The SNP and the great WASPI cover up
I know how emotive the WASPI issue is so I’ve held back on this post for some time, but no more. The stunning level of hypocrisy displayed by the SNP on this subject has become unbearable and therefore I thought I needed to set out a blog exposing them in detail.
Let me say before I begin that some of this is a work in progress, as I need a couple more FOIs to complete, however I do certainly have enough to be able to conclude that the SNP are clearly out to deceive on the issue of WASPI and in particular over their claims on the lack of powers they have to support WASPI women in Scotland.
In this blog I’ll show (through FOIs) that whilst the SNP deny that they have the powers to support WASPI women they actually can give them direct financial support, and they know it. Furthermore I’ll also show (through FOIs, the legislation and statements by the UK Government) that they have the powers to immunise WASPI women from the effects of the equalisation of pension ages but they are actively covering up their ability to do so.
Apologies this is a very long blog, but it has to be because it is setting out in full detail this cover up.
This isn’t about WASPI
Before I go any further I would like to state that this blog is not going to give an opinion on the merits or otherwise of the WASPI campaign. You can debate the merits of their campaign with them but, for a very different view, you should also look in on John Ralfe who is a pension specialist I would always defer to and has looked into this issue probably in greater detail than anyone in the UK.
To be precise this blog is arguing that the Scottish Government could, if it wanted to, fix the WASPI issue in Scotland. I’d be delighted with a debate about whether the Scottish Government SHOULD fix the WASPI issue in Scotland, but we can't move on to that debate until the SNP stop covering up the fact that they COULD.
WASPI and the SNP
There is no doubt that the SNP hitched their wagon to the WASPI campaign at a UK level. Mhairi Black clearly saw it as an issue to make her name on and she should be congratulated for it. A young MP taking up a serious issue for elderly women in the UK is exactly the sort of thing an ambitious MP should do and in that regard I have nothing but praise for her.
Her success was clearly noticed by others in the party and thus the SNP saw gain in being associated with the campaign. Some of Mhairi’s star power may rub off on the party! So we saw all levels of the SNP supporting WASPI. No more so than the new leader of the SNP in Westminster Ian Blackford, who as pensions spokesman for the SNP was keen to ride the popularity of the issue and also make a name for himself in Parliament. Again nothing wrong with any of that, it’s just politics after all.
Indeed Blackford recently nailed the SNP’s colours to the WASPI mast:
“The SNP are fully committed to fighting for justice for the WASPI women who have had their retirement plans completely shattered by the UK government. SNP MPs have raised this issue at least 44 times in the House of Commons, commissioned independent research and refuse to stop fighting for justice for the WASPI women.”
That’s quiet emphatic, “fully committed” and “completely shattered”. You would think anyone using such terms would be absolutely behind using whatever means at their disposal to resolve the issue for their constituents.
Indeed Blackford himself is on the record on as saying that they would do something about it if they could:
“I would dearly love that we had responsibility for pensions in Scotland but we do not. The commitment the SNP have given in supporting the slowdown of the increase in pensionable age is one we would legislate for if we had the powers.”
If we had the powers…. Let's remember that one.
The SNP also doubled down on the WASPI issue in their 2016 Manifesto:
“The way in which women born in the 1950s have recently been treated – with repeated acceleration of the extensions of the retirement age – is nothing short of disgraceful. The Scottish government does not have the power to change the retirement age or to pay a pension to women who have not reached the UK pension age. However, the SNP will continue to fully support the Women Against State Pension Inequality (WASPI) campaign in their efforts to secure fairness for women affected by the acceleration in the retirement age.”
So there is just no question from the SNP’s point of view there is literally nothing the Scottish Government could do for WASPI women.
Nothing…
If we only had the powers
Being unable to do anything for WASPI woman is crucial to the SNP’s campaign, for example imagine if after all they have said about WASPI you said to them:
“You’ve got the power to do that in Scotland, your government in Scotland can do that. If you really cared about it, you’d do something about it. Read the Scotland Act.”
This statement was posed by Damian Green a former Secretary of State for Work and Pensions (so to be fair he would know) and the current First Secretary of State to the hapless Stephen Genthins MP for the SNP. Genthins had just finished a virtue signalling sermon on WASPI women to the Question Time audience.
But when this statement was specifically put to Genthins by David Dimbleby we get a remarkable TV moment of the MPs sinking into his seat saying “Well” and literally running out of steam. You can view the exchange here.
No wonder then that the SNP’s Elizabeth Lloyd (Chief of Staff to Nicola Sturgeon) immediately sent out a tweet to provide cover:
“Damien Green wrong on #bbcqt. Scotgov doesn't have power to create new pension benefits & can't top up if people (e.g Waspi) aren't eligible”
So let’s think about this for a second.
The SNP, according to them, desperately want the powers to sort WASPI in Scotland but they just don't have them. Then a senior member of the UK government goes on live TV and outwardly contradicts your belief, do you:
A - Issue an immediate tweet saying he's wrong and let the matter rest
or
or
B - Urgently press the UK government to clarify what they mean by this statement and hold them to their word so you can use the powers that they say you have.
The fact that the SNP reached immediately for A clearly shows that something is up, and it looks like one side is lying.
It get’s worse for the SNP. Not only do we have Damien Green saying this we also have a written reply from a UK Pensions minister clarifying beyond any doubt that the Scottish Government do indeed have the powers to resolve the WASPI issue in Scotland. This is where my FOIs come in.
