Scotland Bill

Lord McAvoy Excerpts

Monday 22nd February 2016 Lords Chamber

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[Lord McAvoy]

78: After Clause 28, insert the following new Clause—
“Joint Committee on Welfare Devolution
(1) There shall be a Joint Committee on Welfare Devolution to examine the transfer, implementation and operation of the powers devolved to the Scottish Parliament by Part 3 of this Act.
(2) The Joint Committee on Welfare Devolution shall be responsible for ensuring full co-operation, consultation and information-sharing between the United Kingdom Government, the Scottish Government and relevant stakeholders.
(3) The Joint Committee on Welfare Devolution shall publish a report—
(a) on the transfer and implementation of the powers devolved to the Scottish Parliament by Part 3 of this Act, at least once every three months for the first three years from the date on which this Act is passed, and(b) on the operation of the powers devolved to the Scottish Parliament by Part 3 of this Act, at least once in each calendar year, starting three years from the date on which this Act is passed.(4) Schedule (The Joint Committee on Welfare Devolution), which makes further provision in relation to the Joint Committee on Welfare Devolution, has effect.”

[Lord McAvoy (Lab)]

My Lords, I speak to Amendment 78 standing in my name and that of my noble and learned friend Lord Davidson of Glen Clova. The amendment provides for the establishment of a Joint Committee on welfare devolution that would oversee the transfer and implementation of the welfare and employment support powers transferred under the Bill. This cross-party committee would not only examine the transfer, implementation and operation of these powers; it would also be responsible for ensuring full co-operation, consultation and information-sharing between the UK Government, the Scottish Government and, crucially, the relevant local stakeholders. The committee would be established in a spirit of mutual co-operation and transparency. Those principles must lie at the heart of the devolution settlement and, indeed, are what I believe to be the cornerstones of any future intergovernmental discussions.

The creation of the committee would provide an important mechanism through which the Scottish people can engage with the devolution process, and the membership of the committee would make that clear. Before I get on to why I think such a committee is needed, let me first outline how we envisage such a committee working in practice.

The committee would be made up of 10 members, with equal representation from both the UK and Scottish Governments, including the Secretary of State, UK and Scottish Welfare Ministers—presumably the noble Lord, Lord Freud—Back-Benchers from both Parliaments and representatives from Scottish local government. The committee would determine its own proceedings and, acting jointly, the Secretary of State and Scottish Ministers could appoint an advisory panel on welfare reform comprising academics, representatives from third-sector and voluntary organisations, and any other relevant stakeholders. Following the passing of this Bill, the committee would publish reports every three months for the first three years and annually thereafter. The aim is to provide a truly all-encompassing, all-inclusive process.

The very detailed debate that we have just had about welfare benefits and employment support highlights why such a committee is needed. The work of the noble Lord, Lord Kirkwood, is well known and has been demonstrated in the past 20 minutes or so, so the expertise is certainly there. A number of points were raised that show how such a committee could be of value. The amendments proposed by the noble Lord, Lord Kirkwood, recognise the importance of joined-up working, particularly on welfare. These are extremely complex issues, but I have no doubt that the committee would make a positive contribution during the transition of the welfare provisions, with experts from local government and voluntary organisations feeding into discussions. Indeed, the Scottish Council for Voluntary Organisations warmly welcomed this initiative, stating that it is a,

“pragmatic proposal given the need to ensure continuous, timely delivery of social security payments to those who receive them”.

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[Lord Dunlop]

The noble Lord raises a good point. One thing that I will take away from this debate is to see how we can promote a better understanding of how this group works and the issues that are being discussed. If I can give him this reassurance, I will certainly take that away.

Along with the ministerial group, there is also a senior officials’ group, which covers very much the same agenda of issues as the ministerial group. It is jointly chaired by the DWP director of devolution and the Scottish Government director of welfare, housing and regeneration. It has a remit to meet quarterly; I think that the next meeting is coming up very shortly, on 1 March. As other examples of co-operation, the DWP has seconded officials to the Scottish Government and, as I mentioned earlier, there is a programme to brief Scottish Government officials and get them up to speed on how the existing system works, so that the Scottish Government are in a much better position to determine how they are going to develop the powers that are coming to them.

