Designing a social security system with human rights at the core: Scrutiny of the Social Security (Scotland) Bill

Members of UKAJI were among the more than 100 individuals and organisations giving written evidence to the Scottish Parliament’s Social Security Committee in its scrutiny of the Social Security (Scotland) Bill. The Bill sets out seven principles for Scottish social security, including the principle that social security is a human right. This post gives an overview of key provisions and the concerns raised that the legal status of the underlying principles should be strengthened.

The Social Security (Scotland) Bill was introduced by the Cabinet Secretary for Communities, Social Security and Equalities, Angela Constance MSP, on 20 June 2017. The main purpose of the Bill is to pass control of a number of social security benefits from the UK Government to the Scottish Government. Scrutiny of the Bill is being carried out by Scottish Parliament’s Social Security Committee, which began taking evidence on the Bill, at Stage 1, in September 2017.  The Committee issued a call for views on the Bill during summer 2017; evidence submitted can be accessed here.

The Committee published its report to the Scottish Parliament on 11 December 2017; a summary of its conclusions is available here. The Committee stated that it welcomes the ‘innovative inclusion in the Bill of a set of guiding principles, especially that “respect for the dignity of individuals is to be at the heart of the social security system”.’ Among the concerns are that much of the detail will be set out in regulations rather than on the face of the Bill.  One of the Committee’s conclusions is the right balance ‘between what is contained in primary or secondary legislation has not been appropriately struck’ and this this issue should be carefully addressed by the Scottish Government as the bill proceeds.

UKAJI’s Tom Mullen (University of Glasgow) and Grainne McKeever (Ulster University) both gave evidence on the need for clarity on the legal status of the Bill’s underlying principles and the charter.

Mullen wrote:

‘I am concerned that the Bill does not make it clear what the legal status or effect of the principles is. …

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. Also, if the principles are not intended to be legally enforceable, but this is not made clear, the legislation may raise expectations which are not subsequently satisfied, leading to public disillusionment and cynicism.’

McKeever made reference to research by Ulster University, commissioned by the Equality and Human Rights Commission. The research, on how to incorporate the right to dignity and respect within the law, sets out the following proposal:

‘Primary legislation is therefore the best means of defining and protecting dignity and respect available to the Scottish Parliament. If access to social security and an adequate standard of living are crucial to the protection of dignity, then the incorporation of relevant provisions of human rights law into Scottish law forms a stepping stone towards a system based on dignity and respect. The UK’s Human Rights Act 1998 is the strongest model for protecting these rights. A similar Act could require public authorities to ensure their actions are compatible with and courts to interpret legislation in such a way as to be compatible with social rights provisions unless prevented from doing so by primary legislation. The Scottish Parliament itself would be expected, but not obliged, to ensure legislation complies with the same set of rights.

Recommendation: That the Scottish Government considers incorporating the European Social charter and/or International Covenant on Economic, Social and Cultural Rights into domestic legislation modelled on the Human Rights Act 1998.’

Although supportive of this recommendation, and proposals to include principles on anti-discrimination, transparency and accountability, the Committee stopped short of  arguing to amend the second principle on human rights to link it to international law as it believes that ‘they are already largely covered by the existing principles and that the way to make them effective is to develop them within the charter’.

Not included in the bill is a ban on using private contractors. The Scottish Government has made a commitment not to use private sector contractors for disability assessments within the Scottish social security system. The Committee majority supports this commitment but  believes that ‘to include a formal ban on private sector contractors in the bill may lead to unintended consequences and does not therefore support this proposal’.

The Scottish Government has not yet arrived at a view on the method of redress that individuals would have if their treatment does not live up to the promises in the Charter.  The Committee believes that there is a need for a robust mechanism for redress for individuals if they feel their treatment has not been compatible with the Charter.  As the Social Security Agency will be an agency of the Scottish Government, the Scottish Public Services Ombudsman (SPSO) will have a role in handling general complaints against it and has confirmed that its remit would include the ability to take complaints about failings to meet the standards in the charter. However, the Committee believes that doubt remains over the legal status of the Charter and therefore what the process for redress would be. It recommends that the Scottish Government clarify what this process will be and where appropriate amends the Bill accordingly.

Briefing paper

An overview and analysis of the Bill’s provisions is set out in a briefing paper by Kate Berry, Nicki Georghiou, Nicola Hudson, Camilla Kidner and Jon Shaw. The overview below is drawn from that briefing paper.

The Social Security (Scotland) Bill (“the bill”) sets out principles and a general framework for Scottish social security following the devolution of 11 social security benefits in the Scotland Act 2016. The Act gives Scotland powers over 11 social security benefits:

Table 1: Benefits devolved by the Scotland Act 2016

Discretionary housing payments will continue to be delivered by local authorities and are not included as part of ‘Scottish social security’ for the purposes of the principles or charter.

Scottish Ministers will have a duty to prepare a social security charter, in consultation with others, reflecting these principles. The charter will set out the responsibilities of those receiving assistance as well as the responsibilities of Ministers. Scottish Ministers will also have to report annually to the Parliament on how the charter has been met and how the social security system is performing. While it would be a legal requirement to publish and review the charter, the bill does not include a duty on Ministers to abide by the charter or the principles.

Putting the substantive rules in regulations is a deliberate policy choice. The government argues that this will make the law easier to understand. This means that many of the policy commitments and much of the administrative detail are not set out in the bill. Secondary legislation attracts less parliamentary scrutiny than primary legislation. For example, regulations cannot be amended – only accepted or rejected as a whole.

Like the reserved system, a person will only be able to appeal to an independent tribunal if they have first requested a re-determination by the social security agency. Unlike the current reserved system, the bill does not restrict which determinations can be appealed, and a right of appeal arises if a re-determination request is not decided within a time limit (to be set by regulations). The Scottish Government intends to set up a new chamber of the First-tier Tribunal for Scotland to hear appeals in relation to devolved social security assistance.

According to the briefing authors, the Scottish Government intends that this process will improve on the system of mandatory reconsideration which applies to reserved benefits. It is slightly different to the process for reserved benefits, and to mechanisms to challenge decisions in other devolved areas, such as the Scottish welfare fund and council tax reduction reviews.

A significant change from the reserved system is that if a determination reduces or removes an ongoing award, and the applicant challenges it, they may be eligible for ‘short-term assistance’, pending the outcome of the challenge.