Good morning, and welcome to the fourth meeting of the Social Security Committee in 2018. I can remind everyone to turn mobile phones or other devices to silent moes so that they do not disrupt the meeting or the broadcasting. No apologies have been received for today's meeting. Agenda item one, the only agenda item today is consideration of social security bill at stage two. We will continue where we left off last week, and we will not continue beyond the end of part two, chapter two, today. There are 17 groups of amendments to the end of part two, and it may well be that we don't get through them all this morning, but we will endeavour to do our best. Can I once again welcome the minister and accompanying officials to committee this morning? It will now proceed directly to where we left off last week. I call amendment 143, in the name of Polly McNeill, already debated last week with amendment 141, and I ask Ms McNeill to move or not move. I now call amendment 144, in the name of Polly McNeill, already debated with amendment 141, and I ask Ms McNeill to move or not move. We now move to the first grouping today, which is on consultation on charter. I call amendment 145, in the name of Jeremy Balfour, grouped with amendments 103, 104, 105, 12, 13, 106 and 107. I ask Mr Balfour to move amendment 145 and speak to all the amendments in the group. Thank you, convener, and good morning. Amendment 145 is a fairly straightforward amendment, and I'm sure that this Government will do what is requested within it without it being there. I am concerned that we are looking forward to a number of years to future Governments and future MSPs who may not have had the benefit of sitting round this table. It is important that those with mental disability are consulted appropriately when any changes and any consultations are going on. I appreciate again that the Government has done this leading up to where we are today, but we are future looking at this bill. Over about 33 per cent of people who are in receipt of DLA or PIP have a mental disability, and previous generations and previous stages perhaps felt excluded in regard to consultation. The movement of the amendment is to remind the Government and Parliament that when consultation takes place it is not just those with physical disability that should be consulted but those with mental disability as well. I will leave it there at this stage. I invite Mark Griffin to speak to amendment 103 and the other amendments in the group. Thank you, convener. Amendments 103, 105 and 106 are equalities-related amendments, and 108 that we will come to later in the group are all to ensure that equality is embedded on the face of legislation and therefore on the social security system itself. I welcome the Government's notice that they will be supporting those amendments. They are also supported by Engender, Scottish Women's Aid and the Coalition for Racial Equality and Rights. We know that in many equalities groups, particularly women, BME groups and disabled people, have higher rates of poverty and therefore may depend on the social security system more, and that is the reason why I have lodged those amendments. We know that equalities groups experience equality in different ways and that the barriers and disadvantages that are experienced by those groups may not be known from the office, especially when there is a lack of data available, which is the motivation behind amendment 108, which we will come to later. It is important that on-going engagement with those groups be required. There should not be any groups that we deem hard to reach by the Scottish social security system, and we should take extra care to make sure that all those groups, especially most disadvantaged, are involved and included. That is the reason behind lodging 1035, 6 and 7. On amendment 104, that is part of a package of amendments related to the Give Me 5 top-up child benefit proposal that will come to a later stage. That would mean consulting with all parents. Even though the argument is or can be made that child benefit is a reserved benefit, consulting with that group would still have particular value, since the Scottish Government has the power to top up that benefit. That would be worthwhile covering in the bill. I invite the minister to speak to amendment 12 and the other amendments in the group. Thank you, convener, and good morning to colleagues. Let me start with amendment 145 in the name of Mr Balfour. Implicit in that amendment in my view is a very important point that those in receipt of disability assistance are a diverse group, including people with both physical and mental conditions. Those groups have different needs, and I agree that it is crucial that the views of both are fairly represented in the charter co-design process. However, I hope to persuade Mr Balfour and the committee that we have in place robust plans to deliver the newest engagement that he seeks. The recently published experience panels about your research found that 39 per cent of respondents with a disability had a mental health condition, 50 per cent with a physical disability or condition. Additionally, we are developing plans to supplement experience panels with ways of engaging seldom heard groups who may not be so comfortable engaging in focus group style activity and are working with particular stakeholders to ensure that we have additional involvement in areas of particular interest. As part of the charter co-design, we are also looking to work with key stakeholders to facilitate engagement with the people that they represent, including organisations that support those both with physical and mental health conditions. I would also make the point that the amendment in my view is to an extent prescriptive in that it requires ministers to focus on a particular split, a representative portion. I do think that that could produce unintended results that I'm sure none of us would want, and the question has to arise whether it is more important to achieve the perfect proportional split with a small number or more important to engage with larger numbers of both groups, even if the split isn't the right proportion. I would invite Mr Balfour not to move amendment 145 on the basis that we are already thinking carefully about those issues. I'm pleased to support amendments 103, 105, 106 and 107 in the name of Mr Griffin. Those reflect what the Scottish Government already intends in relation to the consultation on the charter, and there is benefit in codifying those requirements in the bill, especially in relation to future reviews of the charter. There may be some minor adjustment that we will want to bring to the wording at stage 3, but I am happy to support those amendments. I cannot, however, support amendment 104, as there is no reason to consult anyone in receipt of benefits that the Scottish social security system won't be delivering when it comes to our charter. Equally, there would be no reason to choose just one of the many benefits that remain reserved to the UK Government as the charter does not relate to them. For example, universal credit, income support, child tax credits, maternity pay or pension credit. Those are all for the UK Government to deliver and be responsible for. My amendment 12 is a technical amendment that I hope the committee will find easy to support. As a committee is aware, the Scottish Government has committed to co-designing the charter in partnership with those who have direct experience of the system. That work will be under way before this bill has passed and received royal assent. Amendment 12 simply ensures that all of the consultation work counts towards fulfilling the consultation duty. My other amendment in this group, amendment 13, is rooted in my conversations with Professor Sally Witcher and Bill Scott of Inclusion Scotland. They are strong advocates of the rights-based nature of the system that we propose and the charter that will give practical effect to that approach. Their concern is that if a future Government does not share that commitment, it may seek to use the powers in section 5 for ministers to review the charter to substantially dilute it. As a safeguard against that, amendment 13 will