The smoking gun in the FOI
I decided that I needed to get to the bottom of this and work out what was really going on. So my FOI focussed on the discussions taking place within the Scottish Government with respect to the extent to the powers they have to resolve WASPI. What I got back was extremely revealing:
Firstly the Scottish Government had something far more emphatic to hand than Damian Green's comments and these were from the UK pension minister at the time, Richard Harrington:
This copy of the above letter was surprisingly not included in the FOI but referred out to in one of the FOI attachments but you can find the 'missing' attachment here.
This is an interesting admission by a UK Pensions minister. Firstly he admits, in the context of WASPI, that whilst pensions are reserved Section 24 of the Scotland Act enables the Scottish Government to increase pensions to anyone they like. Furthermore he also cites Section 25* of the Act which he says enables the Scottish Government to make payments to anyone including those without an entitlement to a reserved benefit. That means that those women who are not yet entitled to a pension could receive a benefit from the Scottish Government.
So according to a UK Pensions minister the Scottish Government can pay increased pensions to WASPI women and can also pay a benefit to any woman affected by WASPI before their state pension kicks in (at the later State Pension Age).
*One technical note Harrington gets the Act references muddled up, S25 refers to housing payments I believe that he was referring to Section 26 of the Act, or possibly Section 28. I discuss all of these in the section below.
Again this is remarkable. If you were the SNP and seeking to support pensions for WASPI women wouldn't your first instinct be to brandish this letter everywhere and obtain clarification from the UK Pension Minister that you have the powers that they were arguing you held?
This would be a gift to the SNP in any other circumstances, imagine for the Chancellor argued on TV, and the Financial Secretary to the Treasury wrote a letter to say that the SNP could change Corporation Tax? The SNP would be all over it clinging on to the powers commitment and getting the power established beyond any doubt.
So what happened within the Scottish Government on hearing this tremendous news?
They went out of their way to argue that it was wrong! It's almost as if they dont want the powers.
The hot potato
The FOI shows a chain of correspondence which starts with Jeanette Campbell one of the SNP political advisers writing to Ann McVie (Deputy Head of Social Security) getting agitated by Harrington’s letter. Again this is a bizarre exchange as the argument seems to be to clarify that the Scottish Government doesn't have WASPI powers rather than 'let’s build on this to get clarification and secure the power beyond any doubt'.
Eventually we get a reply from Steven Kerr in which he recognises that pensions can be topped up, so this at least confirms Harrington’s first point. But it also notes that in the case of WASPI women who are not yet receiving a state pension the Scottish Government cannot to up pensions which do not yet exist.
This latter statement was a point that Harrington did not make, indeed he specifically pointed to a different power under which those payments can be made to those not in receipt of a pension.
The issue is then later picked up again by Kerr who clarifies to Colin McAllister (Head of Policy in the Scottish Government) on the power that the Scottish Government has to top up pensions but now notes that that new benefits cannot be introduced “because of reservation”.
Before going into the exact nature of the powers that the Scottish Government has let me just note something which is hopefully rather obvious. Here we have, beyond any doubt, an admission from the Scottish Government that they can at the very least pay increased pensions to anyone in receipt of a UK pension.
Therefore there is nothing, nothing at all, to stop the Scottish Government increasing the pensions (even by a substantial one off lump sum payment) of any women affected by WASPI.
Granted under this scenario WASPI women would still be left with their pension not paid until later in life but they could at least be adequately compensated for their lost pension years by the Scottish Government.
Clearly that is not perfect, but it’s not nothing, which is the SNP's case.
So we have now established that the SNP do have the powers to make a difference to WASPI women but because, if this was all they had, they are not perfect they are using it as an excuse to do nothing.
So can the Scottish Government nullify WASPI in Scotland?
The real problem for the SNP is that their powers to support WASPI women don't end there. Harrington and Green were right and I believe the SNP are actively trying to cover them up.
We know the SNP can increase pensions for WASPI women when their UK pensions kick in, but what about a payment to these women before the new State Pension Age? That is payments between the original State Pension Age (SPA) and the increased State Pension Age that the WASPI campaign is highlighting.
What is stopping the Scottish Government making a payment to these women between the original SPA and the increased SPA? That’s the issue that Kerr referred out to in the FOI as “reservation”.
In my FOI this all boiled down to an interesting clause in Section 28 of the Scotland Act 2016. Section 28 enables the Scottish Government to create new benefits to anyone in Scotland provided it isn't a reserved benefit (because if a benefit was reserved you wouldn't duplicate the benefits you would just top them up under the powers in Section 24).
So surely with this power the Scottish Government can pay a benefit to these WASPI women between the original SPA and the increased SPA? Well, there is one element of doubt here in clause (2) of Section 28:
“This exception does not except providing assistance by way of pensions to or in respect of individuals who qualify by reason of old age.”
So what exactly do we have here? It looks like the Scottish Government can create new benefits but not pensions or for “old age”. Fair enough pension are reserved, but what about this issue of “old age”.
And this is where a debate comes in due to some bad drafting in the Act. The question is would a payment to WASPI women between original SPA and the increased SPA fall foul of this clause. Clearly, as these women have not reached the actual state pension age, then by definition a payment under Section 28 could not be classified as a pension (pensions can only kick in AFTER the State Pension Age). Similarly old age would normally be defined as after State Pension Age, therefore it is highly likely that this exemption would not apply in the case of WASPI women.
