This paper is one of a series through which the Scottish Government aims to support scrutiny of the Bill by setting out its current policy thinking on key matters to be examined during stage 1. This specific paper is focused on the social security charter and independent scrutiny.
The idea of a publicly accessible charter, communicating in clear terms what people are entitled to expect from the new system, received strong support both in response to the consultation and in wider public and stakeholder engagement. The Scottish Government has since committed to developing the charter in partnership with the people of Scotland, starting from a 'blank sheet of paper' and has made express provision for this on the face of the Bill.
The following, therefore, are high-level functions that the Scottish Government presently believes the charter could encompass (based on feedback from stakeholders and the public to this point). These will be fed in to the drafting process but, of course, the final draft will also be dependent on the input of others. The Scottish Government's position, going in to the drafting process, is that the charter could:
- Provide a clear, plain English statement of what people are entitled to expect from the new system
- Translate the core principles from high level statements into commitments to deliver specific, measurable outcomes, establishing a strong link between the principles and the way that the system actually performs
- Be developed in close partnership with stakeholders and those with direct lived experience of the system
- Involve a statutory requirement for Ministers to report to Parliament on progress made against the commitments contained in it
In terms of what kind of product the charter should be, subject to the outcome of co-design, the Scottish Government's initial view, again at arrived at in line with public and stakeholder feedback, is that it should be short, clear and analytically rigorous. Such a charter could:
- Provide an accessible and understandable articulation of people's rights
- Be analytically robust, setting out clear outcomes and indicators of how those outcomes will be evidenced; avoiding the risk of the charter amounting to little more than warm platitudes
- Set out clear and robust arrangements for individuals or organisations to seek redress in circumstances where it is felt rights have not been fulfilled
- At systemic level, provide for strong scrutiny and accountability – there should be little dubiety over whether outcomes are being achieved
Reporting and Evidence
The Bill places a statutory duty on Ministers to report to Parliament on what they have done to meet the expectations of them set out in the charter. The Scottish Government has noted the concern that it may be difficult to demonstrate progress against relatively subjective concepts such as 'dignity' and 'respect'. The Scottish Government is therefore thinking carefully about how it might employ techniques of a more qualitative nature such as survey data, feedback from individuals, focus groups or an on-going role for Experience Panels.
Introducing such techniques to support formal scrutiny would be a progressive step, in keeping with the commitment to do things differently and to take an open and person centred approach to public service design and delivery. It would also enable the assembly of a formidable aggregate picture of how the system is performing against the charter at both a systemic and individual level.
Driving Systemic Progress
The charter should be intrinsic to the system, defining its ethos and setting standards of performance that will ensure this ethos is translated into procedures and behaviours that deliver a positive experience in the first place for everyone interacting with the system. The rights contained in the Charter, and the ethos they represent, should infuse all aspects of service delivery, and this is itself an important aspect of realising and protecting people's rights.
The proposed process should also be capable of driving improvements for individuals. For example, if reporting mechanisms revealed that some aspect of the system was falling short of the rights set out in the charter e.g. high rates of complaints on similar issues, then this would clearly be something that Parliament would scrutinise and that Ministers, where appropriate, would seek to address, either through reviewing policy or by issuing operational guidance to the agency. This should then translate into an improved service and therefore a better experience for individuals. Similarly, the agency's complaints and appeals procedures will also be strongly reflective of the values and standards set out in the charter, again strengthening the nature of the redress that is available to individuals. In this way, the charter can be seen as a mechanism to support the Scottish Government and Parliament to assess what is not working and where improvements require to be made.
Of course, all individuals who use the social security system will also have the right to access the services of a First-tier Tribunal (for appeals) and the Scottish Public Services Ombudsman (for complaints), as well as onward to further judicial review, if required.
Rights and Redress
The Scottish Government is strongly committed to ensuring that meaningful redress is available to individuals where it is felt that that some element of the system is failing to live up to the charter. It has therefore paid close attention to the view, expressed by a number of stakeholders and Committee members, that the charter should be legally enforceable. The Scottish Government recognises the legitimacy of these arguments and accepts they are worthy of careful consideration in line with the rights based approach it is committed to delivering.
That said, there are also a number of potential disadvantages to a legally enforceable charter and it is important that these are also reflected in this conversation. For example, if the charter is to be a legal document there is a risk that it becomes necessary to draft it with legal precision, perhaps detracting from its original purpose as something more accessible than legislation. The recent research published by the University of Ulster also finds that the Courts, including the European Court of Human Rights, are often reluctant to find that Parliaments have exceeded their authority to determine social and economic policy, concluding that the Courts "represent an inefficient means of protecting dignity and respect on a systematic scale" and that "it is through the legislature that most rights will continue to be realised."
The Scottish Government has yet to arrive at a final position on the best model for achieving meaningful redress, in relation to the charter. Indeed this is likely to be one of the key matters to be considered during the co-design process.
Similarly, while the Scottish Government is clear that there is a need for independent scrutiny, it has yet to arrive at a final position on how this might best be realised. The Minister for Social Security, Jeane Freeman MSP, has written to the Convener of the Social Security Committee and has commissioned work from the Scottish Government's Expert Advisory Group on Disability and Carers' Benefits, to ask that they both consider the issue of scrutiny of the Scottish social security system. The Scottish Government awaits the results of both bodies' consideration and will provide a further update on this matter, once their advice is available.
With that caveat, the Scottish Government's position, at this time, is that it might be possible - subject to the agreement of Parliament - for a body convened to provide advice and scrutiny on Scottish social security matters, to also champion people's rights in relation to the charter.
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