tl:dr
A new FOI (from the DWP) has shown that the analysis in my last blog was correct. The Scottish Government do unquestionably have the power to provide direct financial assistance to WASPI women in Scotland. The FOI also shows that the SNP Social Security Minister Jeane Freeman acknowledges and accepts that these powers exist. The SNP have been playing fast and loose with the truth on this issue, at times outright lying, and leading Scottish voters, WASPI women and the Scottish Parliament on a merry dance. This blog explains how and why.
Since my last blog
I dropped my phone late on Friday night as I tried to read the results of my latest FOI on the welfare powers of the Scottish Government. I dropped it because I couldn't believe what I was reading.
Since my first post on this I've received nothing but flack from nationalists and direct and indirect attacks from people within the SNP claiming I'm completely wrong. I've also received the usual abuse from nationalist trolls such as Wings and Mr Malky for daring to question the SNP, but that comes with the territory.
As a result, despite my confidence in my own analysis and logic, doubts were beginning to creep into my mind. If I was right surely Mhairi Black wouldn't double down by saying what I was proposing was wrong, but she did in the National a few days after my blog:
"However, what I’ve also started to pick up is the nonsense that the SNP Scottish Government can wave a magic wand and provide additional payments and pensions to those who fall under the WASPI banner. This myth has been debunked time after time, most recently in the debate last week when my colleague Philippa Whitford corrected the Pensions Minister to remind him that the restrictions of devolution specifically stop the Scottish Government from acting on pensions."
Strong stuff. My claim is "nonsense" and Black was very specific in ruling out additional payments as well as pensions to WASPI women. That's a direct contradiction of my statement that whilst the Scottish Government can't provide "pensions" to WASPI women it can create new benefits which would financially protect Scottish women affected by the increased pension age.
We have also since had this from the SNP setting out their position on WASPI:
"In government, we will always use the powers at our disposal to protect the poorest in our society and mitigate the worst excess of the Tory government. However, with the limited social security powers devolved to Scotland, the Scottish Parliament does not have the power to create new pension benefits. The SNP will continue to fight for the UK Government to take responsibility, deliver the pension that women born in the 1950s deserve and end this inequality at source."
In itself this doesn't technically contradict my blog, as we're back to the very tight wording about "new pension benefits". However if it turns out that the SNP could provide financial benefits to WASPI affected women this statement would be disingenuous to say the least.
Someone also pointed me to the (February 2017) statement by SNP Social Security Minister Jeane Freeman to the Scottish Parliament:
"To Jackie Baillie, I say that I am not prepared to let the Tory Government off the hook but, even if I was, section 28 of the Scotland Act 2016, on exceptions to reserved areas, says that top-up does not include pensions assistance or assistance 'by reason of old age.'"
Here was the SNP Social Security Minister stating clearly to the Scottish Parliament that one of my cases to provide assistance to WASPI women was wrong. I'd previously argued that Section 28 would not apply to WASPI women as it was paid before State Pension Age and that would also be the defintion of "reason of old age".
This was a problem for me, not because I thought my analysis was wrong, but because it showed that the Scottish Government had already moved beyond technical language on this and into outright denial that the powers beyond pensions existed. That's quite a raising of the stakes.
Next on the 21st of July the SNP also added another page to their website:
"Can the Scottish Parliament mitigate the WASPI changes?...
Pensions are fully reserved to Westminster. Even with limited social security powers devolved to Scotland, the Scottish Parliament does not have the power to create new pension benefits. This is explicitly set out in the Scotland Act 2016. Neither can the power to top-up benefits be used because WASPI women are not yet in receipt of a pension so this cannot be topped up.
The power to correct this injustice lies at Westminster."
Here again we have some quite tight language used, but there is a clear statement that the power to change the position of WASPI women lies at Westminster and not the Scottish Parliament. If my position was right then this would be a demonstration that the SNP are clearly and openly going out of their way to mislead on this issue.
Finally I noted that Nicola Sturgeon herself penned this article from the Evening Times, which mentioned WASPI but spoke at length about raising the pension age:
"How can they (the UK Government) say there is money to cut taxes for the rich, but no money to properly fund our pensions?
It just feels like everything the Tories do puts balance sheets before people."
Whilst not directly about WASPI it gave me concerns that now we had the First Minister arguing the case for reversing tax cuts and paying pensions earlier than the UK State Pension Age. All fair enough in terms of politics but it would be shifty, to say the least, if those tax cuts hadn't been implemented in Scotland (which they haven't) and the Scottish Government then stood by whilst pension ages were increased when they could have paid benefits to everyone affected.
Finally I noted that Nicola Sturgeon herself penned this article from the Evening Times, which mentioned WASPI but spoke at length about raising the pension age:
"How can they (the UK Government) say there is money to cut taxes for the rich, but no money to properly fund our pensions?
It just feels like everything the Tories do puts balance sheets before people."
Whilst not directly about WASPI it gave me concerns that now we had the First Minister arguing the case for reversing tax cuts and paying pensions earlier than the UK State Pension Age. All fair enough in terms of politics but it would be shifty, to say the least, if those tax cuts hadn't been implemented in Scotland (which they haven't) and the Scottish Government then stood by whilst pension ages were increased when they could have paid benefits to everyone affected.
