 Good morning, everyone, and welcome to the second meeting in 2018 of the Social Security Committee. I can remind everyone to turn mobile phones and other devices to silent as they may disrupt the broadcasting. Today's meeting is to take evidence on the Scottish Government's proposals for a Scottish Social Security Commission and I welcome, sorry, our first agenda item, which is to agree to take item 3 in private. The committee agreed to that, and agenda item 2 is to welcome to committee this morning Dr Jim McCormick and Judith Paterson. Dr McCormick is chair of the disability carers benefit expert advisory group and Judith Paterson was the chair of the work screen on the scrutiny work that was undertaken by that commission. We welcome you both to committee this morning, particularly as it was relatively short notice, so we are very glad to see you this morning. As an introductory question, in your document you recommend that the size of the commission would be around the five number, not a definite number, but around five commissioners. Do you think that that will give enough breadth of knowledge and expertise within the commission to fulfil the functions that are required? Good morning, committee members. I guess today that there is the findings and recommendations of our work stream, which Judith chaired, and then we have, as of last week, the Scottish Government amendments and indeed other amendments from members. On the size of the proposed commission, the proposal to have a chair plus maximum for other members is a Government amendment rather than a work stream conclusion. We did not take a view on the size of the commission, but I offer one thought, which is that it strikes us that this commission, when it is established, will have different phases to its work. Certainly for the duration of this Parliament, when it is in set-up mode and is taking regulations for assistance, up-streaming in a sense, so quite a lot of intense activity, it might be that that number is too small, so it might be that we need to have the flexibility of a core membership but also to be able to draw routinely upon committee or sub-committee members in a way that would not be true perhaps in steady state, further down track when there are fewer regulations coming in a typical parliamentary year. We have an open mind about that, but we are not sure that there is a simple answer, even though the bill will require some clarity and precision on that point. Just to add to that, it is useful that the amendments provide for there to be the core membership of the commission plus a wider and more flexible membership. I think that I would expect that a commission would have to draw upon that flexibility. Thank you. Mr Tomkins, you wanted to come on. I mean it. Good morning. I just wanted to ask whether, in general terms, you thought that the Government amendments met the recommendations, satisfied the recommendations of your report? I would say that our core advice was that there did indeed need to be an independent scrutiny body to provide that independent assurance of how policy is translated into workable legislation and to drive the learning and improvement that is needed in the system. On those primary functions, yes, we see in the amendment that there will be a scrutiny body, which will be statutory, which will provide scrutiny of regulations, as well as oversight via charter principles. Those core functions are absolutely in line with what the body recommended. In terms of wider issues, some things are left more open, more flexible, or just more open. I think that there are still decisions and conversations to be had down the line about exactly what that ends up looking like. I will just add to that that there is both provision for ministers and Parliament to request this commission to advise and report on various themes, but there is also a general powers provision, which I think is quite important, which would allow for a commission that is there to be independent to have discretion and to be able to proactively report both when requested but also when it chooses to, when it sees a reason to make a particular report. Broadly, we think that the functions and recommendations that we outlined in our report have been addressed fairly thoroughly. There are particular points that remain more open, but some of that is probably okay in terms of how the commission would want to operate. I think that there are not very many red flags, if you like, in the amendments that we have seen thus far. For me, and indeed for the whole committee, given what we said in our stage 1 report on the social security bill, what is really important about that is that the commission is independent, that the commission's recommendations are in public and that ministers have to give reasons in the event that they disagree with or want to depart from any of the recommendations of the commission. That seems to be all to be in the Government amendment and is therefore to be welcomed. What would you say to a challenge that in terms of the making of substantive social security law in Scotland, those amendments will make an unelected commission more powerful than elected MSPs? I think that I would like to just really highlight the very different roles that the commission has compared to the role that the Parliament and this committee has. The role of a commission is to not try and challenge Government policy. It is to provide assurance that policy has been arrived at in the way that it should have been, that options have been considered, that the impacts have been considered on various groups, that the delivery challenges have been explored. It is not challenging the policy itself. Of course, Parliament can do all those things but Parliament can do much more, which is to hold Government to account for the policies that it said it was going to deliver, has it delivered them and for its own views on whether those policies are right or wrong. They are really very separate. For this to work, the commission has to complement the work of Parliament. We might want to talk about the enhanced scrutiny that comes along with that. I can see that the amendment leaves it rather open for Parliament, for this committee, to decide what kind of enhanced scrutiny it wants to bring to bear on a case-by-case basis. There is an argument for saying that that very case-by-case nature could be a strength, that the superaffirmative is not pinned down in the bill. However, there are issues for Parliament to consider about where it really does get to make a difference. Throughout the whole process of our scrutiny of the bill, we have been thinking quite hard about the relationship between primary and secondary law-making powers. We now also have to think about the relationship between the powers and functions of the Parliament in making law and the powers and functions of external advisers such as the proposed commission in making law, because it is a law-making function that the commission is going to have. That leads me to my final question about this, which is that the one thing in your report that really jarred with me was the recommendation that, as well as having a role in advising on law-making, which is a role that I fully support, the commission should also have a role in scrutinising and almost enforcing or investigating complaints about the charter. That seems to me to be not appropriate, actually. It seems to me that playing a role, a very important role, in the making of regulations is a very different function, indeed, from ensuring that those regulations are then implemented properly in accordance with the principles, in accordance with the charter. I will not be supporting any Government amendment that seeks to blur those two functions, because I think that that is actually quite an important constitutional point in terms of the separation of powers. Those who are involved directly or indirectly in the law-making process should not be involved in, as it were, policing or enforcing or investigating complaints about how those laws are then implemented. I just wondered if you could respond to that. We approached all those questions with completely open mind, and there were different opinions to start within our workstream on this and other points. There is an immediate draw here between complaints that take the pathway of individual redress, and colleagues from SPSO next will have a lot to say about that. That is a separate pathway from what we envisage the body might do. When we talk about oversight, I guess that it is trying to spot how the system is performing as a whole against the principles in the bill and how those get expressed in the charter. We were not persuaded in the end that, when you add up the existing functions of SPSO, Audit Scotland and possibly others, that there is a distinctive and specialist spotlight on performance of the system. Clearly, those are the bodies that will have particular lenses on how the system is performing—value for money, complaints and so on. On broadly performance of the system against what is there to do at a systemic level, we think that someone has to perform that oversight function independently. We are not sure that other bodies can do it currently. It is possible that their remits could be expanded. We thought that there was still a question to be answered, and we thought that probably it is consistent to bring together those roles in one body to make it proportionate and viable. We concluded that they could sit together, but, of course, that would have to be tested. That is why we also proposed a review clause to see how those functions are being exercised and how they are set with other bodies and also with parliaments. Mr Balfour, you put your hand up. Is that a supplementary on that area? I just want to follow both those comments up and maybe to start with where you just come from. Having looked at the Government amendments and looked at your report, there seems to be a slight blurring of what is the function of the new independent commission for everything that we want to give it and the role of this committee. Going back to the point that was made by Adam Tomkins, the new commission will very much have a role of scrutinising, commenting on legislation. You do not think that you will become a judge in jury if you take on the investigation role as well. Is that not a role for this committee to do if it is looking at the oversight of how it is all