Chamber and committees

I can try. I think that I have covered most of that already. My concern around the finances is duplication. That is the bit that I am worried about. Would it be an effective use of the money? I refer to the money that it would cost not only to set up the office but to sustain it. We want it to be sustainable. It has to be. We would not want to set an expectation that was not delivered.

I would not want anyone to think that one set of money is taking away from another. That is not how it works. We have to discuss the bill on its own merits. I am not going to get into that question.

I am aware that the issue of costs has been spoken about in previous evidence sessions and that, for instance, at the evidence session on 18 June, when asked whether the proposed costs were an underestimate, Amy Dalrymple from Marie Curie Scotland said:

“The costs of ensuring that disabled people can access services ... are often underestimated”.—[Official Report, Equalities, Human Rights and Civil Justice Committee, 18 June 2023; c 18.]

I do not think that the establishment of a commissioner can be done cheaply. I welcome Jeremy Balfour’s willingness to look at how administrative aspects could be shared and at how to make the role more affordable. However, you would expect me to be very cautious about that. I have looked at a comparison of similar commissioner roles across the UK. They usually have between 15 and 20 staff. The Commissioner for Older People for Northern Ireland has approximately 18 staff and the Older People’s Commissioner for Wales has approximately 16 staff. Therefore, you have to be very cautious—well, I have to be. I am scrutinising the money that goes into that.

As I said, my mind is open. If there is clear evidence that the best use of the money would be to have a commissioner who could possibly have an administrative team of between 15 and 20 staff, that will be looked at very seriously. However, the disabled people’s organisations want to ensure that the commissioner has teeth, and they can have teeth only if they have a full team of people who are able to execute that work. Therefore, I would worry that if, for example, we thought that we could cut down on the staff and have five or 10 people, the commissioner would not have the reach that was expected. Therefore, we need to be very mindful of that. However, I look forward to getting more facts and figures and evidence and analysis of that.

There has been a lot of discussion of inclusive communication. My initial delving into it indicates that there is no consistency. There are councils and public sector providers that are doing a really good job on inclusive communication but it is not consistent. I hope that we can address that through the bill and by spreading good practice.

Again, intersectionality comes into it as well. There are different layers of communication. We are not just talking about British Sign Language, for instance, but inclusive communication in everything for the hard of hearing—I am not going to list all the groups, because you always forget something, so please forgive me.

The general principle of it is that there are amazing good practices, but people use that term “postcode lottery”, which means that, depending on where you live, you do or do not get something. We cannot have that.

The principle of inclusive communication is important because it goes to the heart of the dignity and agency of those who have communication barriers. Perhaps they do not have the barriers; perhaps it is us who are creating those barriers, so it is on us to deal with them.

We need to ensure that provision is consistent. The public service equity duty is a big part of that. Again, it is about using the carrot and the stick. Currently, I am looking at whether there is a place for legislation. However, remember that we work in partnership with local authorities through the Convention of Scottish Local Authorities. We have to respect that relationship, so we need to consider whether the best way is for the Scottish Government to legislate or whether we need to provide the tools and the frameworks.

Also, ministers have additional powers to strongly suggest—well, more than suggest; I cannot remember the phrase that is in the powers—something. I am considering those at the moment. What powers do we have to enforce that everybody is honouring their duties with regard to inclusive communications?

As I said, the Scottish Government absolutely supports the aims of the bill in relation to improving the lives of disabled people and is absolutely committed to furthering disability equality. However, it is only reasonable that we would have legitimate concerns about the content of the bill and whether establishing a disability commissioner is the most feasible and effective way to achieve that necessary change.

I am carefully looking at the potential for duplication of functions. There are existing bodies: there is already a complex commissioner landscape and there could be limitations in respect of how far the approach provides value for money and efficiency. Mr Balfour’s bill also refers to the Equality Act 2010 definition of “disability” and “disabled person”, so there are potential issues around the Parliament’s legislative competence in the area, as well.

However, we are absolutely open to exploring whether there is a need for a commissioner. It is up to the Scottish Parliament to do that and that is what we are doing.

That is an issue that I have given a lot of thought to, and I know that it is one on which the committee has heard evidence. As you have mentioned, there is a crossover. I am continuing to consider the detail of the bill before us and where there are synergies and crossovers with the human rights bill and the wider human rights agenda.

