amendment 58 and urge the committee to support amendment 8 in my name.

Amendment 59, in the name of Mr Balfour, widens the entitlement of independent advocacy services to everyone who has applied for Scottish social security assistance. As I have said, we know that our stakeholders are divided on this matter and, before we get to stage 3, I want to reach agreement on a definition of the group that requires this support. I therefore urge Mr Balfour to work with us, our stakeholders and indeed the committee to ensure that we secure that agreement in advance of stage 3. As for amendment 75, which is also in the name of Mr Balfour, it is merely technical and, as such, would not be required if he were to choose not to move amendments 58 and 59.

I am pleased to support amendment 112 in the name of Ms Maguire on inclusive communication, as it goes to the heart of our ambitions to take a rights-based approach and to place the needs of individuals at the centre of this new public service. Indeed, I know that stakeholders have pressed for such an amendment.

Of course, amendment 112 means that amendment 139, in the name of Mark Griffin, is not required, because their aims are essentially the same. Moreover, in my view, amendment 139 has difficulties, because it is overly prescriptive with regard to the kinds of information that it lists, such as claim forms and notices of determination. If amendment 112 is agreed to, those basic and fundamental documents will be provided to people in an accessible format as a matter of course. In addition, it is important to remember that two of the founding ideals of our system are co-production and a rights-based approach. The people who will use the system are, through experience panels and other means, helping us design correspondence and forms and are therefore helping us to make sure that they and other aspects of the system are accessible.

I have already asked Mr Balfour not to move amendments 58, 59 and 75 but, if he chooses to go ahead with them, I urge the committee to support neither them nor amendment 139 from Mr Griffin. Instead, I ask members to support amendments 8, 9 and 39 in my name and amendment 112 in the name of Ms Maguire. I believe that these amendments, alongside previous amendments, will provide a much stronger legislative framework for advocacy, advice and support for those who will use the social security system. We have the opportunity not only to move forward on this matter today but to continue discussions in advance of stage 3 in order to reach further agreement on the question of independent advocacy.

I move amendment 8.

10:15  

Jeremy Balfour

I will work through the amendments backwards. We will be supporting Mark Griffin’s amendment 139 and Ruth Maguire’s amendment 112, both of which are important. They deal with different disabilities and different forms of inclusion, so it would be helpful to have them both in the bill. Although the minister has indicated that the Government is working with stakeholders to design forms and everything is going to be cuddly, we have to pass legislation that will be in place for years to come, and I think that it is helpful to have protection for people who have visual and communication impairments.

I turn to the three amendments in my name. As someone who has spent 20 years sitting on tribunals and who has also had to apply for DLA and the new PIP, I think that my amendments address an important area for claimants. I welcome the fact that there is now a clear recognition from the committee and from the Government that there is a difference between advocacy on one hand and information and advice on the other. I think that, particularly in the committee’s thinking, those two elements were seen as the same thing, but it is important to pull them apart. I therefore welcome the recognition of that and the fact that the Government has lodged two separate amendments.

I intend to move amendment 58. The legislation must clearly set out the fact that claimants will be entitled to information and advice, starting from the level at which somebody goes into their local citizens advice bureau or advice shop or contacts a service that is run by another charity or organisation and says, “I do not know how to fill out this form.” I was talking to a family member who has a daughter who has Down’s syndrome and is in the process of transferring from DLA to PIP. She is extremely well educated but trying to fill in that form without any help caused immense stress and difficulty. A lot of issues will be resolved if people seek advice and assistance at an early stage and get the form filled out in a way that is helpful and correct. If that is done, the system should flow much more clearly. However, for others, help will be required in relation to attendance at tribunals, if that is necessary, and other legal issues. Therefore, I think that it is important that amendment 58 is agreed to.

On independent advocacy, I am grateful that the minister has lodged amendment 9, although I believe that the definition of mental disorder that it uses is too limiting and excludes people who would need independent advocacy. I recognise that my amendment would open independent advocacy to anybody and everybody, and I accept that the definition in it might be too wide. Therefore, I will not move amendment 59, and we will support the Government’s amendment. However, we do so with the caveat that we need to have a better definition of mental disorder. If we cannot get that by stage 3, I will reintroduce my amendment. If we cannot get a definition that we agree on, it is better if the definition is too wide than too narrow.

The wording that the minister and Pauline McNeill have used on having somebody present is helpful. For some people, advocacy will require professional help—someone who is paid to do it—but, for many people, advocacy will simply be somebody who can sit with them, such as a family friend. It must be seen holistically and in a wide-ranging way. I hope that, by using the advice of stakeholders and other people, we can get to a definition that allows people to feel that they will have somebody there for the whole process to give them the support that they require.

Ruth Maguire

I am grateful to Kim Hartley Kean from the Royal College of Speech and Language Therapists as well as Inclusion Scotland, Citizens Advice Scotland and Camphill Scotland for all their work on amendment 112.

Inclusive communication is communication that is inclusive of the largest number of people in the population. The key message is that inclusive communication is for everyone and no one has ever complained that a public service was too easy to understand or get their point across to.

Communication disadvantage is strongly associated with socioeconomic disadvantage, and we all know that difficulties in understanding complex instructions, in expressing yourself verbally and with the ability to read and write are a major barrier to education, employment and outcomes in general. Studies have shown that 80 to 100 per cent of young people who are not in employment, education or training have underdeveloped communication skills. Communication disability is also experienced by many people who live with disabilities and long-term conditions, including everyone who has an autism spectrum disorder, dementia or Parkinson’s disease, around 80 per cent of people with a learning difficulty and at least 30 per cent of people who have had a stroke.

If communication is not inclusive, we can expect that actual and potential recipients of entitlements will not respond to advice and information, will not turn up, will make mistakes in applications and will not fulfil their obligations.

Jeremy Balfour

Does Ruth Maguire acknowledge that her amendment does not help people who have a visual impairment? People cannot communicate if they cannot read the form, which is why the form needs to be right before they can communicate.

Ruth Maguire

Your question gets to the key of the matter. Inclusive communication is not about forms; it is about giving information, and letting people provide the information that we seek, in whatever form—I mean mode, not paper form—that they need. If we do not have inclusive communication, which would include Braille, we will have a lower take-up of entitlement, processes will take longer, there will be reduced efficiency—which can mean more cost—and, troublingly, there will be increased potential for frustration and challenging interactions between staff and recipients.

We need inclusive communication in the bill. There is an opportunity for Scotland to lead transformational change. It took legislation to implement communication inclusion for British Sign Language users and we need it for all communication-disadvantaged groups. A centralised approach supported by primary legislation will facilitate consistency and mainstreaming of quality inclusive communication practice for everyone.

I urge everyone to support amendment 112.

Mark Griffin

I will come on to amendments 112 and 139, but first I will speak about the committee’s recommendation that independent advocacy be included in the bill, and the Government’s response to that.

I welcome the minister’s amendment 9. I also welcome her comment that it sets out a baseline of entitlement and that, to ensure that everyone who needs advocacy or would benefit from it is adequately supported, we will work towards a stage 3 amendment that more adequately fits what stakeholders seek. Therefore, I will support her amendments 8, 9 and 39.

Amendment 139, in my name, is supported by the Royal National Institute of Blind People, which I thank for the work that it has done with me. Stakeholders and I do not feel that amendment 112 fully covers accessible formats. It recognises the importance of communicating in an inclusive way, which we welcome, but it does not ensure that all documents relating to the system will be accessible. Ministers could quite easily

“have regard to the importance of communicating in an inclusive way”

but not follow through on it with any real adjustments that would achieve that. My amendment 139 sets out exactly which information will need to be accessible. As a result, stakeholders and I feel that it is much more comprehensive.

I also argue that the amendment goes—

Ruth Maguire

Will the member take an intervention?

Mark Griffin

Yes.

Ruth Maguire

I thank Mr Griffin for taking my intervention. Amendment 139 is quite prescriptive about what is needed. If additional forms or papers were needed, would we need to amend the primary legislation in order to update it?

Mark Griffin

I will be happy to come back at stage 3 and amend again to reflect that further information could be required and that it could be added at a later stage, but I will press my amendment 139 as it is at this point.

Adam Tomkins

Will Mr Griffin take a further intervention on that point?

Mark Griffin

Yes.

Adam Tomkins

Is the point that Ruth Maguire makes not covered by proposed new subsection (2)(h) in the amendment, which says

“any other document which the Scottish Ministers are required to publish”?

Mark Griffin

Yes. I thank Mr Tomkins for that helpful intervention. I will close there.

Alison Johnstone

I will support all the amendments in the group that we have discussed so far. I do not see Ruth Maguire’s and Mark Griffin’s amendments on inclusive communication and accessible information as being mutually exclusive, and I thank them both for the work that they have done in those areas.

I very much hope that, at stage 3, we will arrive at a strengthened position on the right to advocacy. I appreciate the minister’s commitment to look at that issue more broadly, and I agree whole-heartedly with Mark Griffin when he says that the current position is a baseline. If Mr Balfour is content to not move amendment 59 with the guarantee that a strengthened amendment will be lodged at stage 3, then I, too, am content with that.

It is right to say that the committee has devoted a good time to discussing the need for advocacy and for advice, and there is recognition that some people will require one while other people require the other or both. It is important that the completed bill gets that absolutely right.

Pauline McNeill

As other members have said, this is a very important aspect of the bill. I whole-heartedly welcome the Scottish Government’s approach, in principle, to recognising the importance of advocacy in the system. There is a differentiated position between professionals who advocate on behalf of others and those who are there to support. I will clarify that. When I spoke about that at stage 1, many professional advocates said that they were not allowed to speak on behalf of claimants because there was no formal recognition of their role. We should therefore all welcome the fact that the principle will be contained in the bill. Perhaps we will get some consensus between now and stage 3 about how wide it will be.

I find stage 2 procedure rather odd. If a member moves the lead amendment in a group, they have a chance to sum up, but if they have an amendment in the middle of the group, there is no procedure for summing up. That means that interventions are important.

Adam Tomkins

Do you want me to intervene?

10:30  

Pauline McNeill

I would like Jeremy Balfour to intervene in order to answer my question. His amendment 58 is about information and advice. As he points out, there is a difference between advocacy and support on the one hand and information and advice on the other. I want to be absolutely clear about the implications of amendment 58, which provides that

“An individual applying, or considering applying, for assistance through the Scottish social security system is entitled to independent information and advice about”

a range of things, such as how to apply. Does that mean that the provision has a financial implication for the Government? How does he envisage amendment 58 being financially supported if it becomes part of the bill?

Jeremy Balfour

I do not see the amendment changing how things work at the moment. The Scottish Government, through local authorities and other means, already funds citizens advice bureaus, advice shops in some cities, and so on. In Edinburgh, we also have bodies such as Granton Information Centre, which is in Mr Macpherson’s constituency. Such groups would continue to do the work. I do not see it as a major change. Money would have to be provided, but it is already being provided, either by the Scottish Government or by the local authority.

In answer to the minister’s point, I add that the list in paragraphs (a) to (e) of proposed new subsection (1) in amendment 58 can be looked at. However, I have worded it so as not to be prescriptive—those are not the only things that can be covered. The amendment does not make a major change to what is already happening, but it would make that statutory.

Pauline McNeill

Thank you. That is very helpful.

The Convener

Helpful interventions are welcome, but I will try to let members in if they want to come back in on issues before the summing up.

George Adam

I agree that it is important that we get this point right. We have talked about advocacy and advice and have been round the houses on that. I have concerns that, although such services are already provided by advice centres, as Mr Balfour mentioned, provision is quite patchy across the country. In my area we have a CAB and council advice as well as other organisations, but that is not necessarily the case in other areas. In order to get it right, we must know exactly what we are trying to deliver. That is why I have problems with amendment 58, in particular.

Jeremy Balfour says that he wants people to be able to have someone with them and that their advocate might be a friend or a family member. That right to have a supporter is exactly what the minister is offering.

Jeremy Balfour

We are getting confused on that issue. Depending on a person’s disability, they may require a friend or an advocate to give them the support that they need at a tribunal or medical assessment or whatever, but they might also need someone to put their case across in a way that is legally understandable. There is a difference in function between the two.

Tribunals often result in a good situation where the claimant has a parent, friend or sibling there to give them emotional support but they also have someone there from the CAB who is able to put their case across and explain why they are entitled to the benefit. That is right. It is not an either/or situation: it could be one or the other or it could be both. That is what amendment 58 seeks to provide.

George Adam

That makes me even more concerned. I mentioned that some areas do not have CAB support or other advice services, and the member is muddling advice, information, advocacy and moral support. We must ensure that we are clear in that regard and that we create a system in which everybody gets access to the advice that they need. I do not think that amendment 58, however well intentioned it might be, does that for us.

I have a question that I hope the minister and Mr Balfour will respond to when summing up. Who would provide those services? How would they be provided? At this stage, it seems as though we have only warm words, because there does not seem to be anything in place.

Ben Macpherson

I thank all those who lodged amendments on these matters. I absolutely recognise the importance of independent advice and independent advocacy, and the evidence that we took throughout stage 1 was crucial in delineating their different aspects. Sometimes, particularly at the beginning of our evidence taking, the evidence on those issues was muddled. We must be clear and distinct about the differentiation between advocacy and advice, as Jeremy Balfour has stated.

The importance of both advocacy and advice is recognised and will be taken forward by amendment 8, in the name of the minister, so I will support it, and the right to advocacy will be taken forward by amendment 9, in the name of the minister, so I will support that, too.

I have difficulties with amendment 58. As I said, independent advice and independent advocacy are important, but the amendment would place an entitlement to “independent information and advice”. We need to be pragmatic and consider the fact, which Mr Balfour alluded to in his comments, that the local government funding settlement currently covers that provision in this city and elsewhere. It is important to give an entitlement to the right to advocacy, but an entitlement to the right to independent advice is something different. To seek a right to information and advice would have been a more pragmatic option to consider, but “independent information and advice” is much more problematic to deliver and, as I said, it is covered by the local government funding settlement.

I appreciate Mr Balfour’s position on amendment 59 and that he will not move it.

I fully support Ruth Maguire in recognising the importance of inclusive communication. The holistic and comprehensive approach that is set out in amendment 112 covers the points that Mark Griffin seeks to add in amendment 139. Although I appreciate Adam Tomkins’s point that proposed new subsection (2)(h) in amendment 139 would give accessibility to new documents, we do not need the list to be as exhaustive as it is in that amendment.

I will not support amendment 139, but I will support amendment 112, because it rightly recognises the importance of inclusive communication.

The Convener

I am conscious of the time, so I ask Ms Maguire to make her comment quickly.

Ruth Maguire

I will be brief, convener. I want to add to what Ben Macpherson said about advice. My main concern about amendment 58 is that, when people who need advice get it from citizens advice bureaus, local authority money matters advice teams or housing teams, that advice is about all aspects of their life, because issues cannot be dealt with in isolation. To make “independent information and advice” an entitlement would make the situation very complicated, because information and advice is provided by multiple providers.

The Convener

I see that Mr Balfour wants to come back in. Please be brief.

Jeremy Balfour

I will pick up on two points that have been raised. First, on how “independent information and advice” would be implemented, proposed new subsection (4) in amendment 58 states that the functions may be delegated by ministers—that is how it would work.

Secondly, I am slightly intrigued by George Adam’s comments. I agree that good advice is being provided in places such as Paisley, the Scottish Borders and here in Edinburgh and that the situation is patchy in other parts of the country, but the fact that it is patchy in those areas does not mean that the people there should not be entitled to the same advice and assistance that those in big cities or certain rural areas can get.

George Adam

We are making it a right for those people to get advice, but what I am saying is that this is a bit of a cart-before-the-horse situation. If you admit that advice and assistance is not available in certain parts of the country but say that the people there have the right to that advice and assistance, my question is: where is the structure? How would you deliver that?

Jeremy Balfour

We would deliver it through support for more citizens advice bureaus across the country. That would be one very practical way of doing it.

Ruth Maguire

It is really important to note that citizens advice bureaus and Citizens Advice Scotland do magnificent work but, locally, I know of a number of housing associations and community associations and, indeed, work by the local authority, and there needs to be space and room for all of them. There is just not a simple answer to this.

Jeremy Balfour

Absolutely, and it will be up to the individual claimant to decide which organisation to go to. That is what happens at the moment in Edinburgh, where people can go to the CAB, the advice shop, Granton Information Centre and so on. I am not being prescriptive here—I want it to be up to the claimant to decide who to get advice from.

The Convener

With that, we move to the minister for the summing up.

Jeane Freeman

I will be as brief as I can be, convener. I am grateful to Mr Balfour for saying that he will not move amendment 59 and for supporting the Government amendment. I am also grateful for the understanding that he and other committee members have shown for the approach that I want to take.

Amendment 9 provides what many stakeholders have asked for but, as I have made clear, I fully appreciate that it sets out our baseline, and I look forward to the constructive discussions that we will have with stakeholders, Mr Balfour and others as we move towards stage 3 to try, if possible, to improve on that position.

Likewise, I urge support for amendment 8, which states that

“Scottish Ministers must have regard to the role”

of independent advocacy and advice in ensuring that an individual is given what they are eligible for under the Scottish social security system. That must include

“providing, or ensuring the provision of, information”

about independent advocacy and advice to those individuals.

That brings me to my difficulty with amendment 58, which I urge Mr Balfour not to move—and which, if he chooses to move it, I urge the committee not to support, for a number of reasons. First, it is overly prescriptive with regard to the nature of the advice that must be delivered. To me, it is not appropriate to put such a prescription on independent providers of advice. Moreover, although I am sure that this is not intended, the wording of the amendment is ambiguous with regard to the implications for resource allocation and demand. That kind of ambiguity and lack of clarity over the potential expenditure of public resource does not make for good law. Again, I urge members not to support amendment 58.

I am grateful for the support for amendment 39, which establishes a right for an individual to have a supporter if they need or want one. If I may say so, I think that this is a significant aspect of the bill. No one has pressed for it very much, but I know that stakeholders have greatly welcomed it, and I think it will make a significant difference to everyone who uses the social security system in Scotland. After all, we all at some point need someone beside us to give us a helping hand. I have three such people beside me at the moment, and I fully appreciate the importance of that sort of thing simply in psychological terms, if in no others.

10:45  

I am happy to support amendment 112, in the name of Ruth Maguire. Inclusive communication is precisely as it says, and it supports the rights-based approach that is at the very centre of the Scottish system.

I ask Mark Griffin not to move amendment 139, for two reasons. First, there is a standard associated with inclusive communication that the Scottish Government has signed up to; it was set out in the argument that was made by stakeholders, and it has now been translated by Ms Maguire into her amendment. Individuals with visual or hearing impairments are, of course, included in that.

Moreover, the Equality Act 2010 places an additional duty on all of us to ensure that communication is accessible. Of course, we all appreciate that communication goes much wider than forms and bits of paper, but I must point out again that the social security system that we are establishing will not cover 11 benefits alone; it must be capable of growth should the opportunity arise. Consequently, it is reasonable to expect that the kinds of written and other communication that the agency might wish to use will change over time.

I also remind members that we are committed to co-production in how the agency communicates with those who seek the assistance that they are entitled to. I would not want to unintentionally exclude our experience panels or others to whom we have made that strong commitment, or to cut them out as a result of anything that we might, for the best of reasons, have done.

With that, I urge members to support the amendments in my name and in the name of Ms Maguire, and I again express my gratitude to Mr Balfour for not moving amendment 59.

The Convener

I am very mindful of the time, but I felt that it was important to the stage 2 proceedings to let that debate run on. I am minded to give members a five-minute comfort break, but I must ask everyone to be back in their seats by six minutes to 11 so that we can continue.

10:46 Meeting suspended.  

10:54 On resuming—  

The Convener

The question is, that amendment 8 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
McNeill, Pauline (Glasgow) (Lab)

Against

Balfour, Jeremy (Lothian) (Con)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 7, Against 2, Abstentions 0.

Amendment 8 agreed to.

Amendment 9 moved—[Jeane Freeman]—and agreed to.

Amendment 58 moved—[Jeremy Balfour].

The Convener

The question is, that amendment 58 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Balfour, Jeremy (Lothian) (Con)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)
Tomkins, Adam (Glasgow) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 58 agreed to.

Amendment 59 not moved.

Amendment 112 moved—[Ruth Maguire]—and agreed to.

Amendment 114 moved—[Mark Griffin].

The Convener

The question is, that amendment 114 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
McNeill, Pauline (Glasgow) (Lab)

Against

Balfour, Jeremy (Lothian) (Con)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 7, Against 2, Abstentions 0.

Amendment 114 agreed to.

Amendment 115 moved—[Mark Griffin].

The Convener

The question is, that amendment 115 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
McNeill, Pauline (Glasgow) (Lab)

Against

Balfour, Jeremy (Lothian) (Con)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 7, Against 2, Abstentions 0.

Amendment 115 agreed to.

Amendment 139 moved—[Mark Griffin].

The Convener

The question is, that amendment 139 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Balfour, Jeremy (Lothian) (Con)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)
Tomkins, Adam (Glasgow) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 139 agreed to.

Amendment 140 moved—[Alison Johnstone].

The Convener

The question is, that amendment 140 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)

Abstentions

Balfour, Jeremy (Lothian) (Con)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 3, Against 4, Abstentions 2.

Amendment 140 disagreed to.

The Convener

Amendment 10 is in a group on its own. I invite the minister to speak to and move amendment 10.

11:00  

Jeane Freeman

Thank you, convener. I will be as brief as I can.

I have always been clear that profit should never be a motive for or play any part in making decisions on or assessing people’s eligibility for disability assistance. I gave a commitment to this Parliament and to the people of Scotland in April 2017 that the private sector would not be involved in assessments for Scotland’s benefits. I lodged amendment 10 in response to calls that that commitment should be made clear in the bill.

The amendment makes it clear that the Scottish ministers can never require an individual to attend an assessment by anyone who is not employed in the public sector, and it applies that rule across the social security system in Scotland. The amendment allows decision makers to consider evidence that is derived from the private sector—for example, where the person has private health care arrangements—but only where the individual is content with that being done.

It also provides that receipt of United Kingdom benefits or other assistance can be made a condition of eligibility where entitlement to those benefits depends on private sector assessments. That provision may be relevant in relation to early years assistance, for example, because, as members who have looked at the Government’s published illustrative regulations will know, it is proposed that eligibility will depend on being in receipt of certain UK benefits.

All of that said, I hope that members can support the amendment, as it translates my stated commitment on to the face of the bill.

I move amendment 10.

The Convener

Does any member wish to speak?

Adam Tomkins

We will not support the amendment. The committee was divided on the issue at stage 1, but the majority, including the Scottish Conservatives, believed that including a formal ban on private sector contractors in the bill could lead to unintended consequences. The majority of the committee did not support the proposal at that time and the Government did not support the proposal in its response to our stage 1 report. The minister has said before to the committee, and in the chamber, that she does not support a statutory ban on the private sector because of the danger of unintended consequences.

This is an unwelcome U-turn on the minister’s part. It is disappointing that she has caved in to ideological pressure from the left, but it is not entirely surprising. We will not support the amendment.

Mark Griffin

As one of the minority on the committee who supported this proposal during our stage 1 evidence and reporting sessions, I pushed strongly for the Government to consider translating into legislation its policy ambition to exclude the private sector from any assessments. It will be no surprise that I am delighted to see the Government do so.

Stakeholders were clear in their evidence that they wanted to see a statutory ban. It would ensure that the private sector would have no role in assessments for social security under any incoming Government that did not share Labour and Government members’ support for the policy. It would give helpful assurance and clarity to the 100,000 or so disabled people who still have to go through PIP assessments and are desperate to see this policy enacted.

It is a very welcome U-turn, rather than unwelcome, as Mr Tomkins said. I am glad that the minister and other members have caught up with Labour’s position. We have always felt that a ban could be placed in the bill to give people who go through an assessment the assurance that profit will never be a consideration.

Pauline McNeill

I add to what Mark Griffin said; the Scottish Government is to be commended for lodging the amendment. When I joined the committee, the subject was quite new to me. I was shocked at the extent to which the assessment affected people claiming benefits and at the manner in which it was conducted.

The amendment is quite clear that it is a restriction on the private sector only in relation to conducting

“an assessment of physical condition or mental health”.

It does not preclude the use of the private sector for other, appropriate activities, such as learning aspects of a social security system, which is what I think the minister meant by unintended consequences when we debated the issue at stage 1.

It is important to read the amendment in conjunction with what we have already debated—that this system is to be designed to promote the dignity and respect of people. The rules that accompany the restriction are the important things. I believe that amendment 10 represents substantial and important progress towards the type of social security system that we have the chance to design in Scotland, and I will whole-heartedly support it.

Alison Johnstone

I add my support, and thank the minister for lodging amendment 10. If we want our social security system in Scotland to be all that we wish it to be, we really want to move away from the Westminster model on this aspect. Those assessments are some of the most loathsome and loathed aspects of the system that is in place. It is absolutely clear that the private companies that have been carrying out the assessments have not been doing a good job; otherwise, there would not be so many successful appeals. I whole-heartedly welcome the amendment and will be pleased to support it.

Jeremy Balfour

This is ideology against good practice. If we go back 20 years, private companies were carrying out medical assessments without any complaints. What an individual wants is a good assessment. Frankly, they do not care who does it. Yes, we need to improve the assessments, but I think that ruling out private companies from doing that will have unforeseen consequences. I am interested in the minister’s answer to the question of who will do the assessments. Where are the people who are available to carry them out? Secondly, when assessments were done at home by the private sector, no one complained. We need good assessments, and to ensure that they are done properly. The claimants do not care whether they are done by private companies or the state.

Ruth Maguire

It is probably a bit unfair to characterise this as a U-turn, whether you are on the far right or the far left. As I am sure that the minister will want to clarify, from my view it addresses the concerns that we had about unintended consequences. My reading of the amendment is that a claimant is able to use medical evidence from a private provider if they choose, but no one will ever be compelled to attend an assessment by a private contractor. Perhaps the minister would clarify that.

George Adam

I think that the minister has been pretty consistent throughout. This has been specifically about the cases that we have had in front of us with regard to PIP in general and the disaster from the Westminster Government in the way that people have been dragged through that system by one specific private company in particular. That shows the difference.

In all honesty, I do not see how it is a U-turn, because from day 1 the minister has said that we did not want those private companies involved in that specific process. I do not agree with Mr Balfour that the public do not care who assesses them. I am quite sure that if he mentions a certain private company, he will end up with a whole stack of people complaining. Let us stick to the issue that we are talking about and remind ourselves why we are in this position.

Jeane Freeman

I will make a few points. This is not ideology set against good practice. All of the practice that we have seen in relation to how the Westminster system delivers health assessments tells us that that is very poor practice indeed. There are two reasons for that.

First, it is because the system is operated in such a way that the initial decisions are made without adequate information. In part, that is because of the time targets that the UK system imposes on the DWP staff who are making those assessments. Secondly, any private company quite legitimately pursues profit. For me, the pursuit of profit should not be the driver in how we deliver social security. It is simple.

In relation to previous practice, I am certain that I am older than Mr Balfour and I recall the days when assessments for benefits were done by people otherwise employed in the public sector—primarily, in health—who undertook those assessments in addition to their day job.

That is the model, to some extent, that the expert advisory group and the work chaired by Dr McDevitt from the British Medical Association general practitioner group and Ms Burke from the Glasgow Disability Alliance, working on behalf of the expert advisory group, are taking forward for me. The aim is to develop a model of how we will deliver the limited number of health assessments that may be required for disability assistance, which will not require people to undertake an assessment delivered by the private sector.

This is not a formal ban on private contractors; members will recall my concern about that idea because of the unintended consequences that others have referred to. Nor is it a U-turn because, as colleagues have said, this has been my consistent position. I have sought to translate that public commitment on to the face of the bill in a way that makes sense, does not incur unintended consequences, is clear about what ministers will not do, but sensibly also allows individuals to introduce evidence in support of their application for the financial support that they are entitled to if that evidence comes from a private sector assessment, through the means that I have already described.

I think that amendment 10 is clear; it allows us to translate that very public commitment, as requested, into primary legislation while still retaining the right of the individual to choose the evidence that they introduce to support their application. All the way through this process, I have been very clear about the centrality of individuals in our system—it is about individuals choosing what happens to them and our system facilitating that.

I think that our amendment is worthy of support. It is not a ban on the private sector inside social security; it is a translation of the public commitment that the private sector, driven as it is—understandably so, in its terms—by a profit motive, should not be the deliverers of health assessments inside social security in Scotland.

The Convener

The question is, that amendment 10 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
McNeill, Pauline (Glasgow) (Lab)

Against

Balfour, Jeremy (Lothian) (Con)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 7, Against 2, Abstentions 0.

Amendment 10 agreed to.

Section 2—The Scottish social security charter

The Convener

Amendment 141, in the name of Pauline McNeill, is grouped with amendments 142 to 144, 146, 147, and 150.

Pauline McNeill

The amendments are concerned with the charter being approved by regulations put before the Parliament. The purpose is to make such regulations subject to parliamentary scrutiny so that they would go before the Parliament if the amendments are agreed to. The amendments put more impetus behind the charter.

Amendment 141 adds the words:

“The Scottish Ministers are, by regulations, to set out and from time to time revise”.

Amendment 142 leaves out the words:

“to be prepared, published and from time to time reviewed in accordance with sections 3 to 5.”

Amendment 143 leaves out “publish the charter” and inserts:

“lay before the Scottish Parliament draft regulations”

in relation to the first charter.

Amendment 144 inserts a reference to the draft regulations for consultation. Amendment 146 ensures that only once the Scottish Parliament has approved the regulations will they be made publicly available. Amendment 147 adds that where the Scottish Government has

“decided to make changes to the charter,”

regulations that do so must be laid before the Parliament. Amendment 150 is a technical amendment for completeness.

I move amendment 141.

Ben Macpherson

I am unable to support the group of amendments in the name of Pauline McNeill because, as we heard during the stage 1 evidence, the charter will be a document of co-production and its key elements are accessibility and accessible language, as well as clarity about redress. Having considered many regulations during my time as an MSP, I know that they tend not to be drafted in accessible language, so my concern is that the amendments will undermine accessibility and the co-production of the charter. I cannot support them.

11:15  

Jeane Freeman

I have no difficulty with the principle that Ms McNeill is attempting to realise in her amendments, which is that the Parliament should have a role in approving the charter and any changes to it. My difficulty with the amendments as they stand is that they make the charter a form of regulations. Regulations are a particular form of legal document and there are rules around how they are expressed, formatted and published, none of which are appropriate for the charter, which is intended to be an easy-to-read document, rather than a legalistic one.

If the intention is to give the Parliament a role in approving a final version of the charter, I ask Ms McNeill not to press the amendment, but to work with us in advance of stage 3, so that she can lodge an amendment at that stage that would give the Parliament such a role without undermining the intention of the charter.

Members will recall that we said that the charter would be the concrete expression of the principles and should be co-produced with stakeholders. It is also something in which the commission would have a role. As the amendments stand, they do not support that approach to the charter, so I cannot support them.

At stage 1, the committee heard expert after expert give evidence welcoming the charter as a valuable and innovative step that could make a real difference to the people who will rely on the system. It is true that many said that the charter should have more teeth, which is something that the Scottish Government’s amendments 17 and 18 would deliver. However, what was universally agreed at the debate was that, above all else, the charter must be a clear and accessible statement of what people are entitled to expect from the new system.

We have already debated several amendments that aim to improve the clarity of communication. As they stand, Ms McNeill’s amendments will not deliver that. Not only would they require a regulations document that is legally precise, they would require a document that would constitute part of the law of Scotland itself. Far from offering something clear and accessible, we would be issuing people with detailed and complex legal provisions. Furthermore, we would be forced into a position of potentially restricting what could appear in the charter, because no matter how much people wanted something to be included, it might not be compatible with direct legal application. That is not what people have told us that they want from the charter or what we have promised to deliver.

In and of itself, the idea of the Parliament having a role in approving a finalised version of the charter is not an issue. As long as the process by which the charter is developed has co-design at its heart and is transparent and research-led, and as long as we are able to translate that engagement and research into a clear, accessible document, then I have no objection to the end result being laid before the Parliament for its approval. However, that is not what the amendments would achieve.

I ask Ms McNeill once again not to press amendment 141 and not to move the other amendments, but to have further discussion with us in advance of stage 3, at which point she could lodge an amendment that would realise her intention to allow Parliament to have a final say on the charter and subsequent reviews of the charter. If Ms McNeill is unwilling to do that, I urge the committee to reject the amendments.

Pauline McNeill

I am persuaded by the minister’s argument that, in trying to seek the maximum and appropriate level of parliamentary scrutiny, amendment 141 perhaps does not quite square with the idea of the charter being a co-produced document. I acknowledge all those points. I am very happy to discuss the issue at stage 3, so that there is the appropriate level of parliamentary scrutiny before Parliament simply sees the final version. I am persuaded that that is the right way to proceed. In view of that, I seek leave to withdraw amendment 141 and I will not move amendment 142.

Amendment 141, by agreement, withdrawn.

Amendment 142 not moved.

The Convener

I am very mindful of time but, if we finish the next grouping, we will finish section 2 of the bill. Amendment 11, in the name of the minister, is in a group with amendment 60. I invite the minister to move amendment 11 and to speak to both amendments in the group.

Jeane Freeman

Amendment 11, in my name, is a minor amendment that makes it clear that the social security charter can set expectations about all the Scottish ministers’ functions under parts 1, 2 and 3 of the bill. That is important, because amendments are being lodged to part 1 of the bill that add functions for ministers, such as the duty to promote take-up. Those functions should also be captured by the charter.

I ask Mr Balfour not to move amendment 60, because I believe that it is unnecessary. The Scottish Government has no intention of delegating any of its functions in the bill to another body. Indeed, our amendment 10, which would restrict private sector involvement in assessments, and our support for amendment 77, in the name of George Adam, make clear the strength of our commitment to social security being delivered as a public service. If it is the agency that Mr Balfour has in mind, I would say that there is no legal distinction between ministers and the agency. The functions of ministers are therefore the functions of the agency, and the charter therefore binds the agency, as it binds ministers, because they are the same legal person. Even if a future government sought to outsource or delegate some of its functions, legally they would nevertheless continue to be functions of ministers, who would rightly be held accountable for exercising those functions in the various ways that are required by the bill.

I move amendment 11.

Jeremy Balfour

In light of the minister’s remarks, I will not move amendment 60.

Amendment 11 agreed to.

Amendment 60 not moved.

Section 2, as amended, agreed to.

The Convener

That completes our scrutiny for today. I thank committee members and the minister for your contributions.

I remind members that the deadline for lodging amendments up to the end of part 2, chapter 2 is tomorrow at noon. We will consider further amendments next week. An updated marshalled list and list of groupings will be issued to committee members on Monday.

Meeting closed at 11:23.  

The Convener (Clare Adamson)

Good morning and welcome to the fourth meeting of the Social Security Committee in 2018. I remind everyone to turn mobile phones and other devices to silent mode so that they do not disrupt the meeting or its broadcast. No apologies have been received.

Our only agenda item is consideration of the Social Security (Scotland) Bill at stage 2. We continue where we left off last week, and we will not go beyond the end of part 2, chapter 2. There are 17 groups of amendments up to the end of part 2; we might well not get through them all this morning but we will endeavour to do our best.

I welcome the minister and her accompanying officials.

Section 3—Preparing the first charter

Amendments 143 and 144 not moved.

The Convener

The first group is on consultation on the Scottish social security charter. Amendment 145, in the name of Jeremy Balfour, is grouped with amendments 103 to 105, 12, 13, 106 and 107.

Jeremy Balfour (Lothian) (Con)

Amendment 145 is fairly straightforward. I am sure that this Government will do what the amendment requires without such provision being in the bill, but as we look forward to the years ahead, I am concerned about future Governments and members of the Scottish Parliament, who will not have had the benefit of sitting round this table.

It is important that people with mental disability are consulted appropriately when changes are being made and consultations are going on. I appreciate that the Government has consulted people with mental disability in getting us to where we are today, but we must future proof the bill. About 33 per cent of people in receipt of disability living allowance or a personal independence payment have a mental disability. Such people might have felt excluded from consultations in the past. The provisions in amendment 145 would provide a reminder to the Government and the Parliament that not just people with physical disability but people with mental disability should be consulted.

I move amendment 145.

Mark Griffin (Central Scotland) (Lab)

Amendments 103, 105 and 106—and amendment 108, to which we will come—are designed to ensure that equality is embedded in the bill and therefore in our social security system. I welcome the Government’s advance notice that it will support the amendments, which are also supported by Engender, Scottish Women’s Aid and the Coalition for Racial Equality and Rights.

We know that many equalities groups, particularly women, people from black and minority ethnic groups and disabled people, experience higher rates of poverty and might therefore depend more on the social security system. We also know that such groups experience inequality in different ways. The barriers and disadvantages that people will face might not be known about from the off, given the lack of available data—that is what prompted me to lodge amendment 108, to which we will come. It is important that on-going engagement be required. There should not be any groups that the Scottish social security system deems hard to reach, and we should take extra care to make sure that all groups—especially the most disadvantaged—are involved and included. That was the reason behind my lodging amendments 103 and 105 to 107.

Amendment 104 is part of a package of amendments related to the give me five campaign’s proposal to top up child benefit, to which we will come. It would mean consulting all parents. Even though it could be argued that child benefit is a reserved benefit, consulting parents would still have particular value since the Scottish Government has the power to top up that benefit. The proposal is worth including in the bill.

The Convener

Thank you. I call the minister to speak to amendment 12 and the other amendments in the group.

Jeane Freeman (Minister for Social Security)

Thank you, convener, and good morning.

Let me start with amendment 145, in the name of Mr Balfour. Implicit in that amendment is a very important point: that those in receipt of disability assistance are a diverse group, including people with both physical and mental health conditions. Such groups have different needs, and I agree that it is crucial that the views of both are fairly represented in the charter co-design process. However, I hope to persuade Mr Balfour and the committee that we have in place robust plans to deliver the nuanced engagement that he seeks.

“About your benefits and you”, the recently published research from the experience panels, found that 39 per cent of respondents with a disability had a mental health condition and that 50 per cent had a physical disability or condition. We are developing plans to supplement experience panels with ways of engaging seldom-heard groups, who may not be comfortable engaging in focus group-style activity. We are working with stakeholders to ensure that we have additional involvement in areas of particular interest. As part of the charter co-design, we are also looking to work with key stakeholders—including organisations that support those with both physical and mental health conditions—to facilitate engagement with the people whom they represent.

In my view, amendment 145 is, to an extent, prescriptive, in that it requires ministers to focus on a particular split—a “representative proportion”. That could produce unintended results that I am sure none of us would want. The question has to arise whether it is more important to achieve the perfect proportional split with a small number, or to engage with larger numbers of both those with a physical disability or condition and those with a mental health condition, even if the split is not in the right proportion.

I therefore invite Mr Balfour not to press amendment 145, on the basis that we are already thinking carefully about such issues.

I am pleased to support amendments 103 and 105 to 107, in the name of Mr Griffin. The amendments reflect what the Scottish Government already intends in relation to the consultation on the charter, and there is benefit in codifying the requirements in the bill—especially in relation to future reviews of the charter. We may want to bring some minor adjustment to their wording at stage 3, but I am happy to support the amendments.

I cannot, however, support amendment 104, as there is no reason to consult anyone who is in receipt of benefits that the Scottish social security benefits system will not deliver when it comes to our charter. Equally, there would be no reason to choose just one of the many benefits that remain reserved to the United Kingdom Government—for example, universal credit, income support, child tax credits, maternity pay or pension credit—as the charter does not relate to them. Those benefits are all for the UK Government to deliver and be responsible for.

My amendment 12 is a technical amendment that I hope the committee will find it easy to support. As the committee will be aware, the Scottish Government has committed to co-designing the charter in partnership with those who have direct experience of the system. That work will be under way before the bill is passed and receives royal assent. Amendment 12 simply ensures that all the consultation work counts towards fulfilling the consultation duty.

Amendment 13 is rooted in my conversations with Professor Sally Witcher and Bill Scott of Inclusion Scotland. They are strong advocates of the rights-based nature of the system that we propose and the charter, which will give practical effect to that approach. Their concern is that if a future Government does not share that commitment it may seek to use the powers given to ministers in section 5 to review the charter in order to substantially dilute it. As a safeguard against that, amendment 13 requires ministers to consult the commission on social security when reviewing the charter. As a further safeguard, as I said last week when we discussed amendments on charter approval, I will be happy to work with Ms McNeill in ensuring that the Scottish Parliament has a role in scrutinising any changes to the charter.

Mark Griffin

Before the minister completes her comments, can she expand on the reasoning behind amendment 12? The amendment states that

“it is immaterial that anything done by way of consultation was done before the Bill for this Act was passed”.

I am concerned that that would rule out any evidence gathered by the experience panels. Is the minister able to allay those concerns?

Jeane Freeman

Amendment 12 seeks to ensure that, in advance of the preparations for and conclusion of the work on the charter, the consultation work that has been undertaken to date and which will continue to be done on the illustrative regulations for the benefits that we intend to deliver in wave 1 will count towards our requirement to consult. Mr Griffin is a bit thrown by the word “immaterial”, as I was when he first raised the matter with me, because it sounds as though it means that such consultation does not count. I am advised that, in the lawyers’ world, it does count. What can I say? Perhaps Mr Tomkins can help us out.

Adam Tomkins (Glasgow) (Con)

I think that your interpretation is correct, minister.

Jeane Freeman

Thank you.

The Convener

No one else wishes to speak, so I ask Mr Balfour to press or withdraw amendment 145.

Jeremy Balfour

I intend to press amendment 145. I hear what the minister says and I take her word very seriously, but I still think that it is important to have within the legislation a clear duty that those who have mental disability will be consulted appropriately. I know that the Scottish Association for Mental Health and other groups are keen to have that backstop in case of any change of Government or policy.

We will support the amendments lodged by the minister and Mark Griffin.

The Convener

The question is, that amendment 145 be agreed to. Are we agreed?

Members: No

The Convener

There will be a division.

For

Balfour, Jeremy (Lothian) (Con)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)
Tomkins, Adam (Glasgow) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 145 agreed to.

Amendment 103 moved—[Mark Griffin]—and agreed to.

Amendment 104 moved—[Mark Griffin].

The Convener

The question is, that amendment 104 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Balfour, Jeremy (Lothian) (Con)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)
Tomkins, Adam (Glasgow) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 104 agreed to.

Amendment 105 moved—[Mark Griffin]—and agreed to.

Amendment 12 moved—[Jeane Freeman]—and agreed to.

Section 3, as amended, agreed to.

Section 4—Publication of the charter

Amendment 146 not moved.

Section 4 agreed to.

09:15  

Section 5—Reviewing the charter

Amendment 13 moved—[Jeane Freeman]—and agreed to.

Amendments 106 and 107 moved—[Mark Griffin]—and agreed to.

Amendment 147 not moved.

Section 5, as amended, agreed to.

After section 5

The Convener

The next group of amendments is on the effect of the charter. Amendment 61, in the name of Adam Tomkins, is grouped with amendments 18, 18A and 50.

Adam Tomkins

Last week, we had a debate about a similar provision on the effect of the principles. I do not want to reheat or repeat that debate but, during the debate, Mr Macpherson and the minister were kind enough to indicate that they would support amendment 61. The amendment’s purpose is to clarify what we, as the Parliament, intend the effect of the charter to be in order to avoid unnecessary, and potentially expensive, litigation to resolve that question. The wording is similar to wording that already appears elsewhere in the Scottish statute book. That is all that I want to say about amendment 61 at the moment.

Amendment 18A, in my name, seeks to amend amendment 18, which is in the minister’s name. I hope that the minister will not press that amendment. If she does not press it, I will not press amendment 18A, because it would be redundant. In fact, I believe that amendments 18 and 18A are both redundant, given the evidence that the committee obtained a fortnight ago from the Scottish Public Services Ombudsman on the jurisdiction that the ombudsman already has under her empowering legislation to investigate complaints of injustice arising from maladministration by the Scottish social security agency. That is a result of the way in which the agency is to be created as an arm of the Scottish Government. I hope that the minister agrees that amendment 18 is now unnecessary and will not press it.

I move amendment 61.

Jeane Freeman

I am pleased to support amendment 61, in the name of Adam Tomkins. I think that it would be helpful to draw the committee’s attention to our consultation on draft tribunal rules, which we launched on 22 January. We propose that tribunals must have regard to the social security charter when considering appeals in relation to devolved social security assistance, which complements amendment 61 in an important way.