going, rather than an independent commission? My second question is just going back to Jude of Patterson's remarks, if I could, in regard to having a flexibility within superaffirmative. It seems to me that, as the amendments are drafted at the moment, the power of the minister and of the commission seem to be far greater than that of this committee to decide how they want to deal with future regulations. If you could impact a bit more on how you feel the balance is right between the executive and the commission and the Parliament, which is clear that you can have a triangular, important role. I put my cards on the table. I think that the power has gone too much to two of the three groups, and I have been interested to get a few more comments on that. In terms of the enhanced scrutiny and the relative roles of the commission and the Parliament, it might be useful to say a little bit about the sequencing of the scrutiny. My understanding is that Governments will make proposals public to the commission, to the Parliament, to the public at the same time. There can be a concurrent scrutiny of the commission and the Parliament with access to the same information. The commission then provides a report that is in public, with its views on things such as impact and delivery challenges and options, human rights and equalities. When that report is laid, there is another intervention point for Parliament and for this committee to have access to that thinking. The next stage is that regulations are laid by Governments at the same time as the Government's response to the commission's report. The timing of that will be important for Parliament to consider whether that timing is not within the committee's control, nor is it within the control of the commission that the Government holds that timing. Whether that provides sufficient time and space for Parliament to have access to full information and to give full scrutiny to the provision. Is that sequencing and timing that might be critical here? I guess that culture and practice might make all the difference in that respect. In a practical level, where do you see the time where either members of a public or third party charity or interested groups have the opportunity to reveal evidence before in that sequence? Do you see that evidence predominantly going to the commission or rather than the Parliament? I think that the commission would want to decide on a case by case basis whether it felt that it was necessary to go out and seek those kinds of views and have that public consultation. There will be nothing to stop people submitting their views anyway because the proposals are well known. Some regulations will be complex and controversial and others will be very straightforward. In terms of what Parliament does, there is potential for confusion if Parliament also chose to have a consultation process that was running at the same time. I think that there would be need for bodies to work together to make sure that external parties knew exactly how their contributions would be most effective. What you have just been talking about, Judith, is the nub of the matter for me. I think that confusion needs to be cleared up forthwith. I agree with you that the timing is absolutely the case. As far as I am concerned, the Parliament would want to consult, and I think that you would make that assumption. I think that that needs to be resolved. Had you had any discussions with ministers about the timing of that, I am trying to get an understanding of that. The role of the commission, in essence, is to provide expertise on regulations. It is that informative aspect of it that is informative for the public, ministers and the Parliament. However, at what stage, when the Parliament would be able to use that expert advice and get the regulations amended accordingly? Should that not be set out a bit clearer, given that you have said that there would be confusion over that? I do not think that we have had discussion with ministers on that point. As a work stream when we were consulting with people, including the Delegated Powers and Law Reform Committee, we simply took a view that there was no reason why the scrutiny that the commission performed could not sit alongside a superaffirmative process. However, we did not take a view on what that superaffirmative process should be. The sequencing was important and the timing was important. I suppose that we have not gone any further than that. However, you are right to identify how the bodies work together as being a very important part of that. I will get a few other questions on different areas. On different areas, I have other people to come in. We will move on to that, Pauline. Mr Griffin was your supplementary on what has been discussed. I will break you in at the moment. I think that the reason that we got to that point was because there was a concern within the committee and outwith the committee that the balance in favour of secondary legislation could lead to a situation where the committee could well agree with 99 per cent of what was tabled by the Government and could have an issue with just a small aspect that could lead to the whole set of regulations being rejected. It comes down to that issue of the sequencing and timing. Just what role do you see for the committee and Parliament in interacting with the work that you do? Would you be seeking the views of the committee in advance of preparing a report, or do you see the commission's role as purely to advise the committee rather than seeking any views? Ministers will give their own version of that. Our understanding is that the Government wishes to draft a set of amendments that would allow for the committee and the whole Parliament, to be able to make its own choices, as Judith said, case by case, depending on the type of regulations, as to where you choose to be involved and to what degree. I think that it is quite important that the committee asks quite a search for questions to get assurance on that point, because I think that the ideal would be that you and others in the Parliament get expert input and assurance or not, as a case may be, depending on the regulations, in a timely way that allows you to perform the function that you want to perform, and not run out of time or not get a commission report too late or not find regulations laid and you have to take it or leave it. So having some space once the commission has reported on regulations, knowing what the Government's response to that is, but before the regulations are firmly laid, that would be the ideal. That would give us a position that we currently don't have with Westminster and the other advisory bodies. I think that it is quite important, as fast as possible, that space is created and preserved in order for your role, the role of parliamentarians, the role of the commission to be genuinely complementary and to clear up concerns about confusion and duplication. For me, that should all be about giving assurance to ministers in Parliament or challenging where appropriate. It shouldn't be about trying to usurp or duplicate or make things more complex than they already will be. In terms of who does what, when one of the amendments, amendment 55, paragraph 7, does allow ministers to lay regulations without giving our response to the commission's report. Just to draw attention to that, it might be something that you want to explore with ministers about how they think that that might, that power might be used. It looks like something where they think that a provision is urgent and needs to be expedited, allows the Government to do that. The committee might want to explore where it sits with that kind of urgency provision. Just for clarity in the context of what has been said about expert input giving assurance and being complementary, is my understanding that this committee in Parliament will also be able to request the commission to look into things? That's the case, isn't it? Yes. There's explicit provision for ministers and Parliament to request advice from the commission, essentially. May I ask another question, as well, convener? Is it on this area? I'd rather move on to the other areas and move on. I will come back to you. Can I bring in Alison Johnson? Thank you, convener. I think that Judith Paterson touched on this area. Last year, controversial changes were made to PIP to undo the impact of a tribunal decision without consulting the United Kingdom Social Security Advisory Committee. Given that, and I'm quoting the spice briefing that we've received for this meeting, draft regulations could be laid before the commission had reported. Could the commission here be bypassed in a similar way? One of the things that our workstream report recommended was that all regulations should be put to the commission and there shouldn't be exceptions to that, as there are with the UK SAC. The UK Government has that urgency provision to lay regulations without coming to SAC. This amendment doesn't allow that to happen, in fact. If that were to happen again with those PIP changes, the Government would have to put the proposals to the commission before the regulations were laid. It couldn't happen the other way round. The urgency that's built into those amendments in Scotland is that the proposals would come to the commission and the commission would report, but the commission might not have time to report before the amendments are laid. It's not the same. It's not as bad, if you like, as a UK provision. Couldn't it happen in that way? For context, it's worth reflecting on. In the case that you mentioned around PIP and the judges' decision on that, the UK Government's decision not to consult on the changes because they had done previously some years earlier consultation in the prime legislation was not taken as a very strong argument. That was one of the main weaknesses and one of the main reasons that led to that judgment. You've identified a really significant point about yes, there should be ample scope for thorough and rigorous scrutiny during primary legislation debates, but that doesn't get away from the needs for scrutiny and, where appropriate, thorough consultation around at least some of the regulations as well. There may be also times when guidance is so significant that it needs to be given its own dedicated scrutiny as well. We think that the amendments broadly allow for us to be in a better place in Scotland, but it is definitely worth asking the committee