I agree with what Claire Baker said on decentralised powers, but I will focus on the immediate issue of the Scotland Bill.
I hope that the Parliament will unite in supporting the Government motion. I think that all members support the Smith agreement. Clearly, the SNP members want to go a lot further; I would like to see Smith plus, but surely nobody in the Parliament wants to see Smith minus.
On social security, there are several concerns on unnecessary detail and definition, to which I will come the moment, but there are three fundamental problems apart from that.
First, the bill is silent about the power to create new benefits in devolved areas. That issue must be addressed.
Secondly, the bill should be amended to place it beyond doubt that top-up payments create new Scottish entitlements and are not discretionary in the sense that the social fund is. That is not clear in the bill at present.
Thirdly, we have to get rid of the veto—perhaps some would call it a perceived veto—in relation to social security. The Scottish Parliament should inform the UK Government about its decisions on social security, not seek approval from it. That embodies what is in reality now the shared competence between this Parliament and the UK Parliament on social security.
The unnecessary detail and definition could be described as micromanagement by the UK Government of devolved social security powers. There are concerns about the definition of disability in the bill and what is said about carers, employability programmes and discretionary housing payments. Andrew Tickell, who gave evidence to the Devolution (Further Powers) Committee last week, said that some of those issues were likely to lead to litigation. For example, the bill mentions “significant” disability. What does “significant” mean in a court of law? He also posed the question:
“What interest does the Westminster Government have in defining carers benefits as being payable only to people over the age of 16 who are not in work and not in education?”—[Official Report, Devolution (Further Powers) Committee, 10 September 2015; c 6.]
Why does the UK Government have to narrow down the definition of carers in that way?
There are also concerns about the fact that the employment programmes are restricted to a particular type of person who has been employed for a particular length of time. There ought to be far more freedom in that as well. Again, I agree with Claire Baker about the implementation of those programmes at a local level.
A final example of that micromanagement concerns discretionary housing payments, on which the bill says that the recipient must be in receipt of housing benefit and not being sanctioned. That, too, constrains the freedom of the Scottish Parliament on an area that we were said to be getting autonomy in relation to—I am sorry: that is rather a clumsy sentence.
There are two Sewel issues—named after my former ministerial colleague, Lord Sewel. The first issue is the wording of the bill, which says:
“the Parliament of the United Kingdom will not normally legislate with regard to devolved matters”.
We do not like the word “normally”. I would not die in a ditch over it, because there could be emergency situations, but it still sends out the wrong message. The phrase “devolved matters” is slightly odd because that wording is not used in the Scotland Act 1998, but that is a bit of a techie detail, which I shall move on from.
More substantively, our current arrangements on legislative consent—or Sewel—motions are governed by devolution guidance note 10, which talks not only about legislation in devolved matters but the Scottish Parliament giving consent to anything that alters
“the legislative competence … or the executive competence of the Scottish Ministers.”
There is nothing in relation to that in the bill. That is serious, because it means that the Parliament would have no locus to discuss the Scotland Bill, which alters our legislative competence. The same would be true if the executive competence of ministers was being changed positively or negatively.
There is also no clarity on equality issues. The words in the bill—again, I think that I quote accurately—“except to the extent that provision is made in the Equality Act 2006 or the Equality Act 2010” mean that the proposals on quotas will all be governed by those acts, in which there is no clarity at all about quotas.
What needs to happen is that David Mundell—given his commitment to quotas in a letter—ought to make sure that it is explicitly stated in the bill that Scotland should have the ability to legislate for quotas, including those for 50 per cent of candidates being women in elections to the Scottish Parliament, public bodies and local authorities.
Finally, Labour has put forward a proposal on VAT. I totally agree with the cabinet secretary that the budget should be related to economic performance. Albeit it is an assigned tax, having VAT, as proposed, would enable this Parliament to reap the benefits of improved economic performance. Again, that ought to be explicitly stated. I do not know whether the VAT issue is going to be in the bill or just in the fiscal framework.
I agree that the fiscal framework is absolutely fundamental and I agree that we should not consent to the bill if we do not have a fair fiscal framework because the whole future of devolution hangs on a fair fiscal framework. Crucially, if we cannot get the block grant adjustment right, devolution will fail because we will end up worse off than we are at present, so that is absolutely central. Obviously I agree about increased capital spend as well.
I agree on all those issues, but I also agree with Claire Baker that everything has to be transparent and there has to be a full discussion.
The fiscal framework is central, but I hope that we can unite around the Government’s motion. We come from different positions, but I think that we can all unite around the words of the motion.
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