require ministers to consult with the Commission on Social Security when reviewing the charter. Indeed, as a further safeguard, as I said last week, when discussing amendments on charter approval, I will be happy to work with Ms McNeill in ensuring that the Scottish Parliament has a role in scrutinising any changes to the charter. I am pleased to move the amendments in my name. Fully complete, sir, statement. I wonder if we could expand on the reasoning on amendment 12, just a concern that the amendment states that it is a material that anything done by way of consultation done before this bill or for this act to be passed, a concern that this would rule out any evidence gathered by the experience panels. What amendment 12 seeks to do is to ensure that in advance of the preparation and the conclusion of the work on the charter that the consultation work that has been undertaken to date and will continue on the illustrative regulations around the benefits that we intend to deliver in wave 1 is consultation that can count towards our requirement to consult. I think Mr Griffin, as I was myself when he first raised it with me, is a bit thrown by the word immaterial because it sounds like it doesn't count and actually I'm advised in the lawyer's world it does. What can we say? Perhaps Mr Tomkins can help us out. I think your interpretation is correct, minister. Thank you very much. Does anyone else wish to speak in this grouping? Can I therefore move to Mr Balfour to press or withdraw his amendment? I'm going to press my amendment to a community amendment 145. I hear what the minister is saying and I take her word very seriously but I do think that it's still important to have within this bill and then act a clear duty that those who have mental disability will be consulted in an appropriate way. I know Sam Aitch and other groups are keen to see this, they're keen to have that backstop in case there's any change within government or in regard to policy. We will be supporting the minister's amendments and also supporting Mark Griffin's amendments as well. The question is that amendment 145 be agreed. Are we all agreed? We move to division. The question is that amendment 145 be agreed. Those in favour, please raise their hands. The result of the decision are five votes for, four votes again, therefore the amendment is agreed. We move to amendment 103 in the name of Mark Griffin, already debated with amendment 145 and asked Mark Griffin to move or not move. Thank you. The question is that amendment 103 be agreed. Are we all agreed? Thank you. The question is that amendment 104 in the name of Mark Griffin, already debated with amendment 145, Mark Griffin to move or not move. Thank you. The question is that amendment 104 be agreed to. Are we all agreed? We are not agreed. There will therefore be a division. Can I ask those in favour of amendment 104 to please raise their hands? Those against. The result of the division are five votes for, four votes again, the amendment is therefore agreed. Now call amendment 105 in the name of Mark Griffin, already debated with amendment 145 and asked Mr Griffin to move or not move. The question is that amendment 105 be agreed. Are we all agreed? Thank you. The question is that amendment 12 in the name of the minister already debated with amendment 145 and asked the minister to move. Thank you. The question is that amendment 12 be agreed. Are we all agreed? Thank you. The question is that section 3 be agreed. Are we all agreed? Yes. I call amendment 146 in the name of Pauline McNeill, already debated with amendment 141 and asked Pauline McNeill to move or not move. Not moved. Thank you. The next question is that section 4 be agreed to. Are we all agreed? Thank you. I call amendment 13 in the name of the minister already debated with amendment 145 and asked the minister to move formally. Thank you. The question is that amendment 13 be agreed. Are we all agreed? Yes. I call amendment 106 in the name of Mark Griffin, already debated with amendment 145 and asked Mark Griffin to move or not move. Move. The question is that amendment 106 be agreed. Are we all agreed? Thank you. I call amendment 107 in the name of Mark Griffin, already debated with amendment 145 and asked Mr Griffin to move or not move. The question is that amendment 107 be agreed. Are we all agreed? Thank you. I call amendment 147 in the name of Pauline McNeill, already debated with amendment 141 and asked Pauline McNeill to move or not move. Not moved. The question is that section 5 be agreed. Are we all agreed? Thank you. Now move to next grouping, which is the effective charter. I call amendment 61 in the name of Adam Tomkins, grouped with amendments 18, 18A and 50 and asked Mr Tomkins to move amendment 61 and speak to all the amendments in the group. Thank you, convener. I move amendment 61 in my name. We had a debate last week about a similar provision on the effect of the principles and I don't want to reheat or repeat that debate, but during that debate both Mr McPherson and the Minister were kind enough to indicate that they would support amendment 61. The purpose of amendment 61 is to clarify what we as the Parliament intends the effect of the charter to be to avoid unnecessary and potentially very expensive litigation to resolve that issue. The wording is similar to the wording that already appears elsewhere in the Scottish statute book. That's all I really want to say about amendment 61 at the moment. Amendment 18A, which is also in my name convener, is an amendment to the ministers amendment 18. I hope that the minister is not going to press that amendment and if she doesn't press that amendment then I obviously won't press amendment 18A because it would be redundant. I think that both amendment 18A and amendment 18A are now redundant given the evidence that this committee obtained a fortnight ago from the Scottish Public Services Ombudsman in terms of the jurisdiction that the ombudsman already has under her empowering legislation to investigate complaints of injustice arising out of mal administration with regard to the Scottish Social Security Agency because of the way in which the agency is to be created as an arm of the Scottish Government. I hope that the minister agrees with me that amendment 18 is now unnecessary and will not be pressed. I invite the minister to speak to amendment 18 and the other amendments in the group. As I indicated, I am pleased to support amendment 61 in Mr Tomkins' name. Can I also draw the committee's attention? I think that it will be helpful to our consultation on draft tribunal rules, which we launched on 22 January, which also proposes that tribunals must have regard to the social security charter when considering appeals for devolved social security assistance. I think that it is an important compliment to what this amendment will say. I do not intend to rehearse the arguments that we had a week ago. I agree with Mr Tomkins that it is clear from the evidence that we have received, that you have received and that I have heard from both Dr McCormick and the Scottish Public Services Ombudsman, the role that the ombudsman's office will play. For that reason, I do not intend to move either amendment 18 or 50. With that, I think that, convener, I am concluded. Does anyone else wish to come in? I invite Mr Tomkins to wind up our press or withdrawal amendment 61. Nothing further to say, convener. I press the amendment. The question is that amendment 61 be agreed. Are we all agreed? Yes. Thank you. We now move to another group, right to social security. I would call amendment 116, in the name of Mark Griffin, group with amendment 117. Thank you, convener. Amendment 116 and 117, I feel advanced. The Scottish Government's objective to ensure Scotland's social security system is world-leading and taking a human rights-based approach to social security. The Scottish Government's response to the Social Security Committee's stage 1 report acknowledges that the Scottish ministers have a duty to comply with human rights treaties, such as the I C E S C R. Yet the bill does not currently place any duty on them to comply with the right to social security, as defined in international human rights