To be honest I was starting to doubt myself, why would the SNP raise the stakes so much if they were bluffing?
Another week another FOI
And then, late on Friday night I dropped my phone.
Anyone following me on whatdotheyknow.com will know I've been on this subject for months. Probing everywhere I could to get to the bottom of this issue. My FOIs to the Scottish Government had some success but ended in me having to appeal to the information commissioner. It was ruled that it was not in the public interest that the Scottish people should know the full powers of the Scottish Government on such a "sensitive issue such as welfare spending". That's clearly been a political choice.
However at the same time as probing the Scottish Government for their analysis it was clear to me that the UK Government would also hold correspondence between them and the Scottish Government on this issue. After all the Scottish Government could not solely decide that there was nothing they could do, they would need clarification from the UK government that they could not use their Section 28 powers to support WASPI women.
Based on all of the above you have to assume that the UK Government has officially told the Scottish Government that their powers can't be used to support WASPI women or anyone before State Pension Age.
So three months ago I also put an FOI into the UK government, and it's devastating.
The smoking gun held by Jeane Freeman
The UK Government is clear and emphatic. In two letters sent to Jeane Freeman, in response to her request for clarification, the UK government set out that the powers of the Scottish Government in welfare can be used to provide direct financial assistance to WASPI women.
In particular both letters note that either Section 26 of the act can be used to provide "discretionary welfare payments" because as Richard Harrington states in his letter "there is not prescribed definition of 'short term' and this will be substantially for the Scottish Parliament to decide"
He also clearly notes that the Section 28 powers can be used by the Scottish Government to create new benefits for those affected by WASPI women and specifically states:
"Whilst this power cannot be used to provide pensions to people who qualify by reason of old age, those affected by changes to the State Pension age will not yet have reached State Pension age. As a result, this broad power does offer the Scottish Government the possibility of introducing financial support to help this group."
This snips off the final loose end that I noted in the last blog, that the only 'get out' clause for the SNP was the definition of old age, but here is the UK Government firmly stating the position that 'old age' only applies at or after State Pension Age.
Therefore there is nothing stopping the SNP introducing a new benefit for anyone before State Pension Age, by definition this includes WASPI women.
But it's the second letter from Guy Opperman, sent only two weeks ago to Jeane Freeman that contains the real problem for the SNP. This letter reiterates the position set out by Harrington and in that regard doesn't add anything new to the discussion.
But contained within it is a bombshell.
At least since the 22nd of June (when Freeman wrote to Guy Opperman) the Scottish Government:
"acknowledges that there are powers available to the Scottish Government that could be used to support people before they reach state pension age, including those who may be affected by the equalisation of the state pension age"
So let's be clear on this. At least since 22 June the Scottish Government has accepted that it can provide direct financial assistance to WASPI women, but it hasn't told anyone.
The letter also shows that whilst the Scottish Government accept that it is possible to provide this assistance they are now complaining that it would involve them using a range of powers to achieve the aim.
That's quite correct, it would probably involve a combination of Section 24 and Section 28 powers, possibly with some Section 26 discretionary assistance if they were going to target support.
None of this changes the fact that the Scottish Government know that they have the power to support WASPI women but are saying something quite different in public.
A web of lies
There are a huge number of questions that follow from all of this, many of which will emerge as we digest this information. However here are a few that I can think of:
1. Why did Mhairi Black lie in her National column when she said that the Scottish Government can't pay additional payments to WASPI women?
2. Why did Philippa Whitford lie in the Westminster Hall debate:
"Let me correct the hon. Member for Gloucester (Richard Graham). If he reads section 28 of the Scotland Act 2016, he will see that the Scottish Government are prohibited from doing anything about pensions or relating to age."
3. Why did Tommy Sheppard shout "rubbish" and Ian Blackford do a pantomime shake of the head in the House of Commons when Theresa May noted that the SNP have the power to support WASPI women?
4. When did Jeane Freeman accept that the Scottish Government did indeed have the power to support WASPI women and at which point does she feel it is right to correct her statement to the Scottish Parliament and apologise to Jackie Ballie? More importantly did Freeman knowingly or unknowingly mislead the Scottish Parliament?
5. Why have the SNP been publishing clearly misleading information about the powers of the Scottish Parliament in respect of WASPI on their website? Information that the Scottish Government know is incorrect and misleading.
6. Why is Nicola Sturgeon writing articles against raising the state pension age but failing to mention that the Scottish Government know that they could do something about it if they wanted?
The SNP and welfare
This is all very uncomfortable for the SNP. The new welfare powers of the Scottish Parliament mean that they need to start putting their money where their mouth is.
The trouble is they haven't updated their rhetoric since the Scotland Act. As they get caught out arguing in opposition to a policy that they clearly could change in Scotland (this also applies to the two child welfare cap for example) they are reduced to pretending that the powers don't exist for fear of their own supporters turning on them and demanding action.
That's not a sustainable position, at some point the SNP are going to have to face up to the responsibilities of government and start to justify their decisions. If not then they risk the electorate favouring someone who will.
