Contents
- Attendance
- Decision on Taking Business in Private
- Funeral Expense Assistance Regulations: Consultation
- Subordinate Legislation
Subordinate Legislation
Scotland Act 1998 (Agency Arrangements) (Specification) Order 2018 (SI 2018/626)
Agenda item 3 is subordinate legislation. Scottish Government officials have been invited here to brief the committee on the Scotland Act 1998 (Agency Arrangements) (Specification) Order 2018 (SI 2018/626) and answer any questions that we might have. The instrument is subject to negative procedure in the Scottish Parliament and at Westminster.
We welcome Ann McVie, the deputy director of the social security policy division, and Colin Brown, a solicitor in the social security directorate, both from the Scottish Government.
I refer members to paper 6, by the clerk. The Delegated Powers and Law Reform Committee has drawn the instrument to the attention of the Parliament on the ground that the meaning of article 2 could be clearer.
I invite Ann McVie or Colin Brown to explain the purpose of the instrument and the procedure that is to be followed.
The purpose of the instrument is to allow the Scottish Government and the United Kingdom Government to enter into agency arrangements as part of the devolution of existing benefits. It links to the safe and secure transition, from the UK Government to the Scottish Government, of those benefits that are to be delivered on a devolved basis, which the committee will be familiar with. As part of that transition, the Scottish and UK Governments will undoubtedly wish to make arrangements whereby, for transitional periods, benefits will still be delivered by the UK Government. The instrument enables the Governments to make those arrangements. It allows the committee to look at that as a proposal and say that you are happy that that should happen. I do not think that anybody has difficulty with that as a principle.
The most immediate need will be in relation to carers allowance, because the arrangements for devolution of responsibilities provide that, when the carers allowance supplement is introduced, the Scottish Government will become responsible for the delivery of carers allowance. At that point, the Scottish Government will wish to have an arrangement in place to enable the UK Government to continue to deliver carers allowance for a transitional period until the Scottish version, which the committee has seen through the Social Security (Scotland) Bill, is developed and ready to be delivered. At that point, further transition will undoubtedly be arranged between the two Governments.
That is what the order is about. Does the committee want me to address the Delegated Powers and Law Reform Committee’s point now?
It would be helpful if you covered that now.
10:45
The Delegated Powers and Law Reform Committee picked up on an example—as sometimes occurs in these cases—of drafters knowing what is meant by the words that they have put on the page but, because they know what is meant by them, missing the fact that others who are not looking at those words with the same background knowledge may think that they mean something different. The DPLR Committee asked whether the meaning could be made clearer—frankly, it could. It also said that the Government should consider whether there is a need to amend the order to address that issue. The view of the UK Government and the Scottish Government is that the order does not need to be amended to address the issue.
As you will appreciate, such orders are drafted as co-productions of the UK and Scottish Governments and a number of people are involved. The DPLR Committee has raised concern over a reference to the end of the period of transition. To the drafter, that is a reference to the periods when the executive responsibility for benefits will transfer. However, under the Scotland Act 2016 (Transitional) Regulations 2017, which are already in place, there could be four different periods for four types of benefit: disability benefits, industrial injuries disablement benefit, severe disablement allowance and, most relevantly, carers allowance. The drafter intended that arrangements could be made at the end of the transition period for each of those four benefits.
If you do not approach it in that blinkered way, you may wonder whether that reference in the order is ambiguous and could mean something else. It could mean one of two things: either the period when the first of those benefits becomes a devolved responsibility or the period when the last of them does. The view of both Governments is that a person looking at the way in which the provision is drafted would intuitively think that, surely, it must have the first meaning, because that is when those arrangements would be needed. Looking at the policy background, it is immediately obvious that it is about making a feasible arrangement when the first of those benefits becomes a devolved responsibility. I do not expect that the issue would ever end up in a tribunal or a court to be assessed, but, if it did, the other meaning would clearly be seen as irrational, as it does not fit the policy and simply makes no sense.
Ultimately, both meanings fit what the Governments intend to do. The order delivers the policy intention and, therefore, there is no need to amend it.
I will briefly go back to the basic purpose of the order. As Colin Brown said, the use of agency agreements is part of the incremental approach that we are taking to transition, which is in line with Audit Scotland’s recommendation to ensure that people who are already in receipt of carers allowance continue to receive their benefit, week in and week out, until the new agency is in a position to take on delivery of that benefit by its own hand. The use of the agency agreement also enables us to deliver the carers allowance supplement earlier than otherwise would have been the case. Without the agreement, we would have to wait until we were in a position to take on responsibility for carers allowance in the round. The use of the agency agreement allows us to deliver the supplement by the end of this summer.
If members have no questions, I thank both witnesses for their attendance.
Under agenda item 4, the committee is invited to note the Scotland Act 1998 (Agency Arrangements) (Specification) Order 2018. Does the committee agree to note the order?
Members indicated agreement.
10:49 Meeting continued in private until 11:17.