It was this narrow point that my FOI focussed in on. Stephen Kerr was noting that payments to WASPI women were reserved, but there was no evidence for this. In My FOI I wanted to see the analysis which confirmed this particular point. Because you had UK Ministers arguing absolutely that the Scottish Government could support WASPI women, the question of reservation was at least debatable and clearly the UK Government had no issue with the Scottish Government providing such support. So there must have been some analysis to support the idea that a WASPI payment was impossible.
And that’s where the FOI trail ends and the cover up begins.
Having asked the question the Scottish Government refused to clarify whether such analysis or clarification existed. It was argued, in the refusal, that the right of the Scottish people to know the extent of the powers held by their own Government was trumped by the right of the Scottish Government to hide “free and frank advice” from the pubic “particularly because these discussions relate to a sensitive issue such as welfare spending”!
Let me just set all of that out again.
The Scottish Government are refusing to clarify the powers that they hold because doing so would disclose free and frank advice from officials to Ministers. i.e their advice is embarrassing to the Scottish Government so you can't see it!
Suffice to say this is all going to the information commissioner on appeal but that could clearly take some time.
But Harrington’s letter also opens up another alternative which I missed at the time. Whilst Section 28 powers provide the Scottish Government with the ability to pay benefits to WASPI women between the original SPA and increased SPA, they could also be paid under Section 26, which has no pensions exemption.
This Section also enables the Scottish Government to make payments:
“Providing financial or other assistance to or in respect of individuals who appear to require it for the purposes of meeting, or helping to meet, a short-term need that requires to be met to avoid a risk to the well-being of an individual.”
Short term need, WASPI qualifies.
Required to be met to avoid the risk to the well-being of an individual, WASPI qualifies, remember Blackford described it as completely shattering retirement plans.
Let's remember that these powers have been referred out by the UK Pensions minister as usable by the Scottish Government to meet the WASPI issue.
We have a clear evidence trail that it is the view of the UK Government that the Scottish Government can provide WASPI benefits. Given that any challenge to the powers of the Scottish Government would come from the UK Government then what exactly is stopping the SNP in supporting WASPI women in Scotland?
So who is lying?
UK Ministers are arguing that the SNP Government do have the power to do something about WASPI if they want, but the SNP and Scottish Government are arguing the opposite and when pressed believe there it is not in the public interest to know.
It’s times like these you need to look at the details of what’s been said, let’s recall Blackford:
“I would dearly love that we had responsibility for pensions in Scotland but we do not. The commitment the SNP have given in supporting the slowdown of the increase in pensionable age is one we would legislate for if we had the powers.”
and Lloyd:
“Damien Green wrong on #bbcqt. Scotgov doesn't have power to create new pension benefits & can't top up if people (e.g Waspi) aren't eligible”
and the SNP manifesto:
“The way in which women born in the 1950s have recently been treated – with repeated acceleration of the extensions of the retirement age – is nothing short of disgraceful. The Scottish government does not have the power to change the retirement age or to pay a pension to women who have not reached the UK pension age. However, the SNP will continue to fully support the Women Against State Pension Inequality (WASPI) campaign in their efforts to secure fairness for women affected by the acceleration in the retirement age.”
Look at the wording in all three. In all cases it’s VERY precise. They are pointing to pensions specifically, not to their non pension powers to pay welfare benefits under Section 28 or Section 26. They aren't actually saying there is nothing they can do, only that they can’t pay something called a pension to WASPI women before the increased SPA.
But WASPI women in Scotland don’t care what their benefit is called or its technical definition they care about the benefits they feel they are losing out on.
This VERY precise language is a “tell” by the SNP.
They know that they can immunise WASPI women and they know they would not be challenged by the UK Government if they did so. But rather than openly admit that they can provide such benefits they are hiding behind technical definitions in the hope that no one will spot their hypocrisy.
Sorry SNP but we noticed.
At the very least even if the Scottish Government has internal analysis which shows that a WASPI payment, of the type I describe in this blog, would be reserved then surely they could clarify the position with the UK Government.
Given the statements by the UK Pensions Minister and the First Secretary of State, even if there was some bad drafting in the Act which prevented this payment the UK would not be opposed to enabling the Scottish Government to make these payments.
The Scottish Government just sound like Ned Flanders parents in that classic episode of the Simpsons "we've tried nothing at all and we're all out of ideas". Don't you just get the impression that far from wanting these powers the SNP are doing everything they can to deny them.
There are now several people working on this issue, including with a range of FOIs to the UK Government. If I were the SNP I would admit that the powers exist and switch the narrative from COULD to SHOULD on WASPI. The trouble is that doing so would expose the rank hypocrisy and the downright deception of the SNP on this issue, but we know that now. Let's move on and get on with the SHOULD debate. That will be far more interesting.
Thank you for this. I have several friends who are affected as my sisters and I will be in the future. It is incredulous that the Scottish Government is hiding this information.
ReplyDeleteThe Scottish Government is not hiding anything. They are prevented from making it up in spite of the lies in this 'article'. In order to make it up to WASPI it would have to be AGE BASED which is in violation of the Scotland Act. Welfare based payments can be paid up. Pensions are NOT welfare based.
DeleteWhat? Like the 'significant new powers' WM promised Scotland for a 'NO' vote? Funny how he bangs on at great length about these powers but can't say exactly what they are, how they work or how much money WM has given Scotland to pay WASPI women!
DeleteDid you see the Question Time debate? The Scottish Government CAN do something about this and SHOULD do something about it, or else stop peddling lies to the people of Scotland.