about how it sees any exceptions. We understand that the only exceptions broadly are when secondary legislation is being consolidated, so it's already been round the loop, if you like, but it would be worth asking more about that point of ministers. On that question, if exceptions, regulations relating to determination of entitlement, the creation of new criminal offences and other issues appear not to be open for scrutiny by the commission, when do you have any reservations about those exceptions? I think that I would have to get back to you on that point. I'm not very clear myself whether that's the case. I think that I had thought that all social security regulations would be subject to scrutiny by the commission, but I'll have a look into that. I would just like to follow in from something Ben Macpherson mentioned earlier on, and I think that it gets it up, because I'm not buying into the, this creates the commission or the ministers are more powerful than the Parliament itself. I'm just not buying that malarchie, but the whole idea that I'm saying here is the fact that, as Ben Macpherson says, we could actually commission as a committee somewhat to get them to do some work on behalf of us, as you said earlier on, and does that not just add to the fact that we've got that further scrutiny then, because Parliament effectively is guiding it from that perspective as well, if we're proactive as a committee? I think that that provision in the bill would give a clearer relationship to Parliament as well as to ministers than, in effect, we've got at Westminster, so that would be giving more assurance, I think, about the legitimate role of Parliament. I think that what's important is that Parliament feels able to use that ability to draw upon advice at the right time, and I think that when you consider the nature of social security complex, there are interactions with the UK, obviously. It's broadly a start-up activity at speed, so that this ought to be a form of expert assurance that can be drawn upon as appropriate. A point that Judith made a lot in the workstream is that getting the bill and the amendments right is really important, but getting the culture and relationships right is really what will make this work or not. That will be down to whoever is on the commission and how they interpret alongside Government and Parliament those relationships. That's what we have found as SAC members, being able to be challenging, but also have a constructive relationship with different bodies is tricky, but that's the space that we should be aiming for with this. Ministers should be able to seek advice but not require such advice, but, according to our note, the proposals would allow ministers to direct the commission. The functions of the commission include, in the same terms, that both ministers and Parliament can request that the commission report on any matter. The independence of the commission is absolutely critical for people to have trust in it. It needs to be independent to do its job. You are right to highlight the ability of ministers and Parliament to request that advice. Is that a request that has to be delivered, or does the commission have the ability to say no? I think that, as Jim said, that's probably not something that you need to fix in legislation. It's about culture. We've got a chance in Scotland because we're setting this up from scratch, and we're building relationships from scratch to set the tone and get the culture right from the beginning to make sure that the commission is able to give its expert input in the most helpful way to both Parliament and ministers and not get tugged in directions that are actually unhelpful, which I think potentially could happen, because the bill is written in a fairly open way. You would be concerned if the functions of the bill were designed to direct the commission to undertake work that would concern you, because it would remove its independence? The primary duties of the commission are to scrutinise the legislative proposals. First and foremost, and the strategic oversight of the system as well. With a small commission in proportion at resource, how much is left over to provide advice? We won't know until we're there. My concern would be if there were requests coming that couldn't be delivered because of resource, or shouldn't be delivered because it was compromising independence. I just wanted to get back to the scrutinising function of the commission and inquire about how the new scrutiny body would ensure that the Scottish Government has independently held to account for delivering on the commitment within the principles and, more widely, of approaching social security differently than it is delivered currently, and that the system fulfills people's human rights by treating them with dignity and respect. A great deal of how your question gets answered lies in what the charter looks like, how well it expresses the principles of the bill, and how clearly understood and communicated the charter is. In reality, we want to have a system and an agency in a charter that does a really good job consistently in making sure that decisions are right first time upstream, that where things go wrong and things will go wrong in every bit of the system, that's just the nature of the system, but when things do go wrong, there is local and rapid resolution. We minimise unnecessary escalation, so we try to locate responsibility for resolving things at the right point in the system. There will be, one would imagine, an early clear route to requesting redeterminations, to appeals to the tribunal service, separately to individual complaints, and we'll hear more about that in the next session. As fast as possible, when people have problems about their treatment, so procedurally, the outcome, the rate of payment, or mistakes that are being made, we want people to know quickly how those should be fixed, to be supported. There has been quite a lot of discussion around supporter roles around the bill, and we need to have recourse to more formal procedures and escalation where that's appropriate and where necessary and to make sure that's done in a timely way. Codifying and articulating that in the charter is the single biggest task that lies ahead of us to get this right in most cases. Absolutely, and that's a collective responsibility. It's important for us all to recognise the commission's role in order to assist with the delivery on the requirements of human rights, and I thank you for that input. I have a question to ask if the commission should have any role in terms of oversight with any guidance that the Government produces? People did tell us that they thought that there should be a role in terms of scrutinising guidance, and the reason for that is that, generally in the social security system, not just the Scottish devolved benefits, more and more is left to discretion rather than in acts or regulations, and that discretion is governed by guidance. Sometimes that guidance can be just as important as the regulations themselves are very much deserving of scrutiny to make sure that the guidance works as well as it should for people. In the amendments, there is no formal role built in for guidance, but looking at it seems to me neither is it precluded, and it might be that that's something that this committee might want to keep an eye on as guidance emerges, that if the Government isn't asking the commission to look at guidance and the commission isn't of its own volition doing it or able to do it, it could use the power to request advice on something to make that happen. I do think that it's not necessarily something that you'd need to build in as a primary function in legislation, but it's something that I think the commission could provide a very useful, possibly even necessary role in. All that is predicated by it has to be proportionate, because there's guidance on absolutely everything, so it would need to be guidance of the kind of order that's substituting for regulations, if you like. It's driving the rules. Are there any further questions from the committee? Can I thank both Dr McCormack and Judith Paterson for their attendance this morning? If you could get back to the committee regarding the issues raised by Ms Johnson, that would be very helpful. Indeed, if you feel that you want to give any further information to the committee, please feel free to write to us with that information, but thank you very much for your attendance this morning. Next witness panel, we want to welcome to committee this morning. Again, we've really appreciate you coming this morning. Rosemary Agnew, the Scottish Public Service Ombudsman, Nicky McLean, director and John Stevenson, who is head of improvement, engagement and standards Scottish Public Service Ombudsman. A very warm welcome to committee this morning. Can you give us an indication of what discussions you've had with the Scottish Government about handling complaints related to the charter and the broader decision-making standards in the social security system? Thank you. Good morning. Thank you for inviting us. We've had discussions, obviously, about the need for who handles complaints, what legislation is required in order to introduce that and ensure that complaints are handled at the appropriate time in the right way, but we've also spoken with them about the wider issue of learning from complaints for improvement and the role that complaints themselves have in terms of scrutiny, because if all you ever do is answer individual complaints, nothing much ever changes. Because this is new legislation and this is not just new, this is fairly fundamental in the sense that it is an opportunity to do something different in a different way. For me, the point that we have consistently made is that legislation is important, standards are important, but what we need to do is keep sight of the person. That becomes important in the context of complaints because we're talking about the individuals needing assistance who are likely to be at a very stressful time, a most vulnerable time, and we need to try and keep it as simple and straightforward as we can for them. In terms of our discussions with Government, we have considered the proposed changes in terms of should there be a complaints process in relation to rights, and we have discussed with them concepts of oversight because there are other issues that flow out of complaints. We learn lots of things. What