I do not intend to rehearse the arguments that we heard a week ago. I agree with Mr Tomkins that the role to be played by the ombudsman’s office is clear from the evidence that the committee received from Dr McCormick and the Scottish Public Services Ombudsman. For that reason, I do not intend to move amendment 18 or amendment 50.

The Convener

I invite Mr Tomkins to wind up, and to press or withdraw amendment 61.

Adam Tomkins

I have nothing further to say. I press amendment 61.

Amendment 61 agreed to.

The Convener

The next group of amendments concerns the right to social security. Amendment 116, in the name of Mark Griffin, is grouped with amendment 117.

Mark Griffin

I feel that amendments 116 and 117 would advance the Scottish Government’s objectives of ensuring that Scotland’s social security system is world leading and of taking a human rights based approach to social security.

The Scottish Government’s response to the Social Security Committee’s stage 1 report acknowledges that Scottish ministers have a duty to comply with human rights treaties such as the International Covenant on Economic, Social and Cultural Rights. However, the bill will not, as drafted, place any duty on them to comply with the right to social security as defined in international human rights law, or to have regard to it.

The Scottish Government’s response also acknowledges that international human rights are substantive and real, and reaffirms its commitment to giving effect to those rights. It is important to be clear that the human right to social security is not principally protected by the European convention on human rights, which means that full compliance with the ECHR will not on its own deliver protection of the right to social security.

The right to social security is found in a number of international human rights instruments, most notably in article 9 of the ICESCR. The detail of the right to social security is provided in general comment 19 from 2007. That comment provides that social security must be available, adequate and accessible and addresses issues of coverage, eligibility, participation and information and physical access.

Amendments 116 and 117, in obliging Scottish ministers and public authorities—in particular, the new agency—to

“have due regard to the right to social security”,

would ensure that the content of the right features as a driver for good policy and decision making, thereby building a system that is based on human rights. The amendments would also introduce a vital means of holding the Scottish ministers and the new agency to account for their decision-making processes.

There is a precedent for the approach that I propose: it has been embedded in various legislation including the Community Empowerment (Scotland) Act 2015, the Land Reform (Scotland) Act 2016 and the Children and Young People (Scotland) Act 2014. Only last week, during portfolio questions, the Cabinet Secretary for Communities, Social Security and Equalities said:

“It is imperative that we acknowledge that the UK Government’s proposals to repeal the 1998 act or even to withdraw from the European convention on human rights ... put at risk the most vulnerable members of society and hit them the hardest. Therefore, the Scottish Government is committed to defending the existing human rights safeguards ... and to embedding human rights, equality and respect in everything that we do, so that everyone in Scotland can live a life of human dignity.”—[Official Report, 31 January 2018; c 11-12.]

Amendments 116 and 117 would simply put that aspiration into legislation, so I ask committee members to support them.

I move amendment 116.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

The overarching issue that amendments 116 and 117 concern is an extremely important one to consider, given what we said about it in our discussions during stage 1.

However, a number of questions need to be asked about being prescriptive in the way that is proposed in relation to specific pieces of international law, given that there is already an overriding commitment to human rights in principle and the fact that ministers are expected to uphold international law and the courts are expected to take account of treaties when it comes to domestic legislation.

I would like to ask a number of questions to enable me to understand what advantage amendments 116 and 117 would bring, and to determine whether the proposal might be counterproductive by creating vulnerability in terms of judicial review and having other consequences in terms of suppressing the operation of the system.

I ask Mark Griffin to elaborate on the intention behind amendment 116, given that it mentions only the International Covenant on Economic, Social and Cultural Rights. Is he suggesting that only the covenant should be looked at, to the exclusion of other treaties? Should it be given higher status? I am trying to understand whether he thinks that the ICESCR is more important than, say, the European social charter.

Why does amendment 117 require judicial consideration of the views of the United Nations Committee on Economic, Social and Cultural Rights but not the opinions of the Council of Europe’s European Committee of Social Rights, for example?

Does the International Covenant on Economic, Social and Cultural Rights provide enough detail to make it legally applicable? Has Mark Griffin considered that its vagueness might lead to successful judicial review, with the result that regulations would be void and people would not be paid?

Human rights are interrelated and indivisible, so is it a good idea to take a piecemeal, bill-by-bill approach? The cabinet secretary said that human rights should apply

“in everything that we do”,—[Official Report, 31 January 2018; c 12.]

as Mark Griffin said. Should we take a more Scotland-wide approach?

The First Minister’s advisory group on human rights is considering how best to reflect human rights instruments in domestic legislation across the spectrum. Do amendments 116 and 117 cut across that work?

It is important to recognise that UN committees are not elected, so there is a democratic question to consider before we enshrine in primary legislation a provision in that regard.

Ministers are held to account in circumstances in which they fall short of treaty obligations under international law. Social security as a human right is a founding ideal of the system—that is stated in the principles in the bill. The charter will set out in detail the actions and standards that are required to realise that in practice, and the Scottish commission on social security will be able to review performance independently.

We need to think carefully about an approach that is as prescriptive as the one that Mark Griffin proposes. We need to consider whether a better approach would be to see human rights as part of the overarching principles in the bill—as they are—and not to give precedence or preference to certain bits of international law, when a more comprehensive overarching consideration of international law might be more effective.

Adam Tomkins

Ben Macpherson has asked a series of important questions about what would be significant amendments. The most important point that I pick out of that suite of questions—which Mr Macpherson has rather thrown at you, Mr Griffin—is this: the International Covenant on Economic, Social and Cultural Rights is not judicially enforced; it is policed and monitored by an international committee of unelected UN experts. Amendments 116 and 117 would require judicial recognition in Scottish courts and tribunals of the opinions and reports of that committee.

We have tried to clarify the legal status of the principles and the charter, rather than make it more murky. It seems to me that there is a no doubt unintended risk that amendments 116 and 117 would—by requiring courts and tribunals in Scotland to take judicial cognisance of non-judicial reports and opinions from the committee that polices the international covenant at UN level—blur the distinction between where there is a right to social security that is judicially enforceable, and where there is a right to social security that ministers and MSPs must bear in mind as they make and implement regulations. I am sure that that is not an intended consequence of the amendments, which I am sure are well intentioned. Nonetheless, it is a significant demerit in how the amendments have been drafted.

That is not to say that the other issues that Mr Macpherson identified are unimportant. However, that is the most significant one, for me.

George Adam (Paisley) (SNP)

I agree with Mr Tomkins and Ben Macpherson. The minister has said from the start that social security as a human right is a founding principle of what we are trying to do, and the charter sets out the actions and standards that are required in that regard.

The problem that I have with Mr Griffin’s amendments 116 and 117 is purely to do with me. Mr Macpherson and Mr Tomkins come from a legal perspective. I think that I know what Mr Griffin is trying to do, but I am a bit confused as to whether he will be able to do it with the amendments. My concern is that we could, the minute the lawyers get their hands on the amendments, end up with a murky mess. I understand where Mr Griffin is coming from, but the amendments are a bit confusing, which gives me some concern. However, it might just be me: I have been confused before.

09:30  

The Convener

I would not like to comment, Mr Adam.

Jeane Freeman

The Government is serious about human rights and about following through on our treaty obligations. As members have said, the Scottish ministerial code states clearly that every minister has an overarching duty to uphold the law, including international law and treaty obligations, in everything that they do.

To ensure that that happens in the new system, amendment 118 in my name will enable the proposed new independent Scottish commission on social security to “have regard to” international law standards in performing any of its functions. That is a conscious and deliberate inclusion on our part. More than that, the commission will be required to

“have regard to any relevant international human rights instruments”

when considering proposed regulations. That means that, when considering any reforms, the Government, Parliament and the public will always be able to have the benefit of independent expert opinion on how proposals measure up against treaty obligations.

That input from experts who have specialist knowledge of social security will be invaluable, because international treaties are necessarily expressed in general and high-level terms. The proposed commission will have the skill set to translate what the treaties require into the Scottish context. Should it appear that the new system is falling short of those requirements in any respect, it will be for Parliament and the Government to do something about it. In that way, the bill will ensure that respect for international obligations is built into the system from the start in a way that ensures that the system gives practical and meaningful effect to people’s rights.

The bill will achieve that in other ways, too. The principles establish human rights as a founding ideal of the system. In fact, the principle in section 1(b) goes further than the key provision of the instrument that establishes social security as a human right. Through the charter, those ideals will be carried from the statute book to everyday delivery of services. The charter will be co-produced with the benefit of input from the Scottish Public Services Ombudsman’s office and, as we agreed last week, will be subject to agreement by Parliament through the amendment that we will work with Ms McNeill to lodge at stage 3. In addition, the charter will have the benefit of the clarity that Mr Tomkins’s amendment 61, which we have just discussed, brings to it.

There are already numerous examples of the co-productive nature of our approach, such as the experience panels, the design of the process of information and the options in our universal credit Scottish choices. Those few examples barely scratch the surface, but they are indicative of an approach that will consider every detail and leave undone nothing that is needed to fulfil people’s rights.

Mr Griffin’s amendments 116 and 117 represent a different approach and I cannot support them. Rather than involving subject experts in designing the system so that compliance with international standards is embedded from the start, his amendments would leave it to the general courts to evaluate the system once it is in operation.

Last week, Mr Griffin helpfully did not press his amendment 138 because of the unintended consequences that we discussed and the risk that it posed for people’s incomes. The risks that are posed by his amendments 116 and 117 are the same. They would open the door to the courts striking down regulations that will provide the basis on which people will be given assistance. Should a court uphold a challenge, ministers would be required to stop applying the assistance that had been challenged—to stop paying that assistance—unless they could convince the court to suspend its decision, pending an appeal.

Even if a challenge ultimately failed—the system is designed to ensure compliance with treaty obligations, so all such challenges should fail—the fact that a case was taken, and that the steps in the process on which I have touched were gone through, would cause significant uncertainty for people. Moreover, it would inevitably divert money away from the people whom the social security system should help and, instead, put it into legal fees and court costs. To expose to those risks the new system and, more important, the people who will rely on it for support, is unwarranted. The proposals were not mentioned, let alone supported, in the committee’s stage 1 report. The committee has heard no evidence from legal academics, the Law Society of Scotland, the Faculty of Advocates or the judiciary on the consequences, unintended or otherwise, of taking this unprecedented approach.

I am sure that all of us here value Scotland’s record on human rights. The Scottish Government certainly does, which is exactly why the First Minister has established an expert group under the leadership of Professor Alan Miller to look holistically at what more can be done to embed the protection of internationally recognised rights in Scotland. That is the proper place for that discussion to be held. That group of experts, after considering international evidence and expertise, will recommend an overarching Scotland-wide approach to protect, enhance and embed human rights across all of Parliament’s legislation.

As a responsible Parliament, we should see the work of that group and take time to consider its recommendations based on robust and considered evidence. That will allow the whole Parliament the opportunity to discuss the issues fully on a properly informed basis, and to consider the right approach for Scotland.

The Convener

I invite Mr Griffin to wind up and to say whether he wishes to press or withdraw amendment 116.

Mark Griffin

The Scottish Government’s response to the stage 1 report acknowledges that ministers have a duty to comply with human rights treaties such as the ICESCR, but the bill does not place any duty on ministers to comply with or have regard to the right to social security as defined in international human rights law. The reason why my amendments 116 and 117 link to the particular UN instruments is simply that that is the evidence that the committee received during stage 1 and subsequently in briefings from organisations including the Scottish Human Rights Commission.

I accept the argument that we should take a Scotland-wide holistic approach but, as I said, there are examples where my approach has already been used—I mentioned the Community Empowerment (Scotland) Act 2015, the Land Reform (Scotland) Act 2016 and the Children and Young People (Scotland) Act 2014. I take on board the Government’s point that a potential court action could strike down regulations and lead to claimants not receiving payments, but that risk that the Government refers to demonstrates just how important it is for the Government to discharge its duty properly in the first place. The Government should seriously consider the credibility of that course of action, were there to be any doubt that an action would breach human rights.

On justiciability, judges have dealt ably with questions of rights. For example, they have considered what constitutes torture, what a fair trial means and what is unlawful interference with privacy. Giving meaning to concepts that are found in legislation is a clear function of the judiciary, in relation not just to human rights, but to any area of law. The realisation of rights depends on Government policy. It is for Parliament to put that policy into law, but review of Government policy to ensure that it is consistent with constitutional principles and obligations under human rights law is clearly a function of the judiciary. That is review and not policy making, and the courts are well aware of their function in that regard.

Judicial enforcement of human rights is fundamental. Having a right without a remedy raises questions about whether it is, in fact, a right at all. For that reason, I will press amendment 116.

The Convener

The question is, that amendment 116 be agreed to. Are we agreed?

Members: No

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 3, Against 6, Abstentions 0.

Amendment 116 disagreed to.

Amendment 117 not moved.

Before section 6

Amendment 14 not moved.

Section 6—Annual report

The Convener

We now move to a new group, on the annual report and other accountability mechanisms. Amendment 62, in the name of Jeremy Balfour, is grouped with amendments 79, 108, 148 and 80.

Jeremy Balfour

It is a welcome move in this bill that there will be an annual report that will outline what has happened. It is important that those who are looking at the system and who have expectations about how it will be taken forward can find that simply reported on in the report. Amendment 62 is a fairly benign amendment, but it is important to say in the legislation that the report must set out how the expectations have been met. The amendment is just giving clarity, as I am sure that that will happen anyway, but we have to remember that we are looking to the future. I hope that the Government can accept the amendment.

I move amendment 62.

The Convener

I invite Mr Griffin to speak to amendment 79 and the other amendments in the group.

Mark Griffin

Amendment 79 allows us to have a debate about how we use the powers to tackle disability poverty. Of households living in poverty, 42 per cent have at least one disabled person. I know that we have debated how disability benefits are not income replacement benefits, but they overcome the additional costs with which someone with a disability lives and that could push that person into poverty. The disability could present a barrier to employment, which could also push that person into poverty.

Amendment 79 is supported by Disability Agenda Scotland, Camphill Scotland, the Carers Trust, the Health and Social Care Alliance Scotland, the Scottish Independent Advocacy Alliance and Leonard Cheshire Disability. I feel that there is a precedent with the Child Poverty (Scotland) Act 2017, which includes a number of explicit targets, and the implementation of the socioeconomic duty. Any reform of the social security system in Scotland should address the failure of the benefits system to adequately compensate disabled people for the extra costs that they face in order to live an independent life.

The extra costs that are associated with disability, which average around £550 per month, are one of the several reasons why there are higher rates of poverty among disabled people. Amendment 79 would require the Government to assess the levels of poverty in households with a disabled person or persons, to take into account the added costs of having a disability and to work to reduce that rate of poverty.

I touched on amendment 108 in an earlier debate about how we ensure that people with protected characteristics are covered from the outset. It would put that in the legislation and give that additional protection.

The social security charter is not intended to confer rights on individuals. The agency will evaluate and report on its own performance, and it will determine the form and content of customer satisfaction surveys. It is a known issue that the agency could then start focusing on its own performance targets. Amendment 148 would help to ensure that the principles have teeth and would make the agency and ministers more accountable to Parliament, to those people who depend on the assistance provided and to the wider Scottish public. It could also assist in identifying unmet need and contribute to continuous improvement.

09:45  

Amendment 80 is supported by Disability Agenda Scotland, Camphill Scotland, the Carers Trust, the Health and Social Care Alliance Scotland, the Scottish Independent Advocacy Alliance and Leonard Cheshire Disability. The social security commission will not be truly independent from the act, and we seek an independent review of the act. The bill places duties on ministers to keep the charter under review, but it does not place any duties on ministers to keep the social security system or the legislation under review. We feel that review would offer an opportunity to identify areas in the legislation where changes are necessary and that the review should consider the extent to which the levels and types of support that are available under the system have met and are meeting the needs of those who require support.

I ask members to support the amendments in my name in this group.

Ruth Maguire (Cunninghame South) (SNP)

I am concerned about amendment 79. Disability benefits are not income replacement benefits; they are an acknowledgement of the additional costs that people with disabilities incur. They are not means tested or taxed. I am really concerned that amendment 79 undermines the principle that all people living with a disability incur additional costs and that is what those benefits are for.

George Adam

On the positive side, so that Mark Griffin does not feel that I am being negative about everything that he is putting forward today, I will support amendment 108. However, in relation to amendment 79, I agree with my colleague Ruth Maguire that we are in awkward territory when we start talking about those benefits. They are not income based at the moment; as Ruth Maguire said, they are there to support people in difficult times with the extra costs that their disability involves. We would be setting an unusual and difficult precedent, and I could not possibly go back to the disabled groups in my constituency and say that I had voted for that. It is a point of principle for me. However, I am with Mark Griffin on amendment 108.

Ben Macpherson

I have concerns about amendment 80, because this Parliament has a role in reviewing legislation through relevant committees such as the Public Audit and Post-legislative Scrutiny Committee—that is a function of Parliament. The amendment seeks a review of the act—if it is passed, which it will be, of course—within months of the final parts of the social security system in Scotland being delivered. That is premature, in my view.

Jeane Freeman

I am happy to support amendment 108, in the name of Mark Griffin. However, other amendments in the group are more problematic.

I urge members not to support amendment 62, in the name of Jeremy Balfour. As we discussed last week in the context of our discussion on amendment 60, in the name of Jeremy Balfour, the Scottish ministers and the social security agency are, legally, the same person. Therefore, there is no need to have a separate reporting requirement for the agency, because the reporting duty on ministers will cover everything that is done by the ministers in the guise of the agency. In fact, the agency cannot competently be the subject of separate reporting requirements, because it will not have a separate legal personality.

Although I share the commitment to reducing poverty, I cannot support amendment 79. Others have made the point that disability benefits are not income replacement benefits. They are—deliberately—not means tested or related to income or poverty levels. They are not taxed, for that reason, and they do not result in reductions to other benefits. My point is that Mr Griffin’s amendment 79 misunderstands what disability benefits are for. I supported amendment 1, in the name of Alison Johnstone, which placed in the bill the principle of reducing poverty for all people. I think that that is the right approach.

There is little about the sentiment in amendment 148, in the name of Mark Griffin, with which I disagree. Co-design is a centrepiece of the Scottish approach to social security and it is entirely right that we should think about ways to ensure that the voices of people who rely on the system continue to be heard in the long term. The problem with amendment 148 is that it would make for bad law. It is overly prescriptive in seeking to codify not just precisely what information should be collected but the means through which it should be collected. That is not helpful. As our approach to consultation and experience panels has demonstrated, there is a space in which innovation is possible and desirable. The right people to inform us about that are the many professional researchers who are working on the project, in partnership with our stakeholders and experience panels and the people of Scotland.

What the legislation should provide is what is already there: a fundamental principle that the system is built with the people of Scotland on the basis of evidence. That will carry through to commitments in the charter and the associated reporting duties, and ministers will be held accountable—robustly, I imagine—for delivery. I therefore cannot support amendment 148 and I invite the committee to reject it.

Finally, I understand the thought behind amendment 80, which Mr Griffin lodged, but I do not think that it is necessary. It intrudes into what is properly the role of the Parliament. The Scottish Government amendments that provide for the setting up of the Scottish commission on social security establish, by definition, an independent body that will be required to report on any matter on which ministers or the Parliament ask it to report.

In addition, amendment 148 would require a review three years after royal assent. By my calculation, that would be 2021. At that point the full devolution of all benefits will have taken place, but we will hardly be able to say that the system has been fully operational for any length of time. The proposal is entirely unworkable.

Should the Parliament determine that a review of the kind that Mr Griffin envisages is necessary, it can simply ask the commission to undertake a review, without adhering to the rigid schedule that is outlined in amendment 148. Should the Parliament decide, for whatever reason, that it would be more appropriate for a person or body other than the commission to conduct the review, there is nothing to stop the Parliament commissioning a review from someone else.

I also highlight that, apart from any periodic review that might be organised, the system and its underpinning legislation will be subject to robust and continuous monitoring, through the various reporting duties that the bill places on ministers, parliamentary scrutiny, including that of this committee and the Public Audit and Post-legislative Scrutiny Committee, the role of the commission, the separate procedures that relate to the charter and the scrutiny that Audit Scotland will undertake. That is a strong set of arrangements for identifying areas of the system that require change and refinement, legislative or otherwise.

I therefore question the need to take the highly unusual step of setting out in primary legislation a requirement for independent reviews of whether the legislation is fit for purpose. It seems to me that such oversight and scrutiny is principally the job of the Parliament and that amendment 148 might therefore set a very unwise precedent.

For all those reasons I ask the committee not to support amendment 148.

Jeremy Balfour

I heard and accept the minister’s comments about amendment 62, which I will not press.

I agree with members’ comments about amendment 79. We do not want to go down a road that might lead to disability and other benefits being means tested or that might put people off claiming benefits because they think that they are linked to income.

I also agree on amendments 148 and 80. Their proposals could become quite time consuming and are overly prescriptive. In particular, on amendment 80, until the legislation has been up and running for a number of years, it will be difficult to judge how successful it is in practice. That is a role for a committee of the Parliament to undertake, not somebody else, and I hope that whoever is elected in 2021 will review the legislation in due course. Therefore, I will not support amendments 148 or 80.

Amendment 62, by agreement, withdrawn.

Amendment 79 moved—[Mark Griffin].

The Convener

The question is, that amendment 79 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 3, Against 6, Abstentions 0.

Amendment 79 disagreed to.

Amendment 108 moved—[Mark Griffin]—and agreed to.

Section 6, as amended, agreed to.

After section 6

The Convener

The next group concerns the Scottish commission on social security. Amendment 15, in the name of the minister, is grouped with amendments 16, 16A, 16B, 118, 49, 53 and 54.

Jeane Freeman

I am happy to support amendments 16A and 16B, in the name of Mr Balfour, with the caveat that we will tidy up the wording at stage 3 to avoid any confusion that the reference to tribunal members refers to both Scottish tribunals and the equivalent bodies in England and Wales. However, I have no difficulty with the principle that members of the House of Lords, the First-tier Tribunal and the Upper Tribunal should not be appointed as commissioners.

The committee is probably clear about what the purpose of amendments 15, 16, 118, 49, 53 and 54 is and the effect that they will have: to bring into being the Scottish commission on social security. It will be similar to but, in a number of important ways, an improvement on the UK arrangements that allow for scrutiny of elements of the existing UK system by the Social Security Advisory Committee.

As we discussed a fortnight ago, the amendments will enable the commission to deliver all of the requirements of an independent scrutiny body set out by the disability and carers benefits expert advisory group in its report. Its primary role will be to scrutinise regulations, but the Scottish ministers and the Scottish Parliament will also be able to ask it to report on any matter relevant to social security that they want. The amendments also recognise the commission’s role in relation to our social security charter.

Amendment 118 will enable the commission to have regard to international human rights instruments in performing any of its functions. That means that an independent group of experts will constantly review the Scottish social security system and judge it against international law standards. Of course, the Scottish Government and, indeed, the Parliament should always seek to uphold international law obligations anyway. However, placing that duty on the commission will ensure that the Government, the Parliament and, for that matter, the wider Scottish public will have the benefit of advice from experts in the field about what the international standards require.

Amendments 15, 16, 118, 49, 53 and 54 give clear and unequivocal effect to the Scottish Government’s commitment to introduce a statutory independent scrutiny body. The schedule that we propose to add to the bill makes provision for the establishment of that body. Put together, the amendments deliver something genuinely new and important and I hope that the committee will support them.

I move amendment 15.

Jeremy Balfour

Because of the shortage of time, and with the minister’s comments in my ears, I simply say that I intend to move amendments 16A and 16B.

10:00  

Adam Tomkins

We support the Government’s amendments in this group. We think that the creation of a statutory commission, which the committee called for in its stage 1 report, is an extremely important step forward, and we welcome the functions that are to be given to the commission by the minister’s amendments. However, it is extremely important to pause and consider that, although the new statutory commission’s scrutiny of the draft regulations that are to be made under the bill after it is enacted is welcome and necessary, it is not a substitute for effective parliamentary scrutiny. We need both the work of the statutory commission in accordance with the amendments that we are discussing and a super-affirmative procedure in the Parliament, given the nature, sensitivity, detail and substance of what is to be determined by those regulations.

That is not just my view or the view of my party; it is the view of the Parliament’s all-party Delegated Powers and Law Reform Committee. A few weeks ago, the Social Security Committee wrote to the DPLR Committee to seek that committee’s view about the Government’s amendments relating to the creation of a Scottish commission on social security. We received a response on 6 February, and it is important to read a little bit of that response into the record today.

The DPLR Committee tells us that

“in a number of respects the Scottish Government’s recommendations do not meet”

that committee’s recommendations. It says:

“The establishment of the Commission as an independent scrutiny body is to be welcomed. However, in this Committee’s view its role in relation to the scrutiny of proposals to make draft regulations undermines the ability of the Parliament to hold the Government to account and shape the draft regulations.”

It seems to me that those are unambiguous words that this committee must take into account.

The DPLR Committee states that the approach that the Government proposes with regard to the creation of the commission is

“a unique approach to a super-affirmative procedure”

and that parliamentary consideration would be only an “adjunct” to the work of the commission.

Those are exceptionally important matters that go to the core of one of this committee’s main concerns about the bill in our stage 1 scrutiny, which was about the appropriateness of the balance between primary and secondary legislation. As I have discussed with the minister previously, that is a judgment call and there is no one right answer to getting the balance between primary and secondary legislation, but it is clearly the unambiguous view of the DPLR Committee, which is the parliamentary committee that is charged with the responsibility of monitoring precisely that matter, that the bill, even with the amendments in this group, does not get the balance right.

I will work with other Opposition parties and, I hope, with the Government to seek to put the situation right at stage 3. I unreservedly welcome the Government’s amendments in the group and will support them enthusiastically. However, although they are necessary, they are not of themselves sufficient. In addition to the statutory commission that will scrutinise from an expert point of view the draft regulations that will be made in due course by ministers, we need appropriate parliamentary scrutiny. The bill, even as amended, will not allow for that, so we will have to revisit the issue at stage 3.

I would like to be able to work with the Government to do that but, if the Government wants to stick with the current proposals and not move any further, I will work with other Opposition parties to seek to get the matter right at stage 3. In my view and the DPLR Committee’s view, we have not got it right yet, even with this group of amendments, which I hope will be supported.

The Convener

I invite the minister to wind up the debate.

Jeane Freeman

As I said, I support all the amendments in the group, so I do not want to say much more on them, but I want to respond to the points that Mr Tomkins made. I am grateful for his support, which I note is enthusiastic, for the establishment of the commission.

I also note Mr Tomkins’s points about super-affirmative procedure and the comments that were made by the Delegated Powers and Law Reform Committee. The unique approach that is being taken with the establishment of the commission does not, in and of itself, mean that it has no contribution to make with regard to a super-affirmative process. Indeed, as Mr Tomkins said, there is no right view in respect of the balance struck between primary and secondary legislation.

As I said, I note the comments that were made by the DPLR Committee and by Mr Tomkins. In fairness, I should say that I do not agree with all of them, but the Government would be foolish indeed not to pay attention to such points when they are raised. I am certainly willing to reflect on them and to have further discussions with Mr Tomkins and other committee members, if they so wish, in advance of stage 3 to see whether we can reach a view that provides additional reassurance not only to this committee but to the DPLR Committee with regard to the Parliament’s role in these matters.

Amendment 15 agreed to.

Amendment 16 moved—[Jeane Freeman].

Amendments 16A and 16B moved—[Jeremy Balfour]—and agreed to.

Amendment 16, as amended, agreed to.

Amendment 118 moved—[Jeane Freeman]—and agreed to.

Amendment 18 not moved.

The Convener

Because amendment 18 has not been moved, amendment 18A will not be called.

Amendment 148 moved—[Mark Griffin].

The Convener

The question is, that amendment 148 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 3, Against 6, Abstentions 0.

Amendment 148 disagreed to.

Amendment 80 moved—[Mark Griffin].

The Convener

The question is, that amendment 80 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 3, Against 6, Abstentions 0.

Amendment 80 disagreed to.

Section 7—Meaning of “Scottish social security system”

The Convener

The next group of amendments is on the creation of new benefits. Amendment 119, in the name of Adam Tomkins, is grouped with amendments 63, 121 to 125 and 130.

Adam Tomkins

The Scottish social security system comprises three parts: the streams of assistance that are devolved in full, which include carers assistance and disability assistance; the power to top up any reserved benefit, which is provided for in section 45 of the bill; and the power to create new benefits within devolved competence. Those are the three parts of the package of devolved social security that was agreed in the Smith commission by all the parties represented in the Parliament, and which was legislated for in the Scotland Act 2016.

The bill deals with the first and second parts of that package, but it says nothing about the third part of it. The amendments in my name in this group are designed to put that right. We all agree that the bill is a foundation piece of legislation and one of the most important that the Parliament will enact, because it puts on a Scottish statutory footing devolved Scottish social security. However, it does that with regard to only two thirds of the three-part package that was agreed unanimously around the Smith commission table.

It is unfortunate that there is no provision in the bill to deal with the power to create new benefits. That is the purpose behind my amendments. I want to ensure that the bill puts on to the Scottish statute book all three elements of devolved social security: the benefits that are devolved in full, the power to top up reserved benefits and the power to create new benefits within devolved competence.

Amendment 119 seeks to amend section 7, which defines what the Scottish social security system is. That matters because the principles in section 1 and the charter in section 2 will apply to the Scottish social security system. That definition should include all three parts of the package that I have described. Amendments 119 and 63, which are alternatives—we do not need both of them—seek to amend section 7 to ensure that any new benefits that are created under the power to create new benefits will fall within the scope of the statutory definition of the Scottish social security system and that, therefore, the principles in section 1 and the charter in section 2 will apply to the design and delivery of those benefits.

The other amendments in the group seek to add to the bill the power to create new benefits, and they do so in a manner that is fully consistent with the way in which the Scottish ministers want to design and deliver the benefits that are fully devolved. That is to say that the regulation-making powers in those amendments are the same as the regulation-making powers that the Scottish Government sought to promote through the amendments that we have just discussed and come to a decision on. The regulations would have to be laid before the Scottish commission on social security for its advice and input; in other words, the process is entirely the same.

The purpose behind my amendments is to ensure that the bill captures the whole of, and not just some of, devolved social security in Scotland, because at the moment it does not do that, which I think is a significant and—I would say—fundamental flaw in it.

I move amendment 119.

10:15  

Ben Macpherson

I have some concerns about Mr Tomkins’s amendments, which relate to an issue that he discussed very passionately with regard to a different group—an appreciation of appropriate parliamentary scrutiny. I appreciate that the Scotland Act 2016 allows Parliament to consider legislation to create new benefits, but section 28 of that act does not give the Scottish Parliament or the Scottish ministers the power to create new benefits. All transfers of responsibility are from Parliament to Parliament, and no responsibility is transferred directly to the Scottish Government, quite rightly.

My concern is that, if this group of amendments is passed, the power that we would give to the Scottish Government would allow it “by virtue of regulations” to create new benefits—that is stated in the amendments. I do not think that giving that power by virtue of regulations provides for adequate or appropriate Parliamentary scrutiny of such significant steps and developments. The bill is primary legislation through which we can take forward the benefits that are being devolved. The same process of primary legislation should be undertaken for creating new benefits, which would be a significant development and the result of substantial policy proposal. This group of amendments would allow those significant steps to be taken through regulations, which would not allow for the appropriate scrutiny of the creation of such new benefits. Therefore, I will not be able to support the amendments.

Mark Griffin

We have said from the beginning that we support the principle that the power to create new benefits should be in the bill, but we share Ben Macpherson’s concerns. We would expect that any new benefit proposed by the Government or an individual member through a private member’s bill should come to Parliament through primary legislation, to give this committee or any other committee the ability to scrutinise it fully, take evidence at stage 1 and, potentially, amend it at stage 2. Parliament should be given the full role of scrutinising and strengthening any legislation on any new benefit.

We will not be supporting the amendments in their current form, purely because they give ministers the power to introduce a new benefit by regulation. We would prefer to see any new benefit introduced by the enactment of primary legislation.

Alison Johnstone (Lothian) (Green)

I commend Adam Tomkins for his passionate commitment to ensuring that the Parliament uses its new powers to the max, but, if we introduce new benefits in the way that he has suggested, we would not be able to scrutinise the proposals to the maximum. The creation of new benefits is so important that each and every opportunity for us to consult and scrutinise is essential, to make sure that the benefits deliver as we would wish. I will not be supporting the amendments.

Pauline McNeill (Glasgow) (Lab)

I want to put it on record that I am grateful to Mr Tomkins for raising this issue a number of times and reminding the committee that part of the provision in the Scotland Act 2016 makes it clear that ministers have the power to create new benefits.

I was torn by his proposal, if I am honest. I would prefer there to be clear reference in the bill to the fact that we have that power, but, since I agree 100 per cent with Mr Tomkins on the question that he raised earlier—on the scrutiny of draft regulations by parliamentary committees—I am more comfortable at the moment with the idea that the power should be exercised through primary legislation.

I agree that the bill should specifically say that what we have discussed in relation to the charter also applies to any new benefits, as a belt-and-braces approach. Is there any scope for consensus around that? I am sympathetic to the idea behind Mr Tomkins’s amendments; my only objection is the procedure. If I had the choice, given what we have just discussed about primary and secondary legislation, I would be more comfortable if there had to be full consultation before ministers introduced a new benefit.

That would mean that this committee would have the right to have its own consultation with all the organisations that come before members, and to go through primary legislation line by line. That would be my preference, albeit that I am with Mr Tomkins on what he is trying to do, which I think is to ensure that we are fully aware that Parliament has those powers, and that the charter and the principles that underpin it would apply to new benefits.

George Adam

I will be brief. As Ben Macpherson said, the transfer is from Parliament to Parliament, and the Scottish Government cannot introduce new benefits on its own.

I am practical in everything that I try to do. In practice, we have only two choices. Either we have a situation in which the Scottish Government introduces primary legislation every time that it wants to create a new benefit, which would give everyone an opportunity for scrutiny, or we grant the Scottish Government the power to create new benefits via regulations. I do not think that any of us would be too keen on the latter, as it would bypass the whole structure of the Scottish Parliament, as everyone has said. I prefer the Government’s option, which is for the Scottish Government to use primary legislation every time that it creates a new benefit. That is a practical way to move forward.

Jeane Freeman

I make it clear that section 28 of the Scotland Act 2016 provides an exception to the reservation of social security matters, as Mr Tomkins and other members know. That is not a power that any body other than this Parliament can exercise, or at least, the power cannot be exercised without the Parliament’s consent. As colleagues have said, members of the Scottish Parliament have a choice: we can either choose to delegate the power to Scottish ministers on a case-by-case basis to provide for new benefits when the need is identified, and create them via primary legislation—so that Parliament can take evidence, debate and set out the purpose of a new benefit and its essential features in terms of who should be paid and what they should be paid—or we can delegate the powers wholesale, which I believe is what Mr Tomkins is proposing via his amendments, which would insert in the bill a general provision to enable ministers to create new benefits by regulations.

Given our discussion about the need, in the view of committee members and the DPLR committee, for further improvements to the super-affirmative procedure, which the Government is willing to consider, it would be contradictory for us to pass an amendment that hands a blanket provision to ministers. Mr Tomkins’s amendments allow for regulations that would be created under the new power to be scrutinised by the commission on social security, but they do not allow for the full scrutiny that would be applied to primary legislation. As members have said, that is entirely the wrong way to go. I do not believe that it is necessary to put in the bill that Parliament has the power to create new benefits, as that power comes with restrictions and constraints, as it does in the Scotland Act 2016. Nonetheless, later in this committee’s proceedings, we will debate and discuss, as part of primary legislation, the creation of a new housing assistance benefit. That is entirely the correct way to do this, as it maintains an appropriate balance between creating benefits in primary legislation and delivering them via regulations.

Adam Tomkins

I thank all the members who have contributed to this debate. I will give an example of the kind of thing that we are talking about. Let us suppose that we identify in Scotland a particular problem with people who are sleeping rough after leaving terms of imprisonment, and that we want to create a new benefit that is directed at prisoners so that they do not have to sleep on the streets and would have temporary accommodation provided when they are released from prison. That is a new benefit that we could create; it falls completely within devolved competence, as justice and housing are within devolved competence.

Right now, if ministers identified that that was a problem in Scotland, they could use their budgets—there is about £75 million in the communities portfolio budget for this year—to design and deliver an ad hoc scheme of assistance, such as a housing first scheme, to prevent prisoners who are being released from jail from sleeping rough, and there would be absolutely no parliamentary scrutiny of that. It could all be done by ministers using their spending powers. The only scrutiny that members would have would be our scrutiny of the annual budget process, when we can decide whether we want to give £75 million to this portfolio or whether we think that it would be better assigned to some other portfolio in some other way.

Far from designing a scheme that reduces parliamentary scrutiny, I have tried to design one that increases parliamentary scrutiny. At the moment, these things could happen without any parliamentary scrutiny at all.

Pauline McNeill

That is an interesting example. Would it be possible to put into the bill that the creation of new benefits should be done by primary legislation rather than regulation?

Adam Tomkins

That is an interesting question. Given the range of strong exceptions that have been put to the scheme that I have proposed, the sensible thing to do at this point is for me to withdraw amendment 119 and for us to pause and, in advance of stage 3, think about whether there is a more satisfactory way of ensuring that the bill reflects the reality of the power in section 28 of the Scotland Act 2016, which is the power to create new benefits, as well as the power to top up and create new benefits.

I do not propose to move any of my other amendments in this group, apart from one. I will move amendment 63. It alters—it increases or enlarges—the definition of the Scottish social security system in section 7 of the bill, to ensure that any future enactment, or primary legislation, that contains provisions exercising the power provided for in section 28 of the Scotland Act 2016 to create new benefits, falls within the definition of the Scottish social security system, and that any future use by this or any other Government of that power through primary legislation will therefore be captured by the principles and the charter. Amendment 63 does not seek to delegate any parliamentary or legislative power to ministers; it is simply a tidying-up exercise that will ensure that the definition of “Scottish social security system” complies with what the Smith commission intended, and with what the Scotland Act 2016 enacts. I will move amendment 63 when we come to it, convener, but I will not move the others in this group.

Amendment 119, by agreement, withdrawn.

Amendment 63 moved—[Adam Tomkins].

The Convener

The question is, that amendment 63 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Balfour, Jeremy (Lothian) (Con)
Griffin, Mark (Central Scotland) (Lab)
Tomkins, Adam (Glasgow) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Johnstone, Alison (Lothian) (Green)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)

Abstentions

McNeill, Pauline (Glasgow) (Lab)

The Convener

The result of the division is: For 3, Against, 5, Abstentions 1.

Amendment 63 disagreed to.

The Convener

I am conscious of time, so, as we are about to move to a new group, we will take a comfort break. Members should be back at 10:36 at the latest.

10:29 Meeting suspended.  

10:36 On resuming—  

The Convener

The next group is on the definition of “Scottish social security system”. Amendment 120, in the name of Mark Griffin, is the only amendment in the group.

Mark Griffin

I will be brief. The definition of “Scottish social security system” in the bill is currently too narrow and fails to take account of other schemes to support low-income households that are already devolved. The amendments to automate benefits and to address the take-up of assistance and income maximisation that we agreed to last week largely rely on the existing definition. Widening the definition would give additional weight to the ambition in the bill. Amendment 120 would ensure that the same principles and safeguards that are afforded to devolved centralised social security are extended to devolved locally administered schemes. I ask members to support amendment 120.

I move amendment 120.

Ruth Maguire

I have concerns about amendment 120. Principally, it would bring in things that would not be delivered by the social security agency. Free school meals, clothing grants, discretionary housing payments and the council tax reduction are all delivered by local authorities. What consultation with local authorities has the member carried out to understand the implications of applying the principles and the charter, for example to the delivery of free school meals and clothing grants? What redress would people have if they felt that the local authority had not delivered those grants properly? That is another key question.

Jeane Freeman

Amendment 120, in the name of Mark Griffin, extends the definition of “Scottish social security system” to cover matters over which Scottish ministers have no direct control, such as the delivery of free school meals and clothing grants, which are the responsibility of local authorities. The amendment also makes other unrelated matters subject to the charter, but fails to follow that through and to consider the implications for charter redress.

I do not support the amendment, which would put in place a perverse system of accountabilities, in which people would be accountable for the delivery of certain things that they have no hand in delivering, yet the people who deliver those things would not be accountable for that. The amendment would create additional confusion; in effect, it would provide for apparent accountability, but, in practice, that would be false. Logically, if the amendment were supported and ministers were to be held accountable for those services, it would be wise for ministers to seriously consider assuming responsibility for the direct delivery of some of them. The consequences of that for how our local authorities might feel, as well as for the local nature of such services, are such that I am sure that Mr Griffin would not wish us to pursue that approach.

There are a number of questions with regard to how an individual who believed that they had not received the correct support or assistance from a local authority, or not received it in the correct manner, would achieve meaningful redress. Therefore, I urge committee members not to support the amendment.

Mark Griffin

I take on board the points that have been made and I will not press amendment 120. We will seek to achieve the ambition in the amendment, which is to link some of the positive changes that we have already made with regard to the take-up of benefits, income maximisation and automation of assistance, in ways that are more likely to gather the support of committee members. We will also address the point about consultation that Ruth Maguire raised.

Amendment 120, by agreement, withdrawn.

Section 7 agreed to.

After section 7

The Convener

The next group is on the Scottish social security agency. Amendment 149, in the name of Pauline McNeill, is grouped with amendment 151.

Pauline McNeill

These are probing amendments; I will talk about why I lodged them.

The primary concept behind amendment 149 is to ensure that in carrying out their functions, ministers have regard to the social security principles. Some of the organisations that gave evidence to the committee are concerned that the current UK system does not treat people with dignity and respect. Those things are enshrined in the charter and will be primary themes of the new social security agency that will be created under the Scotland Act 2016 and the bill.

Amendments 149 and 151 are designed to ensure that the principles in the bill will be applied and that ministers will be held to account if they are not upheld. Ministers would have a clear duty that they must have regard to all the principles and the charter when framing any regulations or guidance overseeing the operation of the new Scottish social security agency. That would give greater accountability to ensure a rights-based culture. I suppose that it is a belt-and-braces approach.

I am aware that the minister will probably draw attention to a letter that she issued to me—I do not know how widely it was circulated—in which she suggested that the wording is perhaps not designed to do that. I am interested to hear what the minister will say. She might take the view that what I propose is covered by other amendments or by provisions that are already in the bill.

I move amendment 149.

Jeane Freeman

As Ms McNeill anticipated, the Scottish Government opposes the amendments, the rationale being that they are unnecessary.

As the committee heard last week in relation to amendment 60, in the name of Jeremy Balfour, duties that the bill places on ministers are automatically and legally placed on the agency. Nothing further needs to be said in the bill; its silence on the agency is deliberate and correct.

Agreeing to the amendments would have unintended consequences, because they make provision for the agency to carry out all functions related to social security that ministers may carry out under the legislation. They would give the agency the power to carry out various functions that would not be appropriate for an agency to undertake, such as the ability to make subordinate legislation, which is one of ministers’ functions under the bill.

10:45  

If the concern behind the amendments is that ministers might create an unaccountable body to deliver social security, the committee having agreed to Mr Adam’s amendment 77 last week that

“the delivery of social security is a public service”

is assurance enough in that regard.

We oppose the amendments. They are unnecessary and would have unwelcome consequences. I urge Ms McNeill not to press them.

Pauline McNeill

In view of the minister’s comments, I am persuaded that the amendments are not required. All that I want to achieve is supported in other aspects of the bill.

Amendment 149, by agreement, withdrawn.

Before section 8

The Convener

The next group is on residence conditions. Amendment 64, in the name of Jeremy Balfour, is grouped with amendments 65 and 66, 70 to 73, 153A and 76.

Jeremy Balfour

What surprised me most about the bill when it was introduced last summer was that it had no definition of residency. It gave no indication about what an individual would have to do to get a benefit, where they would have to live and how long they would have to have lived there for, or anything like that. The bill is completely blank in that regard. Others will have greater knowledge than I, but it seems that not containing such a definition in a bill of this type is unique. I have spoken to many organisations and charities and they, too, were bemused by the lack of such a definition.

In amendment 64, I seek to add fairly standard residence conditions that can be found in other legislation. The conditions absolutely clarify at the basic level what has to be done and how long a person has to have lived in Scotland in order to receive a benefit.

