tl:dr
The SNP have the power to support WASPI women and they admit in private that they can, and I’ve got the direct evidence this time. I‘ll show the text of a leaked copy of Jeane Freeman's letter to the UK Government (which they sent to the media after my last blog). In this Freeman admits that the Scottish Government does have the power to support WASPI women and, embarrassingly, admits that she doesn't understand the definitions she is invoking in WASPI debates.
For the really short on time I've summarised the exchange into one screen of text.
The only thing that is stopping the Scottish Government is... the SNP. They have satisfied the requirements in the Scotland Act to check that a new benefit can be payable, they've had confirmation from the UK, and yet (as late as yesterday) they are still claiming in public that they don’t have the power.
Throughout this post you should bear in mind that the Scottish Government has previously deemed it "not in the public interest" that we see this kind of letter, so we can understand the full extent of the welfare powers available to us. To me the real scandal here is that the Scottish Government are deeming the interests of the SNP above those of the Scottish public.
Facing up to our responsibilities.
It may be that the SNP don't think that they should support WASPI women, that it's the job of the UK Government and no one else. That's a perfectly fair position, it's not the public position of the SNP though.
It may be that the SNP think that we can't afford to support WASPI women, maybe they think like John Sweeney we are "too wee, too poor, too stupid" to support WASPI women. But, for now, that's not the public position of the SNP.
The SNP's position is: we are not allowed to support WASPI women.
That's just wrong. The tight definitions, the shifty turn of phrase and the outright lies have to stop. We have to recognise the powers that we have in the Scottish Parliament and take responsibility for them, otherwise we are just becoming a joke within the UK.
It's just embarrassing, we're better than this? Aren't we?
A missing piece of the jigsaw
In the course of my investigations I've managed to obtain a copy of Jeane Freeman's letter to the DWP (the one referred to in my FOI). I've a good friend within the Labour Party to thank for that. I'm fully aware that some nationalists will refuse to believe its content but I've included it full below.
Let me state again that letters, such as this, and discussion of welfare powers within the Scottish Government, have been deemed to be "not in the public interest".
Fortunately following this leak we have much better context to the exchange from my last FOI. So let me summarise the back and forward as we have it now:
1. The Scottish Government writes to the UK (we don't have this letter... yet) setting out their issues with welfare powers and using them to support WASPI women.
2. The UK Government replies and notes that the Scottish Government does indeed have the power to support these women and sets out different ways in which this can be done:
- S26 discretionary powers
This gives the Scottish Parliament the ability to directly support people in need (by a definition of ‘in need’ selected by the Scottish Parliament) over short term periods (by a definition of ‘short term’ selected by the Scottish Parliament). The UK government specifically state that this power could be used to support "those who are affected by the changes to the State Pension"
- S28 new benefit powers
The UK Government goes on to state that alternatively the Scottish Government could use the Section 28 facility to create new benefits to provide "financial support to help this (WASPI women) group".
It goes on to explicitly address the Scottish Government's stated concern about this power; that a new benefit cannot be a pension or for old age. The UK is emphatic that this condition does not apply as those affected have not reached State Pension Age.
This point was reiterated by the DWP in their covering letter to my FOI, it's clear that the pension or old age provision does not apply before State Pension Age, no ifs no buts, its not an issue.
- S24 Top up powers
The UK conclude that the Scottish Government can also top up the pensions of those affected through Section 24 powers which enable the top up of reserved benefits including pensions. (Note that this power may be useful to some women who may have reached state pension age but have been previously affected by the equalisation of pension ages).
The letter concludes by saying the provisions have all "fully commenced" and that they "could have been introduced at any time since September 2016." Ouch.
So in summation - you can do it, we are not going to stand in your way, if you want to use any of these powers to help out WASPI women you go for it.
3. Freeman responds on behalf of the Scottish Government (below). When you read these letters in parallel it's quite frustrating, it's almost as if Freeman hasn't read the letter from Harrington.
Freeman contends that whilst the Scottish Government does have the power to support WASPI women they are not "in reality, options that are available". She then goes on to explain why:
- S26 discretionary powers
Freeman contends that this power can be used but it is impractical because it's her belief that people's need for this benefit would have to be "assessed individually".
