As there have been no substantive changes made to the clauses from draft to Bill, the concerns SCVO outlined in our previous response to the Committee remain. These fall broadly into three categories: the need for Gift Aid to be considered alongside the devolution of income tax; the prescriptive nature of the social security and employability clauses; and the lack of clarity as to the effect of the clause on equalities.
In this submission we again outline these concerns and point to potential amendments which could be made and which would – from the third sector’s perspective – improve the Bill.
We also note (with concern) that since the start of the Bill’s progression through Westminster there has a great deal of rhetoric which focusses on asking the current Scottish Government to outline what it would potentially do with any new powers, ahead of their transfer. This is inappropriate as the Bill devolves powers to parliament not government.
Engaging People Affected by Devolution
From the inception of the Smith Commission process, and throughout the subsequent proceedings, people, in particular those who will be affected by the transfer of powers over certain benefits, the third sector and wider civil society, have struggled to effectively influence and shape the powers being devolved. For example, calls for wider devolution of social security have been widespread across the sector but have been largely ignored by the UK Government
Like Engender and other key third sector organisations, SCVO remains concerned that the processes surrounding negotiations and the work of the Joint Ministerial Working Group remain closed.
The expertise of the sector in understanding the current complexities within our social security system and our experiences of services could support these discussions and identify, early on, any unintended consequences arising from further devolution. This should be used to help shape the actual clauses and how any further powers are effectively used.
However, the current process leaves out the very people who are likely to be deeply affected by the new powers; people with disabilities, those facing unemployment or currently unemployed, unpaid carers and others. We would welcome questioning from the Committee on this, asking both the UK and Scottish Governments how they could directly involve people and communities in shaping the new powers both during and after the legislative process. The First Minister has committed to her Government being “the most open and accessible …that Scotland has ever had.” This is one situation where greater transparency and engagement is needed.
Powers to the Scottish Parliament
SCVO believes it is important to emphasise that the Scotland Bill serves to devolve powers to the Scottish Parliament, not to the current Scottish Government or directly to any other body, for example, local authorities. Such decisions to further devolve power from Holyrood should be left to the Scottish Parliament and the Scottish electorate.
We are also extremely concerned that since the start of the Bill’s progression through Westminster there has a great deal of rhetoric asking the current Scottish Government to outline what it would potentially do with any new powers, ahead of any transfer. This is inappropriate as the Bill devolves powers to Parliament not Government.
We therefore take this opportunity to reiterate that the Bill must not supersede the authority of the Scottish Parliament through devolving power directly to local authorities, or by devolving powers (or reserving them) with a specific government’s preferred policies in mind.
Gift Aid is a relief on income tax that benefits charities and community amateur sports clubs. Given the significant financial contribution Gift Aid makes to Scotland’s third sector, SCVO firmly believes that Gift Aid needs to be considered alongside the proposed devolution of income tax. SCVO raised this in its previous evidence to the Committee, and detailed this in a briefing to MPs ahead of the Second Day of Committee proceedings at Westminster.
While appreciating that it may not be appropriate to reconcile the issues concerning Gift Aid through primary legislation, given the sums involved (last year Gift Aid provided over £1 billion to the third sector in the UK) SCVO would like to see a clause added to the Scotland Bill which would allow for a review of the operation of Gift Aid as it relates to income tax in Scotland. This would ensure that the concerns outlined in the above briefings were addressed.
Social Security and Employability
SCVO and many others in the third sector have called for the full devolution of social security and employment powers (with the exclusion of pensions) from the outset of the Smith process. Therefore, from this standpoint, the Scotland Bill falls far short of delivering the kind of powers we would like the Scottish Parliament to have.
Considering the relevant Scotland Bill clauses, we agree with the conclusions made by the Devolution Committee in its interim report. At present, these clauses do not reflect the ‘spirit and substance’ of the Smith Commission. This is a part of the Bill that requires significant improvement.
The addition of clause 21 is welcome, allowing for the top-up of reserved benefits, although many across the third sector have concerns about the exclusion of those affected by sanctions. These concerns extend to clauses 22 and 23.
Many colleagues across the sector have very strong concerns about the clauses relating to disability and carers’ benefits and employability. Currently, the clauses prescribe tight parameters which potentially limit the policy options available to the Scottish Parliament and, in turn, future parliaments. We would seek the removal of these restrictions and reworded clauses to enable the Scottish Parliament to take a holistic, integrated approach to supporting people, building on ambitions identified within the Fairer and Healthier Scotland national conversations.
