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.