DeleteCan you tell us how much the interim Waspi payments would be? It's not mentioned in your article which with such a detailed and well researched analysis I would expect tbh..
ReplyDeleteGiven I said that I'm not discussing should but could in this blog I'm not sure why you think it should be included? On costs I would defer to John as I said as well.
DeleteFYI WASPI is a national i.e. UK wide campaign and as such believe the Westminster government need to rectify the inequalities in the SPA the current and previous Governments created since 1995. There is cross party Westminster support (and an APPG) on this issue including many Conservative MPs and the DUP in addition to Labour SNP Plaid Cymru and Lib Dems. Passing the buck to Holyrood seems to indicate how worried the Government are over this issue and quite frankly recognises there is a case for fairer transitional arrangements. Our 40 plus years of NI contributions were spent throughout the UK and not confined to Scotland. The pensions minister refusing to engage with the WASPI women and advocating retraining and apprenticeships at 60+ seems to show a lack of understanding and briefing on his new remit. As a WASPI woman who paid NI contributions both North and South of the border in roughly equal measures, I hope he can now concentrate on fully bedding in to his new post and finding a UK solution for what is a UK problem.
ReplyDeleteAn absolutely fair statement Rosemary, I don't agree with all your analysis, especially on the NI contributions but that is for another blog. But it all falls into the SHOULD rather than the COULD issue I highlighted at the start. I notice you've absolutely avoided that point and I don't understand why?
DeleteHi Neil, thanks so much for your detailed article. Thinking more about the Scottish aspects of the issue do you think it is possible that the Scottish Civil Courts COULD be an avenue worth exploring? In Scotland they have Judicial independence from the government, legislature and public prosecutor which is guaranteed in statute by the Judiciary and Courts (Scotland) Act 2008 which places a duty on the Scottish Ministers, the First Minister of Scotland, the Lord Advocate, and Members of the Scottish Parliament to uphold judicial independence and bars influences of the judiciary through special access. The vow the Judiciary make is as follows; “I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill-will.” (Judicial oath, Judicial Office for Scotland) Perhaps they might do right by us WASPIs and as a consequence there may be a domino effect for our sisters elsewhere in the UK.
ReplyDeleteThanks in my view it's not one for the courts but one for the government of Scotland to take a lead on, if they believe what they say.
DeleteVery long blog which can be summed up as Q: are Pensions Reserved, A: Yes. Can Scottish Government take from other departments budgets funded by the Barnett formula or new Income Tax powers and give to WASPI, A: probably Yes. Q: would you be happy to see the Government in Scotland keep shrinking other departments budgets to constantly mitigate Westminster cuts to Barnett, A: probably not. Pensions are Reserved it is the responsibility of Westminster to rectify the wrong to WASPI women. I, for one, am thoroughly proud of the way the #SNP have kept the WASPI cause to the fore and as a result the WASPI voice is heard loud and clear and our movement grows in strength as more MP's recognise we have a just cause.
ReplyDeleteOK glad you agree that the SNP can actually sort this problem in Scotland, if they want to. You may well be proud of the way the SNP are campaigning for WASPI but my view remains that if they are deliberately covering up their powers to avoid a difficult conversation about WASPI then they wont have my respect.
DeleteNo. They cannot and I suspect you are well aware of that. They cannot base payments on age. It is as simple as that. By definition, that is a pension which is reserved. Why are you deceiving people?
DeleteWhat do you mean they can't. The blog and FOIs show clearly that they COULD. There is nothing to stop them basing payments on age and the SNP committed to do exactly that in their manifesto for a different set of women and the FOI shows that they are seeking to do exactly that.
DeleteCan you tell me where the Scottish government are supposed to find the money to pay for this? Do they all of a sudden have a magic money tree? Where did the money go that we paid in, will they be given a share of that money if not, why not? I like most waspi women would love to have my pension now as per the contract I had with the uk government, I want to know where my contributions went and why I am still having to keep paying £120 + per month when I have paid in 43 years already...I don't understand why they should, could or would pay for it as a benefit...it's not a benefit, it's an entitlement!
ReplyDeleteYou have jumped straight into SHOULD from COULD. As I said I'm more than happy to debate whether the Scottish Parliament (or UK for that matter) should support WASPI women once we have established if the SNP could suport them in Scotland. You seem silent on the issue.
DeleteYou also don't say where the money should come from?
DeleteMaybe next time read the blog before writing a comment that shows you haven't.
DeleteSurely if one has to ask "should the Scottish Government take from other departments to fund WASPI pensions", one should also ask "should the UK Government take from other departments to fund WASPI pensions" - difficult decisions do not lie solely with Number 10 - there is a choice that could be made by the Scottish Government, which they choose to remain silent about.
DeleteHis name is Stephen Gethins MP, not Genthis.
ReplyDeleteArgh! I had both spellings and someone pointed out the error and then I corrected the wrong one! Thanks.
ReplyDeleteSo basically your point is that the Snp should be sorting something out and you're not willing to discuss any other aspect of this other than that the Snp should be sorting something out. Fair enough. You could have saved a lot of time by just writing that? Fair play you've done a good bit of detailed research but doing so just to highlight your perceived grievance without discussing any other aspect of the issue undermines your arguments and calls into question your motivations for making it in the first place.
ReplyDeleteIf you read the blog you would know that I said this was a discussion of COULD the SNP do something for WASPI women (something they deny). Happy to move on to SHOULD once that has been resolved by the SNP. It's all there right at the start, so I'm not sure how I could have saved you any more time.