We have to press the pause button here, because there we have it. Freeman accepts that the Scottish Government does have the power to help WASPI women but starts to complain about some of the practicalities. So the SNP do privately admit that they have the power to help, they just don’t like what’s involved. That’s very different from saying 'we don’t have the power.'
Just to be clear "individually assessed" doesn't mean sitting in a room with a Government minister standing over you demanding answers, it means making sure that the payment is based on a specifically defined need, a need that the Scottish Parliament would define.
Clearly that is a need that the SNP have already identified for WASPI women, one based on their lack of notice of the pension change. That need has already been clearly set out by the SNP so either they believe it or they do not.
- S28 new benefit powers
Freeman tries to define the new benefit as a pension to ensure that it falls inside the definition, despite the fact that Harrington said it would not. She then goes on to say that because it would be paid specifically due to their age and lack of a state pension it is "hard to see how this provision could be used to support WASPI women". Freeman is therefore hanging on to the "old age" provision as a blocker - this is at least in line with her reply to Jackie Bailey in the Scottish Parliament.
Then, importantly (but bizarrely), Freeman goes on to undermine her own argument. She accepts that old age isn't defined in the legislation and "that most people would not regard the age group as old but the intention of the restriction seems clear". That's a contradiction, these people aren't old, they aren't receiving a pension but the intention to restrict benefits being paid to these people is apparently clear in the legislation.
Finally Freeman cocks the pistol and blows her own foot off by arguing that pensions "based on persons attaining an older age (whatever exactly that means) are not permitted". For the benefit of doubt "whatever exactly that means" are the words of the Social Security Minister for Scotland!
Here Freeman shifts the definition to "older age" (no longer old age) and then goes on to say she has no idea what it means! Somehow a term which Freeman doesn't understand is enough to block the power. By her own words Freeman has just admitted she has no idea if the power can be used because she has no idea what the definition means.
In the context of her reply to Jackie Baillie in the Scottish Parliament this is significant. Freeman claimed to Parliament that this provision explicitly forbids the Scottish Government from supporting WASPI women.
Yet here we have, in private Freeman, arguing that she doesn't know what the clause means (despite having this clarified by Harrington in the last letter).
That's a remarkable statement from the Scottish Social Security Minister, the term upon which she is making a huge decision about restricting the rights of the Scottish Government is one she admittedly does not understand!
At the very best Freeman has just admitted that she doesn't know if the Scottish Government has this power.
- S24 Top up powers
Freeman reverts to type and trots out the mantra that you cannot increase a pension for someone who doesn't get one, completely ignoring the point that Harrington was making.
So there we have the SNP position. They accept that they have powers but think that they can't practically be used or that they don't understand the definitions used, despite having those definitions provided by the UK Government.
3. Opperman responds on behalf of the UK Government, this short letter is very simple, it says that the range of powers the Scottish Government have can be used in combination to support WASPI women (for example a new benefit for women affected before state pension age, additional discretionary support for those particularly in need and increases in pensions for anyone affected who has not received the new benefit).
But it has a killer line on the question of definitions, as far as the UK are concerned it "importantly includes any determination you have made of whether you can, in reality, provide this support".
That's a straight bat back to Freeman, saying (as Harrington did) 'it's up to you to decide on these definitions, you decide what old age (or older age) is, but you can be rest assured we're not going to stop you if you want to support WASPI women.'
Again the only people saying that they can't support WASPI women is the SNP.
The only thing stopping the SNP is the SNP themselves
Here the provisions are very clear, where there is a new benefit that "strayed into the reservation" areas then the Scottish Government has to engage with the UK government before doing so.
The Scottish Government has engaged with the UK Government (at least twice as we know), the UK Government has said 'on you go'.
This issue is done.
There isn't any ambiguity.
The Scotland Act enables the Scottish Government to provide direct financial assistance to WASPI women, the Scottish Government have checked that there is no issue with "straying into reservation” there isn't any.
There is nothing stopping the SNP but the SNP itself.
Not in the public interest
This episode has shown the SNP at their worst with grievance politics. They've lied, misdirected and deliberately led thousands of vulnerable people up the garden path. They did so to virtue signal to their supporters whilst privately accepting that whilst they can help out the vulnerable, they won't.