There will be children with disabilities who are covered under the remit of the children’s commissioner. I am trying to think where in that complex landscape a disability commissioner would fit. Would such a role add to that in a positive way? Would it make that landscape more crowded? That is the place that I am in.

Representatives expressed concerns about that during one of the committee’s evidence sessions. They felt that the children’s commissioner model might not be completely transferable, weighing up the issues of cost effectiveness, crossovers and who would take responsibility for what and where. That raises more questions. I am genuinely in a place where I am exploring all those issues. I will see where we land on that once I have undertaken my scrutiny.

I do not want us to have a hierarchy of rights. I am concerned that if we start to separate out all the various protected characteristics, it is possible that there would be a call on behalf of other protected characteristics for there to be commissioners for those groups. I started off by saying that I believe passionately in mainstreaming. I would love us to have a world where we do not need to have individual commissioners because we have all the structures and support systems in place to ensure that the needs of every individual are taken account of. For me, that is the big idea, but I realise that, on that journey, there will be times when there are people who need us more and whose needs need to be highlighted.

As I said, my reservation is that I would not want there to be a hierarchy in that regard, and I know that that issue has been alluded to in some of the evidence that the committee has taken.

The short answer is that, with any investigation powers, you can investigate and report, but the issue is then about the enforcement of the recommendations that come out of that report. That is the bit that I am closely considering.

The SHRC and the EHRC have an important statutory role in relation to the rights of disabled people. Their remit is to ensure the protection of the rights of a wide range of people, including people in specific groups, as I said—in this particular case, people with disabilities.

Sorry—I have lost my thread a little. You can remind me if I have lost track or you need further information.

Good morning, convener, and thank you for your invitation to contribute to the evidence session on this member’s bill. It would be remiss of me not to note that sitting on this side of the table is an interesting viewpoint, having been on the other side of it at one point.

I start by recognising and thanking Jeremy Balfour for the attention that he has drawn to disabled people’s equality through the bill. We are acutely aware of the exceptionally challenging times that disabled people in Scotland are living through. Disabled people continue to be impacted by the cost of living crisis that is gripping the United Kingdom and, alongside facing higher costs of living, a great many are being pushed into deepening poverty. I take the opportunity to recognise the unstinting work of disabled people’s organisations and communities across Scotland in tackling those challenges.

I share Jeremy Balfour’s intentions in introducing the bill. Improving the lives of disabled people and furthering disability equality are priorities for this Government, committed as we are to delivering a fairer Scotland for all.

As the Minister for Equalities, I have a key role in considering the possible implications of legislative proposals that fall within my portfolio. I am happy to share my learning and understanding in order to support the committee’s scrutiny of the bill.

Tackling the challenges that disabled people face is a collective responsibility and it requires a shared commitment across the public, private and third sectors. To secure real change, we must focus resource and opportunity where they are needed most.

We have concerns about a few of the bill’s provisions, which are currently being scrutinised, and we are considering very carefully the establishment of a disability commissioner and whether that is the right vehicle through which to achieve the change. The most significant concern that the Scottish Government has is the potential for the bill to simply duplicate functions that are already undertaken by existing bodies. As well as possibly being inefficient use of public money, that risks causing a lack of legal certainty and making it less clear to disabled people whom they can turn to for help.

Although the commissioner would have a single focus on disabled people’s rights, there are a few commissions that protect the rights of disabled people, including the Scottish Human Rights Commission and the Equality and Human Rights Commission. It is notable that the Scottish Human Rights Commission has raised concerns about the potential weakening of its mandate that could be caused by the proliferation of commissioners.

That links closely to another key concern—the content and timing of the bill. There is already, in Scotland, a complex commissioner landscape which, as the committee knows, is currently the subject of an inquiry by the Finance and Public Administration Committee. Part of the inquiry’s remit is to consider whether a more strategic approach is needed to the creation of commissioners in Scotland. Whatever that committee’s recommendations will be, its report will surely require significant consideration by the Parliament and further dialogue with Government and other stakeholders. Given that context, it seems to be inadvisable to bring a new commissioner into an already complex environment at this time.