DeleteOn the question of SHOULD I've noted I normally defer to John Ralfe on these issues (again in the blog) however my view is that we should be adopting the WASPI proposals as set out by the SNP in their 2013 paper "Pensions in an Independent Scotland" do you agree with their proposals there? I wonder how many of the SNP MPs do?
So seems they (SNP) could pay, just like the UK could pay. But should they? Rosemary talks about equality. What about equality for men the same age who get their pension later but die earlier (on average). What about equality for women born in 1960? Waspi seem to want selective equality unless I'm missing something. Could yes, should, No.
ReplyDeleteMartin
Sorry, but this is one petty, obtuse article. Pensions are reserved. End of. Of course the UK Gvt are going to suggest Scottish Government should sort out their mess. The only way for S/Gvt to be able to influence pensions is for them to be devolved, or for Scotland to become Independent. Your rabid "investigations" highlight nothing but your own prejudice.
ReplyDeleteThanks for you anything but constructive comments. I particularly like when you use "end of" knowing full well that's not the end of it. The FOIs and they Scotland Act show in no uncertainty terms the Scottish government COULD sort this out. Your bile filled comment simply shows you haven't read the blog, understood it or are just simply in denial. Whatever the answer is its not a good look.
DeleteInteresting read of the situation and you have certainly been quite thorough. As you don't wish to engage in the question of whether the Scottish Government SHOULD mitigate for yet another adverse Westminster decision (which is indeed a different debate altogether), here's a comment on whether they COULD:
ReplyDeleteMartin MacDonald tweeted specifically on the sections mentioned in your FOIs. Here are the specific statements he made:
"The Scottish Government can't replace the pensions of women caught in the WASPI trap using the Scotland Act 2016 powers. Here's why. 1/4
Section 24: Top up benefit. Only those on benefits would get it and the top up would have to be paid to all age/gender under EA 2010. 2/4
Section 26: Discretionary assistance. Has to be real need. More than a couple of weeks & it becomes Section 28. All age/gender as before 3/4
Section 28: New Benefit. Not allowed to base it on old age as that makes it a pension. No way to target it age/gender as before. 4/4"
He clearly disagrees with your contention that the Scottish Government could pay the WASPI women their pension - and having now looked at the specific wording of the Act, this is how I understand it, too - the Scottish Government CAN alleviate some people's financial hardship caused by the rise in the pension age on a very short term basis, but CANNOT fully replace the pensions of those affected in Scotland (or in your words "sort it out"). And from reading the Act closely, it seems as if sections 24, 26 and 28 are set up precisely to prevent any such long-term interference by the devolved administration in a power otherwise reserved to Westminster.
Thanks I saw Martin's comments and commented on them on Twitter. Unsurprisingly he's not replied to any of them which speaks volumes. Martin doesn't understand pensions and it shows in his comments. The crux of his argument is that the Equalities Act would apply, it doesn't. There is a very simple reason you can see why it doesn't apply and thats the fact that State Pensions (and a raft of welfare benefits) are based on age and gender (which is why we have the current position that we are trying to equalise).
DeleteSo with that foundation out the way we can now look at the other contentions.
The definition of real need in this context is define by the Scottish Government, it's for them to decide is WASPI is a real need, so we are comfortably back to COULD on this one. It's also noted that the UK pensions minister has specifically highlighted this clause. You also defined the discretionary benefits as "very short term" that doesn't exist in the legislation so where are you getting it from?
His section 28 contention is just wrong on all levels. There is no defintion that basing a payment on age makes it a payment (are winter fuel allowance or free buss passes pensions)? The carve out in S28 is very specific about pensions (which by definition a WASPI woman cannot be earning) therefore it would not apply. Martin is just wrong on this point and given his limited expertise in the area I'm not surprised that he's engaging in this sort of hand wringing and wishful thinking about legislation.
You noted that the Sections 24,26 and 28 are set up to precisely prevent such long-term interference in reserved benefits, but that's clearly not the case as there is only one carve out in the entire legislation and it's the area of creating a new pension for Scots but that can only apply after UK state pension age, which is not an issue for WASPI women.
On his and your assertions re the Equalities Act - I have not done any research into this, so will accept your point that EA and pensions have nothing to do with each other.
DeleteOn the short termism of any assistance as per section 26 - the words "short term" are in the actual text of exception 7 and "occasional assistance" in exception 8. So I think his contention that anything done in respect of section 26 has to be short term and is not suitable to "sort it out" in the long term is right. The pension age for many of these women has been raised by years, so a short term solution for a few weeks is highly unlikely to be enough.
On section 28, I find the wording quite clear in stating that:
"This exception does not except providing assistance by way of pensions to or in respect of individuals who qualify by reason of old age."
No matter what you might want to call a solution for those affected by the changes (and no matter how hard you argue that because these women no longer qualify by reason of old age, therefore this isn't a pension and therefore a solution would be excepted), if the Scottish Government mitigates against the Westminster decision to delay their pensions, it will in nature and character be a pension and so excepted.
IF however by some quirk there was to be found a way to do this without falling afoul of section 28 and the fact that pensions are reserved, how do you then deal with the fact that whatever the Scottish Government does in this regard, its powers over social security are nonetheless limited to 15% of such spending in Scotland. With over 240K women affected and the Scottish Government already mitigating for the bedroom tax and personal independence payments and so on, currently 536K in total people are receiving benefits in Scotland. Adding over 240K WASPI women, that is an whopping extra 45%, of ppl in need of support who will exceed that 15% by miles.