law, or to have regard to it. The Scottish Government's response also acknowledges that international human rights are substantive and real and reaffirmed the commitment to give an effect to those rights. I think that it's important to be clear that the human rights to social security is not principally protected by E C H R. Full compliance with the E C H R will not on its own deliver protection of the right to social security. The right to social security is found in a number of international human rights instruments, most notably in article 9 of I C E S C R. The detail of the right to social security is provided in general comment 19 from 2007. That comment provides that social security must be available, adequate and accessible and addresses issues of coverage, eligibility, participation and information and physical access. Amendments 116 and 117 in obliging Scottish ministers and public authorities, in particular the agency to have due regard to the right to social security, would ensure that the content of the rights features as a driver for good policy and decision making and building a system based on human rights. The amendments also introduce a vital means of holding the Scottish ministers and the agency to account for their decision making processes. I think that there is a precedent where there are other pieces of legislation where this has been embedded, the Community Empowerment Act, the Land Reform Act, Children and Young Peoples Act and only last week at portfolio questions, the Cabinet Secretary said that it is imperative that we acknowledge that the UK Government's proposals to repeal the 1998 act or even to withdraw from the EU. The European Convention on Human Rights put at risk the most vulnerable members of society and hurt them the hardest. The Scottish Government is committed to defending the existing human rights and to embedding human rights equality and respect in everything that we do so that everyone in Scotland can live a life of human dignity. For me amendments 116 and 117 simply put that aspiration into legislation and I would ask committee members to support and I move amendment 116. Thank you, Mr Griffin. Do any other members wish to come in, Mr Macpherson? Thank you very much, convener. I think that this is an extremely important set of amendments to, well, the overarching issue is extremely important one to consider given the time that we discussed it during the stage 1 proceedings. I think that there are a number of questions that need to be asked, though, about being prescriptive in this way around specific pieces of international law, given that there is already an overriding commitment within the principles to human rights and that ministers are expected to uphold international law and the courts to take account of treaties when it comes to domestic law. I have a number of questions on this to try and understand more specifically what advantage this would bring and to determine whether it would actually be counterproductive and create vulnerability for judicial review and other consequences around suppressing the operation of the system. Mark, I just want Mr Griffin to elaborate on the intention behind your amendments, given that they only mention the international covenant on economic, social and cultural rights. Is the suggestion that that treaty should be looked at to the exclusion of others or that it should be given higher status over others? I am just trying to understand if you think that covenant is more important than, say, the European social charter. Why do the amendments require judicial consideration of the views of the UN's Committee on Economic, Social and Cultural Rights but not the opinions of, say, the councillor of Europe's European Committee on Social Rights? Do you think that the covenant on social, economic and cultural rights provides enough detail to make it legally applicable? Has it been considered that its vagueness leads to successful judicial review and then regulations being void and people not being paid? Human rights are interrelated and indivisible. Is it a good idea to take a piecemeal bill by bill approach? As the cabinet secretary quoted, he said that human rights apply to everything that we do. Do we not need to take a more Scotland-wide approach on this? Given that the First Minister's advisory group on human rights is looking how best to reflect human rights instruments and domestic legislation across the spectrum, would those amendments cut across that work? It is important to recognise that the UN committees are not elected, so there is a democratic question before we enshrine that into primary legislation. I think that ministers are already held to account in any circumstances where they fall short of treaty obligations under international law. Social security as a human right is a founding ideal of the system already in the principles. The charter will explain in detail the actions and standards that are required to realise that, in practice, the commission will have the ability to independently review performance. We really need to think carefully about being as prescriptive as those amendments undertake and question whether a better approach would be to look at human rights being part of the overarching nature of the bill as they already are in the principles. Being careful not to give precedence or preference to certain bits of international law when a more comprehensive and overarching consideration of international law may be more effective. I think that Mr MacPherson asks a whole series of quite important questions about these significant amendments. If I could, the one that I would pick out as the most important of all of that kind of suite of questions, which Mr MacPherson has rather thrown at you, Mr Griffin, is this. The international covenant on economic, social and cultural rights is not judicially enforced. It is policed, monitored by an international committee of unelected UN experts. It is not judicially enforced and these amendments require the judicial recognition in Scottish courts and tribunals of opinions and reports of that committee. What we have tried to do with regard to the principles and the charter is to clarify, rather than to make more murky, the legal status of the principles and the charter. It seems to me that there is a risk and unintended, no doubt, risk in these amendments that by requiring courts and tribunals in Scotland to have judicial cognisance of what are non-judicial reports and opinions coming from the committee that polices at UN level the international covenant on economic, social and cultural rights. We blur that distinction between where there is going to be a right to social security, which is judicially enforceable, and where there is going to be a right to social security, which is going to be something that ministers and indeed MSPs have to bear in mind as they make and implement regulations. I am sure that that is not an intended consequence of these amendments, which I am sure are well intentioned, but I think that it is nonetheless a significant de-merit in the way in which these amendments have been drafted. That is not to say that the other issues that Mr McPherson put to you are unimportant, but I think that that is probably the most significant one for me. I agree with Mr Tomkinson and Ben Macpherson. From the point of view of Ben Macpherson in particular, social security, the cabinet secretary has always said from the starting point that, as a human right, it is a founding principle of what we are trying to do here. The charter explains the actions and the standards that are required for that, but the problem that I have with Mr Griffin is purely me. From the background of Mr MacPherson and Mr Tomkins, they are coming from a legal perspective, but I know what you are trying to do, but I am a bit confused as to whether you are going to be able to do what you are trying to do with everything that you have put down. If I am confused, my concern is the minute the lawyers get their hands on that, because you could end up with a murky mess. I understand where Mr Griffin is coming from, but I am a bit confused and that gives me some concerns. It may be just me, though, convener. It