This weekend Jeane Freeman was caught red handed on a Clyde 2 phone in (30 July - about 01:15 in) when confronted by a caller on WASPI women, following up on a call the previous week (0:20 in).
Despite being what felt like a final set up call for Freeman to talk about the issue, she dumped the carefully worded script:
“But there is (sic) a number of parts of the Scotland Act, which prevent us from either being able to provide short term support to these women or to introduce a benefit ourselves by reason of age, we’re specifically prohibited, under the Scotland Act, or to top up a reserved benefit when it fact these women the problem that exists for us as WASPI women is that we are not currently getting the pension that we are entitled to.“
Can't provide short term support? As we've seen, in private, Freeman accepts that it is possible, and whilst this would would require some form of individual assessment it's not impossible. Why did Freeman say in public that the Scottish Government was prevented whilst acknowledging it was possible in private?
Can't provide a new benefit by reason of age? Not true and Freeman even dropped "old age" or "older age" and just stated the exemption applies to “age”, this is plainly nonsense. Let's recall Freeman admits in private that she doesn't know what the old age clause means and yet here it is again being invoked as a blocker.
The whole episode has just shown the SNP to be anything but Stronger for Scotland. Rather than embrace new powers they are deliberately shunning them, furthermore they have decided it's 'not in the public interest' that Scots know about this for fear they may have to govern.
Contrast their reluctance to embrace powers with their pantomime over the Section 30 order for the independence referendum. Here is a real example of a reserved power, the Scottish Government demanding action from the UK, and the UK saying "now is not the time". That's a refusal, that’s a block.
On WASPI powers there is no demand from the Scottish Government simply because you can't demand what you already have. There is only a requirement to engage with the UK government to ensure there is no “straying into reservation”.
They've done it, they got a positive answer.
The SNP have confused themselves with the Scottish public again. They might think it's not in the public interest that we know the full extent of their powers but their real concern is that it's not in the SNP's interest.
We need to move this debate on. "Could" has been established and admitted by the SNP already, "should", "how" and "why" are next and I'm ready for that debate, the question is when will the SNP be ready?
--------------------------------------------------------------------------------------------------------
Text of the letter written from Social Security Minister Jeane Freeman to the Department of Work and Pensions.
STARTS
Thank you for your letter of 19 April in which you suggest ways the Scottish Parliament could use its new welfare powers as provided by the Scotland Act 2016 to support women, known as WASPI women, who have been particularly affected by the changes to the State Pension Age. I would contend that these are not, in reality, options that are available.
Discretionary payments using section 26 (exception 7)
This power is limited to providing help with ‘short term needs’, and those needs must require to be met to avoid a risk to a person’s wellbeing. That would not readily allow assistance to the majority of the women most affected by the acceleration of the increase in their State Pension Age. Their needs and the risks to their well-being would have to be assessed individually.
Creation of a new benefit using section 28 (exception 10)
This power states that it cannot be used to provide pensions to persons who qualify by reason of old age. Given the women we are concerned with here are seeking assistance specifically due to their age and lack of state pension it is hard to see how this provision could be used to support WASPI women. I accept that “old age” is not defined in the legislation, and that most people would not regard this age group as old, but the intention of the restriction seems clear. Other types of pension are possible, such as those paid to persons who have suffered injury or bereavement, but those based on persons attaining an older age (whatever exactly that means) are not permitted.
Top up of reserved benefits using section 24 (exception 5)
You mention this ‘wide ranging’ power to make discretionary payments, but as you also note the person must be receiving a reserved benefit that can be topped up. The assistance has to be for one of the purposes for which the reserved benefit is being provided. As the complaint of the WASPI group is that they are not receiving a reserved benefit, state pension, this power is plainly of little use as a way to assist the WASPI group.
While I welcome the powers provided by the Scotland Act 2016, only 15% of social security spending in Scotland is being devolved. This issue shows the restrictions imposed on our ability to design a Scottish welfare system for the needs of the people of Scotland.
ENDS
The only thing that is stopping the Scottish Government is... the SNP. They have satisfied the requirements in the Scotland Act to check that a new benefit can be payable, they've had confirmation from the UK, and yet (as late as yesterday) they are still claiming in public that they don’t have the power.