I understand that the Government intends to have a residence condition for each of the benefits. That contradicts what it is trying to do in this legislation—that is, to make how to claim benefits understandable and open.

If we are to have slightly different residence conditions for each of the benefits—and any benefits that might come in future years—how will people know how to apply? Would that put people off applying? If there are different rules and a person is not successful in getting one benefit, will they think that, because they failed to meet the residence condition for that benefit, they should not apply for another one?

I accept the Government’s perspective that, for some benefits, amendment 64 would need to be tweaked. At this stage, my intention would be to withdraw my amendments in the hope that I can work with the Government to come up with a general residence condition, with the proviso that any condition that a person must meet in order to get a benefit can be altered only by regulations laid by ministers.

I genuinely consider that we need residence conditions at the heart of the bill, so that people know how to apply and what benefits they can apply for. However, I accept that amendment 64 would not quite achieve what I want it to achieve, and I hope that the Government, or other Opposition parties, will work with me in that regard.

At this stage, I am interested in hearing the Government’s view on my position.

I move amendment 64.

George Adam

Jeremy Balfour has brought up the issue of residency at every opportunity. He is the only member to have brought it up. I do not deny that it is an important issue, but rather than dealing with it in primary legislation, it might give us more flexibility if we had the ability to deal with it in regulations. That way, we could make changes when appropriate. I think that the way in which amendment 64 is framed will make things more complicated, although I accept that Mr Balfour has said that he wants to work with others to make his proposal work. If we go down the route that he suggests, we must get it right. I reiterate that residency has not been a major issue in the debate.

Pauline McNeill

I think that Jeremy Balfour has brought an important issue to the committee’s attention. I agree that the wording of any residency provision could be critical to the operation of the bill as enacted.

I want to be clear about what it is that Mr Balfour is trying to capture. The term “residency” has a specific legal meaning for most pieces of legislation; I think that three years is the usual period. There might be some confusion if Mr Balfour continues to use the term, depending on what it is that he is trying to achieve. It is perfectly legitimate for people to move their permanent address from England to Scotland. Someone who does so might be eligible for the 11 new benefits, and the rules on that need to be clear.

Is that the situation that you are trying to address, Mr Balfour? What happens at the moment under the UK system? If someone moves from Birmingham to Glasgow, what do they have to show to the UK agency to prove that they have moved? I understand that the situation will be different once the bill is passed, because the benefits will be different, but why would it not be a case of following the existing process?

Alison Johnstone

I would be grateful if Mr Balfour could elaborate on the timescale that he presents—

“not less than 104 weeks out of ... 156 weeks”.

Is that based on some form of consultation or on Westminster legislation? I would be interested to know where those figures came from.

Jeane Freeman

I am grateful to Mr Balfour for indicating that he does not intend to press amendment 64 or to move his other amendments in the group. Amendment 64 would create an absolute requirement that a person must have been present in Scotland for a period of two out of the past three years to qualify for all the forms of assistance that are outlined in chapter 2 of the bill. That blanket requirement is incorrectly applied to Scotland rather than to the wider UK.

Our legislative approach to residency reflects our general commitment to minimising complexity. The intention is to set out the residency conditions for each form of assistance in regulations. There are good reasons for that approach: it reduces the scope for confusion and will allow the full eligibility criteria for each benefit to be set out in one place. It is also sensible, because residency and presence criteria might differ for different types of assistance. For example, disability benefits might include temporary absence and presence conditions that are not relevant in the case of other devolved benefits, such as the best start grant. Therefore, a single set of criteria might be unworkable.

Although I am always content to discuss with members how an issue that they are attempting to address might be accommodated in primary legislation, in this case I think that finding a general clause that is deliverable in regulations that, of necessity, will vary from benefit to benefit will be a difficult ask. I am perfectly happy to look into seeing whether it can be done but I think that it will be a very difficult ask indeed, not least because, benefit by benefit, we also have to take account of residency requirements in other matters, not least in relation to European Union nationals.

I am grateful that Mr Balfour is not pressing his amendments. I am happy to continue discussion with him on whether what he wishes is something that the Government could support. However, I feel obliged to say that I think that finding a form of words for a general condition in primary legislation will be difficult. In addition, depending on how such a provision was worded, it is possible that it could not be amended by regulation—as is currently the case with amendment 65—so we would be boxing ourselves into a very tight corner indeed. However, I am happy to look into that.

Jeremy Balfour

I am conscious of the time so I will be brief. To answer Alison Johnstone’s question, the timescales are taken from residency clauses in other bits of legislation. I suppose that, in the most extreme case, if we do not have a definition of residency, anyone could apply for Scottish benefits. We have to have some understanding that the benefits are for people who live in Scotland and reside in Scotland. I am trying to get at least the basic point clear that if I live in Cornwall, for example, I cannot suddenly start applying for Scottish benefits.

That is my concern about the bill as it stands. I accept that there will be regulations but I still think that it is important at least to attempt to have a definition of what it means to be able to get a Scottish benefit in terms of residency. I will try to work with the minister and others on that, but at this stage, I withdraw amendment 64 and I intend not to move amendments 65, 66, 70 to 73, 153A and 76.

Amendment 64, by agreement, withdrawn.

Section 8—Duty to give assistance

The Convener

Amendments 121 and 122, in the name of Adam Tomkins, have already been debated with amendment 119. I ask Mr Tomkins to move or not move the amendments.

Amendments 121 and 122 not moved.

Section 8 agreed to.

Section 9—Meaning of “determination of entitlement”

The Convener

The next group is on determination by the Supreme Court. Amendment 19, in the name of the minister, is the only amendment in the group.

Jeane Freeman

I will be brief. Amendment 19 is a technical adjustment to make clear on the face of the bill that it is possible for an appeal to end with a decision of the UK Supreme Court.

I move amendment 19.

Amendment 19 agreed to.

Section 9, as amended, agreed to.

Section 10 agreed to.

Section 11—Carer’s assistance

The Convener

The next group is on more than one cared-for person. Amendment 173, in the name of Alison Johnstone, is grouped with amendments 174 to 181 and 183.

Alison Johnstone

Since lodging the amendments, I have discovered that in the lawyers’ world, as Ms Freeman pointed out earlier, “an individual” can be more than one person. Prior to lodging the amendments, I was of the view—as I am sure that many colleagues are—that an individual was indeed only one person. If only I could be more than one person when it comes to voting. [Laughter.] Alas, it seems that that is not the case. Having now acquainted myself with section 22 of the Interpretation and Legislative Reform (Scotland) Act 2010, I will not press amendment 173 and I will not move amendments 174, 175, 177 to 180 and 183. I would like further discussion about amendments 176 and 181.

11:00  

During stage 1, many groups representing carers, including Carers Scotland, Carers Trust Scotland and the National Carers Organisation, gave evidence on carers who provide care for more than one person. The issue was also raised by the Health and Social Care Alliance Scotland. The current carers allowance can be claimed only in respect of one person, which means that someone who cares for more than one person is not recognised for the additional care that they provide.

People with multiple caring roles are significantly less likely to be able to take up paid work and they incur extra costs in looking after more than one person. Furthermore, under the 35-hour minimum care requirement, if you provide 20 hours of care for one person and 15 hours for another, or another arrangement that might add up to even more than the 35-hour requirement, that is disregarded if it is not care for one person. People who need support will miss out on it because the hours requirement recognises only one cared-for person.

Rather than being a deliberate attempt to not recognise additional caring responsibility, those are perhaps natural outcomes of the fact that carers allowance is officially an income replacement benefit. Nonetheless, by introducing carers assistance we are going back to the drawing board and we can build in recognition of the fact that people who care for more than one person require additional support.

Research from the Scottish Parliament information centre suggests that, in 2018-19, around 15 per cent of carers allowance recipients in Scotland will be caring for more than one person. That represents around 12,000 people who provide extra care but who do not receive any recognition for it.

I appreciate that the Government has already recognised the issue, having pledged to pay a supplement to carers who are caring for more than one disabled child. I am sure that we all welcome that. However, we need to go further. Amendments 176 and 181 take us in that direction. Amendment 176 would ensure that any regulations setting an hours requirement would need to take into account hours spent caring for a second person or more people. Amendment 181 is intended to make it clear that higher or additional payments can be made to people with additional caring responsibilities.

I appreciate that no rules have yet been decided on eligibility or value for carers assistance. The details of how carers assistance will work will be laid out in regulation, as is right. I do not want to pre-empt any consultation process. However, it is such an important issue and has been raised so many times by the relevant groups that we should make it absolutely clear now that the regulations can be drafted to reflect a situation in which a carer provides care for more than one person and to ensure that when carers assistance comes to be set up, the issue that has been raised by me and many carers groups and individuals is given due consideration.

I know that the minister shares the broad intention behind amendments 176 and 181. I am willing to listen to any concerns that she might have around the wording and any suggestion that she may make on working together before stage 3 to ensure that the issue is addressed.

I move amendment 173.

Ruth Maguire

My understanding is that the bill allows for all the flexibilities that Alison Johnstone is looking for in relation to caring for more than one person. I hope that Alison Johnstone or the minister will be able to clarify that. Regulations on carers assistance will come before the committee; when they do, it will be important that we consider the whole package that will be offered to carers as well as gathering more evidence. We have had information from carers organisations, but it would be good to take evidence in the round at that point.

Jeane Freeman

I am grateful to Ms Johnstone for not pressing amendment 173 and not moving her other amendments in the group. We have had some interesting insights into the legal mind and world this morning.

I turn to amendment 176, which is a substantive amendment. As Ms Johnstone said, it would put a requirement on the Government to base any calculation of eligible hours for carers assistance on the total number of hours that are spent caring for multiple people.

I fully appreciate the point that Ms Johnstone makes, and the fact that many of Scotland’s carers are splitting their hours of care between more than one person and might be missing out on support despite having significant caring responsibilities. I am also sympathetic to the principle that we should recognise a wider range of caring situations and ensure that we are providing support to those who need it. I want to ensure that we fully support carers, as I know Ms Johnstone does. She has always been an effective champion for carers; indeed, she persuaded the Government to introduce a young carers allowance.

If assurance is being sought that the bill, as drafted, provides the powers for changes to be made in the number of hours of care required, for carers assistance to be varied based on the number of people who are being cared for, or for hours to be aggregated, I am happy to give Ms Johnstone and the committee that assurance. However, there are many potential improvements to be made to carers support, and I believe that we should make them together, through the development of and consultation on carers assistance regulations, which will be brought forward following the passage of the bill.

We have made clear our commitment to co-design those regulations with the relevant organisations and partners, and to allow for any proposed changes that are to be consulted on with the public to be considered by this committee. Importantly, we would also consult the carer benefit advisory group and the independent disability and carers benefits expert advisory group, as well as, of course, the future Scottish commission. I believe that that approach will ensure that changes to carers assistance are made in a robust and coherent way and that they take into account what the priorities should be.

I ask Ms Johnstone not to move amendment 176. I invite her instead to take part in the discussions with me as we develop carers assistance regulations. I have valued her opinion in the past and would very much welcome her advice again as we take forward this work.

The Convener

I invite Ms Johnstone to wind up and to press or withdraw amendment 173.

Alison Johnstone

I appreciate the minister’s comments. In response to Ms Maguire, I agree that the bill allows such actions, but I am seeking a requirement on the Parliament and the Government.

I will reflect further on what the minister has said. I reserve the right to bring back an amendment at stage 3, but I seek leave to withdraw amendment 173 and I will not move my other amendments in the group.

Amendment 173, by agreement, withdrawn.

Section 11 agreed to.

Schedule 1

Amendments 174 to 178 not moved.

Amendment 65 not moved.

Amendments 179 to 181 not moved.

The Convener

We move to a new group, on the form of assistance. Amendment 20, in the name of the minister, is grouped with amendments 20, 20A, 20B, 20C, 21, 22, 22A, 22B, 22C, 23, 24, 24A, 24B, 24C, 25, 26, 26A, 26B, 26C, 27, 28, 28A, 28B, 28C, 29, 29A, 29B, 29C, 30, 31, 31A, 31B, 31C and 32.

Jeane Freeman

Our policy intention, which has been clear from the outset, is to ensure that an individual has the right to choose the form in which they receive assistance. We have never suggested that payment in forms other than money would be imposed. Provision for assistance in kind is already included in the bill to allow the Scottish ministers flexibility to explore options for other forms of assistance that might be offered as an alternative to money, where that is appropriate. However, in response to concerns raised by a number of stakeholders at stage 1, I have lodged amendments 20 to 32 to make the policy intent clear.

Amendments 20 to 32 set out that an individual must agree to receive payment of assistance in a form other than money. In addition, they make it clear that an individual has the right to withdraw agreement if they are receiving assistance in kind and revert to receiving money. The amendments also provide that ministers cannot make deductions from someone’s assistance in order to recover an overpayment unless the individual either agrees to that or has refused to agree to a repayment plan unreasonably. That, too, gives legal expression to a policy commitment that the Government has made from the beginning, which is that we should always, in the first instance, try to agree a mutually acceptable repayment plan with an individual when there has been an overpayment that requires to be recovered.

I do not understand the point of Mr Griffin’s amendments. They do not appear to change the legal effect of my amendments and do not represent good law making, so I cannot support them. In every case, his A amendments state that regulations must provide for assistance to be given in the form of money unless they do not. I do not see the point of that proposition. Obviously, if the regulations do not provide for assistance to be given in a form other than money, the assistance must be given in the form of money.

Mark Griffin’s B amendments unnecessarily complicate the text. My amendments state that assistance can be given in a non-monetary form only if the individual has agreed to that. Mr Griffin’s amendments add a further statement to say that, before agreeing to receive non-monetary assistance, the individual must first have been offered assistance in monetary form. I am not at all sure that, technically, Mr Griffin’s B amendments address the right points in my amendments. More importantly, I do not understand why the offer of one form of assistance should be made before the offer of another. If we are asking someone to choose between money and other forms of assistance, we should present the person with both options at the same time so that they can choose between them. If the concern is that people will somehow be led into taking assistance in a non-monetary form without understanding that they have a choice, that indicates that there is a lack of understanding of the basic principle in Scots law that agreement requires an offer and acceptance.

I do not believe that Mr Griffin’s amendments add anything in legal terms to my amendments or make them more deliverable, and I would urge the committee not to accept them.

I move amendment 20.

Mark Griffin

I will support the amendments in the name of the minister; my amendments are simply probing amendments that I will not move. They were lodged on the back of concerns among organisations such as the Child Poverty Action Group, RNIB Scotland, Citizens Advice Scotland and Inclusion Scotland that, as the minister said, people might be led to a particular course of action and agree to accept a non-monetary form of assistance.

The wording of the amendments suggests that, if an applicant were to be offered assistance in the form of money without any alternative, it would have to be made clear that they would have the right to accept that or not before there was any discussion about alternative payments. However, I accept the minister’s reason for not accepting the amendments. We will discuss with her the best way of reflecting the ambition of the organisations that have relayed concerns to me.

The Convener

For procedural reasons, Mr Griffin, I must ask you to move amendment 20A.

Amendment 20A moved—[Mark Griffin].

11:15  

Jeane Freeman

I thank Mr Griffin for indicating that he will withdraw amendment 20A. I think that the amendments in my name provide a robust position on which to move forward.

Amendment 20A, by agreement, withdrawn.

Amendments 20B and 20C not moved.

Amendment 20 agreed to.

The Convener

We now move to what might well be today’s final group of amendments, which is on terminal illness. Amendment 182, in the name of Mark Griffin, is grouped with amendments 67 to 69, 189, 191 and 192.

Mark Griffin

We will support amendments 67 and 68, in the name of Jeremy Balfour, both of which are backed by MND Scotland and Marie Curie. However, we will not support amendment 69.

Because the definition of “terminally ill” that is used in the current system covers only the last six months of life, far too many people who are diagnosed with a terminal illness do not get the support that they need quickly enough or have to go through a face-to-face assessment. According to the outside evidence that I have received, clinicians simply do not feel confident enough or have the appropriate information to predict a disease trajectory for a range of conditions—particularly motor neurone disease—and, therefore, to predict whether a person is in the last six months of their life, allowing them to access the fast-tracked benefits. At present, only those with terminal cancer diagnoses receive benefits in that way. We feel that expanding the definition as proposed to ensure that the last two years of life are covered will allow more conditions such as MND, heart failure and chronic obstructive pulmonary disease to qualify.

Amendments 182, 189, 191 and 192, which complement the amendments in the name of Jeremy Balfour that we are supporting, seek to put in place the same special rules that exist in the current system for those qualifying for social security, including a fast-track process, a less intrusive assessment process, a higher rate and more flexible payments. At present, nothing in the bill allows for such a system, which is what these amendments seek to put in place, with the details to be set out in regulations.

That said, I appreciate the course of action that the minister is taking and acknowledge the lack of formal consultation that has been carried out on the issue. Although the issue was flagged up in the committee’s stage 1 report as something that we felt had to be addressed, I would be happy to work with the Government when the consultation stage is concluded, as would other organisations such as MND Scotland and Marie Curie, which have been lobbying hard—and rightly so—to change the period specified in the definition of “terminally ill” from the current six months and to put something clearer in place to allow people with terminal diagnoses to benefit from the changes that we want to be made.

We want to avoid the situation that we currently see, whereby, on occasions, people die before they receive the benefits to which they are entitled. Given the terms of the minister’s letter, I will not press amendment 182 and will not move the other amendments in my name.

I move amendment 182.

Jeremy Balfour

The bill is intended to protect the most vulnerable people in our society. There can be no one more vulnerable than someone who goes to hospital and is told that they have a terminal illness. All of us will have had friends or family who have gone through such an experience. It is a devastating experience and one that I am sure none of us hopes to go through ourselves.

I seek not to change any of the regulations or rules regarding what happens at the moment. All that I seek to do is extend the period that is specified in the definition of “terminally ill” from six months to two years. As I said, slightly sarcastically, during the evidence session, we are all terminally ill. At some point, we will have to make a judgment call as to where the number of years that we have left will go. I also welcome the letter that we received from the minister this morning, with regard to consulting with medical professionals and individuals. However, I will still move amendment 67, because I believe that we should indicate, at this stage, that having in the definition a period of six months to live is not appropriate for where we are today. I do not believe that it is, and I hope that the committee does not believe so either. Of course, we may come back and say that 24 months is not the right figure either.

Once we have taken evidence and had our consultation and discussion, I will be happy to work with all MSPs to find an appropriate figure. Clearly, things have moved on and do change with regard to illness and the way in which doctors can do their work and make predictions. At this stage, to say that we will move to a figure of two years would indicate where we want to go and would be helpful in giving greater security to people who have terminal illness hanging over them.

I appreciate that the system will be different in the future, but it is important to point out that there have been a number of cases in which people applied but did not get the money before they died. That seems to miss the whole point of having benefits, which is to help people who have illnesses or disabilities.

I turn briefly to amendment 69, in my name, which, perhaps unhelpfully, has been picked up by some MSPs who are not members of the committee and has not been read as a whole. I will not move the amendment today, but, at some point—in regulations or if the bill is passed—we should look again at the situation that it addresses. I say that because, thankfully, some people who receive a terminal illness diagnosis survive way beyond three years due to medicine, science or other reasons. As I have told the committee, when I sat as a tribunal member, someone came to us who had been on a high-rate mobility benefit for nearly 25 years, having gone through a terminal illness and survived it. He was living a very normal life thanks to the medication that he was on. That was not the individual’s fault—nothing had changed in his circumstances—but the department had missed it.

The reasoning behind amendment 69 is in no way that we should intervene when someone is close to death but that we must make sure that benefits go in the right way to the right people. However, I accept that the wording is not exactly as it should be, so I will not move amendment 69.

It is important to note that we have received lobbying letters from various groups saying that six months is simply too short a period. I accept that, even in the third sector, there are different views on that time period. I will be happy to see other evidence in due course but, at the moment, I think that setting a period of 24 months is right. If we pass amendment 67, it will send a strong message to people that we understand what they are going through and that we want the benefits to help them while they are alive, not when they are gone.

The Convener

I am conscious of the time, but I will allow other members to contribute to the debate.

George Adam

I would like to know where clinicians stand on the issue. We have not heard that in the evidence that we have taken.

I know that Mr Balfour is not going to move amendment 69, but I still have concerns about that arbitrary way of looking at terminal illness. If, by the grace of God or by luck, someone has gone into remission after two years, I really do not think that we can start making judgments at that stage. People with long-term conditions can go into remission but can still end up with a terminal condition. I appreciate that Mr Balfour has said that he will not move the amendment, but I have serious concerns about that issue.

We need to get more information on the other amendments to ensure that we get everything right. If we do not, we could leave things open.

Ben Macpherson

I will be as succinct as possible.

I commend both members for lodging these amendments. The issues that are involved are extremely important—I have corresponded privately on them with Marie Curie and the Government.

I welcome Mark Griffin’s decision not to press or move his amendments. The issue of fast tracking is fundamentally important, and I warmly welcome the fact that he wants to work with the Government to get the details right so that we can deliver fast tracking for those who need it. I urge the Government to engage as constructively as possible with Mark Griffin to get that process right.

On the general point around the definition of terminal illness, I appreciate Mr Balfour’s decision not to move a number of amendments. I also urge him not to move his remaining amendments. The minister has written to clinicians, and we should gather that evidence to ensure that we get this absolutely right. I would hate Mr Balfour’s proposal to fall at this stage, as that would mean that we would not have the chance to approach the issue at stage 3. We should all work together and get it right at stage 3.

Pauline McNeill

I will try to shorten what I was going to say. It is unfortunate that this group of amendments is going to be split by the need to finish up.

I am supportive of Jeremy Balfour’s suggestion that we should indicate the general direction that we want to head in. This is a matter for the committee, but I would like to think that, once we have had the feedback from the clinicians, after the consultation that the Government is conducting, the committee could come to a consensus on the issue. However, having spoken to the organisations that have been mentioned, I am of the view that a six-month period is far too short.

I am pleased that Jeremy Balfour is not going to move amendment 69. I do not know what the answer is to the question that he raises. There will be cases in which people live way beyond expectations—we might just have to accept that. Nevertheless, I am absolutely against the idea that the agency should review the situation after three years. One way of solving the problem might be to include the notion of the agency having some discretion in the matter. However, at the moment, it is vital that we do not head in the direction of making that period of time an absolute obligation on the agency.

11:30  

Alison Johnstone

I congratulate both Mark Griffin and Jeremy Balfour on lodging their amendments, because this is a hugely important issue. Given what I have heard today and the action that the minister is taking, I make it clear that I whole-heartedly agree that the period of six months is entirely inappropriate. We absolutely have to look at that. However, when Mr Balfour referred to the proposed period of two years, he said that it is a judgment call, and I wonder whether that is the best approach in this instance.

I can see clearly—I am sure that Mr Balfour does, too—the benefits of consulting a range of learned, experienced professionals on the matter to ensure that we get the right outcome. Taking time and discussing the matter with the Government may mean that he can bring back a better proposal—perhaps one in which there is no requirement around the issue of time. It may be that his amendments constrain and limit the options, which could be better explored with the affected groups.

I am finding the issue rather difficult. I would like the minister, when she speaks, to give absolute clarity and an assurance that any amendments that the Government lodges at stage 3 will be, at the very minimum, as strong as what Mr Balfour is suggesting. I am speaking to amendments 67 and 68; I whole-heartedly agree that amendment 69 should not be moved. Can the minister confirm that any amendments that the Government lodges at stage 3 will not weaken what Mr Balfour is suggesting but build on it?

Perhaps Mr Balfour could suggest whether he feels that it would be worth while to take advantage of the expertise that is on offer to bring back a strengthened proposal at stage 3, having worked with the Government.

Jeane Freeman

I welcome Mr Griffin’s intention to withdraw amendment 182 and not move his other amendments in the group. I am grateful to him for that. I am happy to work with him to ensure that we have a clear proposition on fast tracking that, as a minimum, replicates the current special rules for how we fast track individuals who have a diagnosis of terminal illness.

I ask Mr Balfour not to move any of his amendments in the group. I am grateful to him for expressing his intention not to move amendment 69, which I think is the right course of action. As Ms McNeill said, it is a difficult question to work out exactly what, in all fairness, could be done when an individual has a diagnosis of terminal illness but, fortunately and happily, they live beyond the expectation of that diagnosis. I am unsure, indeed, whether anything should be done in those circumstances. It is a very difficult question for us to deal with.

I cannot give Ms Johnstone the assurance that she seeks, precisely because it is important to hear the views of our clinical, medical and health professionals. That is why I have written to them as I have. Not only are they charged with determining whether an illness is terminal; they will also be responsible in many respects for the deliverability of what we do, and it would be wrong—just as the proposals in Mr Balfour’s amendments are wrong—for me or the committee to presume what that clinical community was likely to say on what is a complex and difficult matter in advance of its having had the opportunity to say it.

That is why, in my opinion, Mr Balfour’s amendments should not be moved. If they are moved, I hope that the committee will oppose them so that we can have the benefit, collectively, of that community’s professional and expert opinion to help us to reach a view on how we might define terminal illness, given the commitment that I have made about how we will take forward fast tracking. It is important to state that there is no consensus on the issue in the stakeholder community. That is an indication of the complexity of the matter and the difficulties around it.

Any definition of terminal illness that the agency works from must be one that the clinical and health community is comfortable with and believes is deliverable in a fair and consistent manner across the country. For that reason, I ask Mr Balfour not to move any of his amendments in the group but to work with us. I also ask the committee to work with us. I will, of course, share with the committee the opinion that I receive as a result of the consultation.

I am grateful to Mr Griffin for not pressing his amendment 182 and for not moving his other amendments in the group. If Mr Balfour moves his amendments, I ask the committee to oppose them.

Mark Griffin

I seek to withdraw amendment 182, given that it seems that all members of the committee and the Government agree that a change is desirable. I am more than happy to work with the Government, the professionals that the minister is consulting and the external stakeholders who provided evidence to the committee to reach a mutually agreed way forward.

Amendment 182, by agreement, withdrawn.

Amendment 21 moved—[Jeane Freeman]—and agreed to.

Amendment 183 not moved.

Schedule 1, as amended, agreed to.

Section 12 agreed to.

The Convener

I know that we have run on, but I thank you for your perseverance. We will continue after the recess, and a new marshalled list will be issued a week on Monday. I will look to see everyone well refreshed after the recess. Thank you very much for your attendance this morning.

Meeting closed at 11:36.  

The Convener (Clare Adamson)

Good morning and welcome to the fifth meeting in 2018 of the Social Security Committee. I remind everyone to turn off their mobile phones, as they may interrupt the broadcasting. No apologies have been received for today’s meeting.

There is only one item on the agenda: consideration of the Social Security (Scotland) Bill at stage 2. The deadline for lodging amendments has passed, so the marshalled list and groupings cover all the remaining amendments, and we will continue where we left off last week. There are 23 groups of amendments up to the end of the bill and we have until around 11.30 this morning, so we have the opportunity to complete stage 2 today if we get through them all. That is unlikely, but we will press on with those amendments today.

I welcome the Minister for Social Security and the officials who are accompanying her.

I draw members’ attention to the fact that amendments 69 and 166 appear in the wrong order on the marshalled list. Amendment 69 should be disposed of before amendment 166. When we reach that point in the proceedings, I will call amendment 69 before moving to amendment 166; I will remind members again when we reach that point.

Schedule 2—Cold-spell heating assistance regulations

Amendment 22 moved—[Jeane Freeman].

Amendments 22A to 22C not moved.

Amendment 22 agreed to.

Amendment 23 moved—[Jeane Freeman]—and agreed to.

Schedule 2, as amended, agreed to.

Section 13 agreed to.

Schedule 3—Winter heating assistance regulations

Amendment 66 not moved.

The Convener

The first group is on means testing. Amendment 184, in the name of Mark Griffin, is grouped with amendments 185 to 187, 25A, 188, 27A, 190 and 30A.

Mark Griffin (Central Scotland) (Lab)

Amendments 188, 190, 27A and 30A would ensure that disability and employment injuries benefits could not be means tested by the current Government or by future Governments. That would replicate the current policy for those benefits, which are not means tested. For disability assistance, it would enshrine in law the protection that was offered in the Scottish National Party and Labour manifestos for the most recent Holyrood election. The SNP stated:

“We will protect disability benefits and ensure that they remain non-means tested.”

Labour said:

“Disability benefits will be rights-based not means tested”.

In keeping with the Labour, SNP and Tory 2017 manifesto commitments, I am also seeking—through amendments 184 to 188 and 25A, all of which are supported by Citizens Advice Scotland—to ensure that winter fuel payments remain universal.

There is a risk that a reduction in the winter fuel payment or a restriction on who receives it could result in a loss of income for some consumers. A universal approach that covers the whole population is the most effective and efficient means of achieving what I think is the desired outcome of us all, which is maximising low incomes in vulnerable households by helping them with their heating costs during the winter months. My amendments would prevent the present and future Governments from means testing winter fuel payments, but they would not prevent the regulations from basing eligibility for such payments on eligibility for other means-tested benefits. That would allow the Government to continue to pay any additional premiums or top-ups to winter fuel payments using eligibility criteria that might be based on receipt of benefits such as pension credit, council tax reduction or housing benefit.

I ask members to support the amendments in my name in this group.

I move amendment 184.

The Minister for Social Security (Jeane Freeman)

We have made a clear and consistent commitment that winter heating, disability and employment injury assistance will not be means tested, so I welcome our policy commitment being reflected in the bill and I support all the amendments in the group.

The Convener

I ask Mr Griffin to wind up.

Mark Griffin

I simply press amendment 184.

Amendment 184 agreed to.

Amendments 185 to 187 moved—[Mark Griffin]—and agreed to.

Amendment 24 moved—[Jeane Freeman].

Amendments 24A to 24C not moved.

Amendment 24 agreed to.

Amendment 25 moved—[Jeane Freeman].

Amendment 25A not moved.

Amendment 25 agreed to.

Schedule 3, as amended, agreed to.

Section 14—Disability assistance

Amendment 67 moved—[Jeremy Balfour].

The Convener

The question is, that amendment 67 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Balfour, Jeremy (Lothian) (Con)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)
Tomkins, Adam (Glasgow) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 67 agreed to.

Section 14, as amended, agreed to.

Schedule 4—Disability assistance regulations

Amendment 68 moved—[Jeremy Balfour].

The Convener

The question is, that amendment 68 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Balfour, Jeremy (Lothian) (Con)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)
Tomkins, Adam (Glasgow) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 68 agreed to.

The Convener

As explained earlier, we will dispose of amendment 69 before amendment 166.

Amendment 69 not moved.

The Convener

The next group is on equal consideration of different impairments. Amendment 166, in the name of Mark Griffin, is the only amendment in the group.

Mark Griffin

Amendment 166 ensures that secondary legislation on disability assistance requires equal consideration of different disabilities and impairments, irrespective of whether they are physical or mental.

The amendment addresses circumstances such as the recent changes to personal independence payments, which the United Kingdom Government has accepted are unlawful. The changes, which were made in March 2017, prevented people with mental health problems or psychological distress from being eligible for the enhanced mobility component of PIP. Last week, the minister confirmed that the Government would ensure that the regulations were never replicated in the new Scottish system. I welcome that commitment.

Amendment 166 seeks to make that a reality on the face of the bill. In practice, it would prevent the introduction of regulations that would create different or discriminatory eligibility criteria or levels of payment for people with mental health problems compared to people with physical health conditions.

I move amendment 166.

Jeane Freeman

I agree with the principle that underpins amendment 166, which is that individuals deserve to be awarded support based on their needs and the impact that their condition has on their day-to-day life.

As Mr Griffin said, this has been a key and persistent criticism of the current Department of Work and Pensions system. Particularly as a result of the amendments that this committee has agreed to, however, the idea that the system must promote the goals of equality and non-discrimination is already well rooted in the provisions of the bill.

Amendment 166 would achieve the opposite of the outcomes that Mr Griffin intends. It says:

“The regulations must not ... in any way”

differentiate

“between individuals on the basis of whether their impairment is physical or mental.”

That would prevent the Scottish Government from responding to particular needs and reconciling our operational practice in a positive way for those who have mental health conditions.

09:15  

The amendment also overlooks the fact that disability assistance will be given to people who have a terminal illness. Assistance will be provided rapidly to individuals who suffer from a progressive and life-limiting illness, although such an illness might not affect the person’s ability to carry out normal day-to-day activities and although their needs will not be long term. A critical—although I am sure that it is unintended—consequence of the amendment is that it would prevent disability assistance from being given solely because a person was terminally ill.

I ask Mr Griffin not to press his amendment. The bill allows for specific eligibility criteria to be adequately and properly dealt with in regulations. Crucially, that will allow consultation with users to ensure that specific needs—whether they relate to physical or mental health—are considered and prepared for. Such regulations will be subject to scrutiny and the Parliament will have an opportunity to offer its views on our proposals.

Mark Griffin

I welcome the minister’s comments and particularly her agreement with the amendment’s policy intent. I take on board her concerns about the impact that the amendment could have on those who have a terminal illness. With the committee’s permission, I seek to withdraw amendment 166.

Amendment 166, by agreement, withdrawn.

Amendment 70 not moved.

Amendment 188 moved—[Mark Griffin]—and agreed to.

Amendment 26 moved—[Jeane Freeman].

Amendments 26A to 26C not moved.

Amendment 26 agreed to.

Amendment 189 not moved.

Amendment 27 moved—[Jeane Freeman].

Amendment 27A moved—[Mark Griffin]—and agreed to.

Amendment 27, as amended, agreed to.

Schedule 4, as amended, agreed to.

Section 15 agreed to.

Schedule 5—Early years assistance regulations

Amendment 71 not moved.

Amendment 28 moved—[Jeane Freeman].

Amendments 28A to 28C not moved.

Amendment 28 agreed to.

Schedule 5, as amended, agreed to.

Section 16 agreed to.

Schedule 6—Employment-injury assistance regulations

Amendment 72 not moved.

Amendment 190 moved—[Mark Griffin]—and agreed to.

Amendment 29 moved—[Jeane Freeman].

Amendments 29A to 29C not moved.

Amendment 29 agreed to.

Amendment 30 moved—[Jeane Freeman].

Amendment 30A moved—[Mark Griffin]—and agreed to.

Amendment 30, as amended, agreed to.

Schedule 6, as amended, agreed to.

Section 17 agreed to.

Schedule 7—Funeral expense assistance regulations

Amendment 73 not moved.

Amendment 31 moved—[Jeane Freeman].

Amendments 31A to 31C not moved.

Amendment 31 agreed to.

Amendment 32 moved—[Jeane Freeman]—and agreed to.

Schedule 7, as amended, agreed to.

After section 17

The Convener

The next group of amendments is on housing assistance. Amendment 152, in the name of the minister, is grouped with amendments 153, 161 and 165.

Jeane Freeman

These amendments will allow us to deliver on our existing commitments to mitigate two areas of UK Government cuts to housing assistance: the bedroom tax and the removal of housing support costs for 18 to 21-year-olds.

In general, the abolition of the bedroom tax through universal credit can be mitigated using the universal credit flexibility under the Scotland Act 2016, but in order to ensure that the support that we provide to those to whom the tax applies is not limited by the operation of the UK Government’s benefit cap, we need to create an additional payment to be made in circumstances in which the award would otherwise be reduced by the cap. The amendments create the power for ministers to introduce regulations to deliver such an additional payment, which will be delivered through universal credit as part of the technical solution to mitigate the bedroom tax in full.

Members will recall that the UK Government cut housing support for universal credit recipients aged 18 to 21. Despite the fact that some exemptions were created, a proportion of 18 to 21-year-olds will still be ineligible for support for housing costs. We took immediate steps to put in place an interim solution using the Scottish welfare fund, but it was always recognised that that would be a temporary measure. The amendments allow us to introduce housing assistance for that group to ensure that all 18 to 21-year-olds are able to get help with housing costs when they need it. I want to make it clear to the committee that we are not proposing to take a general and wide-ranging power without providing details of how we intend to use it. Instead, in creating a specific new type of housing assistance in primary legislation, we are setting out two detailed instances of how that type of assistance is to be used.

Amendments 161 and 165 enable ministers to introduce regulations to allow local authorities to deliver housing assistance. That will ensure that the support provided to 18 to 21-year-olds can continue to be delivered by councils as we move from the interim solution to this more permanent arrangement.

I move amendment 152.

Amendment 152 agreed to.

Amendment 153 moved—[Jeane Freeman].

Amendment 153A not moved.

Amendment 153 agreed to.

Section 18—Short-term assistance

The Convener

The next group is on short-term assistance. Amendment 154, in the name of the minister, is grouped with amendments 155, 155A and 155B.

Jeane Freeman

Amendments 154 and 155 respond to a request from stakeholders such as Carers Scotland and the Child Poverty Action Group for clarification. The amendments make clear our policy intent that short-term assistance will maintain payments at the original level until a redetermination or, after that, an appeal to the First-tier Tribunal has been determined.

Furthermore, people will also be eligible for short-term assistance when they seek permission to appeal. The bill allows a person an unrestricted 31-day period in which to appeal. After the 31-day deadline, the permission of the First-tier Tribunal must be sought. The amendments ensure the availability of short-term assistance for late appeals, both while the request for permission is being considered and, if permission is granted, until the First-tier Tribunal reaches its decision on the appeal itself.

Amendments 155A and 155B, in the name of Jeremy Balfour, reflect his wholly commendable commitment to ensuring that transitions between systems within the UK are as seamless as possible. We touched on that previously when discussing the residency amendments, and, as I indicated then, both the Scottish Government and the UK Government entirely share Mr Balfour’s concern to get this right. Officials are working together to agree arrangements that will ensure that people transitioning between systems experience no gaps in payment or unnecessary administrative burdens. However, I am not convinced that using short-term assistance to plug those gaps is the right solution. If short-term assistance might usefully plug particular gaps, the enabling power in the bill would allow it to be used in that way in any case.

I recognise the issue that Mr Balfour raises and believe that we have the tools to address it. I hope that he will accept my assurance that officials in both Governments are working to address his legitimate concerns, which I know are genuinely felt, and that he will not move his amendments in this group.

I move amendment 154.

09:30  

Jeremy Balfour (Lothian) (Con)

I thank the minister for her remarks, which are very helpful.

All of us recognise that we have a new system coming in, and we all welcome it. Clearly, the system is not just for Christmas but for many years. Therefore, we have to make sure that we have a system that will work as we go forward and as regulations and Governments change. We do not want to end up with a situation in which an individual who lives in Scotland—or in England, Wales or Northern Ireland—does not move because they feel that they will have a short-term shortfall with regard to disability living allowance, PIP or other benefits that come forward.

I recognise that this is not a simple piece of work and that it will require both the Scottish Government and the Westminster Government to work together. I will not move amendments 155A and 155B today because I hope that the Governments will work together and that we will end up with such a scheme.

I welcome amendment 154 from the minister, which plugs a gap and will be helpful for individuals, as it will give them an extra layer of protection. I also welcome what the minister has said about working with the Westminster Government.

The Convener

Does anyone else wish to contribute to the debate?

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

I will be succinct, convener. I very much welcome amendments 154 and 155, which are extremely important and will make sure that people are covered and have the assistance that they need as their cases are considered by the First-tier Tribunal and until such time as it makes a determination.

I also warmly welcome Jeremy Balfour’s decision not to move his amendments. While they certainly touch on important points and issues, their drafting gave me concerns about double claiming and definitions. A constructive approach in which the Governments work together and look at the issue later on is absolutely the right one, so I fully support his decision not to move his amendments.

The Convener

No one else wishes to contribute, so I invite the minister to wind up.

Jeane Freeman

I express my gratitude to Mr Balfour for raising an important issue, but also for accepting our concerns and not moving his amendments.

As has been said, amendments 154 and 155 are an important addition to our legislative framework and give a clear signal—from us, as a Government, and from the committee—that we positively support individuals who wish to challenge and appeal decisions made by our new social security agency. That is a very important signal to send, and I hope that the committee will take what is an important practical step this morning.

Amendment 154 agreed to.

Section 18, as amended, agreed to.

Amendment 155 moved—[Jeane Freeman].

Amendments 155A and 155B not moved.

Amendment 155 agreed to.

After section 18

Amendments 123 and 124 not moved.

Section 19—Duty to make determination

Amendments 125 and 126 not moved.

Section 19 agreed to.

Section 20—Application for assistance

The Convener

The next group is on the form of application. Amendment 204, in the name of Mark Griffin, is grouped with amendments 205 and 210.

Mark Griffin

Amendments 204, 205 and 210 have been sponsored by and submitted on the advice of the Child Poverty Action Group. The amendments aim to clarify the process for making an application for assistance in relation to whether an application is validly made. A determination that an application has been validly made should mean that the questions on the form or those that are asked in a phone call have been fully answered. That is what the regulations should say in relation to the manner in which an application must be made.

If an application is not validly made, it can be prevented from proceeding, and it should be clear that only evidence around basic details should prevent an application from being accepted, not evidence that it might take some time to obtain. Making that clear in the bill and the regulations will ensure that processes are fit for purpose and provide certainty. The amendments will not require the bill or the regulations to specify the exact types of information or evidence that are required, so they will not reduce the ability of the system to be flexible and responsive. I ask members to support the amendments in the group.

I move amendment 204.

The Convener

As no other members wish to comment on the amendments, I invite the minister to comment.

Jeane Freeman

I do not support Mr Griffin’s amendments, which would require that the process for applying for assistance be set out in regulations.

The concern is about people’s ability to prove that an application has been validly made according to the rules that were operating when the application was made. I understand that, but putting the rules into regulations is not necessary to address that issue.

Adam Tomkins (Glasgow) (Con)

Would agreeing to Mr Griffin’s amendments replicate the position that already pertains in social security regulations under United Kingdom law, or would it be different from what happens in the UK? Does the law at the moment prescribe in primary or secondary legislation what a valid application looks like?

Jeane Freeman

I do not know the answer to that question at the minute, Mr Tomkins.

Adam Tomkins

Perhaps when Mr Griffin winds up he could address that question, if he knows the answer to it.

Jeane Freeman

Indeed. What I do know is that courts and tribunals are able to look at evidence that does not take the form of regulations. Earlier in these sessions, we decided to ask them to look at the charter in determining cases, and the charter does not need to take the form of regulations for them to do that.

If the agency has told the public that an application can be made in a particular way, a court or tribunal should treat an application that has been made in that way as valid. As a no doubt unintended consequence of Mr Griffin’s amendments, judges would be limited to looking at regulations when deciding whether an application has been validly made. If ministers wished to alter what was acceptable—for example, to address problems identified through performance reviews of the agency—changes would have to wait until the regulations were amended. Therefore, regulations would bring an inflexibility that would not be useful, and there is no gain from having them.

The committee has already agreed to amendments that emphasise the importance of inclusive communication that will help people to take up the assistance to which they are entitled. Requiring the rules for how people can apply to be set out in regulations would compete with that important aim. Regulations would bring a legalistic approach that would get in the way of telling people simply how to apply for assistance and of being able to adjust requirements where that would be beneficial. In addition, that approach would not really give Parliament more meaningful oversight of the rules for applying.

If the committee wants to know whether the Government is fulfilling its duties to communicate inclusively and to do what it can to promote take-up, it can look at what is actually happening on the ground as set out in the commitments in the charter, drawing on evidence from experts and, most important, listening to people with first-hand experience of applying for assistance.

I therefore ask Mark Griffin not to press amendment 204 and not to move the other amendments in the group.

Mark Griffin

As I am not aware of the legal situation across the UK, I am not able to respond to Mr Tomkins’s question whether what I am proposing simply replicates what already exists. However, my instinct is that it does not.

I am still of the view that applicants should have a degree of certainty about what does and what does not constitute a valid application. It should be made clear that only evidence relating to the basic details should prevent an application from proceeding and that any evidence that it might take some time to obtain should not hold things up. As I have said, amendment 204 does not require either the bill or any regulations to specify the exact types of information or evidence that are required, so I do not feel that it will reduce the system’s flexibility or responsiveness.

On that basis, I press amendment 204.

The Convener

The question is, that amendment 204 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Balfour, Jeremy (Lothian) (Con)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)
Tomkins, Adam (Glasgow) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 204 agreed to.

Amendment 205 moved—[Mark Griffin].

The Convener

The question is, that amendment 205 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Balfour, Jeremy (Lothian) (Con)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
McNeill, Pauline (Glasgow) (Lab)
Tomkins, Adam (Glasgow) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)

The Convener

The result of the division is: For 5, Against 4, Abstentions 0.

Amendment 205 agreed to.