With new powers comes the opportunity to take a more empowering approach to social security, but currently the Scotland Bill limits the scope to achieve this vision. Alongside many in the third sector, we call on the Devolution Committee in its communications with the Secretary of State for Scotland and others to petition for changes to the Scotland Bill which facilitate maximum policy autonomy in shaping new benefits alongside devolved services – both in the immediate and longer term.
Clause 19 – Disability, industrial injuries and carers’ benefits
Regarding clause 19, many in the sector would like to see the removal or reworking of the definitions outlining who can receive disability and carers’ benefits. Currently the clauses are very restrictive and do not allow for: “complete autonomy in determining the structure and value of the benefits …or any new benefits or services which might replace them”, which was clearly the intention of the Smith Commission.
In specific relation to carers’ benefit, the clear prescription of who is eligible would appear to do little more than allow Scotland to administer this benefit – perhaps with a name change or an increase in the benefit’s value. The phrase ‘normally payable’ infers that there is some flexibility to make payments in exceptional cases and this is confirmed by the explanatory notes which makes reference to ‘sufficient flexibility’. However, we do not see that there is a possibility to extend eligibility, for example, to full time students, or reshape the benefit in any radical way.
The third sector is aspirational for the devolution of social security, and it believes that it should offer people “options and opportunities and help them achieve sustainable outcomes” – a key priority identified at a SCVO event focussing on the new social security powers. As it stands, the Bill would not enable us to achieve these ambitions. By limiting eligibility, there is no real scope to support a wider group of people.
In addition, the definition of disability under clause 19 has raised concerns about the ability of the Scottish Parliament to give benefits to those with particular illnesses. We also note, as highlighted by Professor Paul Spicker in his previous evidence to the Committee, the differing definitions of disability from clause 19 to clause 26. We would ask the Committee to question the thinking behind this inconsistency.
Clause 23 – Discretionary payments
The wording of clause 23 to ensure that discretionary payments no longer have to be immediate is welcome. The inclusion of terms such as “exceptional events” and “exceptional circumstances” has the potential to address the strong concerns of the third sector about the exclusion of families under pressure from the face of the Welfare Funds (Scotland) Act. However, we share the concern of some of our members and partners including Inclusion Scotland, that the wording of this clause may not be enough. We support their call for “families under exceptional pressure” to be included in this clause.
As in previous briefings, we remain concerned that the exception which prevents discretionary payments to people affected by sanctions could reduce the current scope of the Scottish Government to support people who have had their benefit cut/withdrawn through the Scottish Welfare Fund. We note that similar wording relating to sanction and non-payment appears in clauses 21 and 22.
SCVO does not support any mandatory activity or conditionality within the Bill, including the notion of mandatory work placements. We believe the current conditionality regime should be devolved, at which point SCVO would then call on the Scottish Parliament to scrap conditionality as we consider that this does not incentivise people to move back into work.
More widely the third sector has concerns about the frequent references to ‘short-term’ and ‘individuals’ in this and other clauses. It may be that the Scottish Government would wish to pay something on a discretionary basis to groups such as carers or lone parents, and we are concerned that the precise wording in this clause may prevent such action in future.
Clause 26 – Employment support
Again, SCVO agrees with the Devolution Committee’s conclusion that clause 26 does not reflect Smith or fully implement the Commission’s recommendations.
Therefore, we would like to see the current clause amended to remove reference to ‘at least a year’ in order to give the Scottish Parliament to opportunity to design and deliver support for individuals who may not need such intensive or lengthy intervention. We would also like to see the clause amended in order to give the Scottish Parliament powers over the Access to Work Programme.
The focus on people receiving reserved benefits within this clause could potentially limit our ability to support those who will subsequently be on devolved benefits such as Personal Independence Payments (PIPs) and Carers Allowance and who may want to find work, stay in or progress in work.
Moreover, the sector would like to see amendments which would transfer powers over Jobcentre Plus. This would align with the current responsibilities Holyrood has over skills and learning and would be appropriate with the transfer of powers over employability schemes. The full devolution of competence for job search and support to the Scottish Parliament, in order to integrate service provision in the area of employability, was recommended by the Christie Commission back in 2011. The devolution of Access to Work has been called for by SAMH in its submission to Westminster for the Scotland Bill, and by Inclusion Scotland in it submission to this inquiry. This makes sense given the recent devolution of the Independent Living Fund and the ongoing development of self-directed support.
