It's been 4 months since my last post on WASPI and the SNP but there have been a few developments, which have only recently come to light, and I thought they warranted another post on the subject.
TL:DR
New information from FOI's, which the Scottish Government was forced to release by the Information Commissioner, demonstrates that the SNP's attitude is that they are grateful for any advice which means that they CAN'T provide WASPI support.
Published minutes between the Scottish and UK Governments show the SNP are actively pursuing Section 30 orders with the UK Government, where they believe there is a possible "straying into reservation issue" on their welfare powers. This is actively being pursued on the Jobs Grant but strangely there is no action, or even a discussion, on WASPI powers.
This is despite the rhetoric that the SNP would act if they could. This is further evidence that the SNP are keen to talk up the WASPI issue in Westminster but are far from interested in having any responsibility for helping WASPI women from Holyrood.
To bring you up to date
Since my last post a couple of things have happened. The Scottish Government's refusal of my original FOI was overturned by the Information Commissioner and secondly minutes of the Joint Ministerial Working Group on Welfare show the SNP are prepared to act to clarify the extent of their new welfare powers, but haven't acted on the WASPI issue.
The forced FOI 1 - Framed legal advice
Firstly you may recall my original FOI to the Scottish Government was essentially refused because apparently (and perversely) it wasn't in the public interest to have internal Scottish Government discussions on the extent of welfare powers disclosed to the public! I did however obtain some documentation which later turned out to be useful.
I of course appealed that decision internally and the refusal was upheld. Not to be outdone I took the issue to the Information Commissioner who upheld my complaint and forced the release of further information, including the missing letter from Jeane Freeman that had already been leaked to me.
In itself the new information didn't tell me anything I didn't really know, other than this whole chain of damming correspondence was all unwisely started by Freeman as she attempted to point score with the UK government.
However there is one comical exchange of memos after Freeman spoke in a debate on the subject and got very confused about the powers she was denying the Scottish Government had. In this we see the civil service handwringing over Freeman's comments worried that she had misled Parliament.
The legal response which caps the exchange is interesting as it continues to set out the Scottish Government's legal view, which the UK government would then categorically state was incorrect, that Section 28 powers (to create new benefits) could not be used.
What is interesting is that even here their legal advice is deliberately framed in such a way as to give the answer the Scottish Government wants (a recurring theme which we will see shortly started months before).
Like watching a magician you absolutely have to be looking for the sleight of hand to see it:
"I don't see any doubt to the legal position. The Scottish Parliament would be unable to create a new benefit to assist people by way of old age pension, because of the restrictions in section 28."
You can't get more emphatic than that, surely then the Scottish Government are sincere in their (now proven incorrect) position that they can't use Section 28 powers.
But here's the twist:
"by way of old age pension"
The advice refers to the carve out being by way of old age pension, the trouble is that's not the carve out in the legislation, it's simply "by way of old age". That is a very subtle, but deliberate, difference in the advice provided. By framing the benefit as a pension is clearly strays into the issues of reservation and the restrictions under the Scotland Act.
However as we now know the UK Government has already confirmed that "by way of old age" means those reaching UK state pension age. Therefore provided a new benefit for WASPI women would not be a pension (which it couldn't be because it's only paid for a short period of time) there was no reservation issue in using the Section 28 powers. So why was the word "pension"incorrectly forced into the advice?
There is a little 'tell' in the legal advice memo:
"Assistance by either of these routes is for the UK Parliament to provide."
This was quite a bizarre thing to write from a legal perspective, indeed it is quite partisan from a nationalist Holyrood versus Westminster point of view. To me it's simply part of a wider theme which shows that from top to bottom the Scottish Government just do not want the responsibility of being able to provide WASPI support.
To the SNP it's surely so much better to be unable to help whilst saying that they would help if they could. Unfortunately that means that they need to go out of their way to ensure that they don't have the power and that denial of responsibility has permeated throughout the Government.
That's where the rest of the redacted FOIs come in, I think we now have the moment the SNP tried to frame the Scottish Government position's to ensure that the view was they couldn't support WASPI women.
The forced FOI 2 - That's really helpful
Ironically I think I had that 'moment' already in my hands in the first FOI but it only became clear when the Information Commission forced the Scottish Government to publish more context to the correspondence.
In itself this exchange isn't that remarkable, indeed at first I missed the significance of it.
However it was only after doing some work on biblical redaction criticism that I realised I'd missed a fundamental issue. Redaction criticism shows you that you can learn just as much about someone's view by what they redact as opposed to what they write. Redacting can often be about hiding your true feelings or removing something that would be really uncomfortable if it were revealed.
So, of this new exchange, what was redacted?
Colin MacAllister's initial exchange was removed - here we see the Government Head of Policy and a former SNP Head of Communications, keen to ensure that the Government's ducks are in a row on WASPI, that they are all "sure of their ground" on the issue.