The Convener

The next group of amendments is on further application for assistance. Amendment 156, in the name of the minister, is grouped with amendment 160.

Jeane Freeman

Amendments 156 and 160 are technical amendments to correct an unintended effect of the restriction placed on repeat applications under section 20. The types of assistance that they most concern are funeral expense assistance and early years assistance. Because both types of assistance have fairly long application windows, it is entirely possible that an individual might not be entitled to them when they first make an application, but circumstances might change and they might become eligible within the window.

For example, a woman might find out that she is pregnant and apply for the best start grant, but she might not have had confirmation of her eligibility for low-income benefits from the DWP. She might then receive confirmation of an award of universal credit later during the application window. These amendments require the agency, when determining that a claim is unsuccessful, to assess whether the applicant’s eligibility could change later and to include that in the decision letter, to make the applicant aware that they can reapply. The agency will then be under a duty to consider a further application from the same person at a later date.

I move amendment 156.

Amendment 156 agreed to.

Section 20, as amended, agreed to.

Section 21 agreed to.

Section 22—Notice of determination

09:45  

The Convener

The next group of amendments is on notification to applicant. Amendment 167, in the name of Mark Griffin, is grouped with amendments 81, 168 to 170, 83 and 86.

Mark Griffin

My amendments in the group, which would require ministers to provide a determination in writing, have been lodged on the advice of the Child Poverty Action Group. They seek simply to ensure that, as standard, a notification is made to an applicant in writing. Nothing in the amendments would preclude a decision being communicated in other inclusive communication formats, as set out in amendments in my and Ruth Maguire’s names that were agreed to earlier in stage 2. They would not detract from the right to have that accessible information, nor would they prevent, say, a decision maker from notifying someone of a decision by phone.

Amendments 167 to 170 would give the applicant the right to a clear and thorough notification of why a determination had been made and how the agency had come to its decision. Indeed, that was a key call from Paul Gray in “The Second Independent Review of the Personal Independence Payment Assessment”. In its response to that review, the UK Government claimed that it is not practical to provide such reports automatically to those who have been assessed, but disability charities have said that information in the reports would give those who have been knocked back for personal independence payments a better understanding of how the DWP had reached a decision, and are asking for the system to be applied to the Scottish social security agency.

Amendments in my name in the group would specifically require ministers to

“provide ... a copy of any assessment report”

as standard, and to list in its determination the rules that have not been satisfied. That approach would aid transparency and subsequent re-determination in appeals processes. We accept that the Scottish system will get more things right first time, so we feel that the burden would be limited, because applicants are unlikely to disagree with the original decision. I therefore ask members to support the amendments in the group.

I move amendment 167.

Jeane Freeman

I cannot support Mark Griffin’s amendments, as drafted. However, I understand the motivation behind his amendments 81, 83 and 86, and am happy to work with him to look further at what they propose.

Amendments 81, 83 and 86 would change the existing requirements for an individual to be informed of something to a requirement that the person be informed “in writing”. Although it seems likely that that would happen anyway, I realise that the committee has already agreed to amendments on inclusive communication standards. A duty to inform, coupled with the duty to communicate inclusively, would require ministers to think carefully about how information could best be communicated to an individual, but by saying that telling someone “in writing” is enough to meet the legal duty, the amendments could remove the onus on ministers, in that respect.

As I have said, I am happy to work with Mark Griffin to see whether an amendment can be lodged at stage 3 that gives us the best of both requirements.

I have concerns about amendments 167, 168 and 170, too. Section 22 already makes it clear that when the agency tells someone of its determination, it has to give reasons. There is case law on what is required under a statutory duty to give reasons, so any such amendment ought to take that into account. The amendments would require the agency to go beyond explaining the reasons for its decision in a particular case, and to provide a full assessment of the person’s eligibility against every eligibility rule for the assistance type in question.

For example, when someone applies for early years assistance, the first thing that the agency will look at is whether the residence condition is met. If it finds that the condition is not met, that should be enough for the agency to decide that the individual does not qualify and to send the person a determination explaining that. However, an unintended consequence of amendments 167, 168 and 170 would be to require the agency to go on and assess the person against all the other eligibility criteria for early years assistance. If the person’s original application did not provide enough information for that assessment to happen, the agency would have to seek the information either from the individual or from other public sector bodies. That would undoubtedly slow down the process of issuing decisions and would mean resources being used up in assessing individuals against all eligibility criteria, even when it is obvious that the outcome of an assessment would not alter the final determination.

Amendment 169 would also impose unnecessary requirements and might, in some cases, impose inappropriate requirements. It would compel ministers to provide every individual with a copy of an assessment report relating to a determination of their eligibility for assistance, whether they wish to have that report or not. It is possible, in some circumstances, that the information that the agency and ministers have used to reach a determination may include information that the individual is unaware of—in particular, in respect of health conditions. In my view, individuals should be able to choose whether or not to receive the assessment report.

In summary, I agree with Mark Griffin that there should be a duty on ministers to notify individuals of the outcome of their applications, of the rationale for reaching the determination and of any associated evidence that has been relied upon to do so, but there are a number of difficulties with the way in which he seeks to tie down the existing provision. I therefore urge him not to press his amendments today, and instead to work with us ahead of stage 3 to see how the concerns might be addressed.

Mark Griffin

I welcome the minister’s comments and our agreement on the broad policy intention of the amendments. I would welcome the opportunity to work with the Government ahead of stage 3 to draft a set of amendments that we can all agree on and which will fulfil the policy aims that we share. I therefore seek the committee’s permission to withdraw amendment 167.

Amendment 167, by agreement, withdrawn.

Amendments 81, 168, 169 and 170 not moved.

Section 22 agreed to.

Section 23—Right to request re-determination

The Convener

The next group of amendments is on re-determination and appeal. Amendment 33, in the name of the minister, is grouped with amendments 33A, 34 to 36, 82, 193, 84, 84A, 85, 194, 87, 87A, 88, 88A, 89 to 93, 37, 195, 38 and 52.

Jeane Freeman

I am pleased to be able to speak to a number of amendments that I have lodged to address issues that were raised during stage 1. Amendments 33 to 38 and 52 will allow a re-determination to be requested after the deadline if the person has a good reason for not meeting it. That will carry a right of appeal to the First-tier Tribunal, if refused by the agency.

Amendments 82, 84, 85 and 87 to 93 relate to the process for initiating an appeal to the First-tier Tribunal. I have listened to the concern of stakeholder groups, including Inclusion Scotland and Citizens Advice Scotland, that if the process for requesting a re-determination and then an appeal is too laborious, people may as a consequence drop out of the system and not get what they are entitled to. That is not a result that the Government wants. The question is how to make the process for challenging a determination as simple as possible, while honouring our commitment to having a rights-based system that requires individuals to retain control over the choices that they want to make.

My amendments would simplify the process by requiring the agency to provide to the individual an appeal form alongside the notice of redetermination. If the person wants to appeal to the First-tier Tribunal, they need only send back the completed form saying that they wish to do so. The agency will then be required to hand over to the tribunal all the materials that it used to make its determination. That will mark the start of the appeal process and, from that point on, the appeal will be in the hands of the tribunal and, rightly, no longer in the hands of the agency. I urge members to support my amendments.

I do not support Pauline McNeill’s amendments in the group. I am sure that the motivation behind her amendments is much the same as the motivation behind mine—to simplify the process for appealing—but I believe that her amendments would complicate the process for asking for a redetermination. Rather than being able simply to ask the agency to look again at a determination, under her amendments, the individual would, at the same time, need to make a choice about whether, after the redetermination was made, it should be referred to the First-tier Tribunal on appeal. I find it difficult to understand how an individual could reasonably be expected to make an informed choice, which is critical in a rights-based system, before they knew the outcome of the redetermination.

My amendments provide that the individual will be able to choose whether to appeal when they have the redetermination, and know what it contains. It will not be obvious to many people whether it would be in their interests to pre-emptively ask for a tribunal appeal—indeed, I do not believe that it would be obvious to me, for example.

I have another difficulty in principle with Pauline McNeill’s amendments and approach, which is that they would take control away from the individual and give it to the agency. Under that approach, the agency would be required to submit an appeal on a person’s behalf if that person had ticked the box when asking for a redetermination and the redetermination was not “more advantageous” to the person. There are many difficulties in defining what would be “more advantageous” from an individual’s perspective. On the basis of the current system, there are at least 12 possible outcomes for care and mobility components, with decisions on differing lengths of awards adding further complexity.

If, for example, the original determination was based on a low care component and middle mobility component and would run for two years, but the redetermination was based on a low care component and low mobility component and would run for five years, which would be “more advantageous”? Under Pauline McNeill’s approach, it would be for the agency, not the individual, to make that call.

There would also be significant impacts on the tribunal service, which we should consider. The amendments in Pauline McNeill’s name would likely result in more cases being sent to the First-tier Tribunal—that is the intention—but if cases are to be sent to the tribunal with only limited involvement from the individual, it is reasonable to expect that a number of the appeals would not proceed. Having cases set down in the tribunal’s schedule only for them not to be called would be much more than an administrative inconvenience. We should not underestimate the impact that that sort of churn in the tribunal’s case load will have for the speed with which the tribunal can deal with appeals with which people genuinely want to proceed.

I urge members to support my amendments in the group, but not Pauline McNeill’s amendments.

I move amendment 33.

Pauline McNeill (Glasgow) (Lab)

I welcome the progress that has been made in this area, because the committee received significant evidence that the introduction of mandatory reconsideration had resulted in a dramatic drop in appeals and that applicants found the system onerous.

However, I think that it is about more than simplifying the procedure, as the minister said. Many claimants do not realise that there is a two-stage process, and there is evidence that many applicants might give up. That is why we must consider seriously what will be the best way to ensure that applicants realise that there is a two-stage process in which they have to make two decisions—one about whether to appeal against the original decision and one in relation to the appeal.

10:00  

My primary concern is the dramatic reduction in the number of appeals following the introduction of mandatory reconsideration, although I realise that, under the bill, reconsideration will not be mandatory. The only statistics that we have show an 89 per cent drop-off between the mandatory reconsideration stage and the appeal stage. Reconsideration is the most significant feature of the system since its introduction, and it cannot be explained simply by adding an additional part to the process, as the Government proposes.

The purpose of mandatory reconsideration is to give the person an opportunity to present evidence against a decision for review without the need for a formal appeal process. I welcome the fact that, as we have previously discussed, the approach that the Scottish Government takes will, we hope, mean that people will benefit from more successful decisions being taken in the first instance and in the reconsideration process.

Judge Robert Martin, who is president of the social entitlement chamber of the First-tier Tribunal, said that mandatory reconsideration is based on a “false premise”, because

“prior to its introduction, DWP already considered every decision that went to appeal.”

It is significant that he said that the introduction of mandatory reconsideration was of “dubious advantage”, because the claimant had to make two applications,

“whereas under the old system they only had to make one.”

He went on to say that there was no real evidence to explain what has discouraged people from making an appeal.

Whatever happens with the amendments in the group, I urge the Government to think about whether it might be necessary to provide some further powers at stage 3, or to carry out further research, to make sure that the introduction of reconsideration does not lead to a drop-off in the number of people who appeal.

My amendments 33A, 193, 84, 194, 87A and 195 are designed to ensure that were a claimant to want to challenge a decision, they would be able to opt for an automatic appeal in the event that reconsideration was unsuccessful, thereby ensuring that it would be a one-stage process. I listened carefully to what the minister said at stage 1, and I agree that the system should be rights based, but my argument is that my proposals would mean that a person who was unsuccessful at reconsideration stage would have an automatic right to take that to appeal.

We must bear it in mind that many vulnerable claimants are put off by the brown envelope arriving through the door and do not know what to do. One of the features of my amendments is that the person would be notified that an appeal was pending, if they had opted for an automatic appeal, and should therefore seek representation. It is an important aspect of what the Government is proposing that the paperwork for the appeal will go automatically to the tribunal system. That represents significant progress.

It is a serious question whether the proposed process will ensure that more people will exercise the right of appeal. I might seek to withdraw amendment 33A and not move my other amendments; that will depend on what is said in the debate. However, I certainly ask the minister to ensure that the new support system will not prevent people from exercising their right to have an appeal on their case. At the moment, I am not satisfied that there is enough data to make that determination.

I move amendment 33A.

Jeremy Balfour

I welcome the amendments in the minister’s name. They are helpful. The minister has listened to what we heard at stage 1 and to the subsequent emails and letters from different groups.

I have sympathy with Pauline McNeill’s amendments. We have to strike a tricky balance between giving the individual control of his or her appeal and, as Pauline McNeill said, making that decision early in the process. That makes me slightly concerned. However, we want an individual to have the right to take the appeal to the appropriate tribunal.

We also do not want to clog up the system and leave the First-tier Tribunal with eight cases in a day when three or four people simply do not turn up because they do not want to pursue their case. That is a big concern because it will mean that those who do want to go through the whole process and have a right of appeal will be delayed because other people do not turn up for their appeal.

There is another issue that perhaps could be addressed through regulation later. Helpfully, the bill now contains the legal right to advice and assistance. As the bill goes forward, we must make sure that the papers that an individual gets will also go to their representative. At the moment, that does not always happen. That will give the individual greater protection, because the person from the citizens advice bureau—or whoever it is that is giving the advice—will be able to contact the claimant to ask whether they want to go on to appeal and tell them how to do it. Having a third party to help them with the process will give the individual greater protection.

I am happy to support the minister’s amendment but, although I understand where Pauline McNeill is coming from and agree that we do not want a large drop-off, I am not sure that her amendments will prevent that, because of the way in which they are drafted.

Alison Johnstone (Lothian) (Green)

This was an area of concern for many organisations. I note that Citizens Advice Scotland now supports the Government’s amendment, which provides some comfort.

I also have a lot of sympathy for Pauline McNeill’s amendments, because we are all concerned about that huge percentage drop. I will be interested to hear whether the minister can advise on how the Government intends to keep an eye on the situation and look at any consequences. What would be a satisfactory result in terms of future appeal numbers? If we get advocacy and advice right in the bill, that will have a big impact. Such support might make a positive difference.

Ruth Maguire (Cunninghame South) (SNP)

I have two problems with Pauline McNeill’s amendments. The first is around the person having to make a decision at the beginning of the process. Nevertheless, I understand the intention and I am sure that we all want the system and people’s experience of going through it to be as easy as possible. We recognise the barriers that can be thrown up at different stages.

The second point to make is about cases clogging up the tribunal system, which is a really important issue. As Jeremy Balfour said, if there are eight cases sitting with a tribunal and only four people intend to turn up, that will have a knock-on effect on the people who do want to appeal.

Although I sympathise with where Pauline McNeill is coming from, my question for her and the minister is whether they have done any work to understand what claimants would like to see for appeals and what evidence there is of that. I know that a lot of the evidence that we have came from the previous system, but what further evidence can we look at?

Jeane Freeman

I will make a number of points in response to the debate. I believe that Ms McNeill and I are trying to resolve the same matter and our aims have much in common. However, I need to make a couple of points about the differences between the system that we are designing, which the bill will underpin, and the current UK system.

First, mandatory reconsideration will not be a feature of the Scottish system. Redetermination is a very different exercise. The original decision is not looked at again to see whether the proper process was followed, but a different individual working in the agency looks at the case from scratch, so there is a very different starting point. I welcome Ms McNeill’s acknowledgement that our intention is to operate our system in such a way that we get many more decisions right the first time because the right evidence is gathered in the first instance to support those decisions. However, redetermination is very different from mandatory reconsideration.

Secondly, the amendment on short-term assistance that we have just agreed to is included specifically to ensure that individuals are not prevented from pursuing a challenge to the agency’s decision making or from appealing on the basis of a financial loss that they will have to bear while they wait for the process to be completed. That is an important indication of the Government’s determination not to discourage people from challenging our decisions.

For me, a rights-based system requires the individual to be informed in order that they can exercise their rights. My central difficulty with Ms McNeill’s amendments is that the individual is being asked to make a decision about whether they will wish to appeal before they have any information about the result of their first challenge—the redetermination. The decision about whether or not it is advantageous is out of the hands of the individual and in the hands of the agency. In a rights-based system—if we mean to embed that approach in every aspect of what we do—that is the wrong approach.

Pauline McNeill

I point out to the committee that, under my amendments, the individual’s rights would not be undermined by whether or not they chose an automatic appeal, because they would still have the right to appeal at the end of the process if they chose not to have an automatic appeal. Their overall right to make an appeal would not be undermined—that is an important point to get across.

Jeane Freeman

I understand that, but, at the point when the person ticked the box to say that they wanted not only to challenge the agency’s decision but to go to appeal, they would not have the information about the result of the challenge. We would have to go back to them and ask whether they wanted to continue to the appeal stage, which would be unnecessarily complicated.

Ms Maguire helpfully asked what evidence any of us might have. Obviously, we all have evidence from the stage 1 discussion and the debate, as well as the evidence that was submitted by individuals. We also have some limited evidence from our experience panels that indicates that people wish to exercise their rights in a staged manner—in other words, by making decisions about each step of the process as they proceed through it. Although the amendments lodged by Ms McNeill are trying to achieve the same end as my amendments, they would unnecessarily complicate matters by having individuals asked to make decisions in advance of their having the information that they would require in order to make them.

I have two further points to make. The first is about the tribunals and is a point that Mr Balfour made clearly. We should not see the additional burden that Ms McNeill’s amendments would potentially put on the tribunal system simply as an administrative one; it could have an effect on the speed of the tribunal’s decision making for those individuals who genuinely chose to pursue an appeal. That matters because we know that one of the difficulties that individuals face in the current system is the length of time that they have to wait before a tribunal can look at their case.

10:15  

My final point is about the drop-off rate. The current drop-off rate relates to a system that is significantly different from the system that we are designing and that the committee is contributing to the legislation for. It is reasonable to say that more correct decisions will be made the first time round, that individuals will challenge those decisions, that the redetermination process will be so different from mandatory reconsideration that we would expect to see changed decisions in the redetermination process and that individuals could then still proceed to appeal.

It is not only ministers who will have oversight. The Parliament will have oversight of how well or otherwise the system is working in a number of ways, including through the annual report that ministers will bring to the Parliament on the agency’s performance against a number of important indicators—and it is clear that the drop-off rate is one indicator. The Parliament will have oversight of how well the system that I propose is operating and will be able to require ministers to take steps should we discover that the system requires further improvement.

Pauline McNeill

I am sure that we all agree that the right to appeal and to have an independent panel decide whether an application should be upheld is an important principle. One way or another, of course, there would still be a requirement to go to a reconsideration, albeit not a mandatory one.

I accept the minister’s point that the only available figures that show a quite sharp drop-off are the figures that the DWP has for mandatory reconsideration, but we do not really have any information about whether my system or the Scottish Government’s position is likely to prevent a sharper drop-off. I suppose that we can only guess that.

The point that Jeremy Balfour made about the papers is important. I acknowledge that it is a significant development that, as a result of the Government’s amendments, the paperwork would go directly to the individuals. That is very helpful.

I have acknowledged that I agree with the minister that the approach is rights based, but I emphasise that my amendments would not preclude an individual’s right to take an appeal should they not opt for an automatic appeal.

We do not know whether there would be delays and clogging up of the tribunal system.

Ruth Maguire

Will Pauline McNeill take an intervention?

Pauline McNeill

I will do so in a minute. I was just going to address your point.

Ruth Maguire

I am sorry to interrupt you, but it is about what you have just said.

For somebody to exercise their rights, they need to have all the information to enable them to make a decision. That is the point about your proposal maybe not being compatible with a rights-based approach. Of course, a person can opt for or against an automatic appeal and then change their mind, but, if they opt for it at the beginning of the process, before they have all the information, that is at odds with a rights-based approach.

Pauline McNeill

I accept that. However, at that stage, the applicant would be asked only whether, should their challenge be unsuccessful, they would want to appeal the decision automatically.

We want to strike a balance. I agree with the minister that we are both trying to address a significant problem under the old system, balancing all of that with the concern that appeals will drop off because people do not realise that there is a two-stage process. Could the proposals have an impact on the clogging up of the tribunal system? We do not know the answer to that question, but I concede that the system that the Scottish Government has outlined, with its approach to reconsideration, should ensure that there would be fewer appeals, as reconsideration would be a fresh look at the original decision.

I am not going to press amendment 33A and will seek to withdraw it, but I wanted to put on the record that that was my overall purpose. I will return to the issue at stage 3. I ask the Scottish Government to consider whether there should be a commitment to review and do some research if we find that the early stages of the operation of the new system result in a concerning drop in the number of people who choose to take up the right to appeal.

Amendment 33A, by agreement, withdrawn.

Amendment 33 agreed to.

Amendment 34 moved—[Jeane Freeman]—and agreed to.

Section 23, as amended, agreed to.

After section 23

Amendment 35 moved—[Jeane Freeman]—and agreed to.

Section 24—Duty to re-determine

Amendment 36 moved—[Jeane Freeman]—and agreed to.

Section 24, as amended, agreed to.

Section 25—Notice of re-determination

Amendment 82 moved—[Jeane Freeman]—and agreed to.

Amendment 83 not moved.

Amendment 193 not moved.

Amendment 84 moved—[Jeane Freeman].

Amendment 84A not moved.

Amendment 84 agreed to.

Section 25, as amended, agreed to.

Section 26—Notice where re-determination not made timeously

Amendment 85 moved—[Jeane Freeman]—and agreed to.

Amendment 86 not moved.

Amendment 194 not moved.

Amendment 87 moved—[Jeane Freeman].

Amendment 87A not moved.

Amendment 87 agreed to.

Section 26, as amended, agreed to.

Section 27 agreed to.

After section 27

Amendment 88 moved—[Jeane Freeman].

Amendment 88A not moved.

Amendment 88 agreed to.

The Convener

Before we move to the next group, I suspend the meeting for a comfort break.

10:24 Meeting suspended.  

10:33 On resuming—  

Section 28—Time for appeal

The Convener

Welcome back. I apologise; I did not stop just before a new group, as I said that I had. We still have some amendments on redetermination and appeal to consider.

Amendments 89 to 93 and 37 moved—[Jeane Freeman]—and agreed to.

Section 28, as amended, agreed to.

After section 28

Amendment 195 not moved.

Section 29—First-tier Tribunal’s power to determine entitlement

The Convener

We move to a new group, which is on the First-tier Tribunal’s power to determine entitlement. Amendment 206, in the name of Pauline McNeill, is the only amendment in the group.

Pauline McNeill

The amendment is designed to ensure that a tribunal need not consider any part of the claim with which the claimant is satisfied. The intention is to ensure that a tribunal could have the power to visit only the aspect of the claim with which the claimant is unsatisfied. I will probably be satisfied that the tribunal already has the power to do that, in which case I will seek to withdraw the amendment, but it would be helpful to get that on the record.

I move amendment 206.

The Convener

As no other committee member wishes to speak in the debate, I call the minister to respond.

Jeane Freeman

Thank you, convener. Tribunal procedural rules provide that, in looking at an appeal, the First-tier Tribunal may look at any issue and not just at points of dispute that are raised by the appellant. It is for the tribunal to decide, and it can look broadly or narrowly. Tribunals can make significantly different findings of fact from the original decision maker, and ministers cannot restrict a tribunal’s authority or direct it in its deliberations, as tribunals are independent and judicially led.

Amendment 206 could appear to tie the tribunal’s hands in relation to calculating what an individual is entitled to. An appellant—particularly one who is without the support of a welfare rights officer—may not have specified all the potential grounds for appeal, and the tribunal might identify things that the individual has missed. Conversely, it may consider that part of a determination is plainly wrong even though the appellant is not disputing it. Clearly, the tribunal will want to make what it considers to be the right decision. Those are matters for the tribunals to decide and not matters for the bill, so I urge Ms McNeill not to press her amendment 206.

The Convener

I ask Pauline McNeill to wind up and to press or withdraw amendment 206.

Pauline McNeill

I am satisfied with that response, so I will seek to withdraw the amendment.

Amendment 206, by agreement, withdrawn.

Section 29 agreed to.

After section 29

Amendment 38 moved—[Jeane Freeman]—and agreed to.

The Convener

We move to a new group, on the ordinary members of a First-tier Tribunal. Amendment 127, in the name of Pauline McNeill, is the only amendment in the group.

Pauline McNeill

I lodged amendment 127 after discussion with the Scottish Association for Mental Health, which has some experience of the tribunal system. The primary role of the tribunal is to consider and determine applications and, in the case of compulsory treatment orders under the Mental Health (Care and Treatment) (Scotland) Act 2003, to consider appeals against compulsory measures. A key feature of the mental health tribunal is that it comprises three members—a legal member who acts as convener, a medical member and a general member who has lived experience of a mental health disorder.

Amendment 127 seeks to ensure that one of the members of the tribunal has lived experience, as I think that that is good practice. I am not clear about whether there will be a three-member tribunal in every case, but I presume that that is the intention.

It seems to me that what I propose in the amendment would strike a good balance in the devolved system.

I move amendment 127.

Jeremy Balfour

I will make a couple of points. First, I am not sure that the bill is the right place for the proposed provision. We have seen the draft regulations with regard to how the tribunals will be run—I think that they are going to the Justice Committee, but they may well be looked at by us at a later stage. If what is proposed is to happen, it should appear in those regulations rather than in the bill.

Secondly, I think that the wording of the amendment would exclude from sitting on the tribunal a number of people who come with a lot of experience—I remind the committee that I was an ordinary member of a tribunal. There is a danger that we would lose the experience of people who have physical or mental illnesses as ordinary members. I am sure that that is just due to unfortunate drafting, which could probably be tidied up at stage 3, but my view is that it would not be helpful to have the provision in the bill. We should consider the matter when the Justice Committee looks at how the tribunals will work. That seems a more appropriate place to have the debate.

Jeane Freeman

I have no difficulty with the principle of what Ms McNeill’s amendment 127 aims to achieve—that ordinary members of the tribunal should have a range of experience—but Mr Balfour is correct in saying that the bill is not the right mechanism to use to achieve that. The tribunal regulations under the Tribunals (Scotland) Act 2014 are the right mechanism to use.

As the committee has been reminded by Mr Balfour, a public consultation that we launched on 22 January is under way on the full suite of regulations that are needed to create a new chamber in Scottish tribunals to hear social security appeals. The draft eligibility for appointment regulations provide for the appointment of ordinary members with two types of specialism: medical and disability. The disability criteria have been expanded so that they align with the definition of disability that is provided in section 6 of the Equality Act 2010. That will ensure that the meaning of disability covers not just physical disability but mental impairment. Such members would be involved in situations in which medical issues in connection with entitlement to disability assistance or employment injury assistance fell to be determined. The consultation on the draft regulations proposes that all other cases would be dealt with by the legal member sitting alone. However, the point of the consultation is to seek views.

The consultation will close on 16 April, and I assure Ms McNeill and the committee that care will be taken in considering and balancing any views that are expressed on eligibility for appointment and on which members should sit on different tribunals.

I ask Ms McNeill not to press amendment 127. Instead, I urge her and other members of the committee to respond to the current consultation, after the completion of which we will take matters forward in the appropriate manner.

The Convener

I invite Ms McNeill to wind up.

Pauline McNeill

I intend to seek to withdraw amendment 127. I am persuaded by Jeremy Balfour and the minister that the bill might not be the right place to address the issue, although I stand by the substantive point that I make in my amendment.

I would like to discuss the matter with the committee at a later stage, because I think that the committee should have a close interest in the operation of the tribunal system and the on-going consultation. There is a close relationship between the work that we do and the operation of the tribunal system. Perhaps we should be a secondary committee—I would like to have that discussion, but I agree that now is not the appropriate time to have it. Therefore, I seek to withdraw amendment 127.

Amendment 127, by agreement, withdrawn.

Section 30—Obligation to provide information on request

The Convener

We move to the next group, which is on the obligation to provide information. Amendment 196, in the name of Mark Griffin, is the only amendment in the group.

Mark Griffin

Amendment 196 has the support of the Child Poverty Action Group. It seeks to remove the possibility that someone could automatically be refused their entitlement if they were asked to provide information in the form of, for example, a pay slip or a medical test and they simply could not.

Although I recognise that that is not the policy intention and that the provision in section 30 is intended not to be negative, the bill should not make possible such a practice. As it is drafted, the provision goes beyond the general practice under the current UK benefits system. A fairer provision would be that the agency could go ahead and decide an award on the basis of the evidence that was available.

I will be interested to hear the Government’s thoughts on the matter.

I move amendment 196.

Ben Macpherson

In my view, section 30 is useful and important in that it will make sure that decisions are made and that there are no outstanding collections of data lying with the agency. I wonder whether data protection is an issue that we need to be mindful of in this context. I put that to Mr Griffin and the minister.

10:45  

Jeane Freeman

I cannot support Mark Griffin’s amendment 196, as section 30(2) is a technically important provision that cannot be left out.

Section 30 deals with the situation in which the agency does not have the information that it needs to make a determination about someone’s eligibility. Section 30(1) lets the agency request that information from the individual. I emphasise that it allows information to be requested only if the information is necessary for a determination to be fully made. If the agency has asked someone for information and has allowed a reasonable period for a reply but has not received it, the agency needs to be able to determine the application at some point. That is what section 30(2) is for—it is to allow ministers to fulfil the duty that section 19 places on them to make a determination of a person’s entitlement.

Because we are talking about a situation in which the agency lacks information that it needs to decide what the individual is entitled to, there must be some legal basis for the agency to make a determination in the absence of that information—otherwise, as Mr Macpherson hinted, the agency would have to keep the application open and would have to hold the personal information of the individual in question in perpetuity. That would be at odds with the data protection principle that information should be held only for the purposes for which it is needed.

I stress that section 30(2) does not say that, without the information, an application will inevitably fail. There may be cases in which information is sought to decide whether a person qualifies for a higher rate of an award or in which information that is already held justifies an award at a lower rate. My issue with amendment 196 is that it would leave an application hanging when an individual had applied but had failed to provide what was sought from them, which would be neither appropriate nor helpful. For those reasons, I invite Mr Griffin not to press his amendment.

The Convener

I ask Mr Griffin to wind up and say whether he wishes to press or withdraw his amendment.

Mark Griffin

On the basis of the information from the Government, I seek the committee’s permission to withdraw the amendment.

Amendment 196, by agreement, withdrawn.

Section 30 agreed to.

After section 30

The Convener

The next group is on medical assessments. Amendment 207, in the name of Alison Johnstone, is grouped with amendments 208, 171 and 172.

Alison Johnstone

I stood for election on a manifesto commitment to reduce the number of assessments that are used to assess eligibility for devolved benefits, and I believe that SNP members of the committee campaigned on a similar commitment. The SNP’s 2016 manifesto stated that it would

“stop the revolving door of assessments and related stress and anxiety for those with long-term illnesses, disabilities or conditions”,

and amendments 207 and 208 would do just that.

The principle that is established in amendment 207 is that pre-existing evidence should be fully considered before an assessment is insisted on. Where existing evidence is sufficient to corroborate what the applicant has claimed on their application, we really should not ask them to undergo unnecessary assessments, which for some people can be highly stressful experiences that exacerbate conditions and illness. I have not been prescriptive on how that should be done, so it would be a matter for the Scottish ministers to decide what pre-existing evidence would be sufficient. However, the principle that we should not put people through unnecessary assessments is an important one that we should establish in law. It is also a matter of practicality and efficiency, because current PIP assessments can cost up to £200.

Under amendment 208, when an assessment is required, the Scottish ministers will have to consider a range of options and forms of assessment that may be less taxing and stressful than face-to-face assessment. Where face-to-face assessment is absolutely essential, ministers will have to consider the distance from home that the person has to travel to the centre and any adverse effects that that travel might have. The amendment also specifically highlights the possibility of assessing applicants in their own homes.

I make clear that the intention is not to stop assessments that are necessary to determine entitlement. I know that the minister shares those aims; she outlined a similar process in January to the House of Commons Work and Pensions Select Committee and she has made comments to that effect in the chamber.

I am pleased to note the support for the amendment from Inclusion Scotland, Citizens Advice Scotland and the Child Poverty Action Group. If we are to found the new system on the principles of dignity and respect, as the Scottish Government rightly intends to do, protecting applicants from unnecessary assessments that could unintentionally cause distress is one way to create such a system.

I move amendment 207.

The Convener

I invite Mark Griffin to speak to amendment 171 and the other amendments in the group.

Mark Griffin

Amendments 171 and 172 are sponsored by SAMH, and the intention behind them is that, if the person who is being assessed has a mental health condition, the person who conducts any face-to-face assessment for disability should have professional experience of mental health. SAMH research has highlighted significant problems with how face-to-face assessments for PIP work for people with mental health conditions, including a lack of understanding by assessors of the impact of mental health; the inability of face-to-face assessments to accurately assess the impact of fluctuating conditions; and stigmatising attitudes and behaviours by some assessors. The cumulative impact of those failings has been a loss of trust in the PIP assessment process and, in some cases, a deterioration of applicants’ mental health. SAMH’s sister charity in England, Mind, surveyed 800 people with mental health problems on their experiences of PIP, and only 8 per cent felt that their assessor understood the impact that their mental health problem had on them as individuals.

We welcome the Government’s intention to reduce face-to-face assessments for disability benefits but feel that this amendment provides a safeguard for those applicants who would still require such an assessment. A reduction in assessments should make it easier to provide condition-specific assessors, because demand for assessment should be lower. That would contribute to building trust between applicants and the new Scottish social security system, which is essential for its long-term effectiveness. I ask members to support the amendments in my name in this group.

Jeremy Balfour

I support the way in which Mark Griffin has gone about amendment 171, and it is the right way forward. My slight concern is about the wording, which refers to

“assessment of the individual’s mental health”.

My understanding is that that is not what the assessment is about, which is how an individual’s mental health impacts their needs for day-to-day life. I am not sure that the wording is absolutely right, so I wonder whether Mark Griffin will consider not moving the amendment and bringing a fresh one at stage 3. Maybe the minister could comment on whether the wording covers what is intended to happen in an assessment. I am very sympathetic to what the amendment is intended to do, but I am not sure that the wording is right.

Another issue for us to be wary of—it will be an issue for the Government in the future—is whether there are enough people with the experience to do the assessments. That does not make the amendment wrong; we just need to make that there are the right people.

I do not support Alison Johnstone’s two amendments. I do not want to provoke my colleagues across the table into having another go at assessments, but I am one of the few people here who has been for an assessment, and it was very positive. I appreciate that a lot of people have not had that experience. I am sure that I have woken up at least a couple of members. We had assessments even back in the 1980s; when I went for DLA for the first time, I was assessed. We need to be careful, as face-to-face assessments will help some people to get the benefits that they require. Information can be obtained from face-to-face assessments that could never be obtained from reading a bit of paper.

The agency will have to collect as much information as it can on someone, but there is a danger that some information will just not be available or will be very hard to get. The quickest way for an individual to be dealt with is for them to go through the right form of assessment with the right support. I am slightly concerned that we might end up making claimants’ lives harder as a result of their not getting an appropriate assessment at the appropriate time.

There is an argument for some assessments to be done at home. That used to happen on a number of occasions. It used to be the case that the First-tier Tribunal would hear a case first, and a face-to-face assessment would be carried out that it would arrange. We might want to consider providing for such an arrangement in regulations.

I am concerned that, as Alison Johnstone’s amendments are written, we might make life more difficult for people. I accept that, in some situations, assessments are not done that well, but that does not mean that assessments are not a good way of obtaining information. It is possible to assess someone quickly. Tribunals often make very different decisions because they see a person; it is not just a paper exercise.

Adam Tomkins

I cannot support the amendments in this group, because they demonstrate a failure to understand what is being assessed. We are not talking about assessments of people’s medical condition or treatment. We are talking about assessments of the needs that people have that arise from their disability or health condition. Alison Johnstone’s amendments 207 and 208 fail to recognise that, as does the wording of Mark Griffin’s amendment 171 on mental health, which I would otherwise welcome.

We will not support any of the amendments in the group. We will not vote against Mark Griffin’s amendments, because the principle is the right one, but amendment 171 would need to be amended before we could support it, because it uses the phrase,

“an assessment of the individual’s mental health”.

That is not what is assessed in an assessment—it is an assessment of the needs that an individual has as a result of their mental health condition, which is a very different thing.

Jeane Freeman

I will start by addressing Mr Griffin’s amendments 171 and 172. I agree with the principle behind them, which is that individuals should be assessed by professionals who understand their specific conditions and the impact of those conditions. Our arrangements should provide for the needs of people with mental health conditions to be met.

The Scottish Government has put a clear emphasis on getting assessment decisions right first time, every time, and the use of appropriately trained or—as I have previously referred to them as—condition-specific assessors would help us to achieve that. I agree with Mr Griffin that, in many cases, mental health assessments would be best dealt with by people with professional experience of mental health.

Unfortunately, if I were to commit to implementing amendments 171 and 172 as they are drafted, that would mean that we would inadvertently increase the risk that individuals with mental ill health might not be effectively assessed for any other conditions or disabilities that they might have, particularly when the mental health condition is not the primary condition. People frequently present with multiple conditions. Insisting that everyone who has any kind of mental health condition, to any degree, should be assessed only by a mental health professional might result in some people not getting the right assessor or assessment for them, particularly if their primary condition is physical.

The Scottish Government has consistently argued for condition-specific assessors to be used—I am on record as saying so, as has been noted—and we are working with our stakeholders and experience panels to see how best we can implement that. I know that Mr Griffin, as I do, wants individuals with mental health conditions to get the best possible assessment outcomes, and I urge him to consider not moving his amendments so that we can work together to improve the wording before stage 3. If he wishes to move them, we will support them, but we will want to revisit them at stage 3 to make some improvements to them.

I whole-heartedly agree with the principles behind Ms Johnstone’s amendments, which are that face-to-face assessments should be conducted only when completely necessary and that, when they are required, they meet the needs of the individual. We remain committed to reducing the number of face-to-face assessments that are required. To do that, we focus on the initial stage of the process, which others have commented on.

11:00  

However, assessments are undertaken to determine the impact of the individual’s disability or ill-health condition, as Mr Tomkins has outlined. Therefore, the assessments are not medical assessments but assessments of impact, because that is the purpose of the benefit. Ms Johnstone and I share the same intent for assessments and for determining when assessments are required and when they are unnecessary. Indeed, we share much of the same intent with regard to the process that should be gone through by the agency in reaching that view, which includes ensuring that assessments are made as close to the individual as possible and at home where that is desirable. However, I urge her not to press the amendments on the basis that I am open to continuing to work together to ensure that assessments are undertaken only when necessary; if required, we can come back to the issue at stage 3.

The Convener

I invite Ms Johnstone to wind up, and to press or withdraw her amendment.

Alison Johnstone

I begin by addressing Mr Balfour’s comments. He frequently shares his experience with members; I feel that it is important that we do not assume that our personal experience is universally shared. Citizens Advice Scotland’s briefing for today’s proceedings says:

“From consultation with several hundred CAB clients and advisers, the highest priority for the Scottish social security system was that the number of unnecessary medical assessments for disability benefits is substantially reduced by making the best use of existing evidence.”

Its submission supports the fact that, for a lot of people, the process is stressful and unnecessary and they are

“not ... treated with dignity and respect”

on every occasion. The submission speaks about

“poor quality of decision-making; charges for medical evidence; and people on DLA losing their award on reassessment.”

It is clear that there is a lot to be improved in this area.

I am aware that Mr Tomkins and the minister have concerns about the word “medical”. I warmly welcome the minister’s support for the principle of my amendments and I certainly would not want any evidence left out of the process that might help an individual to access entitlement. If a rewording of the amendments means that fewer people have to be assessed unnecessarily, I am prepared to work on the wording of my amendments with the Government to bring them back at stage 3. Clearly, we share the same intent, as this is a very important issue that we should all seek to get right.

Therefore, with the approval of the committee, I will withdraw amendment 207.

Amendment 207, by agreement, withdrawn.

Amendment 208 not moved.

Section 31—Duty to notify change of circumstances

The Convener

The next group is about appointees. Amendment 157, in the name of Jeane Freeman, is grouped with amendments 158 and 159.

Jeane Freeman

The amendments are technical adjustments to provide the new agency with the power to appoint individuals or organisations to act on behalf of a person who appears to be eligible for assistance but who is unable to act for themselves and has nobody authorised to act on their behalf. The effect of the amendments will be to ensure that individuals who do not have the mental or physical capacity to act themselves are able to access and receive all the assistance that they are entitled to under the new Scottish system. The amendments will also allow an appointee to be appointed when someone has died and there is no executor of their estate. Where an appointee is appointed, they will take on the rights and responsibilities for the person who is eligible for Scottish social security.

I move amendment 157.

Amendment 157 agreed to.

Amendment 158 moved—[Jeane Freeman]—and agreed to.

Section 31, as amended, agreed to.

Section 32 agreed to.

After section 32

Amendments 159 and 39 moved—[Jeane Freeman]—and agreed to.

The Convener

Amendment 171, in the name of Mark Griffin, has already been debated with amendment 207. I ask Mr Griffin whether he wishes to move amendment 171.

Mark Griffin

If the convener can give me a bit of leeway, I say that I welcome the comments of committee members and the unanimous support for the principle behind amendment 171 and will look to work with the Government and committee members towards agreed wording that fulfils the policy that we all want. On that basis, I will not move the amendment.

Amendment 171 not moved.

Section 33—Decisions comprising determination

Amendment 160 moved—[Jeane Freeman]—and agreed to.

Section 33, as amended, agreed to.

Section 34 agreed to.

After section 34

Amendments 128 and 129 not moved.

Section 35 agreed to.

After section 35

Amendment 191 not moved.

The Convener

The next group is on assistance no longer required. Amendment 197, in the name of Mark Griffin, is the only amendment in the group.

Mark Griffin

I appreciate that the motives behind amendment 197 are not immediately obvious, but I hope that I will be able to explain them.

The amendment seeks to give people a right to cease receipt of assistance at any point and to say, in effect, that they no longer wish to receive that assistance.

The Child Poverty Action Group highlighted that, as is currently allowed under United Kingdom law, it is important that people are able to withdraw their application once they have an award. There are circumstances in which a person might want to stop getting a particular benefit even though they are still entitled to it—for example, that might happen when a couple has a choice between two benefits or a choice about who will make the application and receive the assistance. The Child Poverty Action Group highlighted the example of a couple who care for their disabled child, one of whom gets carers assistance for their child but has their own health condition and gets universal credit. With universal credit, there are extra amounts for someone who gets a carers benefit and for someone who has a health condition, but not for both, unless they are different people. If that partner could not withdraw their claim to allow the other partner to claim, they could be more than £150 a month worse off because their universal credit will not include a carers element.

I am happy to listen to what members of the committee and the Government have to say about the amendment and how it is worded.

I move amendment 197.

Jeane Freeman

I am happy to support the principle behind amendment 197, but I ask Mr Griffin not to press it, for technical reasons. There can be situations in the benefits system in which it would be sensible for someone to choose to stop receiving assistance, because that might allow the person, or related persons, to claim other assistance instead.

The committee has agreed to amendments on the Scottish ministers’ duty to promote take-up and income maximisation, so it might be beneficial to include in the bill an express statement that a person can decline assistance, given that there is an apparent contradiction between such an approach and that duty. It might be clearer to make such a statement earlier in the bill.

It seems unnecessary to require a person to state their choice in particular ways and to have to publicise what those ways are. Ministers would undoubtedly try to ensure that a person was making an informed choice, but it seems to me that that would best be left to good practice in the unusual situations in which the issue will arise.

The wording and location of the amendment give rise to concerns that suggest to me that it would be better to consider the issue in the light of other amendments and to lodge another amendment at stage 3. I am happy to work with Mr Griffin on that, and on that basis I ask him not to press amendment 197.

Mark Griffin

I welcome the Government’s comments. Aside from the duty to maximise the income of an individual, we should look holistically at the wider picture. We should look to maximise the income of a household as well as the income of an individual, and the two might well be in conflict. We can consider the issue in advance of stage 3, and I look forward to working with the Government. On that basis, I am happy to seek leave to withdraw amendment 197.

Amendment 197, by agreement, withdrawn.

Section 36—Liability

The Convener

The next group is on recovery of assistance. Amendment 40, in the name of the minister, is grouped with amendments 41 to 45.

Jeane Freeman

The Scottish Government has always made it clear that overpayments that are made as a result of official error will not normally be recovered unless there are exceptional circumstances. The committee acknowledged that in its stage 1 report and, reflecting the concerns of stakeholders such as Inclusion Scotland and Citizens Advice Scotland, asked the Government to make the position clear in the bill. That is what amendments 40 to 44 will do.