In your opinion my last point may stray very close to the SHOULD they question, but if 85% of social security spending remains under Westminster control, then I don't see how the Scottish Government COULD possibly sort this problem out without being given extra money from Westminster. As you are aware however, the block grant will in actual fact be reduced as a consequence of the new tax powers, so it's unlikely Westminster would hand over additional money for Scotland to sort out the WASPI problem when it is unwilling to do so in England.
I've now seen not just your FOIs but also read the parliamentary debates in Westminster and Scotland on this issue, and esp the Scottish Parliament debate had cross party support for the demand that this is a problem which needs to be sorted out in Westminster, not Holyrood. (One Labour MSP asked the Scottish Government to mitigate - that's a long way away from sorting it out.)
One final point, though. As legal and political opinions on this matter seem to be contentious and the Scottish Government's view supported even by opposition MSPs, however, I do strongly disagree that the Scottish Government is - as you assert - lying in this matter. They may ultimately be proven wrong by such as yourself, but I've seen zero evidence for deliberate wrong doing.
You will, of course, continue to believe the UK Government's stance on this, as is your right, but from what I have now read on opinions and interpretations of the new powers and the cross-party views on the WASPI issue, I have not seen any evidence that wasn't immediately contradicted and therefore am not convinced that the Scottish Government COULD sort this issue out. I continue to believe that the WASPI problem must be sorted out in Westminster.
Thanks.
DeleteI agree that "short term" are there my query was with respect to "very short term” and I still don’t think we’ve established where this came from. Neither have we established why your case holds that WASPI can’t be provided with benefits under this act because it is by definition a strictly time limited benefit. So can you show me where this limitation to of short term being on a few weeks (as I think only Martin has said) is defined? Given that we have the UK Pension Minister referring to this clause for this purpose then the balance of evidence would ask that you provide something to back the claim up that this can’t be used.
Your Section 28 assertion is completely back to front, you are saying nothing more than a welfare benefit paid to a WASPI woman is a pension because it is a pension. By legal defintion a pension can only exist in the UK AFTER state pension age. Any benefit paid to a WASPI woman MUST be before state pension age and cannot under any legal definition be carved out by this exception. I would also point out that the old age clause cannot apply because the Tories in Scotland committed to creating a winter fuel allowance new benefit (for those that did not receive it) which if that old age clause did apply would be illegal.
Therefore in both cases you haven’t given a case to say that S26 or S28 would not be possible to support WASPI women and have just effected an assertion which is it’s not possible “because”.
The 15% limit on spending isn’t remotely correct, it’s a figure conjured up by the SNP to underline grievance and I cover this off fully in the blog.
https://rwbblog.blogspot.co.uk/2016/08/scotland-only-controls-15-of-welfare.html
Re the cross party support I’ve no doubt that it will be sorted there, however as I’ve continually stressed my point is that the SNP are deliberately saying their is nothing that they can do and that they would do something about it if they could, but as this blog shows there absolutely are things they can do about it and their actions speak volumes. I know that you disagree with this point but I’m struggling to see how you can square Blackford’s comment:
“I would dearly love that we had responsibility for pensions in Scotland but we do not. The commitment the SNP have given in supporting the slowdown of the increase in pensionable age is one we would legislate for if we had the powers.”
Whilst I accept it’s hiding behind a technicality it’s clearly set out to deceive, but clearly that’s a judgement call, I would struggle to find any neutral person who didn’t feel that this was at best misleading.
Thanks for your reply.
DeleteOn the issue of short term - not easy to find official definitions, but there's a short term benefit advance which is limited to supporting someone prior to their first benefit payment. Examples of STBA given on various websites typically talk of days rather than weeks. In the NHS there's reference to short term care at home after hospital discharge which is a maximum of six weeks. The longest definition I've found so far was in the now defunct disability allowance which had two 26 weeks periods, each classed as a single short term period. In any case then, short term seems (if we take the maximum two short term periods for old disability allowance) to mean less than one year, but if we take each period on its own only, it's six months. There may well be internal governmental information on what is acceptable as short term support - maybe worth finding that out before arguing this particular point further.
As for creating a benefit for the WASPI women, there we'll have to agree to disagree. Firstly, as you are trying to replace a lost pension, any new benefit created for a WASPI woman that works like a pension (i.e is based on her contribution and her age), is paid like a pension etc etc you know - if it looks like a duck, talks like a duck, walks like a duck...it's no surprise if it's found to be a duck.
In essence, IF there was to be a legal challenge, say by an English WASPI organisation saying that Scottish WASPI women were now getting their pension and they want the same, what do you think the courts would make of this? Semantics won't help you there, and neither will hoping that the Scottish Government will be let away with it because it benefits these women.
And so secondly, based on the UK pension minister's statement you are certain that the Scottish Government can replace the WASPI women's pensions. The Scottish Government however are certain that they can't. As they have had a lot of legal advice on the Scotland Act 2016 and their new powers, their statements are based on their understanding of what is possible and what isn't. You can, of course, disbelieve the Scottish Government on this, as I can disbelieve the UK pensions minister (whose performance on this was as woeful as his predecessor's so far).