Throughout this post you should bear in mind that the Scottish Government has previously deemed it "not in the public interest" that we see this kind of letter, so we can understand the full extent of the welfare powers available to us. To me the real scandal here is that the Scottish Government are deeming the interests of the SNP above those of the Scottish public.
Facing up to our responsibilities.
It may be that the SNP don't think that they should support WASPI women, that it's the job of the UK Government and no one else. That's a perfectly fair position, it's not the public position of the SNP though.
It may be that the SNP think that we can't afford to support WASPI women, maybe they think like John Sweeney we are "too wee, too poor, too stupid" to support WASPI women. But, for now, that's not the public position of the SNP.
The SNP's position is: we are not allowed to support WASPI women.
That's just wrong. The tight definitions, the shifty turn of phrase and the outright lies have to stop. We have to recognise the powers that we have in the Scottish Parliament and take responsibility for them, otherwise we are just becoming a joke within the UK.
It's just embarrassing, we're better than this? Aren't we?
A missing piece of the jigsaw
In the course of my investigations I've managed to obtain a copy of Jeane Freeman's letter to the DWP (the one referred to in my FOI). I've a good friend within the Labour Party to thank for that. I'm fully aware that some nationalists will refuse to believe its content but I've included it full below.
Let me state again that letters, such as this, and discussion of welfare powers within the Scottish Government, have been deemed to be "not in the public interest".
Fortunately following this leak we have much better context to the exchange from my last FOI. So let me summarise the back and forward as we have it now:
1. The Scottish Government writes to the UK (we don't have this letter... yet) setting out their issues with welfare powers and using them to support WASPI women.
2. The UK Government replies and notes that the Scottish Government does indeed have the power to support these women and sets out different ways in which this can be done:
- S26 discretionary powers
This gives the Scottish Parliament the ability to directly support people in need (by a definition of ‘in need’ selected by the Scottish Parliament) over short term periods (by a definition of ‘short term’ selected by the Scottish Parliament). The UK government specifically state that this power could be used to support "those who are affected by the changes to the State Pension"
- S28 new benefit powers
The UK Government goes on to state that alternatively the Scottish Government could use the Section 28 facility to create new benefits to provide "financial support to help this (WASPI women) group".
It goes on to explicitly address the Scottish Government's stated concern about this power; that a new benefit cannot be a pension or for old age. The UK is emphatic that this condition does not apply as those affected have not reached State Pension Age.
This point was reiterated by the DWP in their covering letter to my FOI, it's clear that the pension or old age provision does not apply before State Pension Age, no ifs no buts, its not an issue.
- S24 Top up powers
The UK conclude that the Scottish Government can also top up the pensions of those affected through Section 24 powers which enable the top up of reserved benefits including pensions. (Note that this power may be useful to some women who may have reached state pension age but have been previously affected by the equalisation of pension ages).
The letter concludes by saying the provisions have all "fully commenced" and that they "could have been introduced at any time since September 2016." Ouch.
So in summation - you can do it, we are not going to stand in your way, if you want to use any of these powers to help out WASPI women you go for it.
3. Freeman responds on behalf of the Scottish Government (below). When you read these letters in parallel it's quite frustrating, it's almost as if Freeman hasn't read the letter from Harrington.
Freeman contends that whilst the Scottish Government does have the power to support WASPI women they are not "in reality, options that are available". She then goes on to explain why:
- S26 discretionary powers
Freeman contends that this power can be used but it is impractical because it's her belief that people's need for this benefit would have to be "assessed individually".
We have to press the pause button here, because there we have it. Freeman accepts that the Scottish Government does have the power to help WASPI women but starts to complain about some of the practicalities. So the SNP do privately admit that they have the power to help, they just don’t like what’s involved. That’s very different from saying 'we don’t have the power.'
Just to be clear "individually assessed" doesn't mean sitting in a room with a Government minister standing over you demanding answers, it means making sure that the payment is based on a specifically defined need, a need that the Scottish Parliament would define.
Clearly that is a need that the SNP have already identified for WASPI women, one based on their lack of notice of the pension change. That need has already been clearly set out by the SNP so either they believe it or they do not.