do we do with what we learn? What do we do with the information that we identify about systemic issues because they are likely to be the things that give an indication of how well the charter and, therefore, how well the act itself is working. In that context, our discussions have also included information sharing, and we think that it's crucial that we are able to share information with the Commission. I'll perhaps pick up on why I think that's so important later. We also think that it's crucial that we are able to get access to DWP information, and this is largely drawn on our experience of the reviewer for the Scottish Welfare Fund. Time is critical when it comes to assistance. I'm conscious that there are complex complaints that come to us that can take a year to look at, not because anybody is doing anything wrong, but they are so complex. With complaints about assistance, like reviews of the Welfare Fund, they have to be done virtually in real time because somebody is depending on money. The information sharing, which is the other area that we've talked about, is also crucial in terms of complaint and oversight. The one other thing that the committee might want to consider, is that we're focused on information sharing between ourselves, the Government, DWP and the Commission. However, when you look at the breadth of what a charter will look at in terms of rights, there are likely to be other organisations in the public sector that will also have information that tells you about how those rights are working in practice. The context in which information can be made available to look at systemic issues becomes very important. That perhaps brings me to a comment about the commission itself. I've picked up from this morning that they're talking about this idea of can you look at complaints about the charter? Can you look at complaints about rights? Should you have an oversight function? To an extent, the semantics are getting in the way here. If we think of it from the perspective of a service user, somebody who wants assistance, they apply for it, they don't get what they have applied for, there is an appeal tribunal route in terms of the actual decision on their money. However, what happens if in the process of that, officers are busy, we all have bad days, they're rude to them, they don't respond to correspondence, they don't take account of essential information because something in the postroom went wrong, those are service issues and they will come to the SPSO. However, from the individual's perspective, they're unlikely to say, you breached my right under the charter, they're likely to come and say, I didn't get my money in time and it's because of delay and because of this, and that's why the SPSO is important, because everything comes back to the charter. I completely agree with Jim McCormick, the wording of that charter is crucial, because what flows from that are processes, procedures, timescales, policies and what they should be doing is embedding the charter into the day-to-day delivery of assistance. The average person should not need to know that I have a right to this, I have a right to that. They have a right to benefit and they have a right to a good service and they have a right to be treated like a human being with respect and dignity, and if that is embedded in the way the service is delivered, then that charter is met. If the service is not delivered in the way that those policies, procedures are implemented or even written, then we're likely to pick that up at an individual level. Almost by definition, if there is maladministration in the delivery of the service, there should be a way of translating that back over a period of time to whether there are systemic issues or even personal things about the way individuals are treated. Used in that way, the charter almost becomes a set of service standards in the way that we would look at complaints. That's very much in keeping with the complaints process anyway. What this leads us to is that it may well be that a particular individual applies for a couple of types of different assistance and they get the money that they've been entitled to, but it's a long-drawn out process. One would hope not, but worst-case scenario, the complaint to us may well be that I applied for this benefit and I applied for this assistance, and whilst ultimately I got what I was entitled to, the experience was appalling and it was awful. We monitor those over time. We do that with complaints now. In fact, what we find is that well over half of the recommendations that we make are about service-based issues, about service improvement. For a new function, service improvement is even more critical because it's telling us how well that service is being designed and embedded in. Jim earlier said that it won't go perfectly from the start, but what we have to do is ensure that we've got a way of picking that up quickly. What do we do with that? This is where I come back to the point about, I think, semantics have got in the way because there is a difference between oversight of the effectiveness of a charter and complaints about the charter. Complaints will be predominantly about service, but there will be other groups—it may well be an advocacy group, a third sector group—who find through their stakeholders and users that there seem to be flaws in aspects of certain bits of the charter. That is not so much about complaints about it, but concerns, comments and issues. It is important that the commission is able to take those and look at them in a more abstract and holistic way. I use the example of where we gather information from our complaints about health. We are part of the intelligence bit, the health improvement Scotland, and we share this so that there can be a holistic look at that sort of performance, but for social security that does not exist now, so we in a way need to create that. If we are sharing our intelligence with the commission and they also have the powers to look at other concerns, that would give a very good basis for a challenging but, more importantly, improving feeding back to this committee and to ministers. It also gives you a different lens through which to look at regulation. When you are considering new regulations, I will leave aside all the debates about space and time. If purely in terms of a regulation that is going in, the experience that we are having fed back to us is this, this and this, and we think that this regulation will either fix it or not. I guess what I am saying is that, by having an SPSO complaints process, by having a commission that has the ability to look at concerns and wider issues, but not necessarily couched in terms of complaint, what you build is a way of looking both at wider and particular and a bridge between them, and the feedback route then is about the scrutiny and the development of regulations and performance over time. Some of this will not come out for six months, possibly longer, in terms of whether those issues emerge, but my experience of having been in organisations when new regulation comes in is that you are probably better with less detail than more, because as soon as there is specific detail, like you can send a complaint to, you are stuck with that, whereas if you give an oversight type function to both the commission and we have one already within our own act, what you are doing is giving the flexibility to look at the things that you do not expect, because you cannot foresee what those issues are likely to be. The other fundamental thing in this is that it opens the scrutiny of the system to a wider number of stakeholders, so you get different perspectives on the effectiveness of different things. I will also pick up another point that Jim made about the charter. My understanding from talking to the Government is that this is going to be co-production in a sense. It should involve those who are going to use the service, citizens, which I think is a really good way of going in terms of doing that, but the scrutiny of it actually is the really important thing, because charters tend to be written in very broad terms, which is great and it is good, and they are very good in terms of principle, but if we do not give ourselves reassurance at every level that those principles have translated into somebody getting their assistance in their bank account when they need it, then they are sort of empty words. I think that it is really good that we have service complaints come to the SPSO, and I am not just saying that because I am the SPSO, I have a really good team around me and we are good at looking at those things, but for me the fundamental thing beyond that is the ability to share intelligence and that it goes to a central place that can take holistic view and give effective feedback and reporting to both the Government and the committee. Thank you very much for that answer. The clarity that you have given about individual complaints and the strategic oversight is that Dr McGovern used to describe the role of the commission on that. Have you had any discussion about how that feedback loop would work? Would it be a relationship between yourself and the commission, yourself and the Government, or do you see it being a mixture, or is it just too early to have a conclusion on that at the moment? I think that it is too early to have a conclusion, but I would come back to the point about less detail is probably better. It is worth thinking about in terms of the legislation being the enabler rather than the instruction on what to do. The enabler is effective information sharing. The enabler is the ability to raise issues at any point. The enabler is the powers to be able to bring things voluntarily if I were the commission to this committee. My own personal approach would be to think of the legislation as the enabler and that enabling framework is the translation of it through the detailed regulations through the charter that become the really important bit. I said that I was not going to comment on timescales and space and stuff, but this is as much a personal perspective. If we want regulation to be right, we have got to give it enough time to be scrutinised properly. I have been lucky enough—I think that luck is the right word—to come into work in environments that are legislatively bound and work within a framework. If the enabling framework and the detail of it are not carefully thought through and looked at by lots of different