has been happened before that I have been confused. I wouldn't like to comment, Mr Adam. Let me start by saying again that the Government is serious about human rights and falling through on our treaty obligations. As others have said, the Scottish Ministerial Code states very clearly that every minister has an overarching duty to uphold the law, including international law and treaty obligations in everything. To ensure that that happens in the new system, amendment 118, in my name, will enable the independent Scottish Commission on Social Security in performing any of its functions to have regard to international law standards. That is a conscious and deliberate inclusion on our part. More than that, the commission will require to have regard to any relevant international human rights instruments when considering proposed regulations. That means that when considering any reforms, the Government, this Parliament or indeed the public will always be able to have the benefit of independent expert opinion on how any proposals measure up against treaty obligations. That input from experts who have specialist knowledge of social security will be invaluable, because international treaties are necessarily expressed in general and high-level terms. The commission will have the skillset to translate what the treaties require into a Scottish context. Should it appear that the new system is falling short of any of those requirements in any respect, it will be for the Parliament and Government to do something about it. In this way, the bill will make sure that respect for international obligations is built into the system from the start, in a way that ensures that the system gives practical and meaningful effect to people's rights. The bill achieves that in other ways, too. The principles that establish human rights has a founding ideal of the system. Principle B, in fact, goes further than the key provision of the instrument that establishes social security as a human right. Through the charter, those ideals will be carried from the statute book into the everyday delivery of services. The charter will be co-produced with the benefit of input from the Ombudsman's office. As we agreed last week, we will be subject to agreement by the Parliament through the amendment that we will work with Ms McNeill to bring forward at stage 3. In addition, the charter will have the benefit of the clarity that Mr Tomkins' amendment that we have just discussed brings to it. There are numerous examples already of the co-productive nature of our approach. Examples from the experience panels, the design of process of information and the choice options in our universal credit Scottish choices. Examples that barely scratch the surface, but I think that they are indicative of an approach that will consider every detail and leave nothing undone, which is needed to fulfil people's rights. Mr Griffin's two amendments to the group represent a different approach, and I cannot support them. Rather than involving subject experts in designing the system so that compliance with international standards is embedded from the start, his amendments would leave it to the general courts to evaluate the system once it is in operation. Last week, Mr Griffin very helpfully did not press his amendment 138 because of what we discussed as unintended consequences and the risk that it posed for people's income. Those risks are the same posed by his amendments today. His amendments opened the door to the courts striking down the regulations, which will provide the whole basis on which people will be given assistance. Should a court uphold a challenge, ministers would be required to stop applying the area challenged, stop paying the assistance, unless ministers could convince a court to suspend its decision pending an appeal. Even if a challenge ultimately failed and since the system is designed to ensure compliance with treaty obligations, those challenges should fail. The very fact that a case is taken and the steps in the process that I have touched on are gone through, all of that will cause significant uncertainty for people and will inevitably divert money away from the people the social security system should be helping and instead put it into legal fees and court costs. To expose that new system, but more importantly, those who rely on it for support for those risks is, I believe, unwarranted. Those proposals were not mentioned far less supported in the committee's stage 1 report. The committee has heard no evidence on the consequences, unintended or otherwise, of taking this unprecedented approach from legal academics, the law society, the faculty of advocates or the judiciary. I'm sure that all of us here value Scotland's record on human rights. The Scottish Government certainly does, and that is exactly why the First Minister has established an expert group under the leadership of Professor Alan Miller to look holistically at what more can be done to embed the protection of internationally recognised rights in Scotland. I think that that is the proper place for that discussion to be held, for that group of experts considering international evidence and expertise to then recommend an overarching Scotland-wide approach on how we can protect, enhance and embed human rights across all of this Parliament's legislation. As a responsible Parliament, we should be seeing the work of that group and taking time to consider their recommendations based on a robust and considered evidence base, allowing the whole Parliament the opportunity to fully discuss these issues on a properly informed basis and consider what is the right approach for Scotland going forward. I invite Mr Griffin to wind up and press or withdraw amendment 116. The Scottish Government response to the stage 1 report acknowledges that ministers have a duty to comply with human rights treaties such as I C E S C R. However, the bill does not currently place any duty on them to comply with the right to social security, as defined in international human rights law, or to have regard to it. The reason that those amendments link to those particular pieces of UN articles is simply that that is the evidence that the committee received during the stage 1 process and the evidence that the committee subsequently received in briefings from outside organisations such as the Scottish Human Rights Commission. There are examples, although I would take the argument that we should look at a Scotland-wide holistic approach. There are examples where that has been used already. I have mentioned the Committee Empowerment Act, the Land Reform Act and the Children and Young People Act. I take on board what the Government is saying on whether a potential court action could strike down regulations and potentially lead to claimants not receiving their payments. However, the risk that the Government refers to demonstrates just how important it would be for the Government to discharge the duty properly in the first place. If the Government was in any doubt that their actions would breach human rights, they would seriously consider the credibility of that course of action. On just disability, I think that judges have dealt ably with questions of rights, for example of what constitutes torture, what a fair trial means or what is unlawful interference with privacy. Giving me into concepts, finding legislation is a clear function of the judiciary, not just in human rights but in any area of law. Realisation of rights depends on Government policy. It is right that it is a matter for Parliament to put that policy into law. However, review of Government policy to ensure that it is consistent with constitutional principles and obligations under human rights law is clearly a function of the judiciary. This is review, not policymaking, and I think that the courts are well aware of their function in that regard. I think that judicial enforcement of human rights is fundamental. I write without a remedy questions whether I write at all and for that reason I will be pressing the amendments in this group. The question is that amendment 116, we agreed, are we all agreed? There will be a division. The question is that amendment 116 is agreed. Those in