Through amendment 40, we will widen the scope of overpayment liability to encompass all types of error. Under amendment 43, we set out a qualification for when that liability exists. Those amendments mean that an individual will be liable for an overpayment only when the mistake was their fault or it was reasonable for them to have noticed that an overpayment had occurred.

The amendments will also bring all types of error that result in an overpayment under the statutory framework, which means that the Government will not be able to rely on the common-law rules of unjustified enrichment to recover overpayments. That will further increase transparency on an important issue. I hope that members will welcome amendments 40 to 44.

Amendment 45 is a technical amendment. When a person dies, the cost of their funeral is a priority debt, which takes precedence over most other debts, when there is money in the deceased person’s estate. Amendment 45 confirms that that normal legal rule applies when funeral expense assistance has been given to someone. That means, for example, that if a person leaves assets that can be used to meet the costs of their funeral, but someone needs assistance to meet those costs up front, assistance can be given and the cost can be recovered from the estate in the usual way.

The committee will note that amendment 45 enables recovery of cost from the deceased person’s estate but not from the person who is assisted. That is in line with the usual approach to such matters.

I move amendment 40.

Mark Griffin

We support the amendments in this group and we will seek to work with the Government and the minister ahead of stage 3 on areas that we think can be improved.

If the bill is not amended, people will be liable to repay an overpayment that is caused by an official error, and there will be no right of appeal against recovery of an overpayment. If the Scottish Government’s amendments 40 to 44 are agreed to, people will be liable to repay overpayments that have been caused by official error if it is deemed that a reasonable person should have noticed the error.

People will not be liable to repay an overpayment if it was not their fault and they cannot be expected to have noticed the error, but there will still be no right of appeal against recovery of an overpayment. The minister’s amendments are a considerable improvement—

11:15  

Jeremy Balfour

Does the member not agree that, under the present system, the individual has a right of appeal to the First-tier Tribunal and that such a safeguard could be looked at for stage 3?

Mark Griffin

I thank Mr Balfour for that intervention, because I was just about to come on to that point. As it stands, people need to go to court if they want to appeal, which results in unnecessary calls on the legal aid budget and court time and presents a fairly substantial barrier to justice for people. As Mr Balfour has pointed out, the current UK system gives a right of appeal to the First-tier Tribunal.

I feel that the test of liability to repay is too strict—indeed, it is stricter than it is for almost all current DWP benefits—and that the bill should provide for regulations setting out the methods of recovery. Evidence has shown that deductions from benefits cause hardship, and putting into law a limit on the level of such deductions would protect vulnerable people, many of whom would struggle if there were no protection with regard to the amount that could be deducted either weekly or monthly.

As I have said, we support these amendments, which represent a considerable improvement, but I will look to work with the Government ahead of stage 3 on some of the issues that I have flagged up.

Jeane Freeman

I will wind up by concentrating as best I can on Mr Griffin’s comments. I am grateful for his support and I am happy to continue discussions in advance of stage 3 on whether further improvements can be made. However, I should make it clear that it is possible to appeal any recovery deductions through the First-tier Tribunal and that the DWP makes free-standing recovery deductions, which we are not proposing. Nonetheless, I am grateful for the member’s support and I am happy to continue the discussion with him and other committee members, if they wish, in advance of stage 3 to find out whether any further improvements can be made that the Government can agree to.

Amendment 40 agreed to.

Amendments 41 and 42 moved—[Jeane Freeman]—and agreed to.

Section 36, as amended, agreed to.

After section 36

Amendment 43 moved—[Jeane Freeman]—and agreed to.

Sections 37 and 38 agreed to.

After section 38

Amendments 44 and 45 moved—[Jeane Freeman]—and agreed to.

The Convener

I am very conscious of the fact that it is 20 past 11 and that we must stop at half past. Given the significance of the next group of amendments, I will stop stage 2 proceedings there for today and continue them next week. A new marshalled list and groupings will be issued to the committee.

I thank everyone for their attendance this morning.

Meeting closed at 11:19.  

The Convener (Clare Adamson)

Good morning and welcome to the sixth meeting in 2018 of the Social Security Committee. I welcome everyone, especially staff and members, who have made a Herculean effort to be here this morning—it is much appreciated. I remind everyone to turn mobile phones and other devices to silent. We have received apologies from Pauline McNeill and there will be no substitute for her this morning.

The only item on today’s agenda is continued consideration of the Social Security (Scotland) Bill at stage 2. Members have the marshalled list and groupings covering all the remaining amendments, and we will continue where we left off last week. I remind everyone that we have to finish by 11:40 at the very latest.

I welcome the Minister for Social Security, and we will welcome her officials when they arrive. Before we start, I want to check my understanding that the amendments in the name of Pauline McNeill are to be moved by Mark Griffin. Can you confirm that you are content with that, Mark?

Mark Griffin (Central Scotland) (Lab)

Yes, I am happy to do so.

Section 39—Offence of trying to obtain assistance by deceit

The Convener

The first group of amendments is on offences. Amendment 94, in the name of Pauline McNeill, is grouped with amendments 95, 46 and 96 to 101.

Mark Griffin

Amendment 94 and the other amendments in the group that are in Pauline McNeill’s name are sponsored by, and lodged on the advice of, JUSTICE Scotland. They respond to concerns that were raised about proposed offences in the bill. As we discussed at stage 1, the offences as drafted are overbroad and imprecise, and they criminalise conduct that is careless or negligent rather than dishonest.

At stage 1 we heard that, although the policy memorandum makes it clear that the policy intention is not to criminalise genuine errors, the bill makes it an offence to fail to report a change of circumstances when a person knows or “ought to have known” that it might affect entitlement. We feel that the bill sets a test that is too low. It does not test whether the person intended to commit an offence and someone could commit an offence unknowingly.

The committee recommended that the bill should be clarified to ensure that genuine errors or misunderstandings would not result in someone being criminalised. Having considered the amendments lodged by the Scottish Government, we are not fully content that that bar has been raised adequately. We should remind ourselves that, as presently drafted, the section would allow the conviction of an honest claimant who it was deemed should have known that a change of circumstances would have resulted in a change to their entitlement. It criminalises behaviour or conduct that is careless or negligent rather than intentionally dishonest. Additionally, there is no safeguard of a requirement for proof that benefits would have been affected.

We also have concerns about the language used by the Government in amendment 46, which says:

“the person does not have a reasonable excuse for failing to do so”.

I ask the minister to elaborate on that line, on the existing use of that language in Scots law, and on the interpretation of “a reasonable excuse”. Any support that we give to amendment 46 we would give reluctantly and only because the amendment improves the situation, although not as much as we would like it to be improved.

The focus of JUSTICE Scotland’s advice has been a comparison with the United Kingdom offences framework. Although we would not and should not look to replicate the UK system, the tests in the bill are out of step with and more severe than those in use in the UK system.

I hope that we can come to an agreement, perhaps not at stage 2 but in advance of stage 3, on whether there is room for further improvement on this issue.

I move amendment 94.

The Minister for Social Security (Jeane Freeman)

I thank the convener, members and staff for being here this morning and allowing the meeting to go ahead.

Our policy position is clear—we will treat people fairly and with dignity and respect, and we will pay the assistance that people are entitled to receive. However, we have to strike the right balance. We have a duty to ensure that public funds are protected and that there are consequences for those who choose to defraud the system.

Amendment 46 seeks to do that by introducing into section 40 the ability of a person to defend themselves from prosecution if they have a reasonable excuse for failing to notify a change of circumstances. I have listened to stakeholders’ concerns and the committee’s views about section 40 and have lodged amendment 46 to address them.

Section 40 says that an offence is committed if someone fails to notify a change of circumstances that, under section 31, they have a duty to notify, and the person knows or ought to know that the change in circumstances might reduce or stop their entitlement to assistance. A person might have a good excuse for not notifying a change in circumstances and the concern is that they should not be criminalised for an honest mistake. I share and understand that concern. That is why my amendment addresses the point. It is all that is needed to address stakeholders’ concerns.

Ms McNeill’s amendments to section 40 take a different approach, but tip the scales so far in the other direction that they would render the section ineffectual. Her amendments risk making offences so difficult to prosecute that nobody would take the risk of prosecution seriously.

The Scottish agency will be clear with people up front about why they have been awarded assistance, what types of information and changes of circumstances they should report and how they should report them. That differs from the approach taken under existing UK legislation, where the Department for Work and Pensions is under no obligation to provide that level of detail. I understand that in practice, in certain circumstances, the DWP provides detail, but the key point is that it is under no obligation to do so.

The use of “knowingly” in DWP legislation rightly places a high legal burden on prosecutors to prove a person’s subjective knowledge in not notifying a change of circumstances, because people are not required to be told precisely what they have to notify. That makes it easy for a person to make a mistake.

The Scottish system will be fundamentally different. People will be clear about what changes must be notified, so that all that is required is to ensure that persons who have a reasonable excuse can give their explanation. If a person has a reasonable excuse, they will have the opportunity to explain the mitigating circumstances during an investigation by the agency. Those factors would be taken into account before officials of the agency concluded their investigation. If the error was genuine, prosecution would not take place, but if prosecution were to take place the excuse is the defence against conviction.

Amendment 94, in the name of Pauline McNeill, which is about what a person knew when providing false information, is unnecessary. Section 39 refers to an intention to cause assistance to be given incorrectly. To intend something, a person must know that what they do will cause it to happen. Section 41 has no need of the additional words proposed by her amendment, which would confuse references to what a person knew or ought to have known. As I have said, we will tell people the changes in circumstances that they need to notify, and it will be clear what they ought to know.

Section 42 allows senior figures in an organisation, such as a company or partnership, to be convicted of an offence if the organisation commits the offence because of the connivance, consent or neglect of the senior official. Amendment 101 would remove the “neglect” element of that.

Section 42 is worded in the usual way for a section of its kind. The same wording can be found in reference to air weapon offences in the Air Weapons and Licensing (Scotland) Act 2015, in legislation on environmental harm, in the Animal Health and Welfare (Scotland) Act 2006, and in the Criminal Justice and Licensing (Scotland) Act 2010. There are other examples, but I have to ask why senior officials of an organisation should not be held personally responsible if they neglect their duties, allowing their organisation to commit social security fraud. A company director who has been turning a blind eye to an organisation’s involvement in fraud should have a case to answer. Therefore, I cannot support amendment 101. Nor, for the reasons that I have given, do I support the other amendments from Ms McNeill in this group, and I urge the committee to reject them.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Like the minister, I have concerns about the amendments with regard to the burden of proof, what prosecutors would be expected to prove and how that could be undertaken if they had to evidence the suggestion that false or misleading information had been provided “knowingly”. Amendment 46, in the name of the minister, is sufficient to ensure that there is protection for those who are claiming and that they are not prosecuted unduly or unnecessarily. I therefore urge Mark Griffin not to press Pauline McNeill’s amendments.

Alison Johnstone (Lothian) (Green)

I would like to hear more from the minister about an issue on which some organisations have contacted me, pointing out that, under the current United Kingdom system, it is not an offence if a person does not know that a change in circumstances might affect their benefit, or that information that they have provided is wrong. As it stands, the bill means that an individual in Scotland will, even with amendment 46, be at risk of prosecution.

I have been given a couple of scenarios that illustrate that point. For example, Iain lives in England and his sister Mary lives in Scotland. They go to visit their mum overseas. They both have caring responsibilities and they get carers allowance. Neither of them tells their respective carers allowance authority that they are going abroad, but when they come back they are both told that they have been overpaid carers allowance, and the decision makers in each case take the view that they should have asked whether the absence abroad would affect their entitlement. Iain lives in England so he has a £50 penalty imposed on him and has to repay the overpaid allowance, but he cannot be prosecuted because he did not know that going abroad would affect his benefit, even though he could have found out if he had tried. Mary also has to repay her carers allowance, but on top of that her case is passed to the procurator fiscal’s office for consideration and she can be prosecuted for fraud, even though she has only made a mistake and has not acted dishonestly.

It is my view that Pauline McNeill has lodged these amendments to ensure that there are the same safeguards in Scotland as there are in UK law, and that a person would have to know that a change could affect their benefit and that the information that they had given was false.

09:45  

Adam Tomkins (Glasgow) (Con)

Will Alison Johnstone take an intervention on that?

Alison Johnstone

Certainly.

Adam Tomkins

If the offence is such that the individual cannot be prosecuted unless the prosecution can prove that he or she knowingly acted in the way that Alison Johnstone has described, is it not the case that such offences would, in practice, never be prosecuted because the prosecution would never be able to prove that?

Alison Johnstone

Organisations are raising areas of concern with us, which is why I am asking the minister for clarity. Obviously, we have different systems in Scotland than we do down south on a range of issues, but I am interested in why that should be the case in this particular instance.

The Convener

As no one else wishes to comment, would you like to respond, minister?

Jeane Freeman

Yes, I will do so happily. Mr Tomkins has helpfully got to the heart of the matter as regards what is required by the word “knowingly”. As I have said, the burden of proof that is on the prosecution makes it virtually impossible to prosecute. That takes me back to my point about the need to strike a balance between ensuring that we have a fair and reasonable system in which people receive what they are entitled to and being mindful of the duty to protect the public purse from fraudulent behaviour. We should be clear and sensible, and expect that, in a new system just as much as in any other public service system, there will be individuals who will seek—perhaps in a concerted manner—to test the system and its capacity to identify and prosecute fraudulent behaviour.

With regard to the specific question that Ms Johnstone asked me, without the benefit of anything more than just hearing about the two scenarios, I disagree with the interpretation of the case with regard to England. As I made clear, the individual could be prosecuted because, under UK legislation, there is no requirement on the DWP to identify, in detail, what an individual should report as a change in circumstance. Therefore I disagree that, in that instance, Iain would be beyond prosecution.

With regard to Iain’s sister, Mary, my amendment prevents her from being prosecuted if she can provide a reasonable excuse. As Mr Griffin asked me about that, I shall take this opportunity to respond. As I understand it—I am sure that Mr Tomkins will correct me if I am wrong, as he understands these things better than I do—Scottish courts have a fairly standard test about a reasonable person and what might be considered a reasonable excuse. Of course, that standard test about reasonableness would be applied in Scottish courts in that instance. If the agency considered that an excuse was not reasonable and it wished to pass the matter on to the criminal justice system—which is what it would do because it would no longer be the agency’s role—our procurator fiscal service would exercise its good, sound judgment in determining whether a case was viable for prosecution and likely to be prosecuted. I would imagine that, in the vast majority of cases, our prosecution service sets a high standard for what it believes should be prosecuted, and would not proceed. In that instance, Iain would not be in the fortunate position in which he is in the scenario, but Mary most certainly would be.

Mark Griffin

I fully support the minister’s aim in protecting the public purse when someone is intentionally defrauding the system. However, I am still concerned that, when that happens unintentionally, people will be at risk of prosecution. I take on board what the minister and other members have said about the balance that needs to be struck.

If the balance in Ms McNeill’s amendments would leave the situation that the minister outlined, with it being impossible to prosecute people and protect those public funds from being intentionally defrauded, I will seek to withdraw amendment 94. I will look to the Government to continue discussions with Pauline McNeill and organisations that have concerns about the balance ahead of stage 3.

The Convener

Thank you, Mr Griffin. The question is, that the committee agrees that amendment 94 be withdrawn. Are we agreed?

Adam Tomkins

I am not sure that we should agree to that, convener. I do not see that there is any need for the issue to be revisited at stage 3. I think that we should take a view on it now, at stage 2.

Ben Macpherson

I agree.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 6, Abstentions 0.

Amendment 94 disagreed to.

Section 39 agreed to.

Section 40—Offence of failing to notify

Amendment 95 not moved.

Amendment 46 moved—[Jeane Freeman]—and agreed to.

Amendments 96 and 97 not moved.

Section 40, as amended, agreed to.

Section 41—Offence of causing a failure to notify

Amendments 98 to 100 not moved.

Section 41 agreed to.

Section 42—Individual culpability for offending by an organisation

Amendment 101 not moved.

Section 42 agreed to.

Sections 43 and 44 agreed to.

After section 44

The Convener

The next group is on uprating. Amendment 47, in the name of the minister, is grouped with amendments 48, 48A, 48B, 48C, 133 to 136, 2, 137 and 3.

Jeane Freeman

I have always been clear that we will maintain spending on disability and employment injury assistance through annual uprating, so that what people receive is not eroded by inflation. That is important to the people who rely on those benefits.

I am pleased to support an extension of that commitment through Mr Griffin’s amendments to my amendment 48, so that the duty will also apply to carers assistance. The bill allows implementation of the policy through the rate-setting powers in the regulations for the individual types of assistance. I do not support Mark Griffin’s other amendments, which would introduce unnecessary procedures, result in complexity and slow matters down.

I welcomed the committee’s recommendation in its stage 1 report, which suggested the pragmatic approach of annually reviewing the rates of assistance, having regard to inflation. My amendments put the Government’s policy commitment and the committee’s recommendation on to a statutory footing. They would commit ministers to annually review the rates of devolved social security assistance, having regard to the impact of inflation, and to explain our decisions in a report to Parliament.

The amendments also place a duty on ministers to introduce legislation to uprate the value of disability and employment injury assistance annually by the rate of inflation. Mark Griffin’s amendments 48A, 48B and 48C would include carers assistance in that group. That is in addition to the 13 per cent increase that we will deliver as our first benefit following the passage of the bill, which will bring carers allowance in line with jobseekers allowance.

My amendments set out very clearly what ministers are going to do on annual uprating. However, I have some concerns about the other amendments. They do not fully commit ministers to uprate; they simply require ministers to explain which assistance types will be uprated and to provide reasons for those that they have decided not to uprate.

That said, there are many similarities between my amendments and Alison Johnstone’s amendments 2 and 3. In a broad sense, they look to do similar things. However, my amendments do not require a bespoke power to implement uprating decisions, which simplifies the process, and they also clearly commit ministers to uprate disability and employment injury assistance as well as, with Mr Griffin’s amendments, carers assistance. Amendment 2 would not require ministers to do that. I am also unconvinced that uprating any top-up benefits that might be provided through regulations under part 3 would be a good idea. The top-up amounts are likely to be relatively small compared with the underlying benefit and would result in extremely modest increases. I therefore invite Alison Johnstone not to move amendments 2 and 3 and to instead support my amendments.

I urge the committee to reject amendments 133 to 137, which would result in an overly bureaucratic and process-heavy system for annual uprating. My amendments are clear about what ministers have to do with regard to uprating, whereas amendments 133 to 137 seem to be more about how uprating should be done through powers to make regulations about other regulations. It is difficult to see any advantage in that approach. I believe that the process of annual uprating should be a simple operation and must be responsive in order to ensure that individuals receive any increase in assistance as quickly as possible. It is in no way certain that that could happen with the requirements that are put in place by amendments 133 to 137. Before uprating regulations to increase rates could be laid, the regulations setting up an uprating framework would have to be agreed by the Parliament. That would require at least 60 session days. However, if Parliament said no to those regulations, a further lengthy process would be needed. That seems highly unresponsive, and I urge committee members to reject those amendments. I ask members to support the amendments in my name.

I move amendment 47.

Mark Griffin

We welcome the Government’s substantial movement on the issue. Although we appreciate that it has always been the Government’s policy intention to provide uprating to disability assistance, I think that the idea of including that in this legislation is a fairly recent change. We absolutely welcome and support that change.

Amendments 48A to 48C, in my name, seek to modify the bill to ensure that carers assistance is uprated and that that guarantee is secured in the bill, as is standard practice under the UK scheme for carers allowance.

We assume that the Scottish Government will soon take on the full delivery of carers assistance at a combined higher rate, at which point it would exercise powers under section 48 to repeal the temporary provision. Amendments 48A to 48C seek to ensure that a fully devolved carers assistance would track inflation.

Clearly, the flaw of the formula under section 47 forces the Scottish Government to pass on the UK Government benefit freeze, because of the link to JSA. We appreciate the Government’s support for the amendments concerning carers allowance.

Amendments 133 to 137 seek to improve the Government’s attempts to fulfil the recommendations that were made in the stage 1 report. Put simply, my amendments seek to provide a robust and transparent framework for uprating benefits. Specifically, they would require ministers to consult publicly on regulations that establish an uprating system; they would require those regulations to set out the mechanism, the frequency and the form of assistance that is to be uprated; and, crucially, they would require ministers to draft, consult on and agree a system in relation to those requirements before uprating starts to take place.

I ask members to support the amendments in my name.

The Convener

Thank you, Mr Griffin. I invite Ms Johnstone to speak to amendment 2 and the other amendments in the group.

10:00  

Alison Johnstone

Amendment 2 provides for an uprating mechanism that would apply to all the forms of assistance that the bill outlines. The amendment is closely based on the provisions of the Social Security Administration Act 1992, which provides for uprating of many of the current reserved benefits. It asks ministers to ascertain whether the value of any form of assistance has changed relative to the general level of relevant prices and to uprate the benefits in question accordingly.

How the relevant prices, general living costs and the cost of energy bills and funerals are calculated is left to ministers—I am not trying to tie ministers down to a specific index of inflation, for example—but I believe that the principle is very important. When assistance is provided, it should be at a rate adequate for the purpose for which it is paid. If there is a change in the cost that the assistance covers, the rate of assistance should increase with it. Rightly, dignity and respect form the basis of the new system, and there is a link between dignity and respect and the adequacy of the assistance that is paid. A system that pays, relative to increasing prices, less and less every year is not a system that respects recipients and offers them dignity.

According to research that was commissioned by this committee, by 2020, £300 million will be cut from 700,000 Scots households because the UK Government has set aside the requirement on it to uprate benefits. That is £450 per year for each household, on top of all the other cuts that are being made. For example, the sure start maternity grant has been uprated only once since it began, and so the value of those payments has dropped every year while other prices have increased, as Maternity Action argued in a submission to our predecessor committee, the Welfare Reform Committee. Although the minister has made a range of very welcome improvements in the new best start grant, I ask her to comment on whether she would consider uprating best start as prices change. That will be particularly crucial, given that we now have statutory child poverty targets.

I appreciate that the minister recognises the issue and has lodged her own amendments. They are a good start and an improvement on the original draft of the bill, but they do not create a requirement to uprate all assistance. The requirement relates to disability assistance; for other forms of assistance, the requirement is only to consider the issue, not to uprate. The bill sets up a system that could be radically different from the one that it replaces, and it could do that by ensuring a guaranteed, reliable, real-terms minimum payment each year. That is what amendment 2 seeks to achieve.

The Convener

As no other members wish to comment, I invite the minister to wind up.

Jeane Freeman

My amendments on uprating put our policy commitment to uprate disability and employment injury assistance on a statutory footing. As I said, I am happy to support Mr Griffin’s amendments 48A, 48B and 48C to extend that commitment to carers assistance. My amendments also take into account the committee’s recommendations. They provide the flexibility to take different decisions for different types of assistance in line with the wider budget-setting process of the Scottish Government.

With respect to Ms Johnstone’s amendments, I believe that my amendments respond most directly to the committee’s stage 1 recommendation. Mr Griffin’s amendments 133 to 137 would result in a bureaucratic process that would take a significant amount of time when what is needed by those who rely on such financial support is a quick and clear process. Uprating should be a routine procedure that does not require massive machinery behind it. I urge the committee to reject those amendments and to support the amendments in my name.

Amendment 47 agreed to.

Amendment 48 moved—[Jeane Freeman].

Amendments 48A to 48C moved—[Mark Griffin]—and agreed to.

Amendment 48, as amended, agreed to.

Sections 45 and 46 agreed to.

After section 46

The Convener

The next group is on top-up child benefit. Amendment 202, in the name of Mark Griffin, is grouped with amendments 110 and 111.

Mark Griffin

The first test of the child benefit policy was before recess, when the initial amendment on the subject was accepted; I made the argument that there is a place for consulting parents who receive child benefit because of the power to top up.

Following on from that committee decision, we now move on to the substantive amendments that would put in place the mechanism to top up child benefit and give effect to the give me five campaign. We debated the amendment in question in the same week that the Poverty and Inequality Commission published its first report, ahead of the Scottish Government’s delivery plan for meeting its child poverty targets. To put it as simply as possible, the overwhelming message of that report is that significant use of new social security powers is required if the Scottish Government is to meet its challenging targets to reduce child poverty.

When we passed the Child Poverty (Scotland) Act 2017, we basically said that we refused to turn a blind eye. The time for acting on those sentiments is now. By Easter, the Scottish Government’s first delivery plan for the 2017 act will set out how we can set out on a different path, in the face of the transition to universal credit, the benefit freeze and more austerity.

Taken together with the provisions for early years assistance, my proposal supplements that policy direction. As families across Scotland face inflation of 3 per cent, which is weighing down on their weekly budgets, with child benefit losing its value for another year, the proposal would assist more than 500,000 families who are struggling with the impact of Brexit and Tory Government austerity. More importantly, 30,000 children would be lifted out of poverty immediately.

The Institute for Fiscal Studies predicts that, by the time of the next Holyrood elections, one in three children will be in poverty. With the passing of the rate resolution, we acknowledge that the SNP has failed to secure the budget to pass on a top-up in 2018-19, but legislating now could ensure that the provisions are commenced in future years or—if in-year provision could be found—this year.

I feel that failing to legislate at stage 2 would be short-sighted and to delay a decision would also mean that we are content to wait while children suffer poverty and misery, with all the associated impacts on health and wellbeing, educational attainment, future earning potential and their ability to get themselves out of poverty.

The key to the give me five campaign’s work is the recognition that the near universal uptake and eligibility criteria for child benefit make this the most appealing option for ensuring the most immediate impact. The Poverty and Inequality Commission notes in recommendation 23 of its report that the Government must consider

“the greatest financial impact alongside other relevant factors such as cost and complexity of delivery, take up rates, income security, and potential disincentives to move into work or increase earnings in order to identify the most effective option to impact on child poverty.”

Although the committee has agreed to amendments to deliver a new strategy to boost uptake, the number of people who are eligible for and are claiming tax credits has fallen. Topping that up would support fewer and fewer families as Tory welfare reform accelerates.

Alongside that, the complexity of topping up the means-tested system, which is going through a period of transition, is huge. The alternative of topping up child tax credit would also require the Government to top up universal credit and income support for the medium term. To quote the commission again, doing so would be

“particularly challenging given the current problems with the way that Universal Credit is being delivered.”

The commission notes that

“increasing the child element of Universal Credit appears to be the most cost-effective way of reducing child poverty”,

assuming a 100 per cent uptake of universal credit, which is, of course, an impossibility in the short term. We will not have a clear idea of how and when the full transition to universal credit will take place until the end of this year.

I think that what I am proposing is the best and most cost-effective way of lifting as many children out of poverty as we can, and I hope that members will give serious consideration to the amendments in my name in this group.

I move amendment 202.

Alison Johnstone

I want to speak in whole-hearted support of Mark Griffin’s amendment on topping up child benefit. I fully support the aims of the give me five campaign: we are all aware of its work and of the efforts that it has made to raise awareness of the issue. As Mark Griffin has pointed out, child benefit has decreased markedly in value since welfare reform was introduced, so the £5 top-up would probably go a little way towards addressing that. The measure would immediately lift 30,000 children out of poverty, which would in itself bring about cost savings in terms of their health and wellbeing. If we are a country that seriously wants to address the attainment gap, then that is something that we cannot turn away from.

I am sure that we will hear arguments against universality, so I remind members of other parties that the Government is rightly, in my view, committed to that principle in relation to prescriptions and free access to higher education, and for the very reasons why we should support universality in this case. We know from the Child Poverty Action Group and others that child benefit is often the only income that families are dependent on, such is the complexity of our welfare system. That is well evidenced. What Mark Griffin proposes would send a strong message that Scotland is taking the issue seriously and really wants to strive to end child poverty.

It is a horrifying prospect that one child in three could be living in poverty by the time of the next election. I understand that there are costs attached to doing what is proposed, but there are also real costs attached to not doing it, so I stress again the importance of universality. There is nothing that we can do that is better than ensuring that our youngest people have the best possible start in life; child benefit is at the heart of that.

Ruth Maguire (Cunninghame South) (SNP)

My colleagues have made compelling, emotive and emotional arguments, and have quoted from the commission’s report. However, the commission also says that it is not recommending that the Scottish Government top up a specific benefit, and it points to other options. The bottom line for me is that the framework bill is not the place for something that commits a substantial amount of money and rides roughshod over the budget, so I cannot support the amendments in the group.

Adam Tomkins

I am grateful to Mark Griffin for bringing this important matter to the attention of the committee—not least because, like him, I think that the Scottish Government’s considerable power to top up reserved benefits is an important part of devolved social security, for which the bill is legislating.

Last year, Parliament unanimously and with all-party support passed what I think is a very important piece of legislation—the Child Poverty (Scotland) Act 2017. The Scottish Conservatives, as all the other parties did, supported the bill and tried to strengthen it as it went through Parliament. As Mark Griffin said, the first delivery plan under the Child Poverty (Scotland) Act 2017 will be published soon by the Scottish Government. It is important to note that that legislation takes a holistic approach to child poverty: the thinking is not that the only relevant measure of child poverty is income or that the only solution to child poverty is to increase the value of benefits. When we are thinking about child benefit, we need to think about a huge variety of issues including education and the attainment gap, families in work, and health and mental health.

10:15  

My friends and colleagues on the political left need to absorb, confront and reflect on the key finding of the Joseph Rowntree Foundation in 2016, which was that increasing the value of benefits without tackling the underlying drivers of poverty has failed to address poverty in the United Kingdom, including in Scotland. According to the Joseph Rowntree Foundation, the approach that is being advocated by Mark Griffin and Alison Johnstone has failed to address poverty. If we are serious about tackling child poverty—we all are—we need to get serious about addressing its underlying drivers, pathways and causes, and not merely to focus on the value of benefits, as amendments 202, 110 and 111 do.

Alison Johnstone

When we have discussed previous amendments, Adam Tomkins has suggested that drug addiction and other issues are causes of poverty, but does he accept that poverty is very often the cause of those issues? I understand that he is passionate, as we all are, about education, but it is very difficult for a person to reach their potential if they simply do not have enough food in the morning or if their family is really struggling. I see the two approaches as being entirely interlinked; we should be pushing for both, and not for one at the expense of the other.

Adam Tomkins

We do not disagree about that. I think that each can be a cause of the other. I do not think that poverty drives the education gap wider, any more than I think that the education gap drives poverty deeper. They are deeply interlinked and related to one another. They are causes of each other—they have a correlative relationship.

My point is that none of us will be successful—as a political party, an individual campaigner, a Government or an Opposition—in tackling child poverty if we think only about increasing the value of benefits, important though that is. I am not saying that doing so is unimportant, but in the Joseph Rowntree Foundation’s view, it is a mistake to focus on that to the exclusion of other broader issues, including education, employment and health.

The top-up that is proposed by the give me five campaign would cost in excess of £0.25 billion a year—a not insignificant sum—to say nothing of its administration costs. The appropriate time and place for the Scottish Government to consider whether it wants to adopt that proposal as policy—which I hope it does—is not in a framework bill that is legislating for implementation of devolved social security, but in the annual budget process. Amendments 202, 110 and 111 cut straight through the budget process. For that reason, they are inappropriate.

Jeane Freeman

As members have noted, on Monday the Poverty and Inequality Commission, which was set up by the SNP Government to provide independent expert advice, published its advice to guide us—as we asked it to—in the child poverty delivery plan that we will publish in the coming weeks. I am sure that members remember that that plan will set out the actions that we will take to meet the challenging statutory income targets that we have set to reduce and, ultimately, to eradicate child poverty.

The commission set out some general principles focused around five themes that should underpin the delivery plan. The most relevant for us this morning is “Linking actions to impact”, which means being clear what the impact of each action is expected to be and committing to monitoring and evaluating the impact. The commission’s analysis takes as a starting point the removal of the benefit cap and the two-child limit, and then it models on top of that various benefit options. The package to top up child benefit by £5 would cost £340 million and would lift 20,000 children out of poverty, but a package to top up the child element of universal credit, at a cost of £360 million, would lift 45,000 children out of poverty. There can be little doubt that using resources in a way that delivers relatively small impacts on child poverty is not the most effective targeted action to take.

It is clear that although a universal £5 top-up to child benefit is not a bad idea, it is certainly not the best idea. Further analysis also demonstrates clearly that for every £10 that would be spent on that option, only £3 would effectively reach children who live in poverty. The analysis in the commission’s report is clear in pointing to the most effective use of any additional resources that could be found and committed to such work. The commission does not recommend that we top up specific benefits, but helpfully points to the analysis as providing a direction of travel on options that are worth exploring further.

The commission also helpfully and pragmatically advises that consideration should be given to issues such as the not insubstantial cost and complexity of delivery, potential take-up rates, income security and potential disincentives to moving into work or to increasing earnings—all alongside consideration of the impact. The £340 million that the commission’s analysis indicates is the cost of implementing the child benefit top-up package is roughly equivalent to the combined current spending in Scotland on winter fuel payments, industrial injury benefits, discretionary housing payments, severe disablement allowances and funeral expense assistance. That points to the difficult decisions—for which we must all take responsibility—that are to be made in determining how a declining Scottish budget can be used most effectively and, as has been said, that are properly to be made through the Government and Parliament’s budget process.

This is not a competition about who is most committed to ending child poverty. There can be absolutely no doubt of my colleagues’ commitment in that regard, or of the Government’s commitment and intention to take effective action—across Government and in addition to that to which we are already committed—to meet the challenging targets that we have set. The independent expert Poverty and Inequality Commission has provided all of us with clear and helpful advice. It sets out a direction of travel and points to the further thinking that needs to be done. We will progress that through our child poverty delivery plan: we will lay out both the extent to which we will use social security powers to reduce child poverty, and the options that are available to us. That is the right approach to take, and one that Parliament has agreed the Government should take.

I urge the committee to reject amendments 202, 110 and 111 in the group because they do not meet the key guiding principle that the commission has identified as being critical to underpinning our effective action.

Mark Griffin

I take on board all the points that members of the committee have made—first, in relation to whether the approach in amendment 202 is the right way of doing this or whether it cuts across the budget. I would happily ride roughshod over the Scottish Government’s budget if doing so would lift 30,000 children out of poverty, and I would do so every single day of the week.

On Adam Tomkins’s point about whether increasing benefits is the best lever to reduce poverty, that is an argument that we have regularly. However, the fact is that we are debating the Social Security (Scotland) Bill, so we are talking about the benefits system. I do not disagree with him that there are other ways to lift families out of poverty; there will be common ground on many such measures. However, we are talking about the social security system, so we are focused on how measures within it will help families and help to lift children out of poverty. A benefits freeze will certainly not lift a single family out of poverty. Amendments 202, 110 and 111 would contribute to addressing the benefits freeze that has been put in place by the UK Tory Government.

As the minister has said we should do, I am looking at linking action to impact. If amendments 202, 110 and 111 were to be agreed today, the action that would be taken would be to top up child benefit, the impact of which would be that 30,000 children would be lifted out of poverty.

Again, I agree that this is not a competition. We are not competing with each other to see who most wants to reduce poverty; we all equally want to reduce child poverty. It is not a competition because we do not have competing proposals—there is one proposal on the table. If the Government had introduced proposals, detailed them and set them out in the budget, I would have welcomed that.

However, there is one proposal, which is that we increase child benefit by £5 a week to be paid in the simplest and easiest way. It would not be completely universal because people who earn more than the earnings limit do not qualify for child benefit, so there is still an element of targeting. I ask members to give serious consideration to supporting amendments 202, 110 and 111 in my name, and I press amendment 202.

The Convener

The question is, that amendment 202 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 6, Abstentions 0.

Amendment 202 disagreed to.

Section 47 agreed to.

Section 48—Power to repeal temporary provision

Amendment 110 moved—[Mark Griffin].

The Convener

The question is, that amendment 110 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 6, Abstentions 0.

Amendment 110 disagreed to.

Amendment 111 moved—[Mark Griffin].

The Convener

The question is, that amendment 111 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 6, Abstentions 0.

Amendment 111 disagreed to.

Section 48 agreed to.

After section 48

The Convener

The next group is on the inalienability of assistance. Amendment 198, in the name of the minister, is grouped with amendment 199.

Jeane Freeman

As the convener said, amendments 198 and 199 set out the general principle of inalienability of social security assistance. They are technical adjustments. The principle means, in effect, that a person’s right to social security assistance will be protected and cannot be transferred to a third party for debt recovery.

Amendment 198 makes it clear that creditors cannot use legal mechanisms to assume the right to a person’s benefit payments, which could be used to recover a debt. Amendment 199 sets out that if a person enters an insolvency process, there is a further safeguard to ensure that their assistance cannot be used to pay off creditors.

These are important amendments that will ensure that people get what they are entitled to and that the assistance provided meets the needs for which it was intended.

I move amendment 198.

Amendment 198 agreed to.

Amendment 199 moved—[Jeane Freeman]—and agreed to.

The Convener

The next group is on information sharing. Amendment 200, in the name of the minister, is grouped with amendment 201.

10:30  

Jeane Freeman

Amendments 200 and 201 are technical adjustments to make provision in the bill for data sharing between ministers and Scottish public authorities.

The Scotland Act 2016 contains provision for data sharing between the Scottish ministers and the UK Government for social security functions. Additional gateways for data sharing need to be created so that ministers can share information with Scottish public authorities.

Amendment 200 lists the main public authorities that ministers may need information from to operate social security provision. There is a power to add further bodies by regulations.

I highlight that any requirement on the bodies to supply information will not override any prohibition in any other enactment or rule of law. That is to ensure that the gateway the bill will create is compatible with the wider requirements of data protection legislation.

The amendments also provide a gateway in the other direction, to allow ministers to supply social security information to Scottish public authorities, for example, to help with automation of benefits. To ensure transparency, regulations will have to set out which functions of the authority receiving the information are relevant. Again, that is subject to any other enactment or rule of law that would prohibit disclosure.

I move amendment 200.

Adam Tomkins

I understand that the amendments are technical and that they will been checked by Government lawyers for compatibility with UK and European Union data protection requirements. I hesitate to say this, but in light of the fact that within the past year or two there has been an adverse Supreme Court ruling against legislation passed by this Parliament on precisely the issue of information sharing, will the minister say anything about how the amendments are compatible with that interpretation of data protection and how they are different from the way in which the named persons legislation—which is obviously what I am referring to—constructed requirements to share information?

Jeane Freeman

I assure Mr Tomkins that the amendments have been drafted in order to take account of that court ruling. However, I am not in a position to draw to his attention the precise way in which they are different. I would be happy to do so outside the committee, but I am happy to say that the amendments are compatible with the court ruling.

Alison Johnstone

Subsection (3) of the new section that will be inserted by amendment 200 states:

“Where information is supplied to the Scottish Ministers under subsection (1) for use for any purpose, they may use it for any other purposes for which information held by them for that purpose may be used.”

What is meant by that? I am concerned about the extent to which information would be shared under amendment 200.

Jeane Freeman

It may well be that the manner in which the amendment is worded is standard for a section such as this. We have touched on the issue before when we have come up against what, with the greatest respect, I might describe as legal speak, which is not always as clear to us as our legal colleagues consider it is to them.

The amendment means that data that the agency holds can be used only for the purposes that we seek the approval of the individual whose data it is to hold, if you follow me. If the agency wanted to hold data about me, I would have to give it approval and it would have to be clear with me the purposes for which it wanted to hold that information. My consent would be an absolute requirement, which I hope provides Ms Johnstone with the assurance that she seeks.

The Convener

The question is, that amendment 200 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Griffin, Mark (Central Scotland) (Lab)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

Abstentions

Johnstone, Alison (Lothian) (Green)

The Convener

The result of the division is: For 7, Against 0, Abstentions 1.

Amendment 200 agreed to.

Amendment 161 moved—[Jeane Freeman]—and agreed to.

Amendment 133 moved—[Mark Griffin].

The Convener

The question is, that amendment 133 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 6, Abstentions 0.

Amendment 133 disagreed to.

Amendment 134 moved—[Mark Griffin].

The Convener

The question is, that amendment 134 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 6, Abstentions 0.

Amendment 134 disagreed to.

Amendment 135 moved—[Mark Griffin].

The Convener

The question is, that amendment 135 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 6, Abstentions 0.

Amendment 135 disagreed to.

Amendment 136 moved—[Mark Griffin].

The Convener

The question is, that amendment 136 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 6, Abstentions 0.

Amendment 136 disagreed to.

The Convener

Before we move to the next group of amendments, we will have a five-minute comfort break. I request that members be back in their seats within those five minutes, if at all possible.

10:37 Meeting suspended.  

10:43 On resuming—  

Section 49—Local authorities’ power to make payments

The Convener

The next group is on discretionary housing payments. Amendment 209, in the name of Pauline McNeill, is grouped with amendments 162 to 164.

Mark Griffin

Amendment 209 was drafted with the intention of ensuring that the existence of DHP schemes is mandatory. Citizens Advice Scotland raised the issue with the committee at stage 1. In no way would we seek to mandate the operation of the scheme or place duties to pay assistance, which would take discretion over operation out of the hands of local government. I accept that the duty to operate a scheme should perhaps have been the subject of a standalone amendment; perhaps Ms McNeill could discuss that with the minister ahead of stage 3. I will support the amendments in the group in the name of the minister.

I move amendment 209.

The Convener

I invite the minister to speak to amendment 162 and the other amendments in the group.

Jeane Freeman

Amendment 162 makes a technical adjustment to the bill to make clear that it is possible for discretionary housing payments to be paid either to an individual or to a person to whom the individual has a liability. In practice, that is likely to be their landlord. The amendment also clarifies that, for a local authority landlord, the payment may be made by transfer between the authority’s accounts, which will allow the current practice to continue.

In its stage 1 report, the committee invited the Government to reflect on the evidence that was received on DHPs. Amendments 163 and 164 respond to suggestions from local authorities and other stakeholders that local authorities should be under a duty to run DHP schemes where there is funding from the Scottish Government for them to do so.

In my view, Ms McNeill’s amendment 209 is unworkable. The Government’s amendments provide that a local authority must consider applications, but it will retain discretion as to who should receive an award. That is fundamental to the nature of the existing discretionary housing payment schemes. Ms McNeill’s amendment would create an entitlement-based system such that all qualifying applicants must receive an award. That would go against the discretionary nature of the scheme. Although I am sure that that is not the intent, I therefore urge the committee not to support amendment 209.

The Government’s amendments will ensure that DHP schemes continue to be run in all Scottish local authorities and therefore that essential support continues to be provided. I hope that members will support my amendments and reject the amendment lodged by Ms McNeill.

The Convener

I invite Mark Griffin to wind up and press or withdraw amendment 209.

Mark Griffin

As the minister suggested, that was certainly not the intention behind the amendment in the name of Pauline McNeill. On that basis, I seek the committee’s permission to withdraw it.

Amendment 209, by agreement, withdrawn.

Amendment 162 moved—[Jeane Freeman]—and agreed to.

Section 49, as amended, agreed to.

Section 50 agreed to.

Section 51—Local authorities’ duty to provide information about payments

Amendment 163 moved—[Jeane Freeman]—and agreed to.

Section 51, as amended, agreed to.

Section 52 agreed to.

After section 52

Amendment 164 moved—[Jeane Freeman]—and agreed to.

Section 53 agreed to.

After section 53

Amendment 2 moved—[Alison Johnstone].

The Convener

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 6, Abstentions 0.

Amendment 2 disagreed to.

The Convener

The next group is entitled “Universal credit: payment to joint claimants”. Amendment 203, in the name of Mark Griffin, is the only amendment in the group.

Mark Griffin

Amendment 203 seeks to place in law a requirement on ministers to bring forward regulations under section 30 of the Scotland Act 2016 to ensure that payments of universal credit are automatically split between the two members of a couple, allowing an opt-out if a couple wishes to retain a joint payment. The amendment transposes the restrictions in the 2016 act but, crucially, would ensure that the use of a regulation for the third universal credit flexibility was done in a way that has overwhelming support from individuals and organisations—and, indeed, the minister’s colleague Philippa Whitford.

In recent responses to questions, the minister has said—a year after the cabinet secretary first promised progress in the area—that officials are discussing with the DWP the feasibility and operational and cost implications of the different policy options. As much as I want it to, the amendment does not require ministers to rush to establish a split payment scheme within the next year. The regulations that the minister lays may, of course, have a later implementation date, and the amendment rightly requires that the minister continues the consultation with the DWP. That is a requirement of the power in the 2016 act. However, the 2016 act is very clear that, if Scottish ministers make regulations and the Secretary of State for Scotland considers that it is not practicable to implement a change that is made by the regulations by the time it is due to start to have effect, the secretary of state may delay them to a more reasonable date.