Note this is months before the exchange above and I think that this is moment that the SNP started to frame the views and advice of the Scottish Government against having WASPI powers.
Here Colin sets out the SNP's / Scottish Government's position on why they can't provide WASPI support. We see the forced insertion of the new benefit being a pension to frame the rest of the argument in such a way that the Scottish Government can't provide support.
I believe that this framing was important, this isn't an enquiry about seeking a way to achieve powers, which were at best a grey area, but a method of clarifying that the Government absolutely does not want this hot potato.
We then get Stephen Kerr's response (a pure civil servant and Director of Social Security) which I had already seen in the first FOI response, but the framing of the new benefit as a pension gives his response much clearer context.
The sting in this email comes at the end though:
"Hope that's helpful (well you know what I mean)"
Without context I just ignored this and probably would have had I not seen Colin's single line reply (which had been redacted):
"Cheers. That's really helpful indeed."
It can take a while for this to sink in so let's just recap.
Here is the SNP appointee in the Government framing the discussion in such a way as to ensure that the Scottish Government is not burdened with the possibility of following through on its rhetoric.
He gets back the policy response that he's asked for from the civil service who recognises how a denial of power is perversely positive for the Government. The SNP's man then replies emphatically that yes the denial is "really helpful indeed."
So the SNP are denied the powers that they apparently, in public, so desperately want and they are delighted about the denial "Cheers. That's really helpful indeed."
No wonder they didn't want anyone to see their gleeful hypocrisy on show. I'm kicking myself that I missed it for so long.
Of course I'm sure the true believers will manage to spin these exchanges in a completely different fashion. However you might just want to ponder if this exchange was so innocent why was it redacted and why did the Information Commissioner have to force its publication?
Even so we also have a second damming piece of public domain evidence that removes any doubt. The Joint Ministerial Working Group on Welfare (JMWGW)
Section 30 orders
I've been keeping an eye on the minutes of the JMWGW because I'm a nerd but also because I thought it would be the place where I would see any evidence of the Scottish Government attempting to clarify its position on WASPI.
We've already seen that the letter exchanges between the Scottish and UK Governments on WASPI, but it's always different in a committee meeting where everyone is face to face and trying to resolve issues rather than necessarily attempting to score points.
There have been zero, none, nada references to WASPI or any remotely related matter at these meetings. Given the SNP's public views on this and the exchange of letters isn't it absolutely bizarre that there isn't one mention of WASPI?
Indeed these meetings are rather routine showing both Governments cooperating well and covering off items such as ensuring that there is no clawback of additional Scottish Government benefits by the DWP in line with the Smith Commission and Fiscal Framework.
But the latest minutes from the meeting in September (published last month) contained a smoking gun.
You may recall that I outlined the SNP's hypocrisy on WASPI in my last post by arguing that if the SNP were committed to supporting WASPI women but were genuinely worried about possible reservation issues they should simply ask for the commitment to a Section 30 order in the event of a legal challenge.
That was in August.
In September Jeane Freeman noted to the JMWGW that the Scottish Government were concerned about the legal basis for their new benefit of the Jobs Grant and were therefore requesting a.... wait for it... Section 30 order to put the matter beyond legal doubt! Obviously I've immediately put in an FOI to the Scottish Government to establish what this doubt is, however I suspect it's likely that the Jobs Grant has the characteristics of straying into reservation of Job Seekers Allowance and therefore may have to be paid as a top up rather than a new benefit.
What was interesting was the UK Government's response, they seemed happy enough to consider the position but noted:
"that DWP had also discussed with SG the options within existing legislation"
In other words this looks like another case of the UK government saying to the Scottish Government 'you have the power, get on with it we're not going to get in your way' and the Scottish Government being the ones holding back.
But here's the rub, in exactly the same scenario for WASPI the Scottish Government have basically used the doubt, that only they have created, as an excuse to do nothing, and yet here the Scottish Government is simply using the method I suggested* (a Section 30 order) to put the matter beyond doubt.
*I'm not remotely suggesting that the Scottish Government were inspired by my blog to go and get a Section 30 order because it's an obvious approach where legal doubt exists and both political sides agree.
Another smoking gun
Thanks to these minutes we now know, when the Scottish Government actually want to use the welfare powers available to them, they are prepared to work with the UK government to remove any concerns and get on with it.
They just haven't done so with their WASPI powers.
They haven't even spoken about it.
They just don't want to.
Their actions (and lack of actions) show they don't, their internal glee when they can frame doubt about powers where it shouldn't exist demonstrate they just don't want them.
We can see all of this in their FOI redactions and the minutes of their meetings, all I can see is "Cheers. That's really helpful indeed."
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