Lastly, we remain concerned that the Bill will see the retention of sanctions and conditionality at a UK level. Primarily because the sector does not support any mandatory activity or conditionality, but also this has the potential to cause confusion as the DWP will make referrals to programmes operated/contracted out by Scottish authorities.
Additional social security concerns
There does not appear to be a clause in the Bill that would enable the Scottish Parliament to create new benefits beyond discretionary responses (as per clause 23). Again, the Bill fails to reflect the terms of the Smith Commission. SCVO would like to see a clause, phrased clearly so that there is no ambiguity, inserted in to the Bill in order to devolve such a power.
Without the genuine transfer of powers allowing for the different political parties in Scotland to advocate for new policy directions concerning social security, the Bill is, in effect, handing over administration of certain benefits rather than giving the Scottish Parliament the opportunity to create its own. This does not reflect the intention behind the Smith Commission proposals.
Alongside a number of third sector organisations, SCVO called for the wholesale devolution of equality law as part of our submission to the Smith Commission, however, the Bill’s sole clause on equality fails to meet our ambitions in this area.
At present, and as highlighted by the Equality Network and others, it is unclear what clause 32 means and it is questionable as whether it actually achieves what the Smith Commission intended.
It is our understanding, and the understanding of others in the sector, that in order to devolve the power to create gender quotas on boards, an exception to the current anti-discrimination provisions under the Equality Act 2010 would be required. At present clause 32 does not include making such an exception. Further clarity as to what clause 32 would enable the Scottish Parliament to do is required. It remains to be seen how recent announcements from the UK Government on gender equality will affect this situation.
As it stands the Bill is not a coherent piece of legislation and, along with many in our sector, SCVO questions its effectiveness. These new powers ought to enable full policy autonomy over devolved areas, allowing for the integration of services and ideas. The wording and scope of the clauses within the Scotland Bill is vital but at present the Bill fails to give the Scottish Parliament the opportunity to design and create new benefits. It also denies the Scottish electorate a chance to vote on whether or not they agree with the various Scottish political parties’ stances on certain devolved areas because these decisions have, effectively, been made by the Bill and its current prescriptions.
The sector hopes the devolution of the new social security and other powers will be the first step in a journey towards greater equality and better outcomes for people in Scotland. However, the limitations of some clauses in the Bill may restrict our ability to create a new, empowering social security system. At present we consider the powers devolved to be largely administrative. We want the Scottish Parliament to be able to create not just deliver.
As a result SCVO believes considerable work still needs to be done on this Bill in order to deliver the genuine transfer of powers to Holyrood, ensuring that successive Scottish Parliaments are able to use the Bill’s powers effectively. We emphasise the importance to our sector that Gift Aid be acknowledged by the Bill and thoroughly considered as it progresses through Westminster.
Lastly, we express our continued frustration that the processes supporting further devolution have, thus far, excluded the views of the sector and more importantly, the people whose lives will be touched by the planned changes. We call on the Devolution Committee to question both UK and Scottish Ministers on engagement plans to devolve and shape the new powers.
We thank the Committee for the opportunity to submit written evidence to their inquiry. We hope to see some progress on some of the issues raised in this evidence at report stage. We would be happy to provide more information as required.
Tel: 0131 474 6157
Scottish Council for Voluntary Organisations,
Mansfield Traquair Centre,
15 Mansfield Place, Edinburgh EH3 6BB
The Scottish Council for Voluntary Organisations (SCVO) is the national body representing the third sector.There are over 45,000 voluntary organisations in Scotland involving around 138,000 paid staff and approximately 1.3 million volunteers. The sector manages an income of £4.9 billion.
SCVO works in partnership with the third sector in Scotland to advance our shared values and interests. We have over 1,600 members who range from individuals and grassroots groups, to Scotland-wide organisations and intermediary bodies.
As the only inclusive representative umbrella organisation for the sector SCVO:
- has the largest Scotland-wide membership from the sector – our 1,600 members include charities, community groups, social enterprises and voluntary organisations of all shapes and sizes
- our governance and membership structures are democratic and accountable – with an elected board and policy committee from the sector, we are managed by the sector, for the sector
- brings together organisations and networks connecting across the whole of Scotland
SCVO works to support people to take voluntary action to help themselves and others, and to bring about social change. Further details about SCVO can be found at www.scvo.org.uk.