people—that is the important thing—you get different comments of effectiveness of it in different ways—you end up with something that you start doing work-arounds with, which just makes it complicated for that person at the end point who just wants to say, please can I have some money? Mr Tomkins, you wanted to come in. Good morning. Before I—can I just ask a preliminary and technical legal question before we go any further? Given the way that the Scottish Government proposes to set up the Scottish Social Security Agency as something within the administration, do we need an amendment to the SPSO Act to give you the jurisdiction to investigate complaints in relation to the agency, or is it already there because it is part of the Government? Already there because it is part of the Government. The amendment that I would suggest is not in relation to giving us the ability to look at complaints, but it is the specific ability to share information with the commission. We do not need to add the agency in terms of the list of authorities and schedule 2 to the act in order to give you jurisdiction to investigate complaints. Thank you. Clearly, your primary function—I believe that we would in order to look at complaints about the commission, but not about the agency. I thought the question was about the agency. The question was about the agency, but thank you for that clarification. That is also helpful. Clearly, your primary function is to investigate complaints of injustice or hardship arising out of mal-administration. What do you do if you have a series of related complaints about related injustice or hardship arising out of related mal-administration from the same agency or body? I am never convinced of the wisdom of saying that I do not totally agree with something, but I do not totally agree with the assessment of complaints as our primary function. It is the one that everybody focuses on because it is the one that gets the most attention, but we equally have a responsibility through the Complaints Standards Authority and the Standards for Complaints Handling and the performance of it. I feel very strongly about that element of our work as well. What we do and are doing—it is an area of our work that we are developing further—is that we are improving our own internal intelligence gathering. Where we find that we have the same issues coming up with the same public body, we will raise it directly with them. Where we find that there is the same issue across a number of public bodies, we can use that information to inform and report in a different way. We can use our reporting powers and things like the report that was issued on informed consent. Where we also find specific types of things, we can share it, as I explained earlier, like the health staff with Health Improvement Scotland. Ultimately, I can lay a report before parliaments on any issue that I find out of complaints, but it is worth stressing that the best learning comes at the front line. In your opening remarks in response to the convener's first question, you painted a picture as if, in your mind, there is a three-way distinction between oversight, complaints and appeals, which will go to the tribunal. I am trying to understand exactly how bright the line is between a really good ombudsman who looks at complaints in the round and helistically and in a joined up way and oversight. It seems to me that what you have just said is that because you have the ability to lay special reports, to bring any matter at any time to the attention of Parliament, much more flexibility than courts and tribunals have to roll complaints together so that you look at them together rather than severally in any desiccated way. That is precisely the oversight that we need. It is, and that is oversight of the complaints. There may be things that are related specifically to the charter or the operation of the act. You have mentioned guidelines before. We can raise those. Some of it is a matter of judgment about whether we do our own report and submit it to Parliament because we think that there is a significant issue. That may well be one route that we take. I would expect to consult with a range of stakeholders about that. It may well be that what we have is information that we think is indicative of something but is not conclusive enough. Although we may find three complaints on the same thing within two months of each other, our own experience of complaints is that the reality is that what reaches the ombudsman is very much the small proportion of what is really happening. Most complaints get resolved or addressed very early on. By the time they reach us, what we have may not be truly representative. We can choose to perhaps go and look into that further. We would talk to the organisations concerned. I do not think that it is a clear line at this point. It is different types of oversight and where it would be best to try to address the issues. If we find a particular organisation, we are likely to tackle that one in the same way that we do now. We found this consistently. How can we support you in getting it right at the point of delivery? Where we find something that perhaps is indicative of the underlying charter rather than an individual organisation, that is where I think that we would need to perhaps involve and report differently and share information with the commission because they have a much wider remit in terms of what they are reporting to you and their relationship with ministers. It is absolutely clear. Your evidence to us is that you already have the powers that you need to look at what Jim McCormack in the first session called patterns of mal-administration. If you had a series of complaints—I know that it is driven by complaints—but if you had a series of complaints that revealed a pattern of injustice or a pattern of hardship arising out of a pattern of mal-administration from a particular agency—in this instance, a social security agency, you already have all the powers that you need to draw that to the attention of us, of the Scottish Parliament, of the Scottish ministers and indeed others. Yes, thank you very much. The important point to note is that we are dependent on the complaints that people choose to bring. If you look at the health sector, for example, there are certain types of complaints that are far more emotive and far more likely to end up at our door, and so what we see is potentially slightly skewed depending on how emotive those complaints are and therefore what people choose to progress. As Rosemary says, it is the tip of the iceberg. I would perhaps raise one other point about our powers. It picks up on Nicky's point about that we are reliant on the complaints that people bring. One of the things that we are talking to the Government about separately in the moment is some extension to our powers that came through a different context. It is about own initiative powers, more consistent with the European Ombudsman model, where we may come across issues that we do not have specific complaints about. Now, some of those would be appropriate to take to the commission, but some of them, I think, our Ombudsman service would be greatly enhanced if we were able to pick those up as well. Now, I am not saying it for this particular bill, but at the moment between us, yes, we do, and on particular complaints and authorities, yes, we do. Thank you very much. An example that you gave earlier, just to make it real for people, you said that there might be service issues where someone says that I didn't get my money on time, but what you said was that the wording of the charter is key. I wrote that down when you said it because I thought that might be a critical point. By that, I will just follow through that example. If an individual repeated the let's see got late payments, the one example that you gave, they would have to rely on the charter in some way to bring the complaint forward. You said that the wording of the charter is key, and I just wanted to be clear about why you thought that was important. The complainer should not even need to, in a way, know the charter's there. They don't have to refer to it in the same way that somebody makes a complaint to us about health. They don't bring a complaint to us to say, oh, this particular hospital didn't comply with nice guidelines. They talk about their experience. Now, why the charter is key is the charter essentially is the framework within which I would expect an agency to write its policies and procedures and the way it is going to deliver its service. The way the service is delivered is almost the translation of those rights and those principles. Let's, for an argument's sake, say that you have a right to be treated with respect and dignity. Somebody coming to us to complain may not say, I wish to complain, I wasn't treated with respect and dignity. It may be that they wouldn't answer my phone calls. So why the charter is key is we, I think, from a perspective of scrutiny, need to be able to see that it is embedded in the way the service is delivered. So if you deliver your service well, then you have delivered that charter. But then there is another side to why that charter is key, and that is in terms of the general principles and wider stakeholders who will understand what some of the issues are that individuals or groups of individuals have been through. The main thing for me is that there is enough between us in terms of oversight and scrutiny that if something is not working, we can trace it back to that charter. It's almost like the genetic strand running through it all. Do you think that there are resource implications if you take on these additional complaints as a result of the creation of a new social security agency? Yes, it's the short answer. I think that, during past experience and the experience that we have between us, the resource implications will come down to a combination of two things. It's the volume of complaints and I think that that, to a large extent, we can do some analysis because the complaint side of it is less likely to be as prevalent as the appeals side. I would say that we're likely to see more people appealing about the amount they've been awarded in assistance. There's probably some way that we can look at national statistics to get a view of what that might look like and what that might translate into in terms of complaint investigation resources. The other resource implication is in