Chamber and committees

Thank you. Good morning, everyone.

I thank the cabinet secretary for the conversations that we have had about the bill in the run-up to stage 2. I will be speaking to amendments 58, 99 and 103, the substantive one being amendment 58.

At the outset, I say that I believe in audit; I just do not think that, as set out, the measures in section 16 are appropriate at this time. The section gives powers to Social Security Scotland to request information from random individuals receiving payments in order to ascertain levels of error by the recipient and fraud in the system. It follows an Audit Scotland annual audit report that recommended that something needed to be done about the issue.

Some categories of people can be made exempt by regulation, and individuals who have a good reason not to respond—for example, because of recent bereavement—can ask for the request to be withdrawn or postponed. However, that will not necessarily be granted. If people do not give the information requested, their payments can be suspended until they do, and, ultimately, a new determination might be made that could mean their payments being stopped altogether.

The provisions were not included in the public consultation, and stakeholders including the Child Poverty Action Group, Scottish Action for Mental Health, Citizens Advice Scotland, the Law Society of Scotland, the Royal National Institute of Blind People and others are concerned about the effects of the section. I will come on to the reasons for their concerns in a moment. The cabinet secretary has suggested that she will work with organisations on producing guidance, but the only Government amendment to section 16 seeks to add public consultation on the exempt categories, not on the broader powers set out in the section.

There are five key concerns with section 16, the first of which is about the lack of public consultation. The public consultation on most of the bill was run in 2022, and the Audit Scotland report that the cabinet secretary and I have referred to was published in 2023. In other words, the report that suggested that something needed to be done to provide for an audit capacity did not come until after the public consultation on the bill. Given the very wide concerns that stakeholders have raised about the lack of consultation and the substantive provisions, I have serious concerns whether the provisions in section 16 are the right ones at this time. There is the possibility that we will leave ourselves hostages to fortune and open to unintended consequences.

The second concern is about whether the information from individuals is needed in the way that section 16 outlines. Erica Young of Citizens Advice Scotland pointed out that rates, even of suspected fraud, are very low, and there are already adequate audit procedures in place to estimate official error. Several witnesses suggested that estimates of user-led error or fraud could be obtained by other means, including by looking at evidence from determinations, redeterminations and appeals, and CPAG and the ALLIANCE have outlined those processes quite clearly. The Audit Scotland report said only that we needed to continue to develop processes in this space, not necessarily put in place the sort of immediate and far-reaching action outlined in the section.

The third concern is about the need for punitive sanctions, about which Jeremy Balfour has already outlined significant concerns. The bill includes provision for suspension of payments and redetermination if information is not provided, but many stakeholders have found that approach to be disproportionate and deeply concerning. It has the potential to lead to stigma, practical difficulties with compliance by vulnerable groups and issues for people who have already been exposed to trauma and mistrust through previous experiences with, for instance, the Department for Work and Pensions. There are also questions of hardship caused by suspension of benefits and unfairness of suspension where no suspicion of actual fraud is evident.

I appreciate certain provisions, including those on the categories of people who are not required to give the information and the cabinet secretary’s amendment with regard to public consultation on that matter. However, not everyone who will suffer as a result of the provisions will fall into clear, permanent or documented categories. The cabinet secretary argues that, without sanctions, the system will be ineffective, but I do not think that that is necessarily so. Those who are determined to commit deliberate fraud might well be able to obtain exemptions. It has also been stated that the sample of those asked to provide evidence would be random. However, it will not be random if people can self-select—and it is arguably not random in any case if some categories of people are exempt, as of course they should be. Claire Andrews of the RNIB made the sensible suggestion that we could introduce something initially, but without suspensions or sanctions, on a test-and-learn basis, and I ask the cabinet secretary, in her summing up, to outline why that approach has not been taken.

The fourth concern is about the separation of functions, which Jeremy Balfour has already talked about—in other words, the conflation of an audit process and a fraud investigation. There are comments in the explanatory notes to the bill suggesting that the two systems must be kept separate, but the fact is that they cannot be kept separate if the information provided by an individual might incriminate them because of how they have provided it. As Jeremy Balfour has outlined, the Law Society has said that there will be a clear need to caution people and give them information about their rights when they are asked to provide information, in case they incriminate themselves.

For my final reason for objecting to section 16, I come back to the point about its compatibility with principles. Many stakeholders raised fundamental questions about how section 16 would work with other social security processes, including those in the bill. Jon Shaw noted that even its language is different in style from that of other sections. I would argue, then, that the section as it stands is not proportionate and indeed might not, as Michael Clancy has suggested, be compatible with our human rights obligations.

I understand the need for some audit functions to ensure the due diligence that the cabinet secretary has outlined: the duty to steward public funds effectively and to ensure value for money in our public services, but section 16 blows that line and takes things too far. The lack of public consultation on the operation of the section gives me cause for concern, and I therefore ask committee members to support amendment 58 in my name.

Finally, if I had a vote today, I would be supporting Jeremy Balfour’s amendment 10 and the cabinet secretary’s amendment 57. Thank you, convener.

To ask the Scottish Government what its response is to the findings of the Fair Work Convention’s inquiry into fair work in the hospitality industry. (S6O-03753)

The inquiry recommends the establishment of a voluntary fair work charter for hospitality that stipulates a range of workers’ protections, from payment of the real living wage and recognition of real living hours to effective voice, robust anti-bullying procedures and safe home policies for all workers asked to travel or work after 11 pm. How quickly does the minister expect that charter to be in place? What mechanisms could be put in place should an employer breaches any aspect of it? How does he expect public bodies, including local authorities, to support its implementation? Will the Scottish Government incentivise the adoption of the charter through conditionality of public funding?

Does the loss of the project funding have a disproportionate or asymmetric impact on rural communities?

Thank you. Patrick or Julie, do you want to come in on the types of cases that might be most affected?

Thank you. I will shift the topic a wee bit to funding for advice projects. The question is probably mostly for Aaliya and Hyo as CAS and SALC both have experience of the Scottish Legal Aid Board’s funding of advice projects. We know that the early resolution and advice programme stream 2 funding is coming to an end at the end of this month. Can you say a bit more about what you think the impact of that will be? We have already talked about the geographical inequality of the central belt versus more rural areas. Aaliya, I will come to you first. What will be the impact of the loss of that advice project funding on people’s ability to access justice?

Good morning to the panel. Thank you very much for your contributions this morning. I take very clearly the message that you have all given about being opposed to these increases. I am interested in your views on where you think the burden of payment for court processes should lie. Do you agree with the Scottish Government that there should be some element of user payment as part of this? I will come to Aaliya Seyal first.

Thank you very much. I will leave it there.

Thank you. I will come to Hyo on the loss of advice project funding.

Thank you. That is very helpful. One of the things that is clear from what you have all said so far is that some types of cases might be more impacted than others. Patrick McGuire mentioned personal injuries and Aaliya Seyal talked specifically about human rights. In your experience across the CAB network, are there other types of cases that will likely be more affected by this?