favour, please raise your hand. Those against. The result of the division are three votes four, six votes again, therefore the amendment is not agreed. Amendment 117, in the name of Mark Griffin, has already debated with amendment 116 and asked Mr Griffin to move or not move. Amendment 14, in the name of Alison Johnson, has already debated with amendment 4 and asked Mr Johnson to move or not move. We now move to a new grouping, annual report and other accountability mechanisms. I call amendment 62, in the name of Jeremy Balfour, grouped with amendments 79, 108, 148 and 80. I invite Mr Balfour to move amendment 62 and speak to the other amendments in the group. It is a welcome move in this bill that there will be an annual report and that that report will outline what has happened. It is important that those who are looking at it and who have expectations about how the system will be taken forward are simply reported in this report. It is a fairly benign amendment, but it is important to have it within the legislation to say that the report must meet the expectations. It is given clarity to what I am sure will already happen. We have to remember that we are looking ahead into the future and I hope that the Government can accept it. Amendment 62, in the name of Jeremy Balfour, has already debated with amendments 79 and the other amendments in the group. Amendment 79 is where we are keen to have a debate about how we use those powers to tackle disability poverty. 42 per cent of people in poverty in a household have at least one disabled person. I know that we have had earlier debates about the benefits in this group not being income replacement benefits. What they do is to overcome the additional costs that someone with a disability lives with, which could push that person into poverty. It could present a barrier to employment, which again could push that person into poverty. Amendment 79, supported by disability agenda Scotland, Camp Hill Scotland, the Carers Trust, Alliance, Scottish Independent Advocacy Alliance and Leonard Cheshire. We feel that there is a precedent with the child poverty act, which concludes a number of explicit targets and the implementation of the socio-economic duty. Any reform of the social security system in Scotland should address the failure of the benefits system to adequately compensate disabled people for those extra costs. Those costs are faced to live an independent life. That is one of the several reasons that there are higher rates of poverty among disabled people. Those costs are associated with disability average of around £550 per month. The amendment would require the Government to assess the levels of poverty in households with a disabled person or persons and take into account the added cost of having a disability and work to reduce that rate of poverty. I had already touched in an earlier debate about how we make sure that those with predicted characteristics are covered from the outset that that is in legislation and that I have that additional protection. On 1-4-8, the social security charter is not intended to confer rights on individuals. It will be the agency evaluating and reporting on its own performance. It will be the agency itself that determines the form and content of customer satisfaction surveys. It is known that the agency could then start focusing on its own performance targets. Amendment 1-4-8 would help to ensure that the principles have teeth in making the agency and ministers more accountable to Parliament in those people who depend on the assistance provided and the wider Scottish public and could also assist in identifying unmet needs. On amendment 80, the amendment is supported by the disability agenda Scotland, Camp Hill Scotland, Cure us trust alliance, Scottish independent advocacy alliance and Leonard Cheshire. The Social Security Commission isn't truly independent from the act, which is what we are seeking a review of, along with the act on the whole. The bill doesn't place any civil duties on ministers to keep the new system just a charter. It doesn't place any duty to keep the social security system and the legislation itself under a review. We feel that review would offer an opportunity to identify any areas in the legislation where changes are necessary, so that the review should consider the extent to which the levels and types of support available under the system have met and are meeting the needs of those who are requiring support. I would ask committee members to support the amendments in my name in this group. I am a bit concerned with amendment 79. Disability benefits are not income replacement benefits. They are an acknowledgement of the additional cost that people with disabilities incur. They are not means tested, they are not taxed. I am really concerned that this amendment undermines the principle that all people who live with a disability incur additional costs. That is what they are addressing, and that is not an income replacement. I will support amendment 108 on the positive side, so that Mark does not feel as if I have been negative about everything that he puts forward here today. However, I agree with my colleague Gareth Maguire that we are in awkward territory at this point when we start talking about amendment 79, where we are talking about the benefits. We are almost in the idea that they are not income-based at the moment. They are basically there to support people, as Ruth Cymru has already said, in difficult times and the extra costs involved in their disability. I think that we are setting an unusual or difficult precedent. I, for one, could not possibly go back to some of the disabled groups in my constituency and say that I voted for that. I really think that it is a point principle on that one. However, on 108, I am with him. I have some concerns around the fact that this Parliament has a role in reviewing legislation through relevant committees. For example, the Public Audit and Post Legislative Scrutiny Committee. I think that there is a function there for Parliament. The amendment as drafted is seeking a review of an act of this act, which I am sure it will be, within months of the final parts of social security in Scotland being delivered. That seems premature, in my view. I invite the minister to respond to the group. Thank you, convener. Let me start by saying that I am happy to support amendment 108 in the name of Mr Griffin. However, other amendments in the group are more problematic in my view. I urge a committee not to support amendment 62 in the name of Mr Balfour. As we discussed last week, in the context of Mr Balfour's amendment 60, the Scottish ministers and the Social Security Agency are legally the same person. Therefore, there is no need to have a separate reporting requirements for the agency because the reporting duty on ministers will cover everything done by ministers in the guise of the agency. In fact, the agency cannot competently be the subject of separate reporting requirements because it will not have its own separate legal personality. Although I share the commitment to reducing poverty, I cannot support amendment 79. Others have made this point, but disability benefits are not income replacement benefits. They are deliberately not means-tested or related to income of poverty levels. They are not taxed for this reason, nor do they reduce other benefits. The point about this is that the amendment that Mr Griffin wants to propose is an amendment that misunderstands what those disability benefits are for. I have already supported amendment 1 in the name of Alison Johnson, which has placed in the bill a principle on the reduction of poverty for all people. That would be what I think is the right approach that we should take. There is little about the sentiment in amendment 148 in the name of Mr Griffin that I disagree with. Co-design is the centrepiece of the Scottish approach to social security. It is therefore entirely right that we should think about ways to ensure that the voice of people relying on the system continues to be heard in the long term. The problem that I have with this amendment is that it is simply bad law. It is overly prescriptive. It seeks to codify not just precisely