John's team in terms of improvements and standards and engagement because if we find that there is something systemic that is perhaps going wrong, it's niki, so we will raise this directly but we do need the resource to do that. We're not talking about huge additional resources, we're talking about perhaps one or two people but it would be wrong to say that there's no implication. My plea is that the resource is considered not just in terms of numbers of complaints but in that value-adding work that is there to try and get it right first time for public bodies. Thank you very much. Are there any further questions from committee members? On that note then, I thank you very much for your attendance at committee this morning and we look forward to hearing more as we get through the bill process, I'm sure, but thank you very much for coming at this stage. That's very helpful, thank you very much. I'm going to suspend shortly. Thank you. Our next evidence session is to take evidence from Jane Freeman, Minister for Social Security, and we're also welcome to committee this morning, Chris Boyland, from the Legislative Legislation Team Leader, and Ann McVeigh, Deputy Director of Social Security Policy at the Scottish Government. Very warm welcome to committee this morning. I understand that you've got an opening statement for us, minister. I have, convener. Thank you very much. As always, good morning to you and to members, and my thanks for the opportunity to be with you this morning. I'd like to begin, if I may, by placing on record my particular thanks to all those involved with the short life expert working group and those who assisted them, who produced a very thorough report, which I know you've spent some time looking at this morning, on the scrutiny of devolved social security arrangements, and did so in a very short space of time. With the benefit of their considerations and our own reflections, we, I think, have now moved on. Last Wednesday, the Scottish Government laid amendments, some of which, in my view, provide a carefully considered, clear and comprehensive response both to this committee's recommendations at the end of stage 1 on scrutiny and to the recommendations of the working group. The amendments were lodged after a careful consideration of all of the evidence provided during the stage 1 process and also the extensive consultation that has been undertaken to date. They deliver on the commitments that I made in relation to scrutiny and the superaffirmative procedure, both when I appeared before this committee on 2 November and during the stage 1 debate on 19 December. Those amendments demonstrate that the Scottish Government has listened to the concern of stakeholders, the working group and the committee, and that we've made the improvements people wanted us to make where they are consistent with our social security principles. We propose, as you will know, to set up an independent scrutiny body to strengthen protections around the charter, to allow people to seek redress when they feel that the commitments set out in the charter have not been kept, and to apply an enhanced level of parliamentary scrutiny to regulations made under the bill. I'd like to say just a little bit more about each of those in turn. Amendments 15 to 17 give clear and unequivocal effect to the Scottish Government's commitment to introduce a statutory independent scrutiny body to be called the Scottish Commission on Social Security. They also address feedback and concerns raised by a wide range of stakeholders. Amendment 16 makes provision for the establishment of SCOS. We're proposing that it should have a chair and two to four members. Members would be appointed by ministers subject to the need to ensure that the body has the right mix of knowledge and expertise, including knowledge of the effects of disability arising from a physical or mental impairment. SCOS will have specific functions and ministers will also be able to confer additional functions to the body by regulations. As well as scrutinising regulations, the body will also have other functions to prepare reports on any matter that either ministers or parliaments suggest and to prepare reports on whether the system as a whole is delivering on the expectations set out in the charter. This last function is particularly important because it means that stakeholders, such as welfare rights advisers, who support and advise people using the system, will be able to refer evidence to SCOS where they believe that the system is falling short of the charter. Amendment 13 further strengthens protections around the social security charter by placing an additional duty on Scottish ministers to consult the scrutiny body on any proposed changes. That would enable the scrutiny body to highlight any concerns to both ministers and to the parliaments prior to any changes. It also fits well with the other duties that we are proposing the body should carry out. In addition, those amendments also provide that when carrying out its functions, the Scottish commission on social security must have regard to relevant human rights instruments and, in the case of scrutinising proposals for regulations to the social security principles. Giving SCOS an on-going role in assessing whether components of the system, such as future regulations, as well as the wider system as a whole, deliver on the requirements of human rights instruments will help to ensure that those are taken into account. Amendment 18 addresses the question that was raised during stage 1 as to whether the rights to be set out in the charter can only be meaningful if individuals are able to seek redress where those rights have been breached. Many stakeholders supported that view, including EHCR, the Scottish Human Rights Commission, CPAC, CAS and HIV Scotland. As individual redress implies casework, the Scottish Government believes that there should be a separate and distinct function to the strategic oversight role that the Scottish commission on social security would have, and therefore should be undertaken by a separate body. Amendment 18 provides for ministers to specify more detail in regulations, including which body should undertake the function of handling and investigating such complaints. That is for purely pragmatic reasons discussions with relevant parties continue, and my officials and I, as I think the committee have heard, have had very helpful discussions with the ombudsman and her colleagues, just as I'm sure, as I've said, you have had today. But it will still take time to make arrangements with the appropriate body and to then work with them to agree the detail of how this function would work in practice. Amendments 55 and 56 fulfil our commitment to apply an enhanced level of parliamentary scrutiny to regulations made under part 2, chapter 2, section 45 of the bill. They introduce requirements on ministers to publish proposals for regulations, refer their proposals to SCOS and notify Parliament that they have done so. Once it has considered ministers proposals, the commission must prepare and publish a report, take into account social security principles and any relevant international human rights instruments. Ministers then have a duty to provide a response to that report, which should be submitted to Parliament when the draft regulations are laid. In making their response, ministers must set out where the regulations differ from the report and why, explain what they have done to address any recommendations made in the commission report and say if they disagree with any of the report's conclusions and if they do, explain why. I think that if you look at them together with amendments 15 to 17, which establish the commission, then I hope that the committee will agree that those proposals provide the enhanced levels of scrutiny required, while addressing concerns that the balance between primary and secondary legislation is properly struck. I trust that, after hearing what I've had to say, this morning, as well as having the written summary of our amendments, the committee will be able to agree that our proposals address the seven primary recommendations that are set out in the working group's report. I am, of course, more than happy to take questions. The questions that have been raised this morning relate to the role of the Parliament and the committee in relation to scrutiny. We had a very good first panel, the expert panel, outline some issues in relation to the sequencing of where the order of scrutiny comes in relation to the commission, the minister's reply and the committee. What I've heard so far appears to me that some of that still needs to be sorted out. It appears as though the committee has no statutory role until the draft regulations are laid where they can no longer be amended. It would give control of the process for enhanced scrutiny to the commission. I just wondered what your rationale was for the commission setting out the proposed superaffirmative rather than it being defined in the statute. Would you be satisfied that that would allow for the committees of the Parliament to do its job in scrutinising the regulations? Of course. What happens is that the Scottish Government in preparing draft regulations would consult in order to do so. It then passes those draft regulations to the commission and publishes them at the same time, informing the committee or whatever is the appropriate committee of Parliament at that time that it has done so. The commission thereafter has a job to do. The commission can choose itself to consult on those regulations and take views. As indeed, the committee can choose to do that. We then have the commission's conclusions on what the Government is proposing and the Government's response to those. Then the Government would lay draft regulations for Parliament to determine. In my view, there is room to ensure that there is sufficient time for consultation and the role of committees in the Parliament to take the role that they believe is appropriate for them. It is not for me to tell committees what to do. I had the benefit of listening to most of your evidence this morning, and I think that the point that Dr McCormick made about creating proper time and space for that to take place was a point well made. If you have that, do you not think that it should be clear or set out in statute? I mean, what we can say on me is that the committee can consult and the commission can choose to consult or