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Our next item of business is an evidence session on legislative consent memorandum LCM-S6-55 on the Public Authorities (Fraud, Error and Recovery) Bill, which is United Kingdom legislation. The Scottish Government lodged the LCM and members will wish to note that it recommends consenting to those of the bill’s provisions outlined in the memorandum, with the exception, at this time, of those on overpayment recovery, debt recovery and enforcement. The Scottish Government has yet to set out its views on those provisions and has indicated that they are subject to on-going discussion and will be the subject of a supplementary LCM.
I welcome the Cabinet Secretary for Social Justice, Shirley-Anne Somerville. I also welcome her officials from the Scottish Government: Gemma MacAllister, a lawyer in the legal directorate, and Simon Coote, head of the cross-cutting policy unit. I invite the cabinet secretary to make some brief opening remarks on the LCM.
Thank you very much and good morning, convener. As Cabinet Secretary for Social Justice, I must ensure that United Kingdom social security legislation that impacts on Scotland is compatible with the principles embedded within the devolved social security system. I must also be mindful of anything that might disrupt the safe and secure transfer of benefits. I have considered the bill carefully and it is clear that, in practice, it has implications for Scotland only in so far as the Department for Work and Pensions still administrates devolved assistance, under agency agreement, on behalf of the Scottish ministers.
I am, therefore, content that any impacts on devolved assistance from the provisions that are under consideration today will be negligible and can confirm that I intend to recommend consent to the provisions in the following areas. The entry, search and seizure provisions will allow the DWP to apply to a sheriff for a warrant to enter premises, search for and seize items when investigating the most serious cases of fraud. Currently, the DWP requires the police to undertake such action on its behalf. I am content that nothing within the provisions runs contrary to the ethos and principles underpinning the devolved social security system.
Regarding the provisions on data gathering, the UK Government has broadly mirrored the approach pioneered in the devolved social security system, and because of that, and because the provisions contain similar safeguards and exemptions for third sector organisations, I am content to recommend legislative consent.
The provisions on eligibility verification measures allow the DWP to require banks and financial institutions to provide large datasets to help verify a claimant’s entitlement to benefits and identify incorrect payments. Similar provisions were included within the UK’s Data Protection and Digital Information Bill of last year, for which legislative consent was agreed in the Scottish Parliament but which fell away due to the UK general election.
On changes to administrative penalties, there is no equivalent to administrative penalties within the devolved system and I am, therefore, content to recommend consent for the provisions in this area.
Convener, although not included in this memorandum, the Scottish Government did not previously take a position on consent in relation to the overpayment recovery provisions, which you mentioned in your opening remarks. That was to allow time for due consideration to be given to the impact of those provisions on Scottish clients and for on-going discussions with the UK Government. I can, however, confirm to the committee that I have concluded that it would not be appropriate to recommend consent for the overpayment recovery provisions. No such provisions exist within the devolved system and I do not consider them compatible with the ethos of fairness, dignity and respect. I have set out that position in writing to UK ministers, who in response have confirmed that they will seek to amend the bill such that devolved benefits are removed from the scope of those provisions.
The Scottish Government did not see the full provisions of the bill until it was laid on 22 January 2025. That meant that the normal timeframes for lodging the LCM could not be met. Due to the on-going engagement required to understand where the bill and its numerous amendments will impact on Scotland, I expect that there will be a requirement to lodge a supplementary LCM for the bill in due course and I will provide an update on the debt recovery provisions as part of that LCM. Thank you, convener.
Thank you, cabinet secretary. We will move to questions, which will be directed to you, but you are, of course, welcome to invite officials to respond should you wish to do so.
Good morning, cabinet secretary. I will start with a general question because the LCM shines a light on the continued use of agency agreements, in this case those for the severe disablement allowance and the industrial injuries disablement benefit. Would it be reasonable to ask, whether the agreement to the bill’s provisions that is being sought in the LCM puts more urgency on plans that the Scottish Government has for developing employment injury assistance or does it change the balance between sticking with agency agreements and rolling out our own devolved benefits—standalone, in our own right? Any information that you can give us about the continued use of agency agreements and how long that is likely to last would be very helpful in giving us a context for what we are looking at this morning.
Certainly. Mr Doris will be aware from his long involvement in these issues that the decision was taken right at the very start not to devolve SDA because it was a closed benefit with an exceptionally small case load, even at that time, and is becoming smaller year on year. At that point, there seemed to be no benefit to the devolution of severe disablement allowance, either to the clients or to the costs that it would take to develop a devolved alternative up here.
We have recently undertaken a consultation on employment injury assistance. I appreciate that people wish to see changes on that but, because those changes are quite significant, we consulted on whether it would be better to extend the agency agreement and allow more extensive consultations to happen. Given that that was the outcome of the consultation, I am still very much minded to move forward on that basis and the work has now begun on looking at employment injury assistance in detail.
I hope that that will demonstrate that the work is on-going, but I think that it is important to carry on with those timescales, given the detailed consideration that is required, particularly on employment injury assistance.
Do you anticipate that the case transfers for other agency agreement benefits will be completed before the bill comes into force?