The amendment would deliver the same intention as Philippa Whitford MP’s private member’s bill, which is due to have its second reading in mid-March. At the first reading of the Universal Credit (Application, Advice and Assistance) Bill, Ms Whitford said:

“The Bill calls on the Government to make separate payments the norm. It is often said that universal credit should be like a salary, but salaries are paid to individuals, and it is quite Victorian to go back to the idea of the breadwinner. I certainly would not be too chuffed if my salary was posted to my husband.”—[Official Report, House of Commons, 27 November 2017; Vol 632, c 52.]

I fully agree with that.

In the consultation on social security, there was overwhelming support for universal credit payments to be split between the members of a household from 99 per cent of organisations and 78 per cent of individuals; 74 per cent believe that payments should be split automatically. The key stakeholders advocate automatic use of this flexibility, including Engender, Scottish Women’s Aid, the Joseph Rowntree Foundation, Inclusion Scotland, the Scottish Council for Voluntary Organisations and the Scottish Federation of Housing Associations.

We have frequently rehearsed the argument that splitting payments automatically would aid gender equality in the Scottish social security system by promoting financial autonomy and helping to protect women and children from financial and domestic abuse. As it stands, nine out of 10 domestic abuse cases include a financial element. Women receive 20 per cent of their incomes from social security payments, and 86 per cent of UK Government cuts to social security will mean cuts to women’s incomes. Split payments can be requested under the current system, but they are massively underused and underpublicised. I ask members to support my amendment.

I move amendment 203.

Alison Johnstone

I support Mark Griffin’s important amendment. That flexibility is absolutely essential for the reasons that Mr Griffin outlined. There is support for it from a considerable number of groups, which have real concerns about the impact of payments to the so-called head of a household; the power that that can give one person in certain circumstances is something that we should seek to avoid. This is an important amendment and I am pleased to support it.

George Adam (Paisley) (SNP)

I was not going to say anything on the amendment, but I feel that I must. From the practical point of view, it is the DWP that would have to do what is proposed. For the Scottish Government to do anything, it has to negotiate with the DWP. Also, do we know whether the DWP has the information technology systems in place to be able to do it properly and ensure that we can do it?

The problem that we have is that there are so many imponderables in relation to being able to do what is proposed that it makes it extremely difficult, in my opinion, for the Scottish Government to do it. It will be interesting to hear what the minister has to say.

Jeane Freeman

There can be no doubt about this Government’s view that the UK Government’s policy of making a single payment of universal credit to a household can increase inequality in the welfare system and act as an enabler for domestic abuse or financial coercion by one partner towards the other. For the record, I restate the Scottish Government’s clear commitment to introducing split payments of universal credit for people living in Scotland—a strong commitment that we are already progressing.

However, I cannot support Mr Griffin’s amendment 203, first because there is not an overriding consensus among stakeholders on an automatic split of the universal credit award, as proposed in the amendment. There are different views on the issue, as well as on how the different elements of the universal credit award should be allocated. We are currently undertaking further work jointly with stakeholders and users of the universal credit system to examine what the impacts would be. However, perhaps most importantly, delivery is entirely dependent on the Department for Work and Pensions. Universal credit is reserved to the UK Government and, in line with the universal credit Scottish choices, the DWP would deliver any split payments that the Scottish Government requires.

I hear Mr Griffin’s reference to Ms Whitford’s bill at Westminster, but I do not believe that it can be prayed in aid of the amendment, as Ms Whitford rightly addresses her bill to the Government with responsibility for this reserved benefit. I hope that she succeeds in her endeavours, but I would respectfully suggest to Mr Griffin that, if he wishes this Government to act in that way, he supports our arguments for further powers in terms of the devolution of additional benefits.

The position that we are in means that it will not be solely for the Scottish Government to decide what can be achieved, and a set deadline is therefore unhelpful. We are completely reliant on what is technically feasible within the DWP’s IT systems. Therefore, we need to agree with the DWP a delivery date that it is confident it can meet and negotiate a cost that represents good value for money for the Scottish taxpayer, as it will come out of the fixed envelope towards the delivery of the devolved social security powers.

Discussions with the DWP are on-going, and the process is an iterative one. The amendment would write a blank cheque for the negotiations on costs. Although the Scottish Government is committed to the policy, I repeat that deliverability is completely in the hands of the DWP.

In summary, I reiterate that I share Mr Griffin’s concerns about the DWP policy that his amendment touches on, but I hope he will agree that his proposition would pre-empt the outcome of our process, would hand the DWP a blank cheque and could not be delivered by this Government as it fails to recognise that the benefit is reserved. That is the case as a result of the agreement of the Smith commission, which his party was a party to. I hope that he will support the devolution of additional powers to this Government, but at present the deliverability rests with the holder of the reserved benefit, which is the UK Government, acting through the DWP.

I ask members to oppose amendment 203.

Mark Griffin

The amendment does not set a timescale for the Government to enact split payments. The only timescale that it sets is in relation to the requirement for the Scottish Government to bring forward a regulation within a year of royal assent. The regulation does not have to make automatic split payments a reality immediately; as I have worded the amendment, there is some flexibility.

I am committed to the policy of automatically splitting payments through universal credit and I think that the Government is committed to the policy of split payments, so I do not take the argument that the minister makes that the amendment gives the DWP a blank cheque. The fact that a majority of the parties in Parliament are committed to the policy effectively tells the DWP that we want this to happen and we expect it to deliver. In effect, we have already given it a blank cheque—

George Adam

We can demand anything that we like from the DWP, but it can decide that it does not want to listen to this place. We have to negotiate. The DWP has to listen to Westminster. I do not see the point in the member’s argument.

Mark Griffin

The Scottish Government has the power to introduce flexibilities. That needs to be negotiated with the DWP. There is nothing in the amendment that stops the Government from entering into those negotiations. As I set out earlier, if there is anything that the DWP or the Government is unable to do within that timescale, the secretary of state can introduce a new timetable.

I feel that, as it stands, the amendment would put into effect the policy that most of us round the table agree with, which is that there should be automatic split payments. Including that in the legislation would be a welcome step, so I press the amendment.

11:00  

The Convener

The question is, that amendment 203 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 6, Abstentions 0.

Amendment 203 disagreed to.

Section 54 agreed to.

Section 55—Regulation-making powers

Amendment 75 not moved.

Amendment 150 moved—[Mark Griffin].

The Convener

The question is, that amendment 150 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)

Abstentions

Balfour, Jeremy (Lothian) (Con)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 4, Abstentions 2.

Amendment 150 disagreed to.

Amendment 51 not moved.

Amendments 49 and 50 moved—[Jeane Freeman]—and agreed to.

Amendment 151 moved—[Mark Griffin].

The Convener

The question is, that amendment 151 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)

Abstentions

Balfour, Jeremy (Lothian) (Con)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 4, Abstentions 2.

Amendment 151 disagreed to.

Amendments 76, 130, 172 and 192 not moved.

Amendment 165 moved—[Jeane Freeman]—and agreed to.

Amendment 137 moved—[Mark Griffin].

The Convener

The question is, that amendment 137 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 6, Abstentions 0.

Amendment 137 disagreed to.

Amendment 3 not moved.

Amendment 210 moved—[Mark Griffin]—and agreed to.

Amendments 52, 201, 53 and 54 moved—[Jeane Freeman]—and agreed to.

Section 55, as amended, agreed to.

After section 55

The Convener

The next group is on procedure for regulations for assistance. Amendment 131, in the name of the minister, is grouped with amendments 131B, 131A, 132 and 211. If amendment 131B is agreed to, amendment 131A is pre-empted.

Jeane Freeman

I am glad that the final debate of stage 2 is an important one. We all recognise the importance of getting the process right for scrutinising regulations, which is why, before the bill was even introduced, I met this committee and the Delegated Powers and Law Reform Committee to invite views on what extra scrutiny requirements would be appropriate and how they should fit with the Parliament’s usual processes.

In its stage 1 report, the committee called for a super-affirmative procedure that would give an independent expert body an opportunity to feed its views into the scrutiny of regulations to help the Government and the Parliament ensure that our social security law is the best that it can be. Alongside the amendments setting up the new commission, amendment 131 gives full effect to the committee’s recommendation. I thank Dr McCormick, Ms Paterson and the other members of the expert advisory group for their work in that regard.

Members will have received the Government’s policy paper, which explains in detail the effect of the Government’s amendments. To briefly summarise, amendment 131 would create a process for the scrutiny of regulations that deal with eligibility and entitlements under the assistance types in part 2 of the bill and any top-up assistance created under part 3.

The first step of the process is that the Scottish ministers must inform the commission of their proposals, notify the Parliament that they have done so and make the proposals publicly available. That will also allow for experience panels and other groups to be consulted, as this Government has done throughout the bill process—members will recall that it is one of the bill’s principles that the system will be designed with the people of Scotland. It also provides an opportunity for the Parliament, if it so wishes, to engage with the proposals at the consultation stage.

The next stage of the process is that the independent commission must prepare a report on the draft regulations, setting out its observations and recommendations. In performing that work, the commission will be under a statutory duty to take into account the principles and any relevant international human rights instruments.

Once that independent report is published, ministers can lay their draft regulations before Parliament for approval. Alongside the draft regulations, they will also have to lay a report before Parliament explaining what they have and have not done in response to any recommendations that the commission has made. With the benefit of having seen the independent expert commission’s report and the Government’s response, it is then for the Parliament to decide whether to approve the Government’s regulations and the steps that the Parliament might wish to take in reaching that decision.

There are two situations in which that procedure does not need to be followed. One is when the draft regulations are for the purpose of consolidating existing regulations, and the other is when the commission advises that its scrutiny is not required. I know that the Delegated Powers and Law Reform Committee has written to this committee to express concern about that last point. As the Government’s position paper makes clear, if members would prefer the commission not to have that power, the Government will be happy to remove it at stage 3.

Amendment 132, in my name, excepts draft funeral expense assistance regulations and early years assistance regulations from the process that I have just outlined, until such time as the commission advises that it is ready to begin carrying out its scrutiny role. That is to avoid delay in the implementation of those benefits by summer 2019. As the committee knows, the policy proposals for such assistance have been, and are being, consulted on extensively. We published illustrative regulations last year, and further public consultation on draft regulations will take place this year. Against that background, it seems unnecessary to hold up implementation until the commission is in operation. However, I reiterate that it will, of course, remain for this committee to determine the role that it wants to take in the scrutiny of those draft regulations when they are laid.

Amendment 131B, in the name of Ms McNeill, seeks to extend super-affirmative procedure to all regulations that will be made under the powers in both the bill and the Welfare Funds (Scotland) Act 2015. In my view, that is disproportionate and unnecessary; I also believe that the amendment is technically flawed. The scrutiny procedure that is attached to regulation-making powers has to be chosen with an eye to the importance of the regulations in question and the need to preserve and make effective use of parliamentary time. That is what the Delegated Powers and Law Reform Committee considers when it scrutinises bills. Unsurprisingly, it has not recommended that all regulations made under the powers in the bill and the 2015 act be subject to the affirmative procedure, much less the super-affirmative procedure.

The effect of amendment 131B would be that even commencement regulations, which are normally subject to a laying requirement only, would be subject to the super-affirmative procedure. While I am sure that it would be a pleasure for me to appear before this committee on a weekly basis to go through every regulation, I am not sure that that would be the most effective use of members’ time.

I cannot support amendment 211, in the name of Mr Griffin. It would let a judge strike down regulations that had been approved by a vote of the Parliament, on the basis that, in the judge’s opinion, the policy behind the regulations is “retrogressive”, without providing a definition of what that is or detailing any other circumstances surrounding such a decision. Whether a particular policy is or is not retrogressive is, in effect, a political judgment. It is precisely the sort of judgment that we have all been elected to this Parliament to make. I am sure that Mr Griffin does not want to abdicate to the courts his responsibility as a member of this Parliament. I do not think that that would be appropriate. Amendment 211 would diminish the role of Parliament. I therefore urge members to reject it and to support the amendments in my name.

I move amendment 131.

Mark Griffin

Amendment 211, in my name, is simply a probing amendment, which I will not press. Its purpose was to start a debate on the issue. In some respects, it returns the debate on the bill to where stage 1 deliberations began, with a focus on the ability of future Governments to erode the assistance that is made available to an individual and on how we can prevent that from happening.

Throughout the passage of the bill, the committee has heard and debated, again and again, that there is a balance to be struck between primary and secondary legislation. Although there have been substantial improvements by way of the use of the super-affirmative procedure and the establishment of the commission, which is bound to act in line with international treaties on the right to social security, the bill still allows future Governments to make fundamental changes to key social security benefits through secondary legislation. The commission will be able to warn of potential breaches of human rights in proposed legislation to aid parliamentary scrutiny, but the potential for fundamental changes to be made to social security by regulation alone remains.

The Child Poverty Action Group sponsored amendment 211 to ensure that fundamental change is introduced through primary, not secondary, legislation, and that the bill makes the requisite distinction in that regard.

11:15  

Amendment 211 seeks to draw the line at the point where Government proposals would reduce rights under international human rights provisions and would ensure that such retrogressive measures could not be introduced through regulations.

A Government that believes the measure to be—

Ruth Maguire

What do you consider to be the definition of “retrogressive”?

Mark Griffin

As I said, amendment 211 is simply a probing amendment. It is not an amendment that I intend to press; I simply want to have a debate on whether we have the right balance between primary and secondary legislation and whether, in advance of stage 3, we can agree that any effort to reduce the amount of benefit or entitlement to benefit would be seen to be retrogressive, because it would reduce someone’s right to social security. Therefore, any negative change would have to be introduced through primary rather than secondary legislation. That is the purpose behind the amendment, and that is the debate that I want to have today.

Ruth Maguire

Lodging amendments that are sponsored elsewhere rather than lodging them as a committee member is a challenge, and I feel a bit uncomfortable with that approach. It is important to have definitions, so that we know exactly what we are talking about.

As you were communicating the purpose of the amendment, a question popped into my head. What would happen if we reduced something in one sense, but created a whole new other benefit for that same client group? The amendment is hugely problematic.

Mark Griffin

I accept everything that you are saying—amendment 211 is problematic, so I will not move it. This is about having a debate around the table about the issue that it raises.

I move amendment 131B.

George Adam

I am concerned about amendments 131B and 211. I am not convinced by Mr Griffin’s argument for amendment 211.

On amendment 131B, as much as I dearly love the minister, coming here every single week for the slightest regulation would not be a good use of our time—

Mark Griffin

I accept everything that you say. As I have said, I will not be seeking to move amendment 211 or to press amendment 131B.

George Adam

I was about say that, because we have so much coming back at stage 3—we have so much work to do—I want to push amendments 131B and 211 to the vote, so that we can deal with the issues now. That would give us the opportunity to deal with all the other work that we will have to deal with at stage 3.

Adam Tomkins

I completely agree with Mr Adam’s comments.

Jeremy Balfour (Lothian) (Con)

As do I.

The Convener

I invite the minister to wind up, and to press or withdraw amendment 131.

Jeane Freeman

I do not need to say any more about my amendments, but I will take a moment to comment on amendment 211. The amendment fails to understand the difference in approach to secondary legislation between what happens in Westminster and what is being proposed here under the super-affirmative procedure—and we are clearly proposing the use of the super-affirmative procedure.

In the bill, we have, with the committee’s agreement, agreed to establish an independent commission that would have a clear role in relation to compliance and checking whether anything that this or a future Government might introduce complies with human rights instruments.

Fundamentally, it seems to me that amendment 211 diminishes the role of the Parliament. That is quite wrong. Its main effect would be to leave ministers open to judicial review if it is considered that regulations contain “retrogressive provision” without specifying what the term means, which would be left to the courts to determine. That is a political judgment that should remain with the Parliament.

I urge members to vote against amendments 211 and 131B.

The Convener

I ask Mr Griffin to wind up on amendment 131B and to press or withdraw the amendment.

Mark Griffin

I appreciate that committee members might want to dispose of certain amendments to prevent them from coming back at stage 3, but that has no bearing on whether members might bring them back in an amended form at stage 3. That said, I seek to withdraw amendment 131B.

The Convener

Do members agree that amendment 131B be withdrawn?

Members: No.

The Convener

There will be a division.

For

Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 6, Abstentions 0.

Amendment 131B disagreed to.

Amendment 131A not moved.

Amendment 131 agreed to.

Amendment 132 moved—[Jeane Freeman].

The Convener

The question is that amendment 132 be agreed to. Are we agreed?

Members: No

The Convener

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

Abstentions

Johnstone, Alison (Lothian) (Green)

The Convener

The result of the division is: For 6, Against 0, Abstentions 1.

Amendment 132 agreed to.

Amendment 211 moved—[George Adam].

The Convener

The question is, that amendment 211 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Balfour, Jeremy (Lothian) (Con)
Griffin, Mark (Central Scotland) (Lab)
Johnstone, Alison (Lothian) (Green)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 0, Against 8, Abstentions 0.

Amendment 211 disagreed to.

Sections 56 and 57 agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill. I thank the minister, her officials and members for taking part, and parliamentary staff once again for their efforts to make sure that today’s meeting could go ahead. We will not meet next week. We will be in touch regarding future meeting dates.

Meeting closed at 11:23.  

The Presiding Officer (Ken Macintosh)

We now move to stage 3 proceedings on the Social Security (Scotland) Bill. In dealing with amendments, members should have with them the bill as amended at stage 2, the second revised marshalled list and the groupings.

The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon and the period of voting for that first division will be 30 seconds. Thereafter, the period will be one minute for the first division following a debate.

Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons as soon as possible after I call that group.

Section 1—The Scottish social security principles

The Presiding Officer

Amendment 17, in the name of Jackie Baillie, is grouped with amendment 18.

Jackie Baillie (Dumbarton) (Lab)

Amendment 17 is a simple, one-word amendment on which, I hope, the entire chamber can agree.

Members will know that several equalities groups called for the introduction of a principle in section 1 of the Social Security (Scotland) Bill that would embed equality in our social security system. My colleague Mark Griffin lodged a number of amendments to the bill at stage 2 that were supported by the Coalition for Racial Equality and Rights, Engender and Scottish Women’s Aid. All but this one were agreed.

I know that it is in the way of these things that, behind the scenes, there have been discussions between Scottish Government officials and CRER, Engender and Scottish Women’s Aid, but no conclusion had been reached prior to the deadline for stage 3 amendments. Hence, amendment 17 is before members today.

I believe that the Scottish Government’s intentions are good but essentially the language in the bill is weak. The thinking is that, rather than promoting the goals of equality and non-discrimination, the Scottish social security system—and, indeed, other public bodies—should actually deliver them. Under the Equality Act 2010, all public authorities are required to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not. Amendment 17 ties the principles into the 2010 act and provides legislative backing for that requirement.

14:15  

The principles would be considerably strengthened by that change in wording, which would not be about simply duplicating Equality Act 2010 obligations. Research shows us that public bodies are not fully aware of their duties and often do not adhere to them properly. Having the requirement in the bill would align with the Scottish Government’s equalities responsibilities under the Scotland Act 1998 to promote compliance with equalities legislation. Above all, it would be the right thing for this Parliament to do.

I move amendment 17.

Adam Tomkins (Glasgow) (Con)

Amendment 18, in my name, is designed to continue—and, I hope, to complete—the work that was started at stage 2 when the Social Security Committee sought to clarify the legal effect of the principles on which the Scottish social security system is to be based. We all accept and agree with the Scottish Government’s proposition that that system should, indeed, be based on a set of agreed principles that are listed at the beginning of the legislation, in section 1. However, turning that policy intention into statute law runs the risk that there will be unnecessary litigation that is designed simply to clarify, in courts or tribunals, what the legal effect of those principles might be, even if we are all agreed on their political effect.

Section 1A, which was added at stage 2, is designed to start the work of clarifying what the legal effect of the principles is, to avoid the risk of unnecessary future litigation. As I have said, amendment 18 is designed to complete that work. It simply clarifies that the statutory purpose of the Scottish social security principles is that they can be reflected in the Scottish social security charter—to which we will come in a few moments—and that the Scottish commission on social security can have regard to them in making recommendations as required by the various provisions of the bill that pertain to it. Amendment 18 has been agreed with the Government, and I thank the minister for her help in its drafting.

The Minister for Social Security (Jeane Freeman)

I am very conscious that we have a great deal to get through this afternoon and into this evening, so I am happy to say simply that I support both amendments in the group, which I believe provide the bill with additional strength.

The Presiding Officer

Thank you. That was admirable brevity. I call Jackie Baillie to wind up.

Jackie Baillie

I am delighted and do not need to add anything else, Presiding Officer.

Amendment 17 agreed to.

Section 1A—Effect of the principles

Amendment 18 moved—[Adam Tomkins]—and agreed to.

Section 1B—Scottish ministers’ duty to promote take-up

The Presiding Officer

Amendment 19, in the name of the minister, is grouped with amendments 23, 27, 30, 33, 37, 39, 40, 43 to 45, 47 to 51, 64, 65, 67, 68, 71, 74, 75, 89, 95, 103, 104, 104A, 105 to 110, 112, 115 to 118 and 123.

Jeane Freeman

The amendments in group 2 are minor and technical adjustments to improve the structure of the bill, improve consistency of expression across sections, add clarifications and make some minor fixes. We have already provided detailed information to business managers, so I do not believe that I need say much more about the amendments, but I want to indicate my support for amendment 104, in the name of Jeremy Balfour.

I move amendment 19.

Jeremy Balfour (Lothian) (Con)

Amendment 104 is a technical tidying-up amendment that gives clarity to the roles of the lower and upper tribunals and the commission. I am grateful to the minister and her officials for their help in drafting it. I am happy to support all the other amendments in the group.

The Presiding Officer

Does the minister want to add anything by way of winding-up remarks?

Jeane Freeman

No, I am fine. Thank you, Presiding Officer.

Jeremy Balfour

I should have declared that I am in receipt of the higher rate of personal independence payment, which is one of the benefits that we will deal with later.

The Presiding Officer

Thank you for noting that for the Official Report.

Amendment 19 agreed to.

After Section 1C

The Presiding Officer

We move to group 3. Amendment 1, in the name of Pauline McNeill, is grouped with amendments 20 to 22, 24 to 26, 28, 36, 38 and 11.

Pauline McNeill (Glasgow) (Lab)

I have taken a strong interest in the question of whether benefits can be automated for those who are entitled to them. We know from Department for Work and Pensions estimates that £13 billion of benefits a year are not claimed by people who are entitled to assistance, which in Scotland could be as many as 500,000 individual cases.

I thank the Scottish Government and the minister for working with me to put together my amendments in the group. I know that the minister is as committed as I am to making sure that, where we can, we make it easier for people to get the benefits to which they are entitled. I know that our working together will go beyond this bill; we also did it with the Child Poverty (Scotland) Bill.

Amendment 1 is about recognition of the importance of the available data. It simply means that ministers would use the data on the first application to assess whether a person might be eligible for another benefit.

Amendment 11 is the important amendment in the group, because it would place a duty on Scottish ministers to

“inform the individual that the individual may be eligible for ... assistance, and ... provide ... information about how to apply for it”,

or allow for a more automated determination of whether that person can receive other benefits without making any more applications.

Once a person has made an application, there would be a duty on the agency to ensure that, if the person was entitled to any other benefits, the agency would assist them in getting those benefits.

I move amendment 1.

Ruth Maguire (Cunninghame South) (SNP)

I am grateful to Mark Griffin for his support on amendment 20, as well as the support that has been provided by stakeholders—in particular, the Royal College of Speech and Language Therapists.

In encompassing all the information that the bill will require ministers to make publicly available, amendment 20 also covers posters, information leaflets and appointment information, as opposed to only the more formal documents that are listed in section 1D. Perhaps most important is that, in contrast to section 1D, amendment 20 will ensure that communication accessibility is mainstreamed and normalised, as opposed to its being implemented only on an individual and “proportionate” basis.

Under section 1D, a person would have to know where to go to and then ask for accessible information. In addition, the use of the term “proportionate” implies that the provision of accessible information would be dependent on whether the agency decided that the costs are worth it or the individual need merits expenditure, thereby potentially discriminating against the interests of minority needs. By contrast, amendment 20 will enshrine accessible information in the social security system as a matter of course. In that, it complements my previous amendment 1C, on inclusive communication, which is about supporting individuals to use whatever ways of understanding are best for them. That can only be a good thing; no one has ever complained that a public system was too easy to understand or engage with.

Inclusive communication and accessible information are crucial elements in building a system that is based on dignity and respect for all those who use it. I urge colleagues to support amendments 20 and 21.

Jeremy Balfour

Whenever one applies for a benefit, it can be, as we heard from Ruth Maguire, a difficult procedure. It is often the case that, regardless of how simple we make the forms, people require advice and assistance to complete them.

The amendments in my name in the group would clarify matters in an area in which the Social Security Committee has been on a journey. It is fair to say that there was in all our minds, as we started stage 1 of the bill, some confusion about what is meant by “advocacy”—we will come on to that later—and what is meant by “legal advice and assistance”. It has been very helpful—and I welcome the Government’s move in this regard—that we have separated out the two terms and there is a clear distinction between them.

It is important that an individual has that right, and that the right is independent of the Scottish Government. I think that, here in Scotland, we are very fortunate that, across the country, there are many groups in local authorities and in third sector bodies that provide independent advice and assistance to claimants. It is clear that that must happen throughout the process, from when a person goes to find out whether they are entitled to make a claim, all the way through to when they have to go to a first-tier tribunal, if that is necessary.

I am grateful to the minister for clarifying that she supports my amendments. We will support the other amendments in the group, too.

Jeane Freeman

I am grateful to Ms McNeill, Ms Maguire and Mr Balfour for lodging amendments that I believe will strengthen the bill, and I am pleased to support them all. They are about ensuring that people get all the assistance that they should get through the Scottish social security system.

The amendments in the group that are not in my name link to section 1B, which places the Scottish ministers under a duty to promote take-up of assistance. In that way, they are linked to my amendments 36 and 38, which build on the duty to promote take-up of assistance by requiring the Government to publish and periodically revise a strategy for promoting take-up. The strategy, which will be produced through a process of consultation, will set out the Government’s best estimate of the extent to which people are getting the assistance that they should be getting, and what steps the Government will take proactively over the strategy’s lifetime to boost take-up rates.

Taken as a package, the amendments in the group, together with the provisions that are already in the bill, will enshrine in law the Scottish Government’s commitment to ensuring that everyone gets the assistance that they are entitled to through our social security system, and will provide a mechanism for scrutinising the efforts of the current and future Governments towards achieving that goal.

Alex Cole-Hamilton (Edinburgh Western) (LD)

As members will know, my party is not represented on the Social Security Committee, but I am grateful to the minister, Opposition members and stakeholder groups for keeping us abreast of developments.

This group of amendments, which is on improving uptake, is very important to my party. We know from Scottish Government statistics that as many as 500,000 families in Scotland are not getting the benefits to which they are entitled, so we heartily support all the amendments in the group.

Mark Griffin (Central Scotland) (Lab)

I am proud of what we have all achieved through the amendments in the group, and I am pleased that they will build on one of our key long-running agreements with the Government, on the idea that the system should maximise people’s incomes as much as possible. In 2016, we secured from the Government an agreement that there should be a statutory duty to maximise incomes, and although there has been some disagreement along the way, that duty has taken form in section 1B.

Every year, £2 billion of benefits—most of which are reserved—go unclaimed. That money could lift families and communities out of poverty and boost local economies. I know that the minister supports the approach that we advocate. She has written in the Daily Record about how she envisages a “once-for-Scotland” approach, and that must extend to take-up. The intention to minimise forms and link best start grant take-up to council services is an example that she has used.

At stage 2, Pauline McNeill secured agreement to have a system that would lead to the automation of benefits or a “bonfire of benefit forms”, as it was put, and that progress is very welcome. Amendments 1 and 11 have the Government’s support, and I am pleased that those provisions will be in the legislation.

Equally, I am pleased to support Ruth Maguire’s amendments 20 and 21, which will ensure that everyone who uses the agency will get the information, the letters, the advice and the records that they need in the most inclusive and suitable form that fits their needs.

We have some concerns about the Government amendments 36 to 39. My amendments at stage 2 set wide-ranging requirements on the Government to make its duty to promote take-up a reality, to record progress and to detail areas in which more work is needed. At the time, we had the Government’s support. My strategy to boost take-up is target based and would require the Government to come forward with measurable outcomes, statistics on which should be released regularly, so I am disappointed that the minister wishes to remove those provisions.

We had discussions about that and I agreed with the minister on some changes that should have been made, because of the potential impact on the fiscal framework, but I still felt that the targets should remain in place. In Northern Ireland, targets have been shown to work; they are boosting by £65 per week the incomes of those whom they target. It would have been more helpful if that part of the amendment that was passed at stage 2 stayed within the bill in order to achieve real progress against targets to boost the incomes of low-income families.

14:30  

The Presiding Officer

I call Pauline McNeill to wind up on the group.

Pauline McNeill

The amendments will form an important aspect of the bill, in terms of the practicalities of running the agency, and will genuinely help people to take up their benefits when the agency is finally set up. I am happy to leave it at that.

Amendment 1 agreed to.

Amendment 20 moved—[Ruth Maguire]—and agreed to.

Section 1D—Accessibility of information

Amendment 21 moved—[Ruth Maguire]—and agreed to.

Section 1E—Recognition of importance of independent advice and advocacy

Amendment 22 moved—[Jeremy Balfour]—and agreed to.

Amendment 23 moved—[Jeane Freeman]—and agreed to.

Amendments 24, 25 and 26 moved—[Jeremy Balfour]—and agreed to.

Amendment 27 moved—[Jeane Freeman]—and agreed to.

Section 1F—Information and advice

Amendment 28 moved—[Jeremy Balfour]—and agreed to.

Section 1G—Right to advocacy

The Presiding Officer

Amendment 29, in the name of Jeane Freeman, is grouped with amendments 31, 32, 34, 35 and 94.

Jeane Freeman

Amendment 29 and the other amendments in the group make further provision in relation to independent advocacy services. I am delighted to say that amendment 31 widens the definition of the group of people who will have a right to access independent advocacy services. Expanding and improving my stage 2 amendment, I am pleased to say that the new amendments will ensure that those services can be accessed by people who, because of a disability, require an advocate’s help to engage effectively with the system. Amendments 29, 32 and 34 are simply adjustments to make amendment 31 work.

Since the end of stage 2, my officials and I have been working with stakeholders and MSPs to ensure that we have the right definition for the additional support. The amendments that we are debating today have the support of a range of organisations, including disability agenda Scotland, Inclusion Scotland, the Scottish Commission for Learning Disability, Citizens Advice Scotland, Camphill Scotland and the Scottish Refugee Council. I am grateful to all the representatives of those organisations and others who have worked with us to develop and agree the amendments. However, in providing for advocacy support, we as a Government must ensure that it is available across Scotland, and that a person can be assured of an equity of standards and service whether they are in Dumfries or Dundee, Lerwick or Lossiemouth.

A report that the Scottish Independent Advocacy Alliance published last year is clear that, in relation to advocacy services across Scotland,

“Provision for people with physical disabilities is patchy and was identified as a gap in many areas as was provision for people with issues relating to benefits and changes to social security.”

The Scottish Commission for Learning Disability has told me of similar concerns—that there are insufficient advocacy providers, that it is difficult to recruit advocates in remote areas, and that a dispersed population makes for difficulties with service provision.

We have to ensure that that changes. I therefore lodged amendment 35, which provides for advocacy service standards. That will ensure that those who enter into agreements with ministers to provide independent advocacy services for the people we are ensuring have a right to them will provide consistent service standards.

That approach—central funding and agreements that are based on mutually agreed standards—is exactly the same as what we would expect of other services that we provide funding for, such as the money and debt advice sector, which uses the Scottish national standards for information and advice providers.

In developing those standards, we will use existing models, such as the SIAA’s advocacy code of practice and its independent advocacy evaluation framework, because it would be foolish not to. We will do what we always do and develop the standards in consultation with relevant organisations and—this is important—people who currently access advocacy services. We want to ensure that we meet the expectations that people will have in exercising the new right.

The Social Security (Scotland) Bill contains many important and exciting innovations. Enshrining in law the right to independent advocacy services, as we have set out in the amendments, is one of those innovations, as is ensuring that the regulations that will govern the standards will be approved by the Parliament. Instead of introducing service level agreements across the country, we want the service standards to be agreed by the Parliament. That is why amendment 94 will specifically insert a reference to the new section on advocacy service standards into section 55, which governs the regulation-making powers in the bill, to ensure that regulations to set out the advocacy service standards will be subject to affirmative procedure and will therefore be scrutinised by the Parliament.

I hope that members agree that the amendments represent significant progress in the area of social security and will provide a significant package of support for people who would otherwise struggle to access the support that they need and the entitlement that is their right.

I move amendment 29.

Ruth Maguire

A great deal of skill, knowledge and sensitivity is required to provide quality independent advocacy support to people. A range of high-quality services operate in Scotland—not least Aims Advocacy in Stevenston in my constituency—but, with the substantial additional requirements and investment in line with our new social security system, it is crucial that we ensure that those high levels of service are maintained.

The Scottish Commission for Learning Disability is currently carrying out a scoping study of advocacy services, which highlights the need for consistent standards of service across Scotland to ensure that everyone—no matter where they live—can access the same standard of advocacy services. That is backed by similar evidence from the Scottish Independent Advocacy Alliance’s “A Map of Advocacy across Scotland”, which highlights a lack of consistency in services.

Introducing advocacy service standards will ensure equity of standards and service for all people in Scotland. I support the fact that those standards will be produced in consultation with the sector and those who rely on the services and, crucially, the fact that they will be scrutinised by Parliament under the affirmative procedure.

I support amendment 29.

Jeremy Balfour

I welcome the minister’s remarks and the movement on the matter that the Government has made over the past weeks.

The definition of disability or of being disabled is much better and stronger than what was agreed by the committee at stage 2. The Parliament and the Government have to work to ensure that we understand what we mean by that definition when the regulations are drawn up, and there is work to be done with advocacy groups, disability groups and others in the third sector.

However, the definition allows the Parliament to know that advocacy will go to those who need it, which is the key point. Not everybody will need an advocate when they go through the process and simply to open advocacy up to everyone would disadvantage those who need it and put extra financial pressure on the Scottish Government and advocacy groups.

It will be a challenge to deliver the advocacy process in different areas in time for when the regulations are up and running. As the minister has said and as I know from having spoken to different groups, there is quite a different picture depending on where you go in Scotland. We are very fortunate in the Lothians as many good groups are already up and running here and will be able to provide an advocacy service but, having talked to groups in other parts of the country, I know that that will be a challenge for them. We need to ensure that they have the appropriate resources and training to provide the service.

It is important to read the group 4 amendments alongside something that was approved previously, which is that an individual will have the right to have somebody of their choice with them all the way through the process, unlike what happens at the moment. That represents a positive step by the Scottish Government and it means that an advocate will often not be required because the individual will have with them somebody whom they already know and who can support them and be an advocate for them.

It is fair to say that amendment 35 is the most controversial amendment in the group, but we will support the Government on that amendment because we need a standard that can be applied across the whole country. There is a danger that, in parts of the country where there are not good advocacy services, we would end up with individuals simply jumping up and saying “I could be an advocate. Can I have money, please?” That would be the wrong way forward. We need to be able to meet the right standards and give the appropriate service to those who require it.

I very much welcome the minister’s comment earlier that, as the regulations are drawn up, she will consult the groups already providing advocacy and those who are interested in doing so. Ultimately, it will be a decision for the Parliament as to whether we approve the regulations. I suspect that a common theme throughout the debate this afternoon will be the recognition that passing the legislation today is simply the start of the journey and not the finish. The regulations are going to be key for individuals and my party will be very happy to work with the Government on the regulations so that we get them right for each individual across the country.

Mark Griffin

First, I congratulate the Scottish Independent Advocacy Alliance and the third sector for getting the right to advocacy into the bill. In the context of social security across the UK, they should be proud that, because of their work, there will now be a right to advocacy in legislation. It is a measure that makes the bill groundbreaking legislation. Key to Scottish Labour’s approach to the bill has been a clear desire to ensure that a right to independent advocacy is included. In our submission to the stage 1 consultation on the bill, we agreed that such provision was needed, stating that

“even if there are fewer face to face assessments and the private sector is removed from the system ... Independent advocacy is vital to ensure the system is responsive to the needs of disabled people.”

That support, along with the voices of voluntary and advocacy organisations, significantly shifted the Government’s position on the right to advocacy. Although Jeremy Balfour chose not to move his amendment on the issue at stage 2, the committee made it clear that the Scottish Government’s proposal to limit advocacy to those with mental health conditions was only a starting point and not the end point for what we expected to see in the bill.

The minister’s new amendment states that those with a disability will be able to access independent advocacy. As that will cover those who have the most significant need and will apply to the agency under the most complex processes that flow from the bill, and as it meets the test that we set out in our stage 1 submission, Scottish Labour supports the Government amendment whole-heartedly.

14:45  

However, we have heard concerns that amendment 35 puts the independence of advocacy organisations at risk and could set a precedent for Scottish Government influence over third sector service providers. Advocacy organisations already have a code of practice. They also have concerns about an independent organisation outside of Government that would advise applicants, or perhaps people who are appealing the decisions of an arm of Government, being wholly independent. They would not like to see service standards being set by Government and would rather see independent standards being set for those organisations. For those reasons, we will not support amendment 35.

George Adam (Paisley) (SNP)

As always, I will take this on in a practical manner, because I am a very practical individual.

I took it on board when Jeremy Balfour said that he believes—I hope he will excuse me for paraphrasing him—that, if there were no standards, someone could just set themselves up as an advocate on any high street anywhere in the country. That is a concern because of the quality of the advocacy that people would get.

With regard to the practicality, however, I have a question directly for the minister: is it not the case that what is in amendment 35 is currently standard practice anyway? The Scottish Government already produces guidance for commissioners of independent advocacy. It includes a set of principles and standards that were developed by the SIAA that the commissioners use to ensure that organisations and individuals provide independent advocacy services.

When we are looking at providing a better service and more money for advocacy, why would anyone not want to ensure that we have a standard of advocacy across Scotland? A standard would protect people and protect those organisations that provide a good standard of service for people. That is one of the most important issues. Let us not get to a point where people’s professionalism might be doubted because other people may have said that they were advocates when they were not.

I think that it is very important to include a standard in the bill. I hope that the minister will answer the questions that I have asked.

Alex Cole-Hamilton

In the passage of the bill we are talking about some of the most vulnerable people in our society, some of whom exist on the edges of our society and many of whom have complex communication difficulties. The provision of an advocate to help them navigate through the landscape of the benefit environment and communicate their views and needs as they apply for those benefits is vital. The Liberal Democrats are delighted to see the provision of advocacy in the bill.

We certainly support the Government’s amendment 31, which expands the group of people to whom advocacy applies. That is a very clear and important improvement.

We have come on a bit of a journey in this country on the provision of advocacy, from when it was first properly defined in law under the terms of the Mental Health (Care and Treatment) (Scotland) Act 2003. I was very much involved with a range of stakeholders in the passage of the Children’s Hearings (Scotland) Act 2011, which saw a right to independent advocacy for young people coming before the children’s panel.

We have provided for advocacy before and have not felt the need to have Government-defined standards in its provision. Indeed, advocacy is, by its nature, adapted to the circumstances around it. It changes with the needs of the people who require it. It changes from rural to urban populations. There are a range of different organisations providing it, and sometimes on a voluntary basis. It is already well self-regulated.

In response to George Adam’s question to the minister in his last remarks about whether the Government already provides guidance, I say that it certainly provides guidance, but there is a clear difference between guidance and standards. Amendment 35 takes the reach of Government a bridge too far and might actually close off the provision of advocacy to those who need it. Therefore the Liberal Democrats will oppose amendment 35.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Like others, I very much welcome the right to advocacy within the bill and I rise to speak in favour of all the amendments in the group in the name of the minister.

I speak particularly to amendment 35, which I support for a number of reasons. First, in my view it is important that amendment 35 is passed so that Parliament—MSPs—will have the opportunity to scrutinise the regulatory framework that is proposed by the Scottish Government. Why would we not want that opportunity to scrutinise the matter, particularly in the interests of making sure that there is consistency in the standards applied across the country, and that the same standards delivered to a high quality by advocacy services in my constituency and elsewhere in Scotland continue to be delivered consistently? Putting the right to advocacy in the bill gives higher importance and priority to the need for standardisation, consistency and a professional service.

We need to be able to assure people who use advocacy services that they are getting a proper and high-quality service. Through consultation with advocates and others involved in the sector, it is clear that the proposal that Parliament should scrutinise the regulations is absolutely the right, proper and professional way to go about implementing the right to advocacy. I urge members to support all the amendments in the group, particularly amendment 35.

Jeane Freeman

I thank Mr Balfour for rightly reminding us within the first hour that our work is not done when we pass the bill. There will be a great deal more for all of us to do in drafting the regulations that will flow from the bill, and the regulations that we are discussing now are one of the most important sets.

There are many groups to thank for getting us to this point, but I particularly single out Inclusion Scotland, Camphill Scotland and Disability Agenda Scotland for the hard work that they put in to help us refine our position on advocacy support so that we are in a much better place than we were at at stage 2.

There is nothing sinister in amendment 35. It is about ensuring consistency of quality and delivery across the country, which is entirely consistent with a rights-based approach. Mr Adam is, of course, right that we have guidance for commissioners of independent advocacy that includes a set of principles and standards with which they are required to comply, and we have also produced financial support to the Scottish Legal Aid Board to manage the accreditation process for the Scottish national standards for information and advice providers. What we are trying to do with amendment 35 is to add extra to that.

We already have standards to ensure consistency and high quality for services that we provide across the country, but I want Parliament to be able to look at the regulations that describe those standards, which we will reach after having that wide consultation. The professional expertise and experience that already exist in the advocacy world, to which my colleagues have already referred, will provide the basis, but amendment 35 will ensure that it is Parliament, as it should be, that scrutinises and approves the regulations when we introduce them.

I urge members to support amendment 35. It is entirely consistent with a rights-based approach that says that we need to make sure that every person in Scotland who is entitled to a service that we provide can trust that they will receive the same quality of provision as any other person.

Amendment 29 agreed to.

Amendments 30 to 34 moved—[Jeane Freeman]—and agreed to.

After section 1G

Amendment 35 moved—[Jeane Freeman].

The Presiding Officer

The question is, that amendment 35 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division. As this is the first division of the proceedings, I suspend the Parliament for five minutes to call members to the chamber.

14:54 Meeting suspended.  

15:00 On resuming—  

The Presiding Officer

We move to the division on amendment 35.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

The Presiding Officer

The result of the division is: For 90, Against 33, Abstentions 0.

Amendment 35 agreed to.

Section 1H—Income maximisation strategy

Amendment 36 moved—[Jeane Freeman].

The Presiding Officer

The question is, that amendment 36 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

The Presiding Officer

The result of the division is: For 90, Against 31, Abstentions 0.

Amendment 36 agreed to.

Amendment 37 moved—[Jeane Freeman].

The Presiding Officer

The question is, that amendment 37 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)

The Presiding Officer

The result of the division is: For 97, Against 25, Abstentions 0.

Amendment 37 agreed to.

Section 1I—Review of strategy

Amendment 38 moved—[Jeane Freeman].

The Presiding Officer

The question is, that amendment 38 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)

The Presiding Officer

The result of the division is: For 97, Against 26, Abstentions 0.

Amendment 38 agreed to.

Amendment 39 moved—[Jeane Freeman].

The Presiding Officer

The question is, that amendment 39 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)

The Presiding Officer

The result of the division is: For 97, Against 26, Abstentions 0.

Amendment 39 agreed to.

Section 1J—Restriction on private-sector involvement in assessments

Amendment 40 moved—[Jeane Freeman]—and agreed to.

The Presiding Officer

Amendment 41, in the name of Adam Tomkins, is grouped with amendments 42, 2, 46, 66 and 15.

Adam Tomkins

The amendments in this group pertain to section 1J, which was introduced to the bill at stage 2 and involves a statutory restriction on the involvement of the private sector in assessments for disability assistance. There was concern among a number of us that the wording of that section as introduced at stage 2 was drawn so tightly that it would inadvertently prohibit the involvement of certain medical experts in assessments, particularly if they had self-employment relationships with the national health service rather than being employed under the technical definition of employment in employment law.