not. It may choose not to consult. How does the committee then affect the regulations that are already laid, because it cannot amend them? Of course, the committee can ask the commission to undertake work on the committee's behalf. I see no reason to think about the amendment that we have proposed, as we have worded it, why the committee—a committee of the Parliament—cannot ask the commission to engage with it in its consultation and consideration of the draft regulations. However, it remains the fact that the committee cannot amend the regulations once they are laid. Is that the case? Well, that is the nature, as I understand it, of the affirmative procedure. I think that what I am still slightly confused is in regard to the Government that has laid its draft regulations down. The commission seems to be happy with them and does not want to take any evidence, but the committee is not happy with them. The commission says that it does not want to carry out an investigation. At that point, I see no room for this committee or any other committee to then say that we want to carry out public consultation on this. I think that what I am a bit confused on is in regard to the timescale. If the commission comes and says that we are happy with the regulations, we do not need to do any public consultation. The committee or any other committee says that no, but we do. As it stands, my opinion would be that the committee could not stop the Government then laying very regulations for either approval or not approval. The committee could not stop Government laying regulations. However, the committee could oppose those regulations and Parliament would vote against them. We are talking about the affirmative procedure. I put a point on what I am trying to get at, but there is no room for this committee to take evidence if the Government wants to push ahead with those regulations. Only the commission can take evidence. If we compare it to how things might stand currently, we are establishing a commission where ministers have a statutory obligation to consult that commission on changes that they want to make or new proposals that they want to introduce, a statutory obligation. The commission then, as it should do, as an independent body takes a view on how it wants to respond to that consultation. However, its response has to come and be laid before the Parliament at the same time as the Government lays the regulations. They may lay regulations at that point that are different from the draft regulations because they have listened to what people have said and changed them, or they may not. They have to explain either where they have changed them and why from the original initial draft or why they have not. At that point, there are draft regulations before Parliament, and Parliament with the affirmative procedure supports them or not. If the committee wants an additional role in that matter, it is for the committee to decide what role that might be. I am sure that members will recall that, as far back as June last year, I raised with the committee the idea of scrutiny and superaffirmative and asked the committee to give me the benefit of their views. If you know how views on that matter, I am very happy to hear them. Can I clarify for the record that, as the amendments that you have put forward at the moment stand, the committee cannot carry out an independent inquiry into the regulations unless the commission approves that? It is not for me to determine what the committee chooses to do. Mr Balfour, there is nothing in the amendment that prevents the committee from doing such a thing should it wish to. I am not preventing it. I am simply not including it in my amendment, partly because it is not for the Scottish Government to tell the committees of this Parliament how to conduct their business. For the record, I am not preventing that or vetoing it or blocking it. I am not enabling it because I do not believe that it is for the Scottish Government and Scottish Ministers to tell committees of this Parliament how to conduct their business. I think that that is clear. I want to ask a different question about a supplementary on that. Will one of the members come back to the new question, but if you do have a supplementary? I fully understand, minister, that you are not preventing blocking or vetoing it, but the concern that Pauline McNeill and Jeremy Balfour have tried to express to you is a practical concern about whether the committee, in fact, will have time to do that, given the nature of the process. It is not a question of whether we need the Scottish Ministers to enable it. It is a question of whether, in practice, in fact, there is going to be the time physically to enable us to assemble evidence, take evidence, consider evidence, report on evidence before Parliament has to make a ye on a decision about whether it wants to vote for the regulations or not. I think that that is the concern. I think that there are more than two parts to the answer of the question of time. There is what we have to do in terms of this parliamentary term, where we will have a number of regulations under each of the benefit headings to bring forward. We will need to discuss with you how we do that in order to ensure maximum time for the committee to take whatever steps it wishes to take. We are obviously, should the committee and indeed the Parliament agree with the amendment to establish the commission as we have outlined, then we have to establish the commission. In the lifetime of this Parliament, if you like, there needs to be a degree of flexibility and discussion around the kind of space and time that Dr McCormick was referring to, given the overall constraints that we have all got three years before the next set of elections. Thereafter, in terms of time, as I understand the way that the process works, part of setting the business of the Parliament is a matter for our respective parties' business managers to agree when issues are tabled for vote. Should business managers from parties in the committee hear from members on the committee that the timetabling of a vote on regulations from government was too short to allow the committee to do the work that it believed it should do, then there would be an argument and a debate in that body about when the regulations were laid for the vote by government. Apologies for that. I just think that this is not fully examined. I just wondered the point that you make, minister, is that it is open to the committee to consult on the right ones to know their, see the draft regulations they can choose to consult at that point and try to influence the process. However, the analysis that we have from Spice is quite clear, is that the scrutiny process at the moment is in the hands of the commission. We do not make sense to ensure that in the process that there was adequate time and something written into the legislation to ensure that the committee has time to consult on the draft regulations, because otherwise what will happen is that the regulations will be laid in their final form and it will be all or nothing. We will have to accept if there is something in it and we haven't influenced it. I wouldn't, myself, presume that members of this committee individually and collectively were so quiet that they would allow such a thing to happen and so unassertive. I think that the committee is perfectly capable of exercising its views and deciding how it wants to proceed. In terms of setting time limits, there is just a straightforward practical difficulty with this in that some of the regulations may not require a significant amount of time and others most definitely do in terms of who requires to be consulted and who they would impact on. I'm not sure how we could reasonably set some kind of time limit on this matter, but of course if members of the committee have a view, as I asked in June last year, then I'm very happy to hear that view. I'd just be interested to understand how proactive you think the commission might be. Do you imagine that it could look into any aspect of social security in Scotland that it might wish? Obviously, that's dictated to, by some extent, with regard to its capacity and resource, or is it purely as reacting to instruction from the committee or the Parliament? I think that the amendment is clear that, in addition to responding to what Scottish ministers and the Parliament may require it to do in meeting its functions in terms of regulations, the commission has the opportunity to consider other matters that it believes are relevant to the operation of social security in Scotland. It is for the commission to determine. We are very clear in this amendment that this is an independent body, it is a corporate body. It will be responsible in those matters for its own operation and running. We have taken steps to ensure its independence. Given how the amendment is set out, it clearly has a job to do with respect to regulations and other matters, but it also has the powers to respond to issues that either Scottish ministers or Parliament raise with it and ask it to look at, as well as to initiate that for itself. As we heard earlier from the ombudsman, there is clearly an important role between the commission and the ombudsman in terms of looking at information and evidence in terms of any systemic matters related to the operation of social security. I think that the list of members of the UK social security committee are, you know, I suppose we're looking for a commission that is capable of independent thought and challenging views. Is that something that we're aspiring to hear? How will we ensure that we've got that right mix? Because it is quite a small commission. You know, this is a lot of work for a small group of people. How will we make sure that we've got the correct people in that role? Well, I'm not sure that I necessarily agree that it is too small. I think that, in setting out the amendment, I wanted to ensure that it was large enough to secure some of the breadth of expertise that is absolutely required, but not so large that it cannot function as effectively and quickly as it might want to do from time to time. I think that the commission will have the capacity to ensure that, where it needs additional expertise, it can bring that in to its considerations. That may be, for example, in terms of what I consider to be the very important element of our amendment, which is the requirement on the commission to consider