Excellent.
ReplyDeleteThe Department for Work and Pensions's ministers are not the authoritative individuals that decide what constitutes the powers of the Scottish Parliament in relation to social security and pensions. The conflation of "state pension age" and "by reason of old age" is not a "gotcha" moment. It is precisely this that the respective governments have been disputing.
ReplyDeleteClearly a payment made to WASPI women (a) by reason of their age (b) on the same basis as the state pension is paid with respect to (among other things) national insurance contributions (c) because and only because of changes to the state pension age, is not, unambiguously, clearly and indisputably, "a pension" for the purposes of the Scotland Act. There is therefore room for reasonable doubt that the power exists to create a benefit for the benefit of, but only of, those women, on that basis.
The availability of discretionary short-term need-based payments is also a red herring. Short term need, in all other social security contexts, does not mean anything like the length of time that would be required adequately to compensate these women for changes to their SPA conditions. Moreover, the meaning of "short term" is not for the Scottish Parliament to determine (in this respect Guy Opperman is plainly incorrect). The Scottish Parliament does not have the authority to define the meaning of the words that limit the powers it itself possesses. Those powers are stipulated by the Westminster Parliament and, where ambiguity exists, are interpreted by the courts. The Scottish Government and Parliament do not get to decide that limits on their powers mean things less drastic than has actually been imposed.
Of course the Scottish Parliament could create a benefit that prevents these women from being worse-off than they would have been if the SPA had not been adjusted. But the question is whether they can do so without having to pay the benefit to other people too, and what kinds of limit would be imposed upon that benefit.
It is far from clear that the powers exist with sufficient breadth, clarity and permanence to allow them unambiguously but tightly to compensate those that have in fact lost-out as a result of UK Government policy.
Thanks again Graeme.
ReplyDeleteI’ve addressed most of these points in my other reply to your comments on the first WASPI blog so I won’t repeat them here, other than to say that to define a UK state pension before UK state pension age is in my view not possible. Your attempts to define something that is not a pension as such havent stood up and have already passed the “straying into reservation” criteria. Given the political weight behind this definition of power the possibility of a successful challenge that stops the application of these powers is not realistic and certainly not at a level “we don’t have the powers” as the SNP are arguing.
Similarly your concept of short term is not defined either I see. The UK has said this power can be used and your are now placing reliance on the UK refusing to follow up that view with necessary action (such as a Section 30 order or amendment to the Scotland Act) in the event of a complex challenge to the Scottish Government’s actions. Again politically this just doesn’t hang together as reasonable doubt, but it does give the Scottish Government a tactic that they could employ to smoke this issue out, which I’ll cover off in my next blog.
I’m glad at this stage you have come around to the fact that the Scottish Government can support WASPI women and the idea that the Scottish Government have no powers is completely wrong. That has and remains the point of my blog. The establishment of the powers of the Scottish Parliament should not be something that is hidden from the public nor should it be something that the Government see fit to lie about.
I’m fully aware of the challenges the SNP would face with these powers (and the legal challenges they would face is WASPI changes were implemented at Westminster), but I’m very clear of the action they SHOULD and COULD take, for example I would like to see at need payments to those affected (males and females) and not those solely restricted to women born in the 1950s. If the SNP want to do something else, such as only compensate women and not men (who also suffer from these changes with losses to pension credits) then let’s hear them make the political case for that. We can’t get into that “how”, “why” or “should” debate because the SNP are lying about their powers and we need to move on from that.
The SNP have never said they couldn't do some things to help the WASPI women. They've said they can't target proper support at them to ensure that they, but only they, do not lose out, because they don't believe the Scotland Act allows them to. That is a perfectly reasonable position regardless of the infinitely many political commitments the UK Government gives them.The sine qua non is what the law says.
ReplyDeleteIf the UK Government is so adamant that the Scottish Government is wrong about this, they are only a section 30 Order away from clarifying it. They could do it tomorrow. Why aren't they?
The SNP are not "lying" about their powers; this is an honest and reasonable disagreement about what those powers are. Just because you agree with the UK Government's interpretation of the law doesn't mean that the Scottish Government's position is not sincere and credible.
Sorry Graeme as I said in the other post you have lost your objectivity and you can see it clearly in this comment.
ReplyDeleteTo claim that the SNP have never said they couldn’t do some thing to help WASPI women is just nonsense and you know it. You are a smart guy Graeme and this sort of political filter you are applying isn’t helping.
Witness Freeman to Jackie Ballie and on Clyde 2, Black in the National. Look also at how misleading they have been in sticking to tightly defined terms rather than engaging the public in the fact that they have doubts about some of the powers. Witness also them deeming such clarification not to be in the public interest.
Again as I said in my last comment so why you feel the need to repeat it here - it’s no the UK that has doubts, if the Scottish Government sincerely want the powers they would ask for it. Why haven’t they?
The SNP are lying about their powers, I’ve demonstrated in these blogs exactly where they are lying and where they are misleading.
I would have utter respect for the Scottish Government’s position if their public position matched the one you characterised. But that is not their public position as you are well aware and however much you might want it to be that won’t change the fact of the matter.