In terms of parliamentary scrutiny, DWP Ministers and officials obviously appear before the Scottish Parliament Welfare Reform Committee and are available to appear before the committees of this Parliament. On local authority and other stakeholder engagement, the DWP runs three stakeholder forums in Scotland per year to provide operational updates and improve joint working. It engages with a range of stakeholders from CoSLA, Citizens Advice Scotland, the Scottish Federation of Housing Associations, the Prince’s Trust and the Scottish Council for Voluntary Organisations. CoSLA and the Scottish Government are both represented on the universal credit partnerships forum, chaired jointly by the DWP and the Local Government Association.

As to reporting, I am happy to take on board and explore with the Scottish Government how we can improve reporting on the working of the joint ministerial working group on welfare, and our intent would be to provide annual reports on implementation.

Therefore, we regard the amendment tabled by the noble Lord as unnecessary, but it also confuses executive and scrutiny functions and perhaps lacks a clear objective—what outcome are we looking for here? One difficulty is that there is no precedent that I am aware of to fall back on. To whom will this body report? As I have explained, there are better ways to achieve the intent behind this amendment, to which, as I say, I am sympathetic. Therefore I ask the noble Lord to withdraw it.

[Lord McAvoy]

My Lords, I thank the Minister for his positive response, particularly with regard to his response to the noble Lord, Lord Kirkwood of Kirkhope. I share the Minister’s surprise that he was not aware of it, because he seems to know everything else about social security. However, I am pleased, not by the concession—it is not a case of wanting concessions—but by the confirmation from the Minister that he will look at ways at following up the proposal from the noble Lord, Lord Kirkwood.

As the Minister was outlining all the ministerial and civil servant involvement, I thought that something was glaringly missing, which was the users, the public—some sort of public consultation and representation. He then went on to list a whole host of organisations that the Government have some kind of link with. However, I still feel that there is a case for more direct involvement by users groups and local organisations. I get the feeling that the links with the organisations are perhaps a bit perfunctory. I hope that I am wrong about that but nevertheless there is still a bit of a case for more direct users’ involvement. The system always needs to hear what went wrong and what went right, and so on. Nevertheless, with that little prevarication, I beg leave to withdraw the amendment.

Amendment 78 withdrawn.

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[Lord Norton of Louth (Con)]

My Lords, I want to reinforce points that have already been made. It is important to stress that we should not let the late hour mask the importance of the amendments before us. As the noble and learned Lord, Lord Wallace of Tankerness, stressed, this clause has important constitutional significance. It raises fundamental issues and I concur with everything that was said by the noble and learned Lord, Lord Hope of Craighead, and reinforced by the noble and learned Lord, Lord Wallace of Tankerness. He referred to the report by the Constitution Committee on the Scotland Bill and I reiterate the comments made by that committee, on which I served, in respect of this clause.

In its report, the committee drew attention to the clause, saying:

“As has become a trend over the years, the Government has put forward a Henry VIII clause which gives it powers well beyond those which are necessary to achieve this end”—

that is, the end of the Bill. It goes on to say that,

“we once again must express our concern at a Government proposal that would provide Ministers with too much power at the expense of Parliament”.

Here we have a Bill that is giving the Government greater powers than is the norm in these types of clauses, as has already been stressed, without any justification for so doing.

It is amazing that we have got to this stage without the Government providing a clear justification for what is before us. We must take our role seriously in terms of acting as a constitutional safeguard to make sure that the Government do not use these measures to take powers that have not been justified by them and which would put us in a difficult situation in any future measures. The Government must take this very seriously and I hope that the Minister will give some commitment that between now and Report changes will be introduced by the Government themselves.

[Lord McAvoy]

My Lords, I join in the debate and fully endorse all of the speeches made, particularly by the noble and learned Lords, Lord Hope of Craighead and Lord Wallace of Tankerness. As most of my comments have already been made as quotes from the Delegated Powers Committee, I will concentrate on one aspect of this, although I also completely endorse the comments of the noble Lord, Lord Forsyth of Drumlean. It gives me such pleasure to do so.

The comments about scrutiny were made far more eloquently than I could make, so I will just endorse those comments of the noble Lord, Lord Norton of Louth. I want to concentrate particularly on the provision-making policy because it affects a significant amount of social security legislation, which can be of an extremely complicated nature.

In a letter, the Minister said:

“Although extensive checks have been carried out as to the effect of the provisions of this Bill and the interaction with social security legislation, it is possible that, in implementing the provisions of the Bill, consequential amendments are found to be necessary to fulfil Parliamentary intention”.

As the noble Lord, Lord Norton of Louth, mentioned, there is an important constitutional role for the House, even at this time of night.

