Response to the Smith Commission s Call for Evidence from Scotland s Commissioner for Children and Young People Thank you very much for the opportunity to provide a submission to the Commission s call for evidence as it deliberates on the delivery of more financial, welfare and taxation powers and ways in which to strengthen the Scottish Parliament within the United Kingdom. As Scotland s Commissioner for Children and Young People, my role is to promote and safeguard children s rights in Scotland and to hold the Scottish Government to account to the commitments made when the UK ratified the Convention on the Rights of the Child 1 in 1991. Whilst the Scottish Parliament has some existing powers to deal with children s rights violations in Scotland, additional devolution of powers to the Scottish Parliament could provide an opportunity to further advance children s rights, provided they are used effectively and appropriate delivery mechanisms and accountability structures are put in place. It is thus vital that the Smith Commission takes a rights-based approach to any further devolution of powers to ensure that such changes advance children and young people s rights and work towards the eradication of child poverty and inequality in particular. Principles Any further decisions on devolved powers should be underpinned by clear objectives and viewed and judged to the extent to which they further children s rights in Scotland. The Smith Commission should consider what rights in Scotland are being affected negatively by the current constitutional set up and seek to amend and progress accordingly. The existing framework of human and children s rights in Scotland should be protected, whilst ensuring that advancements are made to allow the Scottish Parliament to progressively realise UNCRC rights. At the forefront of decisions around further devolution should be an aim to develop an integrated, coherent and well functioning system which allows for support to be delivered effectively to all children and young 1 United Nations, United Nations Convention on the Rights of the Child, 1989. Available at http://www.ohchr.org/en/professionalinterest/pages/crc.aspx
people, taking account of the particular needs of the most vulnerable and disadvantaged. A piecemeal approach should be avoided: o o Wider consideration should be given to the range of fiscal, economic and labour market powers in relation to the devolution of social security powers; Reforms which do not deal with the package of benefits overall for identifiable categories of claimants will lead to inconsistencies and anomalies in the system. 2 Further powers by themselves will not be enough without the political will and determination to affect change. Any meaningful devolution of powers should not be constrained by limitations placed on the Scottish Parliament, such as the parity principle applied to Northern Ireland. Some of the party submissions to the Commission in the UK Command Paper call for uniform rates of benefit for all benefits. If this were to be applied, effective devolution would be hindered. The United Nations Convention on the Rights of the Child (UNCRC) The rights outlined in the UNCRC are interconnected and have equal importance. Article 4 of the UNCRC, however, is particularly relevant to this submission. This calls on States to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights in the Convention. With regard to economic, social and cultural rights, the call is for States to undertake such measures to the maximum extent of their available resources. The International Covenant on Economic, Social and Cultural Rights, which the UK ratified in 1976, contains a number of requirements, including (1) Minimum core obligations (children must be ensured the minimum essential level of rights); (2) States must progressively realise these rights and show they are moving towards them expeditiously and effectively as possible; (3) Regressive measures are not permitted; (4) Economic policies must not have a discriminatory impact and the State must prioritise the most socially deprived children in economic policy making. The Smith Commission must therefore consider how the further devolution of powers can help the Scottish Parliament to deliver on their international obligations. Any devolution of social security powers must be undertaken within the context of the framework set out above. It is vital that the Smith Commission takes a rights-based approach to further devolution of powers in Scotland. 2 Professor Paul Spicker, Submission to the Smith Commission on the devolution of powers to Scotland, 2014. Available at https://paulspicker.files.wordpress.com/2014/10/spicker-submission-to-smith-commission1.pdf 2
Any changes to the current constitutional set up should equip Scotland with the powers to prevent regressive steps in terms of the level of protection for children s rights. I also believe that it is essential for the Smith Commission to consider undertaking a Child Rights Impact Assessment (CRIA) 3 on any proposed changes, so that the impact of any changes on children and young people, including any unintended consequences, can be fully understood. There are many areas where the split between reserved and devolved powers causes difficulties, for instance with respect to measures to tackle child poverty, kinship care and trafficking. My office would be willing to advise on the conduct of a CRIA on final proposals. Areas for further consideration I have highlighted below a number of areas that the Smith Commission should consider with regards to further devolution in Scotland, but I want to be clear that there are many other areas that may advance children s rights. My submission should not be viewed as a comprehensive list of areas of change but rather as a starting point. I have not, for example, discussed asylum or immigration or the impact of taxation and increased fiscal levers, though these may be of equal importance to advancing children s rights in Scotland. Constitutional Change The Smith Commission must consider how Scotland may progressively realise children s rights and protect and strengthen the existing human rights framework in Scotland through further devolution. In particular, minimum levels of entitlement contained within the Scotland Act, 1998, must be protected and there should be adequate safeguards in place against regressive and potentially damaging measures. Levels of accountability should be secured so that authorities and decision-makers are held to account against a robust and effective human rights framework. It is also important that the Smith Commission considers the need for continued commitment to human rights in the face of the conflicting political discourse between Westminster and Holyrood relating to human rights legislation. In particular, Scotland must have the power to ensure that any repeal of the Human Rights Act (1998) by the UK government and withdrawal from the European Convention on Human Rights (ECHR) has no impact on Scotland, particularly with respect to reserved areas. There are significant risks to levels of protection for human rights in Scotland if proposed 3 Scotland s Commissioner for Children and Young People. Children s Rights Impact Assessment: The SCCYP Model, October 2006. Available at http://www.sccyp.org.uk/uploaded_docs/children's%20rights%20impact%20assessment.pdf 3