what information should be collected, but the means through which it should be collected. I do not believe that that is helpful. As our approach to consultation and experience panels has demonstrated, there is a space where innovation is possible and desirable. The right people to inform us about that are the many professional researchers that we have working on this project in partnership with our stakeholders, with our experience panels and with the people of Scotland. What the legislation should provide is what is already there, a fundamental principle that this system is built with the people of Scotland on the basis of evidence. That will carry through to commitments in the charter, the associated reporting duties and ministers will be held accountable robustly, I would imagine, for delivery. I cannot support that amendment and invite the committee to reject it. Finally, although I understand the thought behind amendment 80, again lodged by Mr Griffin, I do not think that it is necessary and I also think that it intrudes into what is properly the role of this Parliament. The Scottish Government's amendments have set up, or intend to set up, the Scottish Commission on Social Security and, by definition, already established an independent body that would be required to report on any matter that ministers or the Parliament ask to report on. In addition, Mr Griffin's amendment requires a review three years after royal assent of this bill. By my calculation, that is 2021. That is the point where the full devolution of all the benefits will have taken place, but one could hardly say that the system has been operational in full for any length of time. I think that that is entirely unworkable. Should the Parliament determine that a review of the kind Mr Griffin envisages is necessary, it can simply ask the commission to do it without adhering to a rigid schedule that is outlined in the amendment. Should the Parliament decide for whatever reason that a person or body other than the commission is more appropriate, there is nothing to stop the Parliament from commissioning such a review. I would also highlight that, apart from any periodic review that may be organised, the system and its underpinning legislation will already be subject to robust and continuous monitoring through the various reporting duties that the bill places on ministers, the scrutiny of the Parliament, including of this committee and the Parliament's public audit and post-legislative scrutiny committee, the role of the commission, the separate procedures relating to the charter and the scrutiny that will be undertaken by Audit Scotland. A strong set of arrangements to identify any areas of the system that require change and refinement, legislative or otherwise. I question the need to take what I think is a highly unusual step of setting out in primary legislation a requirement for independent reviews of whether that legislation is fit for purpose. It seems to me that such oversight and scrutiny is principally the job of this Parliament and that the amendment therefore may set a very unwise precedent. For all of those reasons, I would ask the committee not to support this amendment. Thank you minister. Can I invite Mr Balfour to wind up and to press or withdraw his amendment? I have heard the minister and I accept her comments in regard to my amendment C2 and I will not be pressing that. Other members have spoken in regard to amendment 79 and I fully agree with those comments. I do think that we do not want to go down any kind of road that sees disability benefits and other benefits either means tested or people being put off in any way because we think that it is linked to income. I absolutely agree and I also agree in regard to amendment 148 and 18. I think that that could become quite time consuming. I think that it is overprescriptive and in particular amendment 18, until the bill or the act has been up and running for a number of years, then I think that it is difficult to judge how successful it will be in practice. I also do think that that is a role for this Parliament to be taking part and I do hope that whoever is reelected in 2021, after due course, will have a look at this and it will be reviewed. I think that that should be done by a committee within this Parliament, not by somebody else, so I won't be supporting 148 or 18. Thank you, Mr Balfour. Is the committee content that amendment 62 be withdrawn? Thank you. Call amendment 79, in the name of Mark Griffin, already debated with amendment 62 and asked Mr Griffin to move or not move. The question is that amendment 79 be agreed. Are we all agreed? We are not agreed. There will therefore be a division. I can ask those in favour of amendment 79 to please raise a hand. Those against. The result of the division are three votes for and six for votes against, therefore the amendment is not agreed. I call amendment 108, in the name of Mark Griffin, already debated with amendment 62 and asked Mr Griffin to move or not move. The question is that amendment 108 be agreed. Are we all agreed? Did I hear a no there? Is everybody agreed? Sorry, thank you. And we move to the question that section 6 be agreed. Are we all agreed? Thank you. I now move to a new grouping, Scottish Commission on Social Security. I call amendment 15, in the name of the minister, grouped with amendment 16, 16A, 16B, 118, 49, 53 and 54. I ask minister to move amendment 15 and speak to all amendments in the group. Thank you, convener. Let me start by saying that I'm happy to support amendments 16A and 16B lodged by Mr Balfour, with the caveat that we will want to tidy up the wording at stage 3 to avoid any confusion that the reference to tribunal members refers to both Scottish tribunals and the equivalent England and Wales bodies. The principle that members of the House of Lords and of the first-tier tribunal and upper tribunal should not be appointed as commissioners is one that I have no difficulty with. On amendments 15 through to 54, I think that the committee is probably clear what the purpose of these amendments is and the effect that they will have, which is to bring into being the Scottish Commission on Social Security. It will be similar to, but in a number of important ways, an improvement on the UK arrangements, which allow for scrutiny of elements of the existing UK system by the Social Security Advisory Committee. As we discussed a fortnight ago, those amendments will enable the commission to deliver all of the requirements of an independent scrutiny body set out by the expert working group in its report. Its primary role will be to scrutinise regulations and Scottish ministers and the Scottish Parliament will also be able to ask it to report on any matter relevant to social security that is wanted. The amendments also recognise the commission's role in relation to our social security charter. Amendment 118 will enable the commission to have regard to international human rights instruments in performing any of its functions. As we said earlier, what that means is that an independent group of experts will be constantly reviewing the Scottish social security system and judging it against international law standards. Of course, the Scottish Government and, indeed, this Parliament should always be seeking to uphold international obligations, but placing that duty on the commission will ensure that the Government, the Parliament and, for that matter, the wider Scottish public will have the benefit advice from experts in the field about what the international standards require. As I have said, those amendments give clear and unequivocal effect to the Scottish Government's commitment to introduce a statutory independent scrutiny body. The schedule that we proposed to add to the bill makes provision for the establishment of that body. Put together, I think that those amendments deliver something genuinely new and important, and I hope that the committee will support them, and I move them in my name. Can I invite Mr Balfour to speak to amendment 16A and the other amendments in the group? Cymru, due to the time that I am with the ministers' comments in my years, I simply move amendment 16A and 16B without comment. Cymru, we