The memorandum concerning the delegated powers in the Bill states:

“Furthermore, Social security has, until now, broadly remained reserved across Great Britain and delivered on a GB-wide basis by the UK Government. In operating a system where responsibility for the different social security benefits paid in Scotland is split between the UK and Scottish Parliament there may be some areas where the respective Governments may wish to make mutually beneficial agreements relating to delivery which may require consequential amendments to existing legislation—for example to facilitate fraud investigations, debt recovery and compliance issues arising out of overpayments in respect of both reserved and devolved benefits”.

I conclude by joining the comments made by many Members of your Lordships’ House who have spoken tonight. There has got to be a reason—is it laziness, bad draftsmanship or is there a purpose behind it? Were they thought out, were they put down specifically? I join other noble Lords in asking why it was felt these powers were necessary.

[Lord Dunlop]

First, I thank noble and learned Lords for their contribution to the debate about Clause 68. These provisions have been well scrutinised by the Delegated Powers and Regulatory Reform Committee and I am grateful for the Committee’s examination and subsequent report. Of course, Bills of this nature do require necessary powers to ensure that the powers that are transferring to the Scottish Parliament transfer effectively. That is one point that the committee recognised in its report; it is therefore to retain those aspects of Clause 68. However, having considered the report, the Government accept that the ability to amend future enactments and prerogative instruments, and any other future instruments or documents, and Welsh and Northern Ireland legislation whether made in the future or the past, is unlikely to be required for Parts 1, 4, 5 and 6 of the Scotland Bill. Therefore, we intend to bring forward an appropriate amendment on Report, amending the provisions.

More broadly, powers to make consequential provision are commonly found in primary legislation. Section 105, read with Section 113 of the Scotland Act, provides similar powers. The Bill contains consequential amendments identified as necessary during the course of its preparation. However, given the nature of the Scotland Bill and the significant devolution of legislative and Executive powers, it is difficult to anticipate the full extent of the consequential amendments required once the Bill has been commenced. Further, the nature of the Bill means that it effects both Westminster and Scottish Parliament legislation and it is possible that officials in either Administration may in future identify additional necessary amendments to either primary or secondary legislation.

I turn specifically to the use of the consequential power in relation to welfare provisions:

“In operating a system where responsibility for the different social security benefits paid in Scotland is split between the UK and Scottish Parliament there may be some areas where the respective Governments may wish to make mutually beneficial agreements relating to delivery which may require consequential amendments to existing legislation—for example to facilitate fraud investigations, debt recovery and compliance issues arising out of overpayments in respect of both reserved and devolved benefits”.

How feasible it is to make such arrangements will depend,

“to some degree on the provision that the Scottish Parliament puts in place and any agreements would need to be considered and agreed between both the UK and Scottish Governments”.

Therefore, it is necessary to have appropriate consequential provision in the Bill. However, as I said, the Government intend to bring forward an appropriate amendment on the basis that I have set out.

Next I would like to address the concern of the noble and learned Lord, Lord Wallace, related to,

“any other instrument or document”,

which I think has been proposed by the Law Society. The Government intend to retain the power to amend current instruments or documents. Let me offer the rationale for that. Section 117 of the Scotland Act 1998 provides that, so far as may be necessary for the purpose of or in consequence of an exercise of a function by a Member of the Scottish Government in devolved competence, any pre-commencement enactment or prerogative instrument and any other instrument or document shall be read as if references to a Minister of the Crown were or included references to Scottish Ministers. The effect of the gloss by Clause 30 of the Bill of references to pre-commencement enactment in the Scotland Act 1998 is that instruments or documents such as the contracts entered into by the UK Government for the provision of welfare that refer to a Minister of the Crown will be glossed appropriately to refer to Scottish Ministers.

However, other amendments or transitional arrangements may be required to ensure the efficient and effective transfer of contracts. For example, the gloss converts references only to a Minister of the Crown to Scottish Ministers. There may be other references that need to be amended. Accordingly, a power to amend, repeal, revoke or modify any other instruments or documents whenever passed or made is required for Part 3. We accept that the power to amend any other future instruments or documents is unlikely to be required, as I have said, in relation to Parts 1, 4, 5 and 6, and we will be bringing forward an amendment to address this issue. We are retaining the power to amend existing instruments and documents on the basis that that is likely to be required, given the scale of the powers being devolved to the Scottish Parliament and Scottish Ministers.