- S28 new benefit powers
Freeman tries to define the new benefit as a pension to ensure that it falls inside the definition, despite the fact that Harrington said it would not. She then goes on to say that because it would be paid specifically due to their age and lack of a state pension it is "hard to see how this provision could be used to support WASPI women". Freeman is therefore hanging on to the "old age" provision as a blocker - this is at least in line with her reply to Jackie Bailey in the Scottish Parliament.
Then, importantly (but bizarrely), Freeman goes on to undermine her own argument. She accepts that old age isn't defined in the legislation and "that most people would not regard the age group as old but the intention of the restriction seems clear". That's a contradiction, these people aren't old, they aren't receiving a pension but the intention to restrict benefits being paid to these people is apparently clear in the legislation.
Finally Freeman cocks the pistol and blows her own foot off by arguing that pensions "based on persons attaining an older age (whatever exactly that means) are not permitted". For the benefit of doubt "whatever exactly that means" are the words of the Social Security Minister for Scotland!
Here Freeman shifts the definition to "older age" (no longer old age) and then goes on to say she has no idea what it means! Somehow a term which Freeman doesn't understand is enough to block the power. By her own words Freeman has just admitted she has no idea if the power can be used because she has no idea what the definition means.
In the context of her reply to Jackie Baillie in the Scottish Parliament this is significant. Freeman claimed to Parliament that this provision explicitly forbids the Scottish Government from supporting WASPI women.
Yet here we have, in private Freeman, arguing that she doesn't know what the clause means (despite having this clarified by Harrington in the last letter).
That's a remarkable statement from the Scottish Social Security Minister, the term upon which she is making a huge decision about restricting the rights of the Scottish Government is one she admittedly does not understand!
At the very best Freeman has just admitted that she doesn't know if the Scottish Government has this power.
- S24 Top up powers
Freeman reverts to type and trots out the mantra that you cannot increase a pension for someone who doesn't get one, completely ignoring the point that Harrington was making.
So there we have the SNP position. They accept that they have powers but think that they can't practically be used or that they don't understand the definitions used, despite having those definitions provided by the UK Government.
3. Opperman responds on behalf of the UK Government, this short letter is very simple, it says that the range of powers the Scottish Government have can be used in combination to support WASPI women (for example a new benefit for women affected before state pension age, additional discretionary support for those particularly in need and increases in pensions for anyone affected who has not received the new benefit).
But it has a killer line on the question of definitions, as far as the UK are concerned it "importantly includes any determination you have made of whether you can, in reality, provide this support".
That's a straight bat back to Freeman, saying (as Harrington did) 'it's up to you to decide on these definitions, you decide what old age (or older age) is, but you can be rest assured we're not going to stop you if you want to support WASPI women.'
Again the only people saying that they can't support WASPI women is the SNP.
The only thing stopping the SNP is the SNP themselves
I'm sure some nationalist apologists will want to attempt to conjure up some uncertainty over this. I can already hear them arguing that there is sufficient doubt in a new benefit being defined as a pension so as to make it a reserved issue, and therefore it’s outwith the powers of the Scottish Parliament. In effect turning don’t know into a no.
So surely it would be helpful if the Scotland Act 2016 contained provisions or notes which spelt out how to solve this sort of ambiguity? One wonders then why no one in the Scottish Government sought to consult the Explanatory Notes for the Scotland Act?
So surely it would be helpful if the Scotland Act 2016 contained provisions or notes which spelt out how to solve this sort of ambiguity? One wonders then why no one in the Scottish Government sought to consult the Explanatory Notes for the Scotland Act?
Here the provisions are very clear, where there is a new benefit that "strayed into the reservation" areas then the Scottish Government has to engage with the UK government before doing so.
The Scottish Government has engaged with the UK Government (at least twice as we know), the UK Government has said 'on you go'.
This issue is done.
There isn't any ambiguity.
The Scotland Act enables the Scottish Government to provide direct financial assistance to WASPI women, the Scottish Government have checked that there is no issue with "straying into reservation” there isn't any.
There is nothing stopping the SNP but the SNP itself.