As for the Ian Blackford quote he is very specific and clearly states that they would "legislate" on the matter of slowing down "the increase in pensionable age" - not misleading or a lie. The Scottish Government can't legislate on pensions; it is a reserved matter. It therefore also cannot on its own legislate to overturn the 2011 UK legislation on speeding up the increase in pension age.
So having asked you where "very short term" comes from we find it doesn't comes from anywhere, it's been made up. Then the definition of short term is all over the place. What we do know is that short term is non permanent, which is what WASPI is, it's also been something that the UK Pensions minister has cited in this case as acceptable. Therefore I'll come back to my point, if you are saying this power can't be used over the opinion of the UK Pensions minister what are you basing it on other than a bizarre set of wishful thinking.
DeleteThat brings me to the point that is being continually overlooked. Here we have what the SNP believe to be a serious problem and rather than looking for ways to deal with it you, and they, are going out of your way to try to wriggle out right to deal with it. It's a bizarre issue for a nationalist to argue against.
Regards agreeing to disagree on pensions benefits from my perspective I can't see how you can possibly argue it's a pension "just because". By definition a pension from the state can only apply at state pension age. That's not semantics but a point of law, so please don't tell me I'm hoping I'm not I'm apply a ruthless set of legal rules which you are ignoring.
I'll also point out that the Scottish Government are not certain that they cant support WASPI women. In fact they have admitted that they can through the payment of higher pensions anyway, they have also decided it is not in the public interest for us to know what their actual opinion of this situation is. Does that sound at all strange to you? If they have concluded that they cant pay can you give me a rational explanation as to why they would not clarify this position?
Finally the Blackford quote, again you are hiding behind semantics of the wording used. If what you said about the Scottish Government was true when then wouldn't he simply say, we cant do anything for these women? Why word it (and continue to word it) in such precise terms, if not to escape a difficult debate on SHOULD rather than COULD.
Read this with interest and glad you put in so much spadework. Sceptical about a lot of what Richard Harrington has to say, in a letter to me he gave up an entire page, to telling me pension is a benefit not an entitlement citing all sorts of 'proof' to back up his assertion(why?) I also get your 'could' and 'should'. We deserve to know where we stand and not be patronised - then we can move onto 'should', the business of what to do about it. For the record, this is my view on 'should'. There is strength in numbers. My personal interests are best served by joining another group associated with this issue but I don't because It's daft to lessen our impact by forming several smaller groups. This is also a UK-wide issue and many WASPIs favour a UK-wide solution. I would not be OK with getting a Scotland-wide settlement and leaving our WASPI sisters in the UK to fight on, depleted by our lack of support. We shouldn't allow ANYONE to divide and conquer. The SNP would not want to be accused of it. The UK Government would be only too happy for it to happen.
ReplyDeleteThanks Sara. I have to say Harrington is right in that a pension is not a legally enforceable entitlement, the government can change it whenever it wants and that's been established at European Court level. I've a lot of sympathy with your views on a UK wide solution and think targeted relief is absolutely the way to go.
DeleteThanks Neil. Interestng and I don't doubt you are right. So many European neighbours have managed this same situation rationally and ethically yet the bottom line is, that law trumps ethics...
ReplyDeleteJust a thought, if you are correct in your assertions that the SNP can somehow compensate Waspi for their lost pension, and, ignoring the points raised by Sara G about it being a UK wide issue (which I fully agree with btw) How would you suppose this would work? Wouldn't there be an influx of English Waspis heading to Scotland to collect their pensions? And what about the Scottish Waspis who move south or emigrate before their new pension age? Or those who travel up and down country to work? How would someone identify as Scottish In order to benefit? I appreciate that your intention was to call out the SNP for being dishonest, but looking at the difficulties involved in employing these 'new powers' I suspect they would be completely impractical and only cause division between Waspis.
ReplyDeleteBut this situation arises if Scotland does anything different. Has for instance there been a huge influx of parents with kids of university age moving to Scotland to benefit from free tuition fees? The test is really simple, it's based on residence, that gives you your entitlement to UK + any enhanced Scottish benefits plus the privilege of paying Scottish taxes.
ReplyDeleteI'm specifically doing this to call out the SNP's hypocrisy on the matter, they are going out of their way to try and deny themselves powers so they can avoid a difficult debate and continue to virtue signal at a UK level. At no point have the SNP said how they would pay for their WASPI proposals other than arguing there is a mythical surplus in the NI fund. There isn't. So all this is is showing yet again that the SNP are just playing WASPI women for their own ends. If you think that is acceptable then fine, I for one am quite disturbed by it.
The problem with this analysis is that a benefit paid by reason of "old age" is a pension, and the Scottish Government can't create a pension because of the exception to Exception 10 of Section 1F of Part 2 of Schedule 5 of the Scotland Act (i.e. section 28(2) of the 2016 Act). If you are paying a benefit because, and only because, someone is over a certain age, but isn't old enough to be of state pension age, then that is still "providing assistance by way of pensions to or in respect of individuals who qualify by reason of old age". It's reserved and the Scottish Parliament isn't allowed to legislate for it, and the Scottish Government isn't allowed to introduce it.
ReplyDelete"Reason of old age" is not the same thing as "state pension age". Had it been the intention of the Westminster Parliament to define the limitation concerning pensions as regular income paid to someone over state pension age, they would have done so. They did not. They consciously chose to say "by reason of old age". The purpose of doing so was that they did not intend for Scotland to be able to create a de facto lower age at which the state pension would be paid.