To add further context to our position, the Scottish Government is preparing to publish the first phase of a disability equality plan that is aimed at tackling the systemic barriers that affect the daily lives of disabled people and impact on disability poverty. The plan, which has been developed in partnership with disabled people’s organisations, will bring about significant progress in advancing disability equality. Setting up a disability commissioner could divert resources from that valuable work without there being an evidence base to suggest that it would be an effective way of achieving change.

Although we have concerns about the bill, our commitment to furthering equality means that I remain open to hearing alternative views. I reiterate our commitment to greatly improving the position of disabled people in Scottish society, and I extend an invitation to Mr Balfour to discuss those shared aims.

I look forward to answering the committee’s questions.

As I have already mentioned, there are issues with having another commissioner that would add to the proliferation of public bodies that we have when, as part of the public service equality duty reform, we want to make sure that whatever we do is sustainable in the long run. We need to make sure that resources are used economically, efficiently and effectively.

Very little research has been published in Scotland and the UK on commissions and commissioners. There has also been little evaluation of the pros and cons of different approaches and powers of working. In that context, therefore, there is a limit to what I can say. The programme for government and the financial statement are still to come, so please forgive me if I am speaking in very general terms. I know that we do not need reminding, but the Finance and Public Administration Committee is also doing an inquiry into that and I will be keen to hear what it says.

Yes, I would say that we absolutely need clout. Indeed, I think that I said as much in my previous remarks. I suppose, though, that what we are considering is whether the establishment of a commissioner is the way to go about doing that. All I can go on is what is in the bill, and the bill does not contain any enforcement powers. I will therefore be very interested to see what you recommend after you have done all your work and scrutiny, and I look forward to reading your report and its recommendations.

As I have said, there is a piece of work to be done on our current bodies and why they are not executing their statutory powers, and we also need a little bit more detail on the public sector equality duty. After all, these bodies have a duty to report. I am currently looking at what mechanisms short of legislation I can use. Legislation is important, because it sets the baseline, but there is another thing that I have not yet mentioned—the cultural change that is required and which is becoming quite apparent to me as I get more and more into my equalities role. We might have the bodies, the agencies, the plans and the strategies, but the issue is the will of people to meet the obligations that they should be meeting. What are the barriers that we are facing? We need the research, the data and the evidence, but we also need the tools. In that respect, there is a carrot-and-stick aspect to making sure that we deal with the issue.

When it comes to addressing poverty more widely, we have taken action on that through our social security powers, but there are limits to what we can do in that regard with our devolved settlement and budget. A different social security system has been set up that disabled people’s organisations have told me is much more compassionate and much more accessible. Obviously, we can improve things, and we will listen very carefully to feedback from those organisations and improve as we go.

Child poverty fits into that. There are many children who live in households where someone has a disability. That brings me back to the issue of intersectionality, which is a challenge. To come back to your initial question, would a commissioner pull all that together? It is possible that they would, but whether they would have the statutory function and the enforcement powers to do that is an issue that we are debating.

You make an important point. We talked about mainstreaming and the current duty bearers and those who have enforcement powers. There is a requirement for a champion and for someone who is solely focused on advancing rights, especially for disabled people, because that is what we are discussing today. I have a great deal of sympathy for that.

The bit that I am drilling down into is the question of how that role would sit with the Scottish Human Rights Commission, for instance. Would the bill have two areas where there is a lack of teeth rather than having one area that could be enhanced further? In its current form, the bill does not have any enforcement powers, which I find interesting.

You are right to mention advocacy. Could that role be done through other means? I suggested that champions would do that. Again, there are questions around how that would work. Would it be effective for each of the 32 local authorities to have a disability champion that could undertake the work that is in the bill? I am grappling with all of those questions, because as I said, I am genuinely in a neutral space where I am weighing up all the options and considering what would be the most effective way of doing this.

The rapporteur model is a model that is often used. Rapporteurs are often quoted in chamber debates. They make a mark, as they are able to have research done and to draw on that. They can also make international comparisons, hold bodies to account and provide evidence. There are many ways of doing it.

The advocacy role is essential—we must have that. Whether the bill provides enough in relation to the advocacy role to give the commissioner the teeth that disabled people’s organisations have asked for is the question that I am asking.