measures at UK-level are enacted. I support the Scottish Human Rights Commission s call for a mechanism to be established to ensure that the UK Government s exercise of reserved powers is assessed for its impact on the human rights of people in Scotland. Welfare The current constitutional framework requires coordinated action between the UK and the Scottish Government to tackle child poverty due to the separate location of individual relevant powers. My view is that all working age benefits should be devolved to the Scottish Parliament, as this ensures coherence and avoids isolating benefits. For this to work effectively, this must be accompanied by commitments around financial security. Welfare should continue to be funded through Annual Managed Expenditure (AME), which would ensure protection of Scottish welfare payments. The Child Poverty Action Group (CPAG) notes that the implication of a UK cap on AME in relation to social security spending would need to be considered in any devolution settlement. I support their view that an AME cap degrades the social security system s ability to address poverty by effectively introducing rationing of basic support. Further devolution must not be used as a cover for cuts. We need to ensure that welfare powers are matched with adequate fiscal and economic powers. Child Benefit I support the devolution of child benefit, especially if personal taxation is devolved. This benefit is easy to administer, it is universal and thus does not stigmatise those who are in receipt of it. It has the potential to make a real impact on poverty in Scotland, offering long term entitlement. Housing Benefit In principle I support the devolution of housing benefit and feel that this has the potential to reduce housing costs, which will in turn help to reduce child poverty. However because of the overlaps with other welfare benefits, these benefits must be considered as a whole. Decoupling them could have a negative impact on other areas, and would further complicate the welfare landscape. Devolving housing benefit without ensuring sufficient revenue powers could be problematic, because of unpredictability in the housing market. Consideration should also be given to the link between housing benefit and universal benefit. Proposals to devolve only housing benefit and attendance allowance need further consideration as devolution of housing benefit will 4
require changes in Universal Credit. Furthermore, the devolution of Attendance Allowance must also extend to Disability Living Allowance. The devolution of housing benefit illustrates why it is important to focus on powers for a purpose, as well as ensuring we are aware of the way in which they link to other powers, including fiscal powers which can act as levers to fund the use of other powers, e.g. around energy supply and the freedom to borrow. The limited time allowed for responses to the Smith Commission has meant that not all these ramifications (and possible unintended consequences) have been fully explored. Employability My view is that the work programme should be devolved to Scotland to ensure coherence for job seekers and limit the current confusion for young people seeking work and having to juggle their way through a maze of related services. Consideration should also be given to social security benefits and the operation of Job Centre Plus. Devolving the Work Programme to Scotland would also allow for programmes to be developed that are much more appropriate and responsive to the local labour market and local employees. It would also allow for creativity and thinking through bespoke and radical solutions, whilst developing and supporting the local skills base. This would help to minimise what has often resulted in poor skills/ job matching which can be demoralising for claimants. The current system results in many claimants feeling undermined and failing to turn up for work placements, thus exposing them to the punitive sanctions regime. It is essential that the sanctions regime be reviewed if such an area were to be devolved as this could result in a sanctions regime imposed from Westminster but operated through a devolved service in Scotland. Enfranchisement of 16 and 17 year olds My office has long called for the extension of the voting age in Scotland to 16 and 17 year olds, in line with Article 12 of the UNCRC (the voice of the child). 4 Although Section 1 of the Scotland Act, 2012, will extend the powers of the Scottish Parliament with respect to the administration of elections, the ability to extend the franchise remains a reserved issue. Given the recent high levels of political engagement in the Scottish independence referendum among 16 and 17 year olds and the subsequent political consensus that the voting age should be lowered to 16 my view is that the enfranchisement of 16 and 17 year olds should be adopted in all Scottish elections. 4 Including http://www.sccyp.org.uk/news/in-the-news/votes-at-16-commissioner-supports-youth-charities-call 5
Equalities law In line with submissions from LGBT Youth, Who Cares? Scotland and others, I urge the Smith Commission to seriously consider the impact of further devolution of equalities law, to allow the Scottish Parliament to ensure that Scotland is able to address discrimination of children and young people on the basis of their age and proactively recognise the groups of children and young people who are at greatest risk of facing inequality and are in need of critical legislative protection. Issues relating to protected characteristics should also be given attention. Listening to the views of children and young people I recognise and appreciate the need to harness and sustain political momentum following the independence referendum, but have concerns that the short timeframe will prevent many organisations and individuals from providing full and informed evidence-based responses. There is insufficient time to engage effectively with children and young people and their families prior to the October deadline, yet it will be important to ensure that their views are fully reflected in any plans for further devolution. In light of this, it is imperative that this discussion represents the start of a nationwide conversation about further devolution and constitutional reform in Scotland, rather than an end in itself. It is concerning that the Command paper mentions children only once, despite there being 1.1 million children and young people in Scotland. Their rights should be brought to the forefront of the decision-making process in order to ensure that their best interests are taken into account (Article 3 of the UNCRC). If you require further information, please do not hesitate to contact my policy team in the first instance at chloe.swift@sccyp.org.uk. Tam Baillie, Scotland s Commissioner for Children and Young People October 2014 6