Not in the public interest
This episode has shown the SNP at their worst with grievance politics. They've lied, misdirected and deliberately led thousands of vulnerable people up the garden path. They did so to virtue signal to their supporters whilst privately accepting that whilst they can help out the vulnerable, they won't.
This weekend Jeane Freeman was caught red handed on a Clyde 2 phone in (30 July - about 01:15 in) when confronted by a caller on WASPI women, following up on a call the previous week (0:20 in).
Despite being what felt like a final set up call for Freeman to talk about the issue, she dumped the carefully worded script:
“But there is (sic) a number of parts of the Scotland Act, which prevent us from either being able to provide short term support to these women or to introduce a benefit ourselves by reason of age, we’re specifically prohibited, under the Scotland Act, or to top up a reserved benefit when it fact these women the problem that exists for us as WASPI women is that we are not currently getting the pension that we are entitled to.“
Can't provide short term support? As we've seen, in private, Freeman accepts that it is possible, and whilst this would would require some form of individual assessment it's not impossible. Why did Freeman say in public that the Scottish Government was prevented whilst acknowledging it was possible in private?
Can't provide a new benefit by reason of age? Not true and Freeman even dropped "old age" or "older age" and just stated the exemption applies to “age”, this is plainly nonsense. Let's recall Freeman admits in private that she doesn't know what the old age clause means and yet here it is again being invoked as a blocker.
The whole episode has just shown the SNP to be anything but Stronger for Scotland. Rather than embrace new powers they are deliberately shunning them, furthermore they have decided it's 'not in the public interest' that Scots know about this for fear they may have to govern.
Contrast their reluctance to embrace powers with their pantomime over the Section 30 order for the independence referendum. Here is a real example of a reserved power, the Scottish Government demanding action from the UK, and the UK saying "now is not the time". That's a refusal, that’s a block.
On WASPI powers there is no demand from the Scottish Government simply because you can't demand what you already have. There is only a requirement to engage with the UK government to ensure there is no “straying into reservation”.
They've done it, they got a positive answer.
The SNP have confused themselves with the Scottish public again. They might think it's not in the public interest that we know the full extent of their powers but their real concern is that it's not in the SNP's interest.
We need to move this debate on. "Could" has been established and admitted by the SNP already, "should", "how" and "why" are next and I'm ready for that debate, the question is when will the SNP be ready?
--------------------------------------------------------------------------------------------------------
Text of the letter written from Social Security Minister Jeane Freeman to the Department of Work and Pensions.
STARTS
Thank you for your letter of 19 April in which you suggest ways the Scottish Parliament could use its new welfare powers as provided by the Scotland Act 2016 to support women, known as WASPI women, who have been particularly affected by the changes to the State Pension Age. I would contend that these are not, in reality, options that are available.
Discretionary payments using section 26 (exception 7)
This power is limited to providing help with ‘short term needs’, and those needs must require to be met to avoid a risk to a person’s wellbeing. That would not readily allow assistance to the majority of the women most affected by the acceleration of the increase in their State Pension Age. Their needs and the risks to their well-being would have to be assessed individually.
Creation of a new benefit using section 28 (exception 10)
This power states that it cannot be used to provide pensions to persons who qualify by reason of old age. Given the women we are concerned with here are seeking assistance specifically due to their age and lack of state pension it is hard to see how this provision could be used to support WASPI women. I accept that “old age” is not defined in the legislation, and that most people would not regard this age group as old, but the intention of the restriction seems clear. Other types of pension are possible, such as those paid to persons who have suffered injury or bereavement, but those based on persons attaining an older age (whatever exactly that means) are not permitted.
Top up of reserved benefits using section 24 (exception 5)
You mention this ‘wide ranging’ power to make discretionary payments, but as you also note the person must be receiving a reserved benefit that can be topped up. The assistance has to be for one of the purposes for which the reserved benefit is being provided. As the complaint of the WASPI group is that they are not receiving a reserved benefit, state pension, this power is plainly of little use as a way to assist the WASPI group.
While I welcome the powers provided by the Scotland Act 2016, only 15% of social security spending in Scotland is being devolved. This issue shows the restrictions imposed on our ability to design a Scottish welfare system for the needs of the people of Scotland.
ENDS