support the Government's amendments in this group. The creation of the statutory commission is an extremely important step forward. It was called for, I think, by this committee in its stage 1 report. We welcome the functions that are to be given to that commission by the ministers' amendments, but it is extremely important to pause and to consider that, welcome as it is, the scrutiny by the new statutory commission of draft regulations to be made under this legislation after it is enacted is necessary but is not a substitute for effective parliamentary scrutiny. What we need is both the work of the statutory commission in accordance with the amendments that the minister is moving this morning and a superaffirmative procedure in this Parliament, given the nature and sensitivity and detail and substance of what is to be determined by those regulations. At my view, convener, it is not just the view of my party, it is the view of the all-party delegated powers and regulatory reform, if that is not the right name for it, that is not the right name for it, the delegated powers and law reform committee of this Parliament. The committee wrote to what I am going to call the DPLR committee a few weeks ago to seek that committee's view about the Government's amendments with regard to the creation of a Scottish commission on social security. We received a response on 6 February, and I think that it is important, convener, to read not all of that response, but a little bit of that response into the record for today. The committee tells us, convener, that, in a number of respects, the Scottish Government's recommendations do not meet the DPLR committee's recommendations. The establishment of the commission as an independent scrutiny body is to be welcomed, they say. However, in the DPLR committee's view, its role in relation to the scrutiny of proposals to make draft regulations undermines the ability of the Parliament to hold the Government to account and shape the draft regulations. Those are unambiguous words that this committee must take into account, it seems to me. The approach that the Government is proposing with regard to the creation of the commission is a unique approach to superaffirmative procedure, say the DPLR committee. Parliamentary consideration would be only an adjunct to the work of the commission. It seems to me, convener, that these are exceptionally important matters. They go to the core of one of this committee's main concerns about the bill in our stage 1 inquiry, which was the appropriateness of the balance between primary and secondary legislation. I have discussed this with the minister before. That is a judgment call. There is no one right answer to getting the balance right between primary and secondary, but it is clearly the unambiguous view of the DPLR committee, which is this Parliament's committee that is charged with the responsibility to monitor precisely this matter, that, even as amended, the bill does not get that balance right. I will work with other opposition parties and I will work, I hope, also with the Scottish Government to seek to put this right at stage 3. I unreservedly welcome the Government's amendments in this group and I will support them enthusiastically, but they are necessary, but they are not of themselves sufficient. We need, in addition, to the statutory commission that will scrutinise, from an expert point of view, draft regulations to be made into course by ministers. We need, in addition to that, appropriate parliamentary scrutiny. The bill, even as amended, will not allow for that, and this is an issue that we will have to revisit at stage 3. I would like to be able to work with the Government to do that, but if the Government are of the view that they want to stick with this and not move any further than our work with our other opposition parties to seek to get this right at stage 3, because, in my view and in the DPLR committee's view, we have not got it right yet, even after the group of amendments, which I hope will be supported. Does anyone else wish to come in? I invite the minister to wind up. Thank you very much, convener. As I said, I support all amendments in this group, and in that regard, I do not want to say much more on the amendments in this group, but I do want to take the opportunity to respond to the points that Mr Tomkins made. I am grateful for his support for the establishment of the commission, his enthusiastic support. I noted, and I am grateful for that. I do note the points that he makes on superaffirmative procedure and, of course, the comments that have come from the DPLR committee. Establishing the commission as a unique move does not mean that it has no contribution to make to a superaffirmative process. As Mr Tomkins said, there is no right way, a right view, in the balance that you strike between primary and secondary legislation. Whilst I note the comments of the committee and the comments that Mr Tomkins has made, I should in fairness say that I do not necessarily therefore agree with all of them. However, it would be a very foolish Government indeed that did not pay attention to those points when they are raised. I am certainly willing to reflect on those and to have further discussions with Mr Tomkins and other members of the committee if they wish it, in advance of stage 3, to see if we can reach a view that provides additional reassurance to members of the committee and, of course, to DPLR in terms of the Parliament's role in all of those matters. The question is that amendment 15 be agreed or we all agreed. I call amendment 16, in the name of the minister, already debated with amendment 15 and asked the minister to move formally. I call amendment 16A, in the name of Jeremy Balfour, already debated with amendment 15 and asked Mr Balfour to move or not move. The question is that amendment 16A be agreed or we all agreed. I call amendment 16B, in the name of Jeremy Balfour, already debated with amendment 15, Jeremy Balfour to move or not move. The question is that amendment 16A be agreed or we all agreed. I ask the minister to press or withdraw amendment 16. The question is that amendment 16 be agreed or we all agreed. I call amendment 118, in the name of the minister, already debated with amendment 15 and asked the minister to formally move. The question is that amendment 118 be agreed or we all agreed. I call amendment 18, in the name of the minister, already debated with amendment 61 and asked the minister to formally move. Sorry, my apologies. Is amendment 18? Yes, I'm not moving. Thank you minister. I will therefore not call amendment 18A. The next call is for amendment 148, in the name of Mark Griffin. Already debated with amendment 62, Mark Griffin to move or not move. The question is that amendment 148 be agreed or we all agreed. We are not agreed, there will therefore be a division. Can I ask that members in favour of 148 raise their hands and those against? Thank you. The result of the division are three votes for, six votes against the amendment and no abstention, so the amendment is therefore not agreed. I call amendment 80, in the name of Mark Griffin, already debated with amendment 62 and asked Mr Griffin to move or not move. Thank you. The question is that amendment 80 be agreed or we all agreed. No, we are not agreed, there will therefore be a division. Can I ask that those in favour of amendment 18 please show their hands? The result of the division are three votes for and six votes against and no abstentions. The amendment is therefore not agreed. I now move to a new grouping on the creation of new benefits. I call amendment 119, in the name of Adam Tomkins, group with amendments 63, 121, 122, 123, 124, 125 and 130 and I ask Mr Tomkins to move amendment 119 and speak to all the amendments in the group. Thank you, convener. I move amendment 119 in my name. The Scottish Social Security System comprises three parts. It comprises, first, the streams of assistants, which are devolved in full, including, for example, carers assistants and disability assistants. Second, it comprises the power to top up any reserved benefit, and that power is provided for in section 45 of the bill as introduced. Third, it also includes