compliance with human rights instruments. I think that that is a very important distinction from what currently exists and an important follow-through on our commitment to that in primary legislation for the system as a whole. Clearly, the commission may have as one of its members an individual with expertise in that area, but it may not, so it would be expected to bring that in to assist it. I also hope that the commission will and will be able to form the productive relationship with the body that will continue to look after social security in England and Wales in order to ensure that what any Government brings forward fits with the delivery and the implications of social security legislation for England and Wales. I have not got your amendments in front of me ministers. I cannot remember what number it is, but there is an amendment, and you referred to it in your opening remarks, that would confer on you the power to make by regulations anybody unspecified responsible for oversight of the charter. What is going on there? That seems to me to be a very odd amendment indeed, particularly given what we just heard from the Ombudsman. The Ombudsman already has the power to investigate complaints with regard to the agency because of the way in which he was proposing to set the agency up as part of the Scottish Government. The Ombudsman said that she has all the powers that she needs to roll complaints together so that she can look at issues systemically rather than just individual complaint by individual complaint. Why do we need that amendment at all when the Ombudsman already has those powers? Are you referring to—I am going to read it, because if you do not have it, there is no point in giving you the number. It says that it is under the heading charter-based complaints. It says that Scottish ministers are to make regulations conferring on a person the function described in—it is that. Given the most recent discussions that we have had with the Ombudsman and given the evidence that she gave this morning in terms of their powers and their role, we need to reflect on that amendment again. I understand whether or not it is something that we want to press or whether we want to move on it. I should just say that it may be helpful for the committee to know. I know that the Ombudsman this morning placed significant emphasis on the charter and the importance of the charter, as we indeed do, and gave her a very helpful clarity to the explanation about why the charter is so important. She also made to this committee, as she has done in my conversations with her, the importance of how the charter is worded and of securing. As we have always said, wording in the charter, hence the importance of co-production, is understandable and accessible, but at the same time is worded in a way that provides the foundation from which the Ombudsman would conduct any work that is appropriate for them to conduct. In that regard, I have made a request of the Ombudsman, and I am delighted that she has agreed to act as our critical friend as we go through the process of the iterative co-production of the charter. On that note, Minister, what do you see the importance of the annual report on the charter and the five-year review, given that we are setting up the system from scratch? As was said earlier this morning, nothing is ever perfect from the outset. It was also said that it is always sensible at the outset to roll back a little on the detail and engage in the practice. I think that the reporting process allows us to and allows the system and ministers, Parliament and others to see how it works in practice, continue to take views about where there is room for improvement and then make those necessary improvements. I think that the time frames that we set by and large make sense in terms of giving something time to work but also not leaving it too long before we introduce improvements that the working of it in that first period demonstrate are clearly needed. I had a couple of points that arose from our first panel with Jim McComerc and Judith Patterson. The first one was about the ministerial power to laid draft regulations before the commission has produced their report. I think that witnesses' views of it from the first panel were that it is not as bad as the system in place is the UK Government, but it does not seem quite like a ringing endorsement of it. Why do you feel the need to retain that power? The other question was about guidance and what role the commission would have in scrutinising ministerial guidance. I had the benefit of hearing that myself this morning. I am happy to say unequivocally that what we are proposing is more than significantly better than the current situation, so I am happy to have that conversation with others. The point that was being referred to was in 55, it was 7B and the rationale for that is that our thinking is that when we asked the commission to look at draft regulations we would, depending on the size and the degree of detail in the regulations, look to reach an agreement with the commission about how long they need to do the job that they are being asked to do. That, obviously, feeds back into some of the discussions earlier about space and time, but it may well be the case that the commission, despite having, as reached an agreement, that they have six weeks, eight weeks, whatever it might be, to respond and produce their report, is not met and that Scottish ministers feel that the draft regulations are of such import that they require to lay them, even though the commission has not met the agreed timeframe to respond. That is why 7B is there. On your second point on guidance, I had the benefit of hearing what the ombudsman said with guidance. Indeed, it was Ms Paterson too. I think that it is fair to consider whether there is something in terms of proportionate scrutiny of guidance. The point was well made about there can be a great deal of guidance produced. I do not imagine that we intend to replicate the GWP's approach on guidance, but there will be guidance that does not require a significant scrutiny and there may be others. I am happy to reflect on what was said on that. On your first point, the minister will be able to give the committee a reassurance that it would only be exceptional circumstances that that power to lay those draft regulations would ever be used before the commission table report. I am absolutely able to give that reassurance. I am sure that the member will recall that it came from Scottish ministers the idea that ministers would be required to consult an independent scrutiny body before they laid regulations before Parliament. Of course, I see that as an exceptional matter when that would not happen. I wanted to ask about Rosemary Agnew's evidence. I found some of it quite compelling, the fact that she was saying that the charter was almost heart and soul of the whole ideal, but unlike some of the things that we have discussed beforehand, she said that it is not important if the individual does not know it verbatim, it is more about delivery. I found that quite compelling because to me that is what the whole process is about, it is about the individual. I just wondered what your thoughts were on that whole idea, because is that not? It is as simple as that. It is about making sure that people get paid on time and the money when they need it. Although we have to go through the technical issues, is it not the whole point that it is down to the individual at the end of the day? I agree. I too have found my discussions with Ms Agnew compelling. I am very appreciative of the importance that she attaches to the charter in terms of how the ombudsman would fulfil their role in terms of social security. Although I am keen that the charter is written in language that is genuinely accessible and able to be understood, I am also appreciative of the view expressed from the ombudsman that an individual does not need to go to the ombudsman and say that my rights have not been met in order for the ombudsman to then act. They can simply be saying, this is what happened to me and I have exhausted the agency's complaints process and I still have not got anywhere, this is what happened to me. The individual may have received the entitlement that they were due and at a level that they are content with, so they may have the benefit but still feel that the manner in which they were dealt with was poor. That is what they now want redress on and that is what the ombudsman would then respond to by looking at, as I understand it, what the individual describes has happened, what the agency has to say about that and how that sits with what the charter requires by way of the agency's behaviour and then reach of you. I think that that is very helpful. Just to go on to another point as well, in the first session there were hints at almost a stage where, from some of my colleagues, the commission and yourself would become so powerful that we would not actually get a look in with regard to the committee. I know that we mentioned it a bit earlier on, but just for the record and just to continue on it, the whole point would be for the committee to proactively take a view forward and that is how this place works. It is up to the individuals and the MSPs to bring those things forward, so this is just normal, this is just the normal way of doing business. Surely this is the case when it comes to this scenario? That is absolutely right, that is how this place works. At the end of the day, the most powerful body here is the Parliament, because it will be the Parliament that says yes or no to regulations that are laid before it. It is as entitled to say no as it is to say yes. I think that we have had this discussion on this committee before, where I have said that it would be, in my view, a daft Government that comes forward with regulations where the commission has been critical of them, has not listened to that, the committee is critical, but nonetheless presses ahead. Then that Government should reasonably expect to lose. It is a Parliament of minorities, and you have the scenario where, as you quite rightly said, there is a process for business managers to go through business, so there are checks and balances all the way across the process. Is there any further questions from committee members? On that note, I thank you very much Minister for your attendance this morning, and we will suspend and go into private session now.