After I lodged amendment 41, the minister lodged amendment 42. If she moves that amendment and presses it to a vote, I will not press amendment 41 to a vote because I think that the wording of amendment 42 more accurately captures the policy intention that I sought to achieve with amendment 41.

We will support amendment 42 and, indeed, we will support the other amendments in the group.

I move amendment 41.

Jeane Freeman

The amendments in this group deal with the important issue of assessments. The bill gives us an opportunity to do things differently and to sweep away the DWP’s failed assessments regime. I am pleased to say that, now that Mr Tomkins has said that he will not press his amendment, I am happy to support all the amendments in the group.

I have always been clear that profit should never be a motive or play any part in decision making in the assessment of people’s eligibility for disability or any other kind of assistance. That is why I lodged an amendment at stage 2, which is now section 1J, which says that an individual cannot be made to attend an assessment by someone who is not employed by a public body.

Amendment 42 is a technical adjustment to section 1J, to ensure that individuals can be taken on by public bodies as assessors without necessarily having a formal employer-employee relationship—for example, they may be self-employed. Amendment 42 in no way allows for a public body to contract with private sector operators to employ assessors, as the DWP does.

I am grateful to Mr Griffin for working with us to shape amendments 2 and 15, which he lodged. It is right that, where assessment is deemed necessary, individuals will be assessed by professionals who understand their conditions and the impact of those conditions. I am happy to support Mr Griffin’s amendments.

I thank Alison Johnstone for working with us to shape amendments 46 and 66 in her name. I have always been clear that the Scottish Government will reduce face-to-face assessments by using existing and relevant information to get decisions right first time. It is important that, where an assessment is necessary, the Scottish Government gives consideration to how it can be undertaken to reduce any impact on the individual. I am therefore pleased to support Alison Johnstone’s amendments, too.

Given that Mr Tomkins will not press his amendment, I urge all members to support the remaining amendments in the group.

Mark Griffin

We will support Alison Johnstone’s amendments in the group, although we cannot support the minister’s attempt to weaken the hard-won legal ban on the private sector delivering assessments and would not have supported Mr Tomkins’s attempt to do likewise. Although I can see the meaning in the minister’s letter, we feel that the flexibility that she seeks would allow gig-economy assessors—people on zero-hours contracts—to provide assessments and we cannot support that change.

I am glad to have worked with the Government on my amendments 2 and 15, which bring back the policy intention that was present at stage 2 and will ensure that the assessors are suitably qualified in relation to the condition that they are assessing. That proposal is supported by the Scottish Association for Mental Health, and the original impetus behind the amendment that I lodged at stage 2 was to ensure that those who have a mental health condition are assessed by someone who has suitable professional experience.

At the moment, 39 per cent of personal independence payment recipients have a psychiatric disorder. All too often, the assessment experience is poor and contributes to a lack of trust in the system. People face a lack of understanding, an apparent inability to understand fluctuating conditions and stigmatising attitudes. I ask members to support the amendments in my name in the group and those in the name of Alison Johnstone.

Alison Johnstone (Lothian) (Green)

I am pleased to support Mark Griffin’s amendments in the group. I, too, have concerns about the casualisation of labour in the Government’s amendment 42, so we will not support it. However, I thank the minister and the Government very much for the positive and constructive way in which they have worked with me in lodging my amendments.

Fundamental changes to assessments for disability benefits are essential to building a new social security system that is based on the principles of dignity and respect. It is essential that the current approach to assessments does not continue. Such assessments are often highly stressful and, in many cases, can exacerbate an individual’s health condition or disability. In an alarming number of cases, the subsequent decision is then overturned because of the poor quality of the assessment. Clearly, something is very wrong. It is no wonder that a survey of several hundred Citizens Advice Scotland clients and advisers showed that

“the highest priority for the Scottish social security system was that the number of unnecessary medical assessments for disability benefits is substantially reduced by making the best use of existing evidence.”

Members of the social security experience panels made similar comments.

Amendment 46 would mean that, if evidence is available through other routes, such as existing evidence from general practitioners and social care professionals, that would be sufficient to corroborate what an individual has claimed on their application form, and the Scottish Government would not be able to require them to undergo assessment. The amendment is aimed at reducing significantly the number of assessments, which stands currently at around 96 per cent of all PIP applications.

If assessment is required, amendment 66 would require ministers to explain to an individual why that is the case and to take into account options other than a face-to-face assessment. If such an assessment is required, it must be carried out within a reasonable distance of an individual’s home. No longer should applicants have to travel long distances on public transport that is not as accessible as it should be.

For the avoidance of doubt, my intention is absolutely not to prevent assessments from being done when they are required to determine entitlement or when an applicant thinks that they will benefit from having one. However, when evidence can be obtained in a way that is less intrusive and less stressful, the new principles of the new system dictate that that must be done.

Clearly, amendment 46 is only the beginning of such an approach; it will not have the intended effect on its own. Ministers will need to facilitate information sharing, particularly by designing evidence forms that are issued to GPs, for example, that relate more clearly than they do at the moment to the benefit criteria. I am sure that the minister will be aware how closely many people—myself and the thousands of PIP and disability living allowance recipients in Scotland—will be watching how the provision is implemented, if my amendment is agreed to by Parliament today.

If we are to found the new social security system on the principles of dignity and respect, as the Scottish Government rightly intends, protecting applicants from unnecessary assessments that can cause distress is one way to do that.

Alex Cole-Hamilton

I am grateful for Adam Tomkins’s remarks about his amendment 41. The Liberal Democrats have anxieties about that amendment. I understand his points, but I still think that his amendment would open the door once again to elements of the private sector coming into the process. Amendment 42 gets the balance right, so we will support the Government’s amendment. I hear what my colleagues in the Labour and Green parties are saying about amendment 42, but it strikes the right balance for the Liberal Democrats.

I support Mark Griffin’s amendments on quality standards and training. It is right that people should have confidence in the assessment process and that people who will carry out the process are trained to a high enough standard.

15:15  

Alison Johnstone’s amendments add a very humane element to this aspect of the bill. They represent a well-timed departure from how assessments have traditionally been conducted by the Department for Work and Pensions, particularly around disability benefits. They will certainly put the applicant at the heart of the process and, in many cases, in the driving seat. On that basis, the member is assured of our support for her amendments.

Amendment 41, by agreement, withdrawn.

Amendment 42 moved—[Jeane Freeman].

The Presiding Officer

The question is, that amendment 42 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

The Presiding Officer

The result of the division is: For 96, Against 26, Abstentions 0.

Amendment 42 agreed to.

Amendments 43 to 45 moved—[Jeane Freeman]—and agreed to.

After section 1J

Amendment 2 moved—[Mark Griffin]—and agreed to.

Amendment 46 moved—[Alison Johnstone]—and agreed to.

The Presiding Officer

Before I turn to the next group of amendments, members might like to know that we are slightly behind our schedule, by about five minutes. I exercised my power under rule 9.8.4A(c) to allow the debate on the group to continue and to finish in the time that was needed.

Section 3—Preparing the first charter

The Presiding Officer

We move to group 6. Amendment 3, in the name of Pauline McNeill, is grouped with amendments 4 to 6.

Pauline McNeill

The amendments are on the preparation and approval of the charter. I lodged a series of amendments at stage 2 that were aimed at making the charter subject to formal parliamentary approval. However, the effect would have contradicted the need for a clear and accessible charter. I agreed not to move those amendments at stage 2 and to work with the Scottish Government so that I could come forward with something that would involve some parliamentary approval, as the charter is a critical document. Various amendments that were passed at stage 2 ensure that it will be a more critical aspect of the new social security system.

Amendment 4 means that the Government may not make the charter unless a draft has been laid before Parliament and received parliamentary approval. Amendment 6 ensures that if ministers decide to make changes to the charter, a draft showing the changes must be laid before Parliament. I think that this is the right way for Parliament to be involved in the approval of the charter.

I move amendment 3.

Jeane Freeman

I am grateful to Ms McNeill for the work that we have done together to develop the amendments, and I am pleased to support them. They will cement the charter’s status as a fundamental part of the Scottish approach to social security and give the Parliament its rightful place, by making future Governments accountable for any attempt to alter that approach.

Amendment 3 agreed to.

Amendments 47 to 49 moved—[Jeane Freeman]—and agreed to.

Amendment 4 moved—[Pauline McNeill]—and agreed to.

Section 5—Reviewing the charter

Amendment 5 moved—[Pauline McNeill]—and agreed to.

Amendment 50 moved—[Jeane Freeman]—and agreed to.

Amendment 6 moved—[Pauline McNeill]—and agreed to.

Section 5A—Effect of the charter

Amendment 51 moved—[Jeane Freeman]—and agreed to.

Section 7—Meaning of “Scottish social security system”

The Presiding Officer

Amendment 52, in the name of Adam Tomkins, in group 7, on the meaning of the Scottish social security system, is the only amendment in the group.

Adam Tomkins

The bill includes a definition of the Scottish social security system, which is important because the principles and the charter, which we have talked about already, will apply within the scope of the Scottish social security system as defined.

Since the bill was introduced last year, my view has been that the definition of the Scottish social security system in section 7 is deficient in just one technical particular. We know that there are 11 benefits that are devolved in full and that there is the power to top up any reserved benefit. All those powers are included in the definition of the Scottish social security system, as provided for in section 7. However, there is a third element of devolved social security, which is in section 28 of the Scotland Act 2016. It is the power to create new benefits that do not otherwise fall within the scope of the 11 devolved benefits or the power to top up. The force of amendment 52—which has been drawn up with the assistance of the Government and its lawyers, for which I am grateful—is to ensure that that additional element of devolved social security is brought within the definition of the Scottish social security system. The full definition of the Scottish social security system will embrace not only benefits that are devolved in full and the power to top up reserved benefits but the power to create new benefits. In that sense, it is a technical amendment, which I hope will attract the support of members.

I move amendment 52.

Jeane Freeman

I am pleased to support Mr Tomkins’s amendment 52. As he said, it implements his long-standing view that the bill ought to better reflect the scope of the social security powers that are devolved to the Parliament. It does so in a way that ensures that future schemes that are added to the Scottish system will be introduced through acts of Parliament, with the robust scrutiny that that process requires, and clarifies that ministers should be held accountable for any future schemes that they choose to introduce. I am happy to support the amendment.

Amendment 52 agreed to.

After section 9

The Presiding Officer

We turn to group 8. Amendment 7, in the name of Mark Griffin, is the only amendment in the group.

Mark Griffin

Amendment 7 was lodged in a previous form at stage 2. I am glad to have worked with the Government to bring it back at stage 3 in a form that we can all support. The amendment seeks to give people a right to cease receipt of assistance at any point and, in effect, to say that they no longer wish to receive it. The Child Poverty Action Group highlights that, as currently allowed under UK law, it is important that people can withdraw their application once they have an award. There are circumstances in which a person might want to stop getting a particular benefit even though they are still entitled to it. For example, that may happen when a person or couple has a choice between two benefits but can get only one of them, or when a couple has a choice about which of them makes a claim.

The Child Poverty Action Group highlights the example of a couple who care for their disabled child. One of them gets carers assistance for their child but has their own health condition and gets universal credit. In universal credit, there are extra amounts for someone who gets carers benefit and for someone who has a health condition, but one person cannot claim both of those. If the person could not withdraw their claim so that their partner could then claim, the couple could be more than £150 a month worse off because their universal credit would not include a carers element.

I am happy to move amendment 7.

Jeane Freeman

I am grateful to Mr Griffin for drawing the matter to our attention, for lodging his amendment at stage 2 and for working with us to produce amendment 7. I believe that it is now a practical amendment with a sensible purpose that recognises that an individual should have the choice to stop receiving assistance. It sets out a defined process for requesting a cancellation, which should ensure that there is no obligation to treat a determination as cancelled if there is any ambiguity in the request.

I am pleased to support the amendment.

Amendment 7 agreed to.

Section 14—Disability assistance

The Presiding Officer

We turn to group 9. Amendment 53, in the name of the minister, is grouped with amendments 111, 111A, 111B, 148, 113 and 114.

Jeane Freeman

As I have said before, the issue that we now turn to has been the most challenging issue that I have faced in all the work on the bill. Support for people who are terminally ill is a complex, sensitive and difficult issue, and I am very aware that behind the decisions that we make are thousands of people who we must put front and centre of our decisions and actions.

The central principle is that a person who is terminally ill should have the support that they need quickly. I have lodged amendment 148 as an alternative to amendment 111, which I will not move. Amendment 148 has been framed carefully to ensure that the sensitive and difficult conversations between an individual and their clinician that are required in these difficult circumstances are held when medically necessary, to allow for optimal focus on the patient. I believe that providing for maximum clinical judgment is the best way to achieve that.

Amendment 148 sets no arbitrary timeframe to the definition of terminal illness but recognises that it is the skill and expertise of the registered medical practitioner that are needed to determine a terminal diagnosis. To support that critical decision making, the amendment allows the chief medical officer, in consultation with registered medical practitioners, to set a framework in guidance. It is that guidance that will decide when an individual has a progressive disease that can reasonably be expected to cause that individual’s death. Both the chief medical officer and the chief nursing officer, as our national experts, have reviewed and fully support the amendment as the best way to achieve timely support for those with a terminal illness.

Amendment 113 creates special rules for terminal illness cases. Those rules will guarantee terminally ill people quick access to disability assistance, ensuring that an individual does not have to satisfy a qualifying period in relation to their diagnosis and will not have to undergo further assessments to prove that they have a terminal illness. Their awards will be calculated, at the latest, from the date of application, and they will automatically get the highest rate of financial support to which they are entitled. That is in line with our commitment to the principle of providing support when it is needed, and it maintains fast-tracking for those with terminal illness, to remove any barriers to their receiving support as soon as possible.

I understand that our approach means that Ben Macpherson’s amendments will automatically fall, but I assure him that amendment 148 will cover all people of all ages.

Amendments 53 and 114 are minor adjustments that are needed to make amendments 148 and 113 work.

I call on members to assist those with terminal illness by supporting the amendments in this group.

I move amendment 53.

15:30  

Ben Macpherson

I lodged amendments 111A and 111B to extend the definition of “terminal illness” to ensure that regulations are framed to include anyone under the age of 18 who has a progressive disease that is likely to cause death. The amendments sought to make sure that special rules would apply to those young people so that they got the highest rate of benefit quickly and with no assessment.

Doing all that we can to help such young people and their families is important to us all, which is why I am glad that amendments 148 and 113, in the name of the minister, will enable what my amendments intended to deliver. The policy intention is to enable anyone who is under the age of 18 who has a progressive disease that is likely to cause death to receive the highest rate of benefit quickly and with no assessment.

Given that the minister’s amendments 148 and 113 will enable that change, that they are based on the balance of views from different parties and will provide for guidance that is based on the input of clinicians, and that the minister will not move amendment 111, I will not move amendments 111A and 111B. Instead, I encourage all MSPs to support the minister’s amendments and to deliver the change that my amendments sought.

Jeremy Balfour

As the minister has said, this has been the hardest part of the bill to get right. The committee and the Government have all been on a journey, and I think that we have ended up in the right place for those who are the most vulnerable in our society.

I introduced the two-year approach at stage 2 because, from my experience of sitting on tribunals, I knew of cases in which someone who had made an application and who was terminally ill but was going to live beyond six months died quite quickly after that period. They did not come under the special rules, and thus they did not receive the money that could have helped them to receive better services towards the end of their life. Six months was simply too short a period of time.

I therefore welcome the Government’s discussions with different groups and other MSPs. To take away the time limit completely is the right way forward. Whatever we came up with—whether it was six months, one year, two years or five years—would have been artificial; some people would have got in and some would not.

Having been lobbied heavily by my older brother, I think that it is difficult for GPs sitting in their rooms to give a definition, or to say with any clarity that a patient might live for less than six months—or two years. As well as giving a diagnosis, GPs have to deal with that patient having so many other things going on in their lives. It is important that people get the right benefits, but that is only one of the things that a GP or consultant or a nurse has to deal with when dealing with an individual.

We have made progress and are on the right course. The guidance will be very important, and I welcome the minister’s assurances that she will work not only with the chief medical officer and the medical profession but with those who work in the third sector. I give particular credit to Marie Curie and to MND Scotland for the work that they have done and the helpful information that they have given.

Clearly, no one wants to make this a party-political issue. Surely it is one on which we, as a Parliament, can come together to do the best that we can. I convey my respect to the minister taking that approach and for trying to take all of us with her; most important, I thank her for helping those who have been given a diagnosis that none of us would ever want.

Mark Griffin

Scottish Labour will support all the amendments in the group that are to be pressed. I especially thank the minister for lodging amendment 113, on special rules for terminal illness cases, and for progressing the policy from the amendments that I lodged at stage 2.

While we were pleased with the changes that were made at stage 2 to increase the time period that was to be used in the definition of terminal illness to two years, the removal of all time limits is a victory for campaigners and those who are terminally ill. Ultimately, the change—which, essentially, moves the basis of any decision on a terminal illness award on to that of clinical discretion and the needs of the terminally ill—is very welcome and was not expected just a matter of months ago. MND Scotland and Marie Curie, which have representatives in the public gallery today, should be particularly proud of the work that they have done to secure that change.

However, I sound a note of caution. Although that change in policy is welcome, we have to learn a lesson from how it came about. The process cannot and should not be a template for how ministers will set up the new system. We are expecting swathes of regulation, which will include the intricate policy design of nine forms of assistance. The campaigners and the people for whom the social security system is meant to be an investment need assurances that, in the months ahead, more detail will be given and that policy will be made out in the open and well in advance of decision making.

Alison Johnstone

I agree entirely that this is one of the most sensitive and challenging issues that we have had to discuss—certainly during this bill process, if not in this session of Parliament. I am very pleased with the outcome and welcome the improvements that will be made by the minister’s amendments. Scottish Greens will support all the amendments in group 9.

Members of the Social Security Committee and many organisations have been involved with the bill and have worked hard to find a way to resolve this complex issue. Scottish Greens are very pleased that the amendments clearly place such sensitive, difficult decisions in the hands of clinical experts. In a previous letter to the Scottish Government, the chief medical officer stressed that decisions about when to fast-track people’s benefits should focus on the health of individuals and not their medical condition or any timescales. Removing the restriction on timescale and allowing medical practitioners to exercise their expert judgment to its fullest extent is the best way forward for both patients and clinicians, so we very much welcome the change.

I, too, express my thanks to Marie Curie and MND Scotland, whose input in the process has been invaluable.

Alex Cole-Hamilton

I am sure that every single member in the chamber would agree that the measure of a civilised society is the compassion with which it treats those who are given the hardest of news, whether in a doctor’s surgery or a hospital.

I thank the Government for its approach. It is in this area that it has worked its hardest to build consensus—I know that work was going on late into the weekend to reach agreement on the wording—and I rise to speak in support of amendments 148 and 113.

I understand the drivers behind amendment 111, but we would have stuck with the stage 2 iteration, because amendment 111 did not get enough support and would have put doctors in the invidious position of having to decide at the same time as having a heartbreaking conversation with a patient whether that person should get an award for having a terminal illness.

End-of-life policy is always a very sensitive issue. We owe it to all those who are faced with such devastating news to strip the party politics out of it. Therefore, it is right that we entrust the matter to our clinicians, who I and everybody in this chamber trust implicitly, under the guidance of our CMO.

I add my thanks to MND and Marie Curie, which spelled out in important, personal and visceral detail what the matter means to so many people in our country. Again, I thank the Government for the distance that it has travelled on the issue.

George Adam

As a member of the Social Security Committee, but also for other reasons, I am only too aware how complex, sensitive and difficult the issue has been. I, too, commend the minister and colleagues for their work, which has enabled us to get to the position that we have reached today.

The conversation about terminal illness was a difficult one that everyone had to have when discussing the bill. Most members will be aware that my wife Stacey has multiple sclerosis. Along with 11,000 others who have the condition, she is celebrating MS awareness week. Although it is a progressive disease, members might think that, given how she has been bullying most of them today, she is quite healthy and carrying on with things. However, with MS, in time, we could be in the position where the issue that we are discussing could affect us; I have considered that possibility when looking at such issues.

I have also considered the views of constituents. Last week, a constituent told me about her individual circumstances in relation to the debate on terminal illness and the amendments in this group in particular. She argued in favour of there being no timeframe laid down in law and said that the decision should be up to the clinicians.

We have got ourselves to the right place, because it is not for us as politicians to specify an arbitrary period. The decision should be for the clinicians, and we should give them the scope and the ability to make it. If we were to specify an arbitrary period—two years, three years or whatever—we would have to take into account the fact that individuals would make life-changing decisions based on the diagnosis of terminal illness. The average clinician would not want to put someone in that position.

We have got to a good place, with the public on our side. We have been dealing with the real world; we have been dealing with people’s lives. Our agreement shows that this Parliament can behave maturely when dealing with such issues.

Jeane Freeman

I will be brief, but I want to say a couple of things. I genuinely appreciate the collective effort and the input from medical professionals, stakeholders and my fellow MSPs in order to find the best approach to terminal illness for our new social security system. In all our discussions, people have always given careful consideration to the issues and the complexities involved.

I know that we can all agree that the central principle in our approach should be to ensure that those who have to confront all the personal and psychological issues that come with a terminal diagnosis are provided with the support that they need, when they need it.

Medical practitioners will play a vital role in implementing this important change, and I am grateful to medical professionals for providing their views and for their offer of support in developing the guidance to deliver the new position.

I am also grateful to my fellow MSPs for their very considered approach to this complex issue, and for continuing to discuss it with me. It is clear that we all agree on the best way forward, and I welcome the cross-party support. I consider that we have arrived at the right solution to ensure that people who are in extremely difficult circumstances are able to access the maximum level of financial support to which they are entitled quickly and with the dignity and the respect that they deserve.

Amendment 53 agreed to.

Section 20—Application for assistance

15:45  

The Presiding Officer

We turn to group 10. Amendment 54, in the name of the minister, is grouped with amendments 55, 56, 58 to 61, 63, 69 and 98.

Jeane Freeman

The amendments in the group will create a right to appeal to the first-tier tribunal against a decision to reject an application for assistance or a redetermination on the grounds that it has not been validly made.

At stage 2, amendments were agreed to that will require the process for applying for assistance to be put in regulations. Mr Griffin explained that his intention with those amendments was to give people a right to appeal against the rejection of an application on grounds of technical invalidity, but putting the application rules in regulations makes no difference to whether the rejection of an application can be appealed against.

My amendments in the group do what the Social Security Committee wanted to do at stage 2, by creating a right to appeal against the rejection of an application. They go further and create a right to appeal against the rejection of a redetermination request, too.

Requiring the application process to be set out in regulations will get in the way of creating an application process that meets the aspirations on accessibility and inclusivity of communication that members have already voted to support this afternoon. I do not believe that anyone thinks that regulations are a good way of getting a public message across. People should not have to get their heads around a lot of legalese—I say this with all respect to my lawyer colleagues—to find out how to apply for assistance. They should be able to pick up a leaflet or go to the mygov.scot website and get a straightforward plain-English explanation of how to apply. They should be able to trust that, if they follow those instructions, their application will be valid. People should not be tripped up by a rule that is buried away in regulations.

If we are to meet the aspiration for the Scottish social security system to allow people to make applications in the way that best meets their needs, which I know is shared across the chamber, it will not help to limit the ways in which applications can be made to forms that are specified in regulations.

I urge members to support the amendments in the group so that the process for applying for assistance can be made as straightforward and accessible as possible, and so that, in the event that there is a dispute about whether an application or a redetermination request is valid, the dispute can be resolved by an appeal to the first-tier tribunal.

I move amendment 54.

Mark Griffin

We will not support amendments 54 and 55, but we intend to support the rest of the amendments in the group.

Amendments 54 and 55 seek to reverse the effect of the amendments in my name that the Opposition agreed to at stage 2. Those amendments, which mandated that the Government must provide in regulation clarity on what a satisfactorily submitted application must look like, were supported by the Child Poverty Action Group at stage 2, and the principle is still supported at stage 3. The aim was clear—to clarify the process of making a valid application—and I believe that that should remain a duty on ministers.

We are again rehearsing the issue, but whether an application has been validly made should mean simply that the questions that were asked on the form or in a phone call have all been fully answered, and that is what regulations should say in relation to the manner in which an application must be made.

The minister’s amendments 56 and 58 are welcome, and they complement section 20(1). Providing clarity on the issue in the bill and regulations will ensure that processes are fit for purpose and will provide certainty for people who use the system, rather than certainty for the Government to flex the application system as it requires.

The existing provisions will not require the bill or regulations to specify types of evidence that would be required—the Delegated Powers and Law Reform Committee raised a query about that—and will not reduce the ability of the system to be flexible and responsive to evidence that is received. In the UK system, before such an appeal right was explicitly provided for in legislation, its absence was ruled to be incompatible with human rights.

Accordingly, I ask members not to support amendments 54 and 55.

The Presiding Officer

Do you wish to wind up, minister?

Jeane Freeman

I repeat that people should be able to trust that the application rules that have been publicly communicated in plain English are the real rules for applying.

The idea that regulations saying how applications can be made need not be complex and overlegalistic is belied by the evidence. Anyone who doubts that needs to look at the UK Government’s claims and payments regulations, which run to 122 pages of closely typed text, a substantial part of which is exclusively about the process of applying for assistance. They have been amended extensively and are fiendish in their complexity. The public—and, I suspect, many members—are weary of the increasing volume of regulations that are produced every year.

Setting out application forms in regulations was fine a number of decades ago, when there was only ever going to be one paper-based form specified, and putting it in regulations ensured a sort of national distribution. The world has moved on, however, and legislation should move on too.

The Presiding Officer

The question is, that amendment 54 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

The Presiding Officer

The result of the division is: For 94, Against 26, Abstentions 0.

Amendment 54 agreed to.

Amendment 55 moved—[Jeane Freeman].

The Presiding Officer

The question is, that amendment 55 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

The Presiding Officer

The result of the division is: For 95, Against 26, Abstentions 0.

Amendment 55 agreed to.

Amendment 56 moved—[Jeane Freeman]—and agreed to.

Section 22—Notice of determination

The Presiding Officer

Amendment 57, in the name of Mark Griffin, is grouped with amendments 62 and 70.

Mark Griffin

The amendments in the group were lodged in a different form at stage 2, and I am glad to have been able to work with the Government to lodge new amendments in a form that has the Government’s support.

A key call from Paul Gray in his “Personal Independence Payment (PIP) assessment: second independent review” was that applicants should have the right to have a clear and thorough notification of why a determination has been made. Specifically, amendment 57 requires ministers to provide a copy of an assessment report when someone requests it. Adding in the element of choice is a key change since stage 2, after the minister rightly raised concerns that the automation of that process could pass on health information that the applicant was not aware of and might not want to be aware of. Broadly, the aim of the amendments in this group is to enhance transparency in subsequent redetermination and appeals processes, and I ask members to support them.

I move amendment 57.

Jeane Freeman

I am grateful to Mr Griffin for working with us on the group of amendments, and I am happy to support all the amendments in the group.

Amendment 57 agreed to.

The Presiding Officer

We turn to group 12. Amendment 8, in the name of Mark Griffin, is grouped with amendments 9 and 10.

Mark Griffin

The amendments in the group were lodged in a previous form at stage 2. I am glad to say that the Government and I have been able to work together to bring them back in a form that we can agree on.

Like the amendments in group 11, the amendments in the group seek to ensure that the person with a decision has the maximum information available to aid their redetermination and appeal, but also, if they have an award, that they can use it to prove their entitlement or access other passported benefits.

The original amendment, which was lodged with the support of the Child Poverty Action Group, sought to ensure that a notification is made in writing as standard. Although that was relatively benign, the minister rightly pointed out that that could cut across provisions in amendments that we lodged to ensure that people had inclusive and accessible communication.

As proud as we should be of the challenge that we have set for the new agency—that someone should have their communication by Braille, audio file, email or, indeed, in writing, by default as preferred—we know that other organisations and companies, despite their duties, are not as progressive in accepting those forms. We could never leave anyone in the position of not being able to access a passported benefit or not being able to prove their source of income because the organisation refused their preferred method of communication. Although it is clear that there is more work to do to make those organisations and companies upgrade and update their practices, we need to have a backstop in the system.

I ask members to support the amendments in the group.

I move amendment 8.

Jeane Freeman

Once again, I am grateful to Mr Griffin for working with us on the matter. The amendments will ensure that individuals will have a tangible record of why their determination or redetermination was made without limiting our capacity to communicate in the most effective way or to embrace new technologies. I am happy to support all the amendments in the group.

Amendment 8 agreed to.

Section 23—Right to request re-determination

Amendment 58 moved—[Jeane Freeman]—and agreed to.

Section 23A—Late request for re-determination

Amendments 59 to 61 moved—[Jeane Freeman]—and agreed to.

Section 25—Notice of re-determination

The Presiding Officer

We turn to group 13. Amendment 124, in the name of Jackie Baillie, is grouped with amendments 125 to 132.

Jackie Baillie

Amendments 124 to 131 all relate to the question of appeals to the first-tier tribunal. My colleague Pauline McNeill’s amendment 132 is about the collection of statistics that will inform future policy on access to appeals tribunals. I urge members to support it.

Variations on amendments 124 to 131 were first lodged at stage 2 by Pauline McNeill. They sought to improve appeals to tribunals, but the Scottish Government did not agree with them at that time. The Government’s amendments are to be welcomed, but concerns still remain, which have been highlighted by Enable Scotland, the Child Poverty Action Group, Inclusion Scotland, Disability Agenda Scotland and the Scottish campaign on welfare reform. I apologise if I have missed anybody out of that rather lengthy list.

16:00  

I will turn to the substance of the amendments. The two-stage access to an appeal tribunal was first introduced by the Conservative UK Government in 2013. Since then, there has been an 83 per cent reduction in appeals. Much as we might like to think that that is because the DWP got the claims right first time, that is unfortunately not the case. According to Enable, about 86 per cent of cases that undergo mandatory reconsideration do not change and 72 per cent of those who had the right to appeal did not appeal, but 60 per cent of those who did appeal were successful. If we take those figures together, they mean that as many as 20,000 people across Scotland are missing out. I think that that establishes that people who appeal to tribunals face a barrier.

However, if we need to be convinced further, I point to the evidence from the Government’s social security experience panels, which were the voices of lived experience. One comment from a panel was that

“A number of people were unable to appeal due to the stress associated with the process, and therefore accepted what they felt was an unfair or inaccurate decision.”

Another person said:

“I know their decision is wrong but I don’t have the time or energy to fight this further”,

and another said that

“Suffering with depression and anxiety and being made to jump through hoops made me 100 times worse.”

That person therefore did not appeal. The report from the experience panels containing those views was published after stage 2, so members did not have a chance to consider them before voting on relevant amendments. However, the panels are clear that there are barriers in the system that have not been addressed.

The amendments in group 13 attempt to address those barriers. As it stands, a person who has had their case rejected twice by the agency must actively appeal to the independent tribunal service. That requirement to appeal twice is the problem, so the amendments in group 13 would make the process of challenging decisions smoother, and would reflect the minister’s desire, which is right, for a rights-based system in which the claimant is in control. The agency would have the opportunity to review decisions, but where a redetermination comes back with no change, an automatic appeal to tribunal would be triggered. That would remove barriers to appeal and there would be the option to withdraw at any point.

I am aware that the Scottish Government is not comfortable with my group 13 amendments. I am disappointed by that, but I would be prepared—being a reasonable person—to consider not pressing my amendments if amendment 132, in the name of Pauline McNeill, is supported, because it would require the Government to collect and publish data on the matter so that we could return to it again.

I move amendment 124.

The Presiding Officer

I call Pauline McNeill to speak to amendment 132 and the other amendments in the group.

Pauline McNeill

I am grateful to Jackie Baillie for bringing the matter to the chamber for stage 3 consideration, because it might well be unfinished business. As Jackie Baillie said, there is evidence that when mandatory redetermination was introduced, tens of thousands of claimants dropped out of the system and did not proceed to appeal. Prior to the introduction of mandatory redetermination, a claimant would have had the right to appeal directly to the first-tier tribunal. We can appreciate why people might understand that as a clearer system of appeal. As Jackie Baillie said, it should concern us all that claimants might drop out of the system after mandatory reconsideration because they feel confused, stressed and vulnerable.

There is strong support among organisations that have already been mentioned for a one-stage appeal process that would mean that, if a redetermination failed, the appeal would be automatically sent directly to the tribunal system from the agency.

Jeremy Balfour

Does Pauline McNeill agree that if the amendments in group 13 were to be agreed to, there would be a danger that we would end up with lots of cases going to the first-tier tribunal for which people did not turn up, which would mean that first-tier tribunal decisions would take a lot longer and the system would be blocked for people who do want to appeal?

Pauline McNeill

I appreciate that there is concern about the bureaucracy of a system in which an appeal would be automatically sent directly from the agency to the tribunal system. However, I believe that I have designed something that would prevent any confusion, because the person would be told that their appeal was already in the system.

To be honest, I am still more concerned about the number of people who might not proceed to appeal. I hope that Mr Balfour is, too. I will get to the question of how we might be able to come back to that matter.

In a recent evidence session we heard—Mr Balfour will have heard it, too—that the organisations that have been in discussions with the Scottish Government on the issue remain unconvinced by the redetermination system. I pressed them hard on that question; there remains very serious concern.

Although the Scottish Government says that redeterminations will be carried out differently from how the DWP’s system has made determinations because a new official will look at the claim, we do not know whether that approach will work. However, to all intents and purposes, redetermination will still be mandatory.

My amendment 132 would require the Government at least to put information in the annual report that it will be required to publish. That would mean that the information in the annual report would include the volume of appeals. We could look at the data, which should allow Parliament to monitor the situation. In my view, that is the very least that Parliament can accept, because if the concerns become reality, at least Parliament will have the chance to readdress the matter in the future.

Again, I thank the minister, Jeane Freeman, for working with me on amendment 132.

Jeane Freeman

I cannot support the amendments in Ms Baillie’s name, but I am happy to support the amendment from Ms McNeill. I want to go through my reasons for not being able to support Ms Baillie’s amendments, because it is important to be clear on the record about why that is the case.

During stage 2, we debated the appeals process in detail, because no one—least of all me—wants to see anyone lose out on their entitlements because of a complex and confusing system. That is why the amendments that I lodged at stage 2, which were unanimously supported by the committee, addressed the concerns about potential barriers to appeal, while retaining—this is the critical point—the individual’s right to decide for themselves what they want to do in their case.

In the bill as it stands, the agency will be required to help people who decide that they want to appeal, and to help them at every step of the way. It must give the individual information about their right to appeal. If the individual wants to appeal, it must ask them to fill in and return a form that it sends them. It must tell them all about what they should expect to happen next, and give them information about local organisations that can provide them with independent support. If an individual decides that they want to appeal, they simply send the form back to the agency and the agency will then send to the tribunal that form and all the materials that it used to make its decision. The tribunal system, of course, will take it from there.

So far, so right spaced and so straightforward: the individual retains control of deciding what they want to happen in their own case. That is precisely what the experience panel members who made comment on the issue said they want.

The difficulty that I have with Ms Baillie’s amendments is that they would remove a degree of control from the individual. They would set up an automatic appeals system that would put the agency in charge. The individual would only come back into play, on their own case, in a negative way—by pulling out of an appeal that had been automatically triggered.

Ms Baillie’s amendments state that the appeal process would be automatically instituted where the determination is the same as the first determination. What does “the same” mean? Some of the benefits have different levels of financial award within them. Is that what “same” means? How and—more important—why should it be the agency that decides that it is to be appealed against? That strikes me as being fundamentally wrong.

The tribunal would start with no information other than the agency trigger—other than that the redetermination was the same as the determination. It would not even have the grounds of appeal.

I appreciate the intention behind Ms Baillie’s amendments, which is to remove unnecessary barriers so that we ensure that where someone disagrees with the agency’s decision, they are advised about and supported in challenging that decision through the first-tier tribunal, if that is what they want to do.

We have worked hard to do that and have positively introduced provision to ensure, via short-term assistance, that an individual is not financially discouraged from exercising that right to challenge.

I am not complacent about the matter, which is why I am happy to support Pauline McNeill’s amendment 132, which will require us to monitor and report how the process that is in the bill is working, so that we can continuously try to improve. I believe that that is the right way to proceed.

I ask members to support Ms McNeill’s amendment 132 and I ask Ms Baillie not to press her amendments. If she does, I ask members to oppose them.

The Presiding Officer

I call Jackie Baillie to wind up on the group and to press or seek to withdraw her amendment 124.

Jackie Baillie

I know that I do not have the support of the Scottish National Party or the Tories for my amendments, so I intend not to press them. However, let me place on the record that the amendments were devised after reflection on the stage 2 debate, and were changed accordingly. Under them, an individual would retain their rights throughout. It would simply be a case of not requiring them to appeal twice, because we know that under the legislation that was set up by the Tories in 2013, which has a two-stage appeal process, 83 per cent fewer appeals were lodged. That tells us all that we need to know.

I will briefly address Jeremy Balfour’s point. If the objective is to get more decisions right first time—which I hope and believe will be the case—it does not follow that the first-tier tribunal will be swamped with cases or that people will not show up. In Scotland, 20,000 people could be missing out on their correct entitlement because the Government remains wedded to a two-stage appeal process. Some people, who are more cynical than I, might say that “redetermination” is the current “mandatory consideration” by another name. Although I welcome the improvements that have been made by the minister, the barriers remain.

I hope that members will support Pauline McNeill’s amendment 132, so that we can collect the evidence that is needed to support the changes that, in my view, are still badly needed.

Amendment 124, by agreement, withdrawn.

Amendment 62 moved—[Mark Griffin]—and agreed to.

Amendment 9 moved—[Mark Griffin]—and agreed to.

Amendment 125 not moved.

Section 26—Notice where re-determination not made timeously

Amendment 126 not moved.

Amendment 10 moved—[Mark Griffin]—and agreed to.

Section 27A—Initiating an appeal

Amendments 127 to 130 not moved.

After section 27A

Amendment 131 not moved.

Section 29A—Presumption for purposes of sections 23, 23A and 28

Amendments 63 and 64 moved—[Jeane Freeman]—and agreed to.

Section 30—Obligation to provide information on request

Amendment 65 moved—[Jeane Freeman]—and agreed to.

After section 30

Amendment 66 moved—[Alison Johnstone]—and agreed to.

Section 31—Duty to notify change of circumstances

Amendment 67 moved—[Jeane Freeman]—and agreed to.

Section 32A—Appointment of person to act on behalf of individual

Amendment 68 moved—[Jeane Freeman]—and agreed to.

After section 32B

Amendment 69 moved—[Jeane Freeman]—and agreed to.

Amendment 70 moved—[Mark Griffin]—and agreed to.

Section 33—Decisions comprising determination

Amendment 71 moved—[Jeane Freeman]—and agreed to.

Section 34—Determination on basis of ongoing entitlement

16:15  

The Presiding Officer

We turn to group 14. Amendment 72, in the name of the minister, is grouped with amendments 73, 76 to 79, 133 to 137, 80, 146 and 147.

Jeane Freeman

Amendments 72, 73 and 76 to 79, in my name, are technical amendments. They clarify that overpayments that are made as a result of an individual failing to notify a change of circumstances, after being told what changes of circumstance to notify, may be recoverable.

Amendment 80, also in my name, is similarly technical. It provides that payments that are made in error after a person has died can be recovered from their estate. It is based on the principle that a deceased person cannot have spent the money and, equally, there is no reason for it to be available to the beneficiaries of the estate.

I cannot support Mr Griffin’s amendments in the group. The bill, as it stands, allows overpayments to be recovered only if the error that caused the overpayment to be made was either the individual’s fault or an error so obvious that the average person would notice it. I suspect that Mr Griffin’s amendments 133, 135 and 136 are intended to change that approach so that an overpayment will be recoverable only if it can be proved that the error that caused it would be obvious to the individual who received it. The test for recovering an overpayment should not be subjective in that way, as that would not be equitable and people should be treated equally under the law. Why should someone who keeps a close eye on what they receive be liable to repay, but someone who does not do that gets to keep public money that they should not have been given?

In drafting amendments 133, 135 and 136, Mr Griffin seems to have overlooked the fact that a proportion of people receiving assistance will not manage their own affairs and will have a guardian or an appointee acting for them. Amendments 133, 135 and 136 would mean that even very large overpayments that are perfectly obvious to the person managing an individual’s affairs could not be recovered because the individual could not be personally expected to have noticed the error.

Mr Griffin’s amendment 134 defies common sense. The bill currently provides that an individual can be held liable to repay an obvious overpayment. Agreeing to amendment 134 would introduce an inherent unfairness to the system. It would mean that an individual would not have to repay an obvious overpayment if the fault lay in determining entitlement, but would have to repay if there had been a clerical error in processing a payment. That is a fundamentally wrong approach. Section 36A already makes an overpayment unrecoverable if a mistake in determining entitlement is not reasonably obvious. If a mistake is reasonably obvious, it is unfair that recoverability turns on how the error was made.

I am happy to support Jeremy Balfour’s amendments 146 and 147. I am grateful to Mr Balfour for lodging the amendments in place of amendment 137, in his name, which I cannot support.

Mr Balfour is suggesting that all decisions about recovery of overpayments are taken by the first-tier tribunal and I can see the sense of that. Transferring a jurisdiction from the sheriff courts to the first-tier tribunal is not a step to be taken lightly, but amendment 146 provides space to consult and to refine the approach in light of any issues that are raised during the consultation. Therefore, I am pleased to support amendment 146.

I move amendment 72.

Mark Griffin

We will support all the amendments in the group. All promote the ends of having a clearer process of dealing with overpayments in a way that is fair and, although there were changes in section 36A, that has required considerable change since the bill was introduced.

My amendments in the group—amendments 133 to 136—along with amendment 137, in the name of Mr Balfour, were lodged with the support and advice of the Child Poverty Action Group. With my amendments in the group, I seek to ensure a fairer test of liability for the recovery of overpayments.

There will be occasions when, as result of agency errors, individuals are overpaid assistance. It is important that people have the right to challenge decisions—Mr Balfour’s amendments cover that matter.

If amendments 133 to 136 were to be agreed to, that would mean that, in many cases, people would not have to repay overpayments that were not their fault. The test of liability to repay in the bill is still too strict; it is stricter than the tests in nearly all UK-wide DWP benefits.

The amendments would ensure that individuals would be liable to repay an overpayment resulting from an agency error only when it would be reasonable to expect the individual to have noticed the overpayment, with account taken of, for example, the distress and other personal circumstances that the person might be experiencing at any given time. A repayment would not be required if there had been an error in decision making by the agency over which the individual had had no control.

As the bill stands, decision makers will consider whether a notional “reasonable person” would have noticed an error. Amendments 133 to 136 would require decision makers to assess, in a far more person-centred way, whether the individual could have been expected to notice the error.

Such an approach is more in keeping with the overall aim of treating applicants fairly and according them dignity and respect. We should treat applicants as individuals and take account of their personal circumstances at the time that the overpayment was made. I ask members to support all the amendments in the group.

Jeremy Balfour

We will support the Government’s amendments in the group. We will not support amendments 133 to 136.

I am grateful to the Child Poverty Action Group for the help that it has given me. I will explain briefly why I will not move amendment 137 but will move amendments 146 and 147. It is perhaps my lack of drafting skills that caused confusion in relation to amendment 137, which confirms that a career in the legal world was never going to be for me.

We all want to do the right thing here. If someone has received an overpayment from the agency, it is my view and, I think, the view of the Government and the other Opposition parties, that that should be decided not in the sheriff court in the context of a small-claims debt but by the first-tier tribunal. The claimant would know where they stood and they would have a right of appeal to the first-tier tribunal.

I have spoken to a number of lawyers and I realise that amendment 137 simply would not allow that to happen. If we were to agree to amendment 137, the agency would not be bound by the first-tier tribunal’s decision and could go back to the sheriff court to take action. That would give the agency two bites at the cherry, which is not the way forward.

If we agree to amendments 146 and 147 and, after consultation, get the regulations right, it will be clear that there will be no debt-recovery action in the first-tier tribunal, which does not have such power, and that the first-tier tribunal will simply decide whether the agency made a valid decision—yes or no. The first-tier tribunal is a much better place for the decision than the sheriff court. The approach allows for people who give advice and assistance to help claimants through the process. People can feel concerned about going to the first-tier tribunal, but the sheriff court can be very intimidating indeed.