We expect that the case transfers that relate to the major agency agreements on benefits will complete on timetable. The agency agreements relating to benefits will end in March 2026 and we have a timetable of ending the case transfers by the end of this calendar year. I think that the case transfer process is one of the great successes of the devolution of social security. It has gone exceptionally smoothly when we look at what can perhaps go wrong when we are undertaking such large changes to benefits. We anticipate that to continue and that would bring to an end the agency agreements for carer benefits, for example, that we have in place currently.
Cabinet secretary, you mentioned in your opening remarks something about Westminster deciding to amend the bill. Looking at some of the House of Commons and House of Lords comments on the bill, I can see that it has obviously had a bit of a tortuous passage in certain areas. While I understand why an amendment must be made, do you have an agreement from the Westminster Government as to exactly when that amendment process will take place and when it will be concluded?
The challenge that we have is in attempting to keep pace with the amendments that are coming in. Obviously, other members of Parliament will table amendments as they see fit. In the past we have had a better ability to adapt to UK Government amendments and to have discussions before they are tabled. We are not in that space with this bill, unfortunately. There are some lessons that I hope that we can learn, as I mentioned in my introductory remarks, both from when the bill was introduced and the fact that we did not see it before that, particularly given that it is such a complex piece of legislation, and also in the work on the UK Government’s amendments. I will turn to my officials. Do we have a particular timetable that has been estimated for the bill?
For additional amendments?
There are significant issues and the cabinet secretary has cited some of them, not least that there are concerns about communication, when you saw the bill and various other aspects. If another legislative consent memorandum is required, I am interested to know the timescale that we are thinking about for that because it could obviously be quite important.
I cannot give you specifics on that. We can provide the committee with further information that we can glean.
Do you see this being a protracted problem, or can it be resolved?
As this bill is exceptionally technical and complicated, it is fair to say that I remain concerned that we may have to come back on other issues. My officials are in detailed discussions with the UK Government on different amendments as they come up. Continuing to do that is proving challenging and it is a further challenge where we have legislation that the DWP and the UK Government may think is only to do with the reserved system but has implications, unintended in many instances, for Scotland. We have been able to clear those up with the DWP in writing, but this is perhaps one of the first significant bills where we are having to tease out how we deal with the fact that while the DWP may think that the legislation is only to do with what happens in the rest of the UK, it has implications for up here.
Good morning, cabinet secretary. Thank you for coming. Following up on the previous question from my colleague Liz Smith, I appreciate that you cannot be exact, but are we talking about the end of this year before we see this being resolved? A rough timescale would be helpful if possible. Perhaps one of your officials can help out.
I can confirm that our understanding from the DWP is that royal assent will be towards the end of this year, so we are heading towards the culmination of the process. The only other thing to add is that the DWP has been operating at pace in the development of the bill, which has had an effect in that we have also had to operate at pace. That continues as we speak, but it is heading towards conclusion soon.
That is very helpful, thank you. I sit on the Delegated Powers and Law Reform Committee and we were quite concerned when we first saw the LCM. Cabinet secretary, your letter to the DPLR Committee a couple of days ago was very helpful—thank you. The DPLR Committee asked about the involvement of the Scottish Government in decisions about how the measures in the bill would be applied to devolved matters. I know that you have picked this up a wee bit, but the relevant bodies are subject to agency agreements. To what extent is Scottish Government and Scottish Parliament decision making being limited by the existence of agency agreements or can the issue be resolved through sensible negotiations between both parties?
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The agency agreements, as you know, Mr Balfour, have been a very important part of the safe and secure transition of benefits. They have been absolutely integral to the way in which the system has developed. With the completion of case transfers we are coming, as the convener said, to the end of many of the agency agreements. That is an important milestone that will allow us to not have to have a system in which we are obliged to do the same as the DWP because, and very understandably, the clear point from the DWP was, “You have an agency agreement, you are doing it the same way as we are.” We have discussed that in the past.
Longer-term policy development beyond the lifespans of agency agreements is not hampered by them. Such policy development continues, however, to face the context of the DWP’s policy decisions and, therefore, the financial implications of those decisions. That is the next challenge on our horizon, if I can put it like that, rather than the agency agreements.
Since the cabinet secretary has opened a can of worms there, perhaps I could, without the convener being too nasty to me, push on that very last point. We have obviously seen quite a lot of changes suggested by the UK Government for adult disability payment and other benefits. What negotiations are you having with the UK Government? If you are able to, do you have some kind of timescale of when this will have to come to the Scottish Parliament?
Before we continue, you are veering towards a discussion that is wider than the LCM—
I am.
—so I will stop you there, Jeremy, but thank you anyway.
I give you a challenge.
As no one has any other questions on the LCM, I thank the cabinet secretary.
I remind members that, should any further LCMs be lodged on the Public Authorities (Fraud, Error and Recovery) Bill as it makes its way through the UK Parliament, the committee may need to make further consent decisions on those later memorandums.
Is the committee content to recommend to the Parliament that consent should be given for the relevant provisions covered by LCM-S6-55?
Members indicated agreement.
Are members content to delegate responsibility to me and the clerks to draft a report to the Parliament on the LCM?
Members indicated agreement.
I thank the cabinet secretary and her officials for coming along. We will have a short suspension to allow for a change of witnesses.
09:18 Meeting suspended.Air adhart
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