Your references to the Tories proposing to change winter fuel payments is also totally irrelevant. Exception 3 of the same Schedule 5 heading as before (inserted by section 23(2) of the Scotland Act 2016) expressly devolves legislative competence for "providing financial assistance... for the purposes of meeting or reducing... expenses for heating in cold weather".
Payments to the WASPI women would not be made with that in contemplation.
It is, therefore, not clear at all that the Scottish Parliament has the legal power to legislate to create a benefit, paid to WASPI women, to prevent them from losing-out as a result of the state pension not being made available to them on the previous terms they had anticipated.
Thanks Graeme, great comments.
ReplyDeleteI think you seem to have dropped your usual attention to detail when it comes to your first claim. A benefit paid by reason of old age is not a pension, they are two distinct things, for example a pension is a benefit paid for life, a benefit is not or at least not necessarily. Your view that this is straying into reserved benefit territory is not warranted by the views of the Scotland Act or the Explanatory Notes to that Act which specifically deal with this issue of “straying”. As you know that requires the UK Government and the Scottish Government to liaise on the issue, which they have demonstrable done and the UK has confirmed there is no straying.
Now as a lawyer I know you would want to stick to the detail and yes on that basis it would be possible for someone to argue that this power could be taken to the Courts. However there are a lot of areas where that could apply so that is in itself nothing new. On this basis you have to look at the probability of this happening and it being successful.
Given the agreement between the two governments on this route (assuming the SNP actually want this power), the fact that they have followed the explanatory rules in the Scotland Act, the fact that the UK government have already stated that the SNP apparent desire to use this power is within the intention of the Act that is unlikely. Politically it is even more unlikely, as you are well aware the UK Government could in the event of an external challenge resolve the issue quickly with a Section 30 order (or an amendement to the Scotland Act, however the former is quicker and easier). This would also make any legal challenge less likely.
Of course it is possible to paint a picture - which your scenario has to - where the UK Government have provided the Scottish Government with such emphatic views, almost daring them to use the powers, only to find that their legal interpretation was wrong. Are we really to believe then that the UK Government would at that stage say, oops sorry you’re screwed?
As I said I know you like to do the lawyer thing, and I absolutely understand why, however your advice doesn’t give me any remote concerns nor does it confirm the views of the Scottish Government which are not “there is some doubt” but the power does not exist. It does however give me a better line for my next post “What Freeman’s reply should have been” so watch this space.
Couple of other pedantic points about your analysis because I think you are wrong on that as well.
Your statement that Westminster intended that the Scottish Parliament could not create a lower state pension age (incidentally at no point is anyone saying that they are creating a lower pension age so this is already a straw man) does not stand up. On your interpretation the Scottish Government could start paying this new benefit at age 55 and it would qualify under your criteria (as I’m assuming that under 55 would not be old age). If you are arguing that old age is at 55, then let’s go lower, and lower and lower, at some point you know as well as I do you are going to say it isn’t old age and your argument falls.
Agreed on the Winter Fuel allowance I retracted that previously but must have left the comment on, thanks for pointing it out.
This isn't a question of whether a benefit "strays" into reserved areas. The pensions exception to the exception is explicit and binary. Either something is a pension or it isn't. Something paid by reason of someone having attained a certain age (and only that) and paid based upon NI contributions on the same basis as the state pension, is "a pension". Any government that has reasonable grounds for believing a court would conclude this is both entitled and prudent not to legislate for it given on the face of the Scotland Act this appears to prevent them from so acting.
ReplyDeleteThe Explanatory Notes are *irrelevant*. They have zero legal force. No court will yield its view of what the text of the statute says about the powers of the Scottish Parliament to a back room chat between governments. The limits on competence do not exist simply for the benefit of the UK Government; they also exist for the benefit of those living in Scotland.
If the UK Government is so adamant that the Scottish Parliament can do this, they could very easily pass a section 30 Order now clarifying explicitly that the reservation of pensions does not include reservation of creating benefits paid in lieu of a pension.
And yes, something paid "by reason of old age" could include a benefit paid to people by reason of them exceeding the age of, say, 40. The relevant factor to the reservation is that having attained a minimum age is the core and dominant reason someone is being paid the benefit, rather than in conjunction with a broad range of other factors. This is another reason why the winter fuel and cold weather payments don't count: the primary reason they are paid is to alleviate fuel poverty and the age rules merely stipulate the extent of the benefit not the purpose.
Graeme,
ReplyDeleteIt’s very much a question of the stray into reservation from a political point of view. That’s been my point. From a legal point of view you are correct that the EN are not a legal document but that does not rule out their political significant as you are well aware.
Sticking to legal points of view, I couldn’t agree more than something is a pension or it isn’t. A pension is paid for life, no one is proposing a benefit which would be paid for life. Can you therefore explain how this new benefit would be a pension? You seem to have gone from saying its a pension to it’s a “pension” you know as well as I do that your inverted commas have no legal significance so if you want to make the case that a term limited benefit of this nature is a pension then please do so but reverting to sticking inverted commas around the word isn’t it.
Yes the UK could pass a Section 30 order now, but it’s their view they don’t have to, the area of doubt comes from the Scottish Government. As they are the party apparently wanting to propose the change and they are the party with some level of doubt it is for them to make the request. You know this Graeme, but your lack of objectivity on it is blinding you.
So you are arguing that a benefit at age 40 would be by reason of old age. OK how about 18. You know as well as I do I can do this all day.
I’ve already addressed the winter fuel point so I don’t know why you keep coming back to it.