I think that we all want the same thing. If we support amendments 146 and 147, we will get there. I will not move amendment 137, because it would add confusion and would not be helpful.

Alex Cole-Hamilton

The Liberal Democrats will support all the amendments from the group that are moved. However, we have concerns about amendment 80, on recovery after death. We know of constituency cases of brutal application of benefit rules on the death of a parent with dependent children. Sometimes the application of legislation, however well intended it is, can have very human consequences. We would like strong guidance to underpin the recovery of overpayments in such circumstances.

We also support the amendments in the name of Mark Griffin. They would make helpful changes to the language, which would make section 36A far fairer and would add some of the humanity that we discussed earlier in the debate.

Finally, I lend my support to Jeremy Balfour. I, too, have been effectively lobbied by the Child Poverty Action Group, which makes important points about the fact that we already have a process for appealing the recovery of overpayments through the DWP. We need something similar in Scotland, and I think that amendments 146 and 147 hit the right note.

Alison Johnstone

I confirm that the Scottish Greens will support all the amendments in the group, with the exception, for the moment, of amendment 80. I will reserve judgment on amendment 80 until I hear the minister’s response, because we share the concerns that have just been raised by Alex Cole-Hamilton.

Amendment 80 would allow Scottish ministers to recover assistance that is paid after death. I was struck by the absence of limits on the power. It does not specify appropriate periods of time. In particular, it would establish the power to reclaim even small sums that were paid very soon after death. Can the minister give assurances that that power will be used sparingly, with humanity and, in particular, with regard to people’s individual situations?

Neil Findlay (Lothian) (Lab)

I do not particularly want to speak about any of the amendments, but the issue that I want to raise relates to the amendments in the group. It is connected to another piece of legislation that is going through Parliament, and I want to give the minister an opportunity to address the issue.

The Prescription (Scotland) Bill has come before the Delegated Powers and Law Reform Committee. My question concerns the issue of benefit overpayments and the period in which a person remains liable for them. In England, that period is six years, but the Prescription (Scotland) Bill proposes a period of 20 years, and the Scottish Government does not propose to change that.

With regard to reserved benefits in relation to which the Scottish Government has power over prescription in terms of overpayment, and in relation to council tax, will the minister commit today to look again at the 20-year period of prescription for those overpayments?

The Presiding Officer

The point relates to a piece of legislation that is going through Parliament, so the issue is relevant in this case.

Jeane Freeman

Given the scale of the payments that we will eventually be making—it will be more in one week than we currently pay out in one year—it is entirely possible that mistakes will be made. The Government has a responsibility to be careful with public money and to recover overpayments where it is appropriate to do so, but that must be balanced against fairness to the individual.

The bill as it stands guarantees that people will be treated fairly because an overpayment can be recovered only if it was caused by something that was the individual’s fault or is so obvious that a “reasonable person” would notice it; in addition, the Government must consider the financial circumstances of the person who owes the money when deciding if and how to recover it. Further, an overpayment can be recovered only through deductions from future assistance payments either with the agreement of the individual or, if the individual unreasonably withholds agreement, at a rate that is fair, having regard to the individual’s financial circumstances.

As I said, I have listened to Jeremy Balfour and I can see the sense in his argument for having all cases go to the first-tier tribunal. There will be work to do to ensure that the transfer of jurisdiction in that way is done with full understanding, reflection and consideration, but I am very happy to support his amendments 146 and 147, and I undertake to work with him and others in that way.

16:30  

Mark Griffin

Does the minister believe that amendments 146 and 147, which she supports, would create a right for individuals to appeal a decision on liability at the point at which the decision is made under section 36A?

Jeane Freeman

The agency will decide whether an individual has been overpaid on the basis of a determination. Such a determination will be appealable; we discussed that when we talked about the process by which an individual can pursue a challenge to the agency’s decision. We have had that discussion many times in committee and in the chamber, and I think that the position is clear.

Alison Johnstone asked about amendment 80, on recovery from a deceased’s estate. We seek to have that option in primary legislation and we will then work with others to produce guidance for the agency and ensure that the agency is clear about the balance that it needs to strike should it wish to pursue the power that it would have.

Neil Findlay’s question caught me—and I suspect others—unawares. I have little knowledge of what he was talking about. It is unfortunate that he appears to have little knowledge of what we are talking about, and I am unable to answer him.

I press amendment 72.

Amendment 72 agreed to.

[Interruption.]

The Presiding Officer

Order, please. We need to hear the votes.

Amendments 73 and 74 moved—[Jeane Freeman]—and agreed to.

Section 35—Determination without application

Amendment 75 moved—[Jeane Freeman]—and agreed to.

After section 35

Amendment 11 moved—[Pauline McNeill]—and agreed to.

Section 36—Liability

Amendments 76 to 78 moved—[Jeane Freeman]—and agreed to.

Section 36A—Exclusion from overpayment liability

Amendment 79 moved—[Jeane Freeman]—and agreed to.

Amendment 133 moved—[Mark Griffin]

The Presiding Officer

The question is, that amendment 133 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 31, Against 92, Abstentions 0.

Amendment 133 disagreed to.

Amendment 134 moved—[Mark Griffin].

The Presiding Officer

The question is, that amendment 134 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 32, Against 91, Abstentions 0.

Amendment 134 disagreed to.

Amendment 135 moved—[Mark Griffin].

The Presiding Officer

The question is, that amendment 135 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 32, Against 92, Abstentions 0.

Amendment 135 disagreed to.

Amendment 136 moved—[Mark Griffin].

The Presiding Officer

The question is, that amendment 136 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 32, Against 91, Abstentions 0.

Amendment 136 disagreed to.

After section 37

Jeremy Balfour

I will not move my amendment 137.

Amendment 137 moved—[Mark Griffin].

The Presiding Officer

The question is, that amendment 137 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 32, Against 91, Abstentions 0.

Amendment 137 disagreed to.

After section 38

Amendment 80 moved—[Jeane Freeman]—and agreed to.

Amendment 146 moved—[Jeremy Balfour]—and agreed to.

Section 39—Offence of trying to obtain assistance by deceit

The Presiding Officer

Group 15 is on offences. Amendment 81, in the name of Pauline McNeill, is grouped with amendments 82 to 88.

Pauline McNeill

I hope that members will be patient with me, as this is a complex aspect of the bill.

These amendments deal with sections 39 to 42 in chapter 5 of the bill, which set out the offences for benefit fraud. The bill describes the offences that can be committed by a person who provides false or misleading information that leads to an error in the determination of assistance. The consequences are set out regarding the levels of fine and custodial sentences that are available to the courts.

The sections also set out offences whereby a person causes another person to fail to notify a change in circumstances that results in a change in benefit entitlement and the same for individuals in an organisation who can be held responsible. Those are vital clauses to ensure that there is a zero-tolerance approach to benefit fraud, but we must make sure that those provisions do what they are intended to do, and do not criminalise an honest mistake.

I will set out my concerns. The policy memorandum says that

“The policy intention is not to criminalise genuine errors made by individuals”,

but it says that

“the provision has been ... framed to provide that it is sufficient”

in law

“that the person knew, or ought to have known”

that the error might lead to them receiving less assistance. It is the phrase “ought to have known” that it “might” that concerns me.

I am sure that we all agree that there is no fairness in a system that allows for the prosecution of those who have made a simple mistake. Justice Scotland highlighted that point in a briefing at stage 1. It highlighted that the offence in section 111A of the Social Security Administration Act 1992 is the most commonly used such offence in the Scottish courts. It will be immediately appreciated that significant penalties are imposed in relation to a failure to notify changes that affect entitlement under complex social security regulations. The issue of whether a couple are to be regarded as cohabiting is an example of the difficulties that the courts have to resolve.

Against that backdrop, the courts have interpreted the legislation as strictly requiring proof to the criminal standard of all the elements of the offence; in particular, the prosecution would be required to prove that a claimant knew that a change in circumstances would affect benefit. The UK legislation does not use the phrase “ought to have known” that it “might” have led to less assistance; rather, it uses the term “knowingly”. Therefore, for cases of alleged fraud for reserved benefits, such as housing benefit, claimants will be prosecuted under the UK act, but for a devolved benefit, such as carers allowance, they will be prosecuted under the Social Security (Scotland) Bill with a different form of words.

My concern is about the drafting of those words. We prosecute in the courts day in and day out using the section that I have just outlined. Across the UK, £1.9 billion has been recovered from benefit fraud, so it works. It would have made more sense to use the same drafting as the UK legislation for the avoidance of any doubt. I want to ensure that the new provisions, which are drafted differently, do not prosecute people for genuine error.

The Child Poverty Action Group, Citizens Advice Scotland and several other organisations still have concerns about these provisions. I have spent long hours—for which I am grateful to the minister’s officials—trying to understand the reasoning behind the wording in the bill. The policy memorandum draws a distinction between the criminal offence of error and the unintended error by an individual. It adds that the policy intention is not to criminalise genuine errors and it suggests that, when it is shown that an individual has misunderstood any element of the application and has made a genuine error, a prosecution will not follow—so that is good.

However, according to Justice Scotland, section 39 of the bill does not appear to specify that the person needs to know that the statement was misleading. That is not in line with the policy intention; it is overly broad, in the view of Justice Scotland, and it creates an offence that does not require criminal intent on the part of the accused and criminalises behaviour that is careless or negligent.

Section 40 creates an offence of failing to notify, which is punishable with up to five years in prison, if the person

“knew or ought to have known that the change might result in an individual ceasing to be entitled to assistance”.

Again, Justice Scotland is concerned that that

“is overbroad and has the potential to penalise conduct which has not ... been criminal”,

in relation to the circumstances as they might affect benefits.

I think that the Scottish Government and I are at one about the intention of sections 39 to 42. My concern is with the drafting of the provisions. I just think that it would have been clearer to use the same wording as in the UK statute, under which we prosecute in the courts day in and day out.

16:45  

I thank the minister for the letter that she issued to me on Monday following a conversation that I had with her officials, which helpfully sets out the Government’s intention in this regard. It mentions the defence of a reasonable excuse and says that it is not the intention to criminalise an honest mistake. I am prepared not to press my amendments, but I needed to outline my concerns on the record. If the minister is clear in her summing up that there is no intention in the framing and drafting of sections 39 to 42 to criminalise an honest mistake and that the defence of a reasonable excuse, which was inserted at stage 2, is to be proved on the balance of probabilities, I will be happy, as we are at one on the intentions of those sections.

I move amendment 81.

Ben Macpherson

I reiterate the concerns about the amendments that I stated at stage 2. I have concerns with regard to the burden of proof, what prosecutors would be expected to prove and how that evidencing would be undertaken.

Pauline McNeill

The argument about what a prosecutor would be required to prove if they had to prove that a person knew mystifies me, because the language that I propose is exactly the language of the UK statute. I referred to section 111A of the 1992 act, which says that the prosecutor must show exactly that. We prosecute on that basis in the Scottish courts and across the UK day in, day out, and £1.9 billion has been recovered. Why would that wording not be good enough for the bill?

Ben Macpherson

I refer to the discussion at stage 2 about the concept of “knowingly” and evidencing whether false or misleading information was knowingly given. It is a legally problematic concept. Reassurances were given at stage 2 and in the letter from the minister that Pauline McNeill mentioned.

I acknowledge that Pauline McNeill has stated that she will not press her amendments if the minister gives further reassurance in summing up. I reiterate my point about the ability to prove in the courts whether false or misleading information has been given knowingly—the concept is legally problematic.

Alex Cole-Hamilton

I lend the support of Liberal Democrats to Pauline McNeill’s amendments, which contain a welcome shift in language and recognise that genuine mistakes happen. If we are building a more humane social security system, we should not penalise people for genuine errors. However, if Pauline McNeill is satisfied by the assertions of the minister in summing up, those on the Liberal Democrat benches will be, too.

Jeane Freeman

As has been said, the amendments in this group were rejected at stage 2, but they relate to an important issue, so I understand why Ms McNeill wishes to raise them again. Before I put our position on the record and make it clear what is in the bill, I can of course give Ms McNeill and indeed Mr Cole-Hamilton the assurance that it is our shared intent not to criminalise where an individual has made a genuine mistake or has a reasonable excuse. To be clear, the term “reasonable” is widely understood across our courts and justice system.

I remain firmly of the view that Ms McNeill’s amendments are unnecessary. Our policy is clear: we will treat people fairly and with dignity and respect. However, we cannot be naive. Social security fraud is a risk and public funds must be protected, not least so that they are available to give assistance to those who are genuinely entitled to it. Section 39 makes it an offence to provide false or misleading information with the intention of obtaining assistance to which the recipient is not entitled. The offence already requires intent so there is no reason to add the word “knowingly” as amendment 81 would do.

Section 40 makes it an offence to fail to notify a change of circumstances, in breach of a duty to do so, if—and only if—the failure results in someone receiving assistance that they should not receive, and the person has no reasonable excuse for the failure to notify. That means that, if an individual claims to have a reasonable excuse, the legal burden to prove that it is not a reasonable excuse falls on the prosecutor. Before a case even gets anywhere near a prosecutor, however, there will have been an agency investigation. If a person has a reasonable excuse, they can give it then and explain any other mitigating circumstances. Those factors will be taken into account before officials conclude the investigation and, when a genuine error has happened, the matter will rest there.

When there has been a genuine error, the fiscal service is unlikely to prosecute, because it applies a case marking test that asks whether prosecution would be in the public interest. Even if someone was prosecuted, having a reasonable excuse would mean that they would be exonerated.

Ms McNeill’s amendments to section 40 and section 41 risk making the offences so difficult to prosecute that nobody would take the risk of prosecution seriously. It would open the system to intentional fraud.

Finally, we come to section 42, which allows a senior figure in an organisation to be convicted of an offence that has been committed by the organisation if the criminality can be attributed to the official’s “connivance, consent, or neglect”. Amendment 88 would remove the neglect element. Section 42 is worded in the usual way for a section of its kind. Examples can be found in many other acts of this Parliament. I have to ask therefore, why a company director should not be held personally responsible if he neglects his duties, turns a blind eye, and allows the company to commit social security fraud. A director in that situation should have a case to answer, so I do not support amendment 88.

All that being said, I recognise that agency staff must take a consistent approach in reporting cases for consideration for prosecution and I am happy to put on the record the fact that detailed guidance and training will be developed for our agency staff. That will complement the code of practice on investigations that the bill already requires. The code will set standards of conduct for investigations and explain how we will ensure during investigations that a person’s dignity is respected. The code will be consulted on so that Ms McNeill and others can see what it will provide and will be able to contribute to its development.

For the reasons that I have given, I cannot support Ms McNeill’s other amendments in the group. I invite her not to move them and, if they are moved, I urge that they are not agreed to.

Pauline McNeill

I have nothing more to add.

Amendment 81, by agreement, withdrawn.

Section 40—Offence of failing to notify

Amendments 82 to 84 not moved.

Section 41—Offence of causing a failure to notify

Amendments 85 to 87 not moved.

Section 42—Individual culpability for offending by an organisation

Amendment 88 not moved.

Section 44—Code of practice on investigations

Amendment 89 moved—[Jeane Freeman]—and agreed to.

Section 44A—Duty to consider effects of inflation

The Presiding Officer

We come to group 16. Amendment 90, in the name of the minister, is grouped with amendments 91, 12 to 14 and 139 to 141.

Jeane Freeman

Amendments 90 and 91 are technical amendments to the uprating provisions in section 44A. They clarify that the duty to consider the effects of inflation will apply to current rates of assistance, but not to rates that may remain in legislation for events that have happened in the past.

The best start grant is an example. For a time, an older and a current rate might be prescribed in regulations, the older rate applying to births that have happened, but for which an application has not yet been made. The older rate will already have been reviewed and it would serve no purpose to review it again.

Amendments 12 to 14, in the name of Ben Macpherson, would commit the Scottish Government to increasing any relevant figures in the funeral expense assistance regulations to take into account the impact of inflation. At present, that is expected to affect the flat rate element of the payment, which has been capped by the DWP at £700 since 2003. We have already committed to widening eligibility for funeral expense assistance to reach around 2,000 more people per year, at an estimated cost of £3 million. While there are significant pressures on the Scottish Government’s budget, I recognise that the value of the capped element of the current funeral payment has eroded over time. I will therefore support Mr Macpherson’s amendments so that there is no further reduction in the value of that part of the payment to bereaved families.

Amendments 139 to 141, in the name of Mr Griffin, seek to adjust the calculation of the carers allowance supplement, to take account of inflation. Carers allowance supplement already provides an increase of 13 per cent in 2018-19 to support for carers, which is significantly more than the rate of inflation and represents an additional investment of more than £30 million per year. I estimate that, over the next five years, Mr Griffin’s amendments will cost a further £30 million that will need to be found from the Scottish budget. However, I am happy to make that commitment, in recognition of the vital role that carers play.

I move amendment 90.

Ben Macpherson

If passed, this historic bill will successfully transition and deliver the 11 benefits that were devolved under the Scotland Act 2016, which will undoubtedly make many meaningful and important differences across our country. One such difference will be the delivery of funeral expense assistance, which will replace the UK Government’s funeral payment and provide critical financial support to people at a very difficult time.

Funeral costs have risen significantly over the past 10 years, which means that individuals and families are more likely to experience a financial shock as a result of having to pay for a funeral, especially where the person who has died has made little or no provision for the cost of that funeral. That can push people into unsustainable debt, which can have a negative impact on the already difficult grieving process and on mental and physical health. I am aware that, working with stakeholders, the Scottish Government has already undertaken a number of actions to alleviate funeral costs, including measures in the fairer Scotland action plan and the funeral assistance plan. Therefore the delivery of funeral expense assistance under the new social security system has the potential to build on previous progress. An important way in which to enhance that would be to uprate funeral expense assistance for inflation in the future. Of course, that is not just my view, but that of many others, including Citizens Advice Scotland.

As drafted, the bill envisages uprating carers assistance, disability assistance and employment-injury assistance, all of which I very much welcome. If agreed to, my amendments 12 to 14 would add funeral expense assistance to that list, making sure that, in the years ahead, funeral expense assistance would keep pace with inflation, keep up with funeral costs and deliver the critical financial support that I have already mentioned.

I believe that amendments 12 to 14 are important. I am grateful to the minister for supporting them and would welcome the support of other members.

Mark Griffin

Scottish Labour will support all the amendments in group 16. We welcome the Government’s substantial movement on the issue. While it has always been the Government’s policy intention to provide uprating for disability assistance, until Christmas 2017 its position was that that uprating should not be in the bill. The movement is a welcome change and we want to support it and improve on what the Government has offered.

At stage 2, I sought to amend the Government’s amendment to afford carers the same protection as they enjoy under the UK system. I also raised a discrepancy relating to the carers supplement, in that the formula in section 47 would mean that ministers would pass on the UK Government’s benefit freeze to carers. In amendments 139 to 141, I seek to rectify that.

17:00  

The link to jobseekers allowance means that the supplement would be frozen. The minister would be required, as part of the uprating processes, to determine what the inflated value of the combined supplement and the underlying carers allowance should be and so ensure that the higher amount was paid. As I explained at stage 2, without that adjustment, the discrepancy means that the Scottish Government would save itself £5 million in 2019-20, while carers—just a year after that very welcome income boost, on which the Government is to be congratulated—would lose out by 13 per cent in real terms.

I welcome the minister’s support for the amendments, and that the Scottish ministers will take full control of the carers allowance in order to iron out that anomaly when the Government takes on full competence for the benefit.

Alison Johnstone

The Scottish Greens will support all the amendments in group 16, but we regret that there is no commitment to uprate all benefits in line with relevant costs. We had, and I lost, that debate at stage 2, but we will continue to ask the Government to pay the closest attention to the issue. We simply cannot have a system that aims to be based on dignity and respect if people do not have enough money to have a reasonable standard of living.

I urge the Government to continue to look at the matter. If living costs increase and benefits are frozen, as they have been, that will make life incredibly difficult for people. The benefits freeze has taken £300 million out of the pockets of 700,000 of the poorest people in Scotland. The Social Security (Scotland) Bill should uprate benefits automatically.

The Presiding Officer

I ask the minister to wind up, and to press or withdraw amendment 90.

Jeane Freeman

I press amendment 90.

Amendment 90 agreed to.

Amendment 91 moved—[Jeane Freeman]—and agreed to.

Section 44B—Duty to uprate carer’s, disability and employment-injury assistance

Amendments 12 to 14 moved—[Ben Macpherson]—and agreed to.

After section 46

The Presiding Officer

We turn to group 17. Amendment 138, in the name of Mark Griffin, is grouped with amendments 142 and 143.

Mark Griffin

Amendment 138 seeks to put in place a mechanism to top up child benefit by £5 a week and give effect to the “Give me five” campaign call. That follows the Government’s announcement before Easter that it will pursue the delivery of an income supplement to boost the low incomes of families and lift children out of poverty. That announcement is welcome, if overdue, but detail about the measure will be in short supply for more than a year. The children who are suffering in poverty now will have to wait until 2022 for that boost.

I will touch on some of the points that I made at stage 2, but it is clear to the chamber that there are few options open to the Government, and it is only the top-up of child benefit that can deliver in the immediate and short term.

The Child Poverty (Scotland) Act 2017 confirmed that this Parliament refuses just to turn a blind eye; the time for acting on those sentiments is now. In the face of the transition to universal credit, the benefit freeze and further austerity, we can and should set a different path.

Inflation may be falling, but the weight on family weekly budgets is still too much to bear. Only yesterday, the Trussell Trust published new data showing that 170,000 people had to ask for a food parcel last year, which shows just how much families are struggling. With child benefit losing its value for another year, my proposal would assist more than 500,000 families who are struggling with the impact of a Tory Government. More importantly, 30,000 children would be lifted out of poverty instantly.

The Institute for Fiscal Studies predicts that, by the time of the next Holyrood elections, one in three children will be in poverty. The key to the “Give me five” campaign’s work is the recognition that the near universal uptake of and eligibility criteria for child benefit make it the most appealing option for having the most immediate impact.

In recommendation 23 of its report, the Poverty and Inequality Commission noted that the Government must consider

“the greatest financial impact alongside other relevant factors such as cost and complexity of delivery, take up rates, income security, and potential disincentives to move into work or increase earnings in order to identify the most effective option to impact on child poverty.”

Alongside that, the complexity of topping up the means-tested system, which is going through a period of huge transition, is beyond belief. The alternative of topping up child tax credit would require the Government to top up universal credit and income support in the medium term. Modelled impacts that are based on 100 per cent take-up are of no use, because 100 per cent take-up remains an impossibility in the medium term.

In addition to that complexity, the risk of endorsing the Tories’ shambolic universal credit system that the use of any such supplement would involve is enormous, and the Government itself has cautioned against it.

At stage 2, comments were made about my amendment on the issue cutting across the budget process. I said then—and I say again—that I and my Labour colleagues would happily ride roughshod over the Scottish Government’s budget if that would lift 30,000 children out of poverty, and I would do so every day of the week.

Until next year, at least, the parents of 200,000 or so children in poverty will have no idea when they will get the support that the Scottish Government now wants to commit. Amendment 138 is the only proposal on the table to lift 30,000 children out of poverty.

I move amendment 138.

Alex Cole-Hamilton

The Liberal Democrats have a lot of sympathy with the motives behind the amendments in this group but, unfortunately, we cannot support them. We attended many of the stakeholder events that were held on the suggestions of the “Give me five” campaign, and we agree that universality has a place in the extension of benefits to vulnerable families.

However, our anxiety is about the taper towards the threshold at which child benefit is paid. If that represents the spectrum of need, we would far prefer that money to be concentrated at the sharper end of that taper. We think that there are better ways of doing what is intended, given the number of very affluent families that would receive such a benefit. Therefore, with regret, we cannot support the amendments in this group.

Alison Johnstone

The Scottish Government supports the principle of universality when it comes to higher education. I welcome that. The Scottish Government supports the principle of universality when it comes to prescriptions. I welcome that. I cannot think of a more important area in which to support that principle than that of making sure that children in Scotland have enough money.

This Parliament is committed wholly to closing the attainment gap. Children who go to school who have not had the best breakfast and whose families struggle to heat their homes cannot attain to the level to which they might be expected to. Amendment 138 is an extremely important amendment and one that I whole-heartedly support, as do the Scottish Greens.

The Child Poverty Action Group tells us that in 1989 it was realised that child benefit was worth less than it had been in the 1950s, and John Major’s Government chose to slowly restore its value. That process went on and progress was made. However, child benefit has been decreasing in value consistently since 2010. It is not worth what it used to be worth. All that we seek is the taking of a very sensible measure to restore some of that value.

I whole-heartedly support the give me five campaign, I whole-heartedly support amendment 138, and I ask colleagues across the chamber to do so, too.

Jeane Freeman

The Scottish Government’s tackling child poverty delivery plan, which was published on 28 March this year, sets out a clear commitment on a new income supplement for low-income families to tackle child poverty.

Of course, I recognise the rationale behind the proposal to top up child benefit by £5 a week, but to deliver it would cost at least £200 million every year, yet only £3 out of every £10 would go to low-income households. What is more, the top-up would have more limited effects on lifting families out of poverty than other options that are set out in the Poverty and Inequality Commission’s advice, which we asked for.

That is why I urge members to oppose the amendments. We want to target effectively children who are living in poverty and we will look at all measures for doing so, but the proposal to top up child benefit does not do that. The Institute for Public Policy Research conducted modelling earlier this year, and its clear conclusions, which are reflected in the Poverty and Inequality Commission’s advice, were that increasing child benefit is not the most effective way of reducing child poverty. The commission also rightly gave its expert independent advice that we should not only consider the most effective use of resource but give careful consideration to deliverability and to being able to get the money to those who need it as quickly as possible.

It is a false premise to put before the chamber the proposition that passing amendment 138 will instantly lead to a £5 top-up. The whole question of deliverability within our social security powers, as Mr Griffin and his colleagues well know, is part of a planned, very careful and incremental programme to ensure the safe and secure transfer of benefits for 1.4 million people. Mr Griffin may be happy to say that he would ride roughshod over the Scottish Government’s budget process, but actually he would be riding roughshod over this Parliament’s budget process, and that is not something that I would countenance.

Our income supplement will demonstrate our commitment to reducing child poverty and will ensure that funds are used to best effect to reach those families who are most in need. I urge members to oppose the amendments.

Mark Griffin

The point has been made repeatedly by members who oppose the method that is set out in my amendment 138 that there are better ways to spend the money, but what are those better ways? Where is the amendment that is going to lift children out of poverty today? Where is there a provision in the bill that stands up against a £5 uplift in child benefit? The arguments against the policy are that child benefit is universal and that not all the money would go to families in poverty. I do not receive child benefit for any of my children, and nor does any member of this Parliament, so it would not be completely universal. However, as Alison Johnstone pointed out, we do not hear any arguments against universality when we talk about tuition fees or prescription charges, so I would have expected the Government to be able to give whole-hearted support to my amendment, given its previous support for universal benefits.

The minister has also raised the issue of the low-income supplement, and I will welcome the debate on the policy choices when it comes. The minister may put an option on the table in two, three or four years’ time, but the option on the table right now is to increase child benefit by £5. There is no other option, and that option will lift 30,000 kids out of poverty right now. I ask members to support amendment 138.

The Presiding Officer

The question is, that amendment 138 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 26, Against 97, Abstentions 0.

Amendment 138 disagreed to.

Section 47—Carer’s allowance supplement

17:15  

Amendments 139 to 141 moved—[Mark Griffin]—and agreed to.

Section 48—Power to repeal temporary provision

Amendment 142 moved—[Mark Griffin].

The Presiding Officer

The question is, that amendment 142 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 26, Against 96, Abstentions 0.

Amendment 142 disagreed to.

Amendment 143 moved—[Mark Griffin].

The Presiding Officer

The question is, that amendment 143 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 26, Against 96, Abstentions 0.

Amendment 143 disagreed to.

Section 48D—Agency arrangements for housing assistance

The Presiding Officer

We turn to group 18. Amendment 92, in the name of the minister, is grouped with amendments 93 and 119 to 122.

Jeane Freeman

The amendments in the group are about housing assistance.

Section 48D already provides for regulations to be made to allow councils to deliver housing assistance. My amendments 92 and 93 would extend that power and allow councils also to deliver short-term assistance where it is to be given as a run-on of housing assistance.

Amendments 119 to 122 are a response to the DWP’s announcement that it has abandoned its policy of denying support for housing costs to some 18 to 21-year-olds who receive universal credit. The DWP may well have dropped that policy because it failed to realise significant savings, but nonetheless I cautiously welcome that U-turn.

Amendments 119 to 122 will alter schedule 8 so that ministers are not obliged to make housing assistance regulations to mitigate the effects of abandoned DWP policies. The amendments cover the U-turn on 18 to 21-year-olds and also future proof the bill for the day—if it ever comes—that a UK Government drops either its bedroom tax policy or its benefit cap policy, or both.

To be clear, the amendments remove the duty on the Scottish Government to provide housing assistance to mitigate those DWP policies only if and for so long as the DWP is not pursuing them. I assure members that the existing mitigation scheme for 18 to 21-year-olds will remain in place for as long as it is required. It is regrettable that the Scottish Government and local authorities have invested both time and funds over the past year in mitigating a policy that was always both unfair and unworkable. I wish that the UK Government had listened to the sense that we spoke at the time and that this inconvenience and waste had been avoided.

I move amendment 92.

Amendment 92 agreed to.

Amendment 93 moved—[Jeane Freeman]—and agreed to.

After section 48D

Amendment 132 moved—[Pauline McNeill]—and agreed to.

After section 53

The Presiding Officer

We turn to group 19. Amendment 144 is the only amendment in the group.

Mark Griffin

Amendment 144 seeks to place in law a requirement on ministers to bring forward regulations under section 30 of the Scotland Act 2016 that would ensure that payments of universal credit would be automatically split between both members of a couple, but allow an opt-out should a couple wish to retain joint payment. I am pleased that amendment 144 has achieved a broad coalition of support from organisations that include SCVO, One Parent Families Scotland, Advocard, the Poverty Alliance, Scottish Women’s Aid, Engender and the National Association of Welfare Rights Advisers. Amendment 144 would transpose the restrictions included in the Scotland Act 2016 and require the regulations to follow a set policy objective to split payments automatically. Although split payments can be requested under the current system, that option is massively underused and underpublicised. Now the focus of the Work and Pensions Committee of the House of Commons, split payments are getting the attention that they deserve.

Last month, the Equality and Human Rights Commission released research that identified that universal credit single household payment to couples had contributed to a

“drastic shift in income from women to men as a result of the introduction of Universal Credit.”

As I indicated at stage 2, the proposed policy would follow that proposed by the minister’s colleague Philippa Whitford, who is pursuing a private member’s bill at Westminster to split payments automatically. However, she was told just last week by the callous Tory Government that it does not support the proposal and that it is intent on maintaining the single payment mechanism in universal credit—a system that has been criticised by the United Nations.

In the consultation on social security, there was overwhelming support—from 99 per cent of organisations and 78 per cent of individuals—for universal credit payments to be split between the members of a household, and 74 per cent of all respondents believed that payments should be split automatically. That would aid gender equality in the Scottish social security system by promoting financial autonomy, and it would help to protect women and children from financial and domestic abuse. As much as I want it to, though, amendment 144 would not require ministers to rush to establish a split payments scheme and remove the timescale that was included at stage 2. The amendment rightly requires the minister to continue her consultation with the DWP, which is in itself a requirement of the power in the Scotland Act 2016.

In recent responses to questions, the minister said, a year after the cabinet secretary first promised progress in the area, that officials are discussing with the Department for Work and Pensions the feasibility and the operational and cost implications of the different policy options. To date, we have not been told of the progress of those meetings and discussions, so I would appreciate it if the minister could say when they started and what stage they are at, as DWP officials were unfortunately not able to do that when they were before the Social Security Committee.

I am thankful for the minister’s discussions with me on the matter of split payments. I am content that she, too, wants split payments to be made. I hope that she will support amendment 144 and give a precise commitment to split payments and to automatically helping women and their children.

I move amendment 144.

Ruth Maguire

I support the introduction of automatic split payments. The situation that we have at the moment—of a joint payment being made, unless otherwise specified—is problematic on two levels. Returning to a single male breadwinner model is damaging and regressive in general, but it is particularly dangerous in the context of domestic abuse, in which financial coercion is often used as a tool by perpetrators. Eighty-five per cent of domestic abuse survivors who spoke to the charity Women’s Aid said that the act of applying for split payments could anger their partner and make the abuse worse.

The Scottish Government is in on-going discussions with the DWP on how it can introduce automatic split payments in a way that is both technically feasible within information technology systems, and financially viable and justifiable to the Scottish taxpayer. That is clearly a complex and time-consuming task.

At last week’s Social Security Committee meeting, a DWP representative, in answer to Mark Griffin, reiterated the complexity of the issue and stated that there is no timetable for when an agreement might be reached. That delay and complexity could, of course, be avoided if the UK Government could be pressured into fixing the issue at source.

There is another, far more important reason for calling on the UK Government to fix the issue at source, and that is that domestic abuse does not stop at the border. It is an issue for all women, and the best outcome is not one in which the Scottish Government negotiates an exception from the rest of the UK, but one in which the UK Government fixes the problem at source for the whole of the UK.

For both those reasons—the complexity of negotiating an exception and the importance of the issue for women across the UK—I urge Mark Griffin and his colleagues to redouble their efforts to pressure their UK colleagues to call on the UK Government to fix this issue at source. They can do so not least by supporting the private member’s bill that my Ayrshire colleague Philippa Whitford MP published last month, which calls on the UK Government to make split payments the default. That would be the best outcome for women across the UK.

Alex Cole-Hamilton

I am grateful, as are the other Liberal Democrat members, to Mark Griffin for lodging the very important amendment 144. I served for three years on the ministerial task force on violence against women, and I am absolutely committed to this policy shift, because financial dependence is used as a tool of coercive control in abusive relationships. The amendment is a very important step towards eroding the dominance that men who abuse their partners can have.

I am absolutely grateful to Mark Griffin for lodging amendment 144 and I assure him of the support of Liberal Democrat members.

Alison Johnstone

I feel, sadly, that single household payments are more of the same thoughtless and mindless attacks on women that we see so often from Westminster. We know that 70 to 85 per cent of cuts have been targeted at women—that level of cuts cannot be accidental. Who, in this day and age, would introduce single household payments? It is a serious concern. There is a lot wrong with universal credit, and that is just another aspect of it that is not fit for the times in which we now live.

As Engender and other organisations that have contacted us on this important issue have pointed out, in 2013 the United Nations Committee on the Elimination of All Forms of Discrimination against Women found that the universal credit single household payment

“poses risks of financial abuse for women due to power imbalances in the family, particularly if payment is made to an abusive male spouse.”

It is incumbent on us to do everything that we can to change the policy. I absolutely agree that the best thing that could happen is that we get rid of the system across the whole United Kingdom. However, how long will it take the United Kingdom Government to take that action? Although we have a devolved Government here, there are times when it is incumbent upon us to take those UK policies and improve them as quickly as we possibly can, with the knowledge and experience that we have. Fundamental change is required, so I will be supporting amendment 144 for the Green Party.

Jeane Freeman

I do not believe that there can be doubt of this Government’s commitment to using the remaining flexibility that we have with universal credit to introduce split payments. We have been clear on that, we have talked about it, we have made that commitment publicly and we have been working with the DWP for some time now to do it.

17:30  

The fact of the matter is that universal credit is a reserved benefit. Therefore, delivery of split payments to a household has to be negotiated with the DWP, because, at the end of the day, it is the DWP that will deliver them, or not. We continue to have discussions about the matter, but as members will be aware, not least those who are on the Social Security Committee, we had an agreement with the DWP about abolition of the bedroom tax at source and a date for that, but because of pressure to meet other priorities that it considered to be more important, the DWP has moved that date back a year. I am prepared to support amendment 144, but I draw members’ attention to that example because they need to be crystal clear that, although I can introduce regulations, they cannot be enacted without the DWP’s agreement. That negotiation is complicated and technical, and it will involve this Government paying the DWP to deliver the split household payment.

I concur completely with what my colleague Ruth Maguire said: not only does domestic abuse not stop at the border, but the way to resolve the matter properly is to continue to press the UK Government on it. All the SNP members in the House of Commons, those on the Labour benches and others should come together and press the UK Government to introduce the measure for the whole United Kingdom, from which our members and the women in this country will benefit.

In the meantime, we will continue our discussions with the DWP and I will support amendment 144, but I want members to be absolutely clear that it is not at our hand to deliver what is being asked for. That is a consequence of the Scotland Act 2016 that is supported by some members here who would not like to see this Government have any more powers. Of course, if we had all the powers over social security, we would not need to have this debate at all.

Mark Griffin

In pressing amendment 144, I thank members who have spoken in support of it. I give Ms Maguire an absolute assurance that members of the Labour Party, in this chamber and in Westminster, will redouble their efforts to see the solution that we are proposing being implemented across the whole UK as the ideal solution. However, in the absence of any movement from a seemingly uncaring Tory Government, which wishes to perpetuate a system in which women are put at risk of financial domestic abuse, it is right that we take what action we can here. I ask all members to support my amendment 144 and to redouble their efforts to see split payments being implemented across the whole UK.

Amendment 144 agreed to.

Section 55—Regulation-making powers

Amendment 15 moved—[Mark Griffin]—and agreed to.

Amendments 94 and 95 moved—[Jeane Freeman]—and agreed to.

Amendment 147 moved—[Jeremy Balfour]—and agreed to.

The Presiding Officer

Amendment 96, in the name of the minister, is grouped with amendments 97, 99 to 102, 16 and 145.

Jeane Freeman

Amendments 96, 97, 99 and 100, in my name, increase the level of parliamentary scrutiny for certain regulations from negative to affirmative procedure. The Government undertook to make those changes in its response to the Delegated Powers and Law Reform Committee stage 2 report.

The regulation-making powers affected are the powers to identify people that the Scottish commission on social security can require to provide it with information, and the similar powers about information sharing by and with the Scottish ministers.

Amendment 16, in the name of Pauline McNeill, removes the ability of the commission to decide that there are types of proposal that it does not need to consider. During stage 2, I said that the Scottish Government is happy to remove that power from the bill, and I am content to support Ms McNeill’s amendment.

Amendment 101, in the name of Adam Tomkins, aims to ensure that proposals that are sent to the commission for scrutiny under section 55A are sent in the form of draft regulations. As that has always been our intention, I am happy to support amendment 101, just as I am happy to support amendment 102, which is also in Adam Tomkins’s name.

Amendment 145, in the name of Pauline McNeill, proposes that, with the sole exceptions of commencement and ancillary regulations, all regulations made under the bill, no matter how minor, should be subject to additional scrutiny by the commission. I oppose that position.

It is odd that Ms McNeill is the person to lodge such an amendment. During stage 2, she was particularly anxious that the commission should not be made overmighty, relative to the Parliament, yet the amendment that she has lodged reflects a view that was expressed by the Child Poverty Action Group that any regulations that are not subject to scrutiny by the commission will be subject to no independent scrutiny at all. The implication is either that the Parliament is incapable of effectively scrutinising regulations, or that it lacks independence. I do not accept either position.

To be clear, regulations that the bill does not require be put to the commission will still be scrutinised by Parliament, in most cases through the affirmative procedure.

The purpose of having a commission of experts on social security is so that, among other things, Government and Parliament will receive expert advice on complex matters of social security policy, the interaction between the Scottish social security system and the UK system, and so on.

Just because regulations are made under a social security act does not necessarily mean that they raise issues that require social security expertise. For example, the issues that will be covered by regulations made under section 43, which confer investigatory powers, are justice matters, and regulations made under subsections (2) and (5) of section 48C are about data sharing. Parliament is well able to scrutinise regulations on those matters and a wide range of others; it has managed to do so for coming up to 20 years. If Parliament particularly wants the commission’s help, the bill allows it to ask for a report. That is as it should be—Parliament is in control and can take advice from whomever it wants. Therefore, I urge members not to support amendment 145.

I move amendment 96.

Adam Tomkins

I am grateful to the minister for her support for amendments 101 and 102, in my name. I support all the amendments in the group, except for amendment 145. The reasons why the Conservatives do not support amendment 145 are identical to those just articulated by the minister.

Pauline McNeill

I welcome what the minister said on amendment 16, so I will address amendment 145.

As the bill stands, there are important regulations—for example on applications and decision making, overpayment and fraud—that do not need to be referred to the new commission. Amendment 145 would place a duty on Scottish ministers to refer proposals for regulations that are not already covered by section 55 to the newly established Scottish social security commission, and the commission then may or may not decide to prepare a report.

Amendment 145 would establish a light-touch scrutiny process that would allow for expert independent scrutiny of often complex secondary legislation that has the potential to impact individual rights and entitlements as well as experience of the Scottish social security system. The commission’s discretion as to whether a report is necessary would ensure that scrutiny is provided in an appropriate way without encroaching unnecessarily on the Scottish Parliament’s time or the time and resources of the commission.

The areas that would be affected by amendment 145 and which are not covered currently are: the form of applications; the functions of the commission itself; the period for redetermination of an application; the time period in which the Scottish ministers may make a determination; rules around lifetime awards; automatic payments; investigation-making powers—particularly powers to enter and search as well as powers to create offences; top-up benefits and all the rules around them; carers supplement and who is a qualifying person; power to repeal carers supplement; information sharing and the naming of new persons with whom information can be shared; discretionary housing payment rules; who the commission can extract relevant information from; and the numbers that make up the commission.

That is quite a long list of issues that, as the bill stands, will not require to go to the commission and on which, on balance, I thought that the commission should have the opportunity to prepare a report, should it wish to do so.

Jeane Freeman

I will be brief and concentrate on amendment 145.

The presumption behind amendment 145 is that no commission scrutiny equals no scrutiny at all. That is not the case. This Parliament has a critical role in scrutiny, and over the years it has developed expertise in that regard. Moreover, the bill gives Parliament the power to ask the commission for advice if it wishes to do so. I urge members not to support amendment 145. The proposed approach will lead to unnecessary delay in some instances when we want to move quickly on regulations—and I am sure that Parliament will support us on that—but it will always be for this Parliament to determine whether regulations are approved or not.

Amendment 96 agreed to.

Amendments 97 to 100 moved—[Jeane Freeman]—and agreed to.

Section 55A—Further procedure for regulations about assistance

Amendments 101 and 102 moved—[Adam Tomkins]—and agreed to.

Amendment 16 moved—[Pauline McNeill]—and agreed to.

After section 55B

Amendment 145 moved—[Pauline McNeill].

The Presiding Officer

The question is, that amendment 145 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 31, Against 91, Amendments 0.

Amendment 145 disagreed to.

Section 56—Commencement

Amendment 103 moved—[Jeane Freeman]—and agreed to.

Schedule A1—Scottish Commission on Social Security

Amendment 104 moved—[Jeremy Balfour].

Amendment 104A moved—[Jeane Freeman]—and agreed to.

Amendment 104, as amended, agreed to.

Schedule 1—Carer’s assistance regulations

Amendment 105 moved—[Jeane Freeman]—and agreed to.

Schedule 2—Cold-spell heating assistance regulations

Amendment 106 moved—[Jeane Freeman]—and agreed to.

Schedule 3—Winter heating assistance regulations

Amendments 107 to 110 moved—[Jeane Freeman]—and agreed to.

Schedule 4—Disability assistance regulations

Amendment 111 not moved.

Amendment 148 moved—[Jeane Freeman]—and agreed to.

Amendments 112 to 114 moved—[Jeane Freeman]—and agreed to.

Schedule 5—Early years assistance regulations

Amendment 115 moved—[Jeane Freeman]—and agreed to.

Schedule 6—Employment-injury assistance regulations

Amendments 116 and 117 moved—[Jeane Freeman]—and agreed to.

Schedule 7—Funeral expense assistance regulations

Amendment 118 moved—[Jeane Freeman]—and agreed to.

Schedule 8—Housing assistance regulations

Amendments 119 to 123 moved—[Jeane Freeman]—and agreed to.

The Presiding Officer

That ends consideration of amendments.

As members will be aware, at this point in the proceedings, I am required under standing orders to decide whether, in my view, any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system in Scotland. In my view, no provision of the Social Security (Scotland) Bill does anything of the sort, so the bill does not require a supermajority to be passed at stage 3.

I propose that we take a short break before the debate stage. We will resume in eight minutes’ time.

17:47 Meeting suspended.  

17:56 On resuming—