the power to create new benefits within devolved competence. Those are the three parts of the package of devolved social security that were agreed by all the parties represented in this Parliament in the Smith Commission and which are legislated for in the provisions of the Scotland Act 2016. That bill, as introduced, deals with the first part of that package and the second part of that package, but it says nothing about the third part of that package. The amendments in my name in this group are designed to put that right. It seems to me inappropriate that we all agree that this is a foundation piece of legislation, one of the most important pieces of the legislation that this Parliament is going to enact, because it puts on to a Scottish statutory footing devolved Scottish social security. However, as introduced, it does that with regard to only two thirds of the three part package that was agreed unanimously around the Smith Commission table. I think that it is unfortunate that there is no provision in the bill to deal with the power to create new benefits. That is the purpose behind the amendments in this group. The purpose behind the amendments in this group, in my name, is to ensure that this legislation puts on to the Scottish statute book all three elements of devolved social security, the benefits that are devolved in full, the power to top up and the power to create new benefits within devolved competence. Amendment 119, which is the first amendment in this group, seeks to amend section 7, which defines what the Scottish social security system is. That matters because the principles in section 1 and the charter in section 2 will apply to the Scottish social security system. That definition should include all three parts of this package that I have described. Amendment 119 and Amendment 63 are alternatives to one another. We do not need them both, but I think that we need one of them. Amend section 7 to ensure that any new benefits that are in the future created under this power to create new benefits fall within the scope of the statutory definition of the Scottish social security system and that, therefore, the principles in section 1 and the charter in section 2 will apply to those benefits to their design and to their delivery and so on and so forth. The other amendments in the group seek to add to this legislation the power to create new benefits and do so in a manner that is fully consistent with the way in which Scottish ministers want to design and deliver the benefits that are fully devolved. That is to say, the regulation-making powers in these amendments are the same as the regulation-making powers that the Scottish Government is seeking to promote through the amendments that we have just discussed and decided on. Those are regulations that would have to be laid before the Scottish Commission on Social Security for their advice and input and so on and so forth. The process is entirely the same. The purpose behind those amendments is to ensure that the legislation captures the whole of and not just some of devolved social security in Scotland. At the moment, the legislation does not do that. That is a significant fundamental flaw with it. I have some concerns around the amendments that Mr Tomkins discussed very passionately a number of moments ago with regard to a different group, which is an appreciation of appropriate parliamentary scrutiny. While I appreciate that the Scotland Act 2016 allows Parliament to consider legislation to create new benefits, section 28 of the Scotland Act 2016 does not give the Scottish Parliament or Scottish ministers the power to create new benefits. All transfers of responsibility are from Parliament to Parliament, and quite rightly, in my view, no responsibility is transferred directly to the Scottish Government. My concerns around the set of amendments—it is stated within the regulations that if those amendments were passed, the power that we would be giving to the Scottish Government would allow them, by virtue of regulations, to create new benefits. I do not think that giving that power by virtue of regulations provides adequate parliamentary scrutiny for such significant development. The Social Security Bill, as drafted, brings forward primary legislation in order to create the benefits that we envisage taking forward that are being devolved. The same process, in my view, should be undertaken for creating new benefits. That is a significant development. That would be a very substantial policy proposal to create a new benefit. I think that the creation of new benefits should be done through primary legislation. That set of amendments would allow such significant steps to be taken through regulations, and I do not think that that would provide the same scrutiny that would, in my view, be appropriate for the creation of such new benefits. Therefore, I will not be able to support them. We said from the beginning that we support the principle that the power to create new benefits should be transposed within the bill, but I think that we would share the very same concerns that Ben Macpherson has set out that any new benefit that the Government or anyone else was proposing, we would expect to see that come to Parliament through primary legislation, to give full scrutiny to this or any other committee, to go out to consultation, to take evidence at stage one, to potentially amend that at stage two, to give Parliament that full role in scrutinising and strengthening any new benefit that has been proposed by the Government or any individual member through a private member's bill. I would not be supporting those amendments in that form purely because they relate to giving ministers power to introduce a new benefit by regulation, and we would much prefer to see any new benefit being created by being introduced by enactment. I commend Adam Tomkins for his passionate commitment to ensuring that this Parliament uses its new powers to the max. However, if we introduce new benefits in the way that Mr Tomkins suggests, we will not be able to scrutinise the proposals to the maximum. The creation of new benefits is so important that each and every opportunity that we have to consult and to scrutinise is absolutely essential to make sure that the benefits deliver as we would wish, so I will not be supporting those amendments. I just wanted to put on record that I am grateful to Mr Tomkins for raising this issue a number of times in reminding the committee that part of the provision in Scotland act, the ministers must clearly have the powers to create new benefits. I was a bit torn by it, if I am honest, because I would have preferred there to be reference in this bill, so it was clear that we have those powers. Since the question that Mr Tomkins raised earlier, which I have to say I am 100 per cent behind, which is to fully resolve the question of how the parliamentary committees will scrutinise any draft regulations, I am much more comfortable with the idea for the moment that it will be primary legislation. I do have a degree that there should be specific references in the primary legislation as a belt and braces, I suppose, to ensure that what we have just discussed in relation to the charter and the importance of the charter apply to any new benefits. I wonder if there was any scope for consensus on that, if not. I am sympathetic to the idea that my only objection is just the procedure that, if you have a choice between primary legislation and secondary legislation, given what we have just discussed, I will be much more comfortable that ministers would have to have a full consultation prior to the introduction of a new benefit, which would mean all the organisations that come to us, the committee would have the right to have its own consultation in that process, and then we will go through this line-by-line. That would be my preference for a new benefit, albeit I am with Mr Tomkins on what he is trying to do, I think, which is to make sure that we are fully aware that the Parliament has these full powers and that all of the charter and all of the things that we have just been discussing about the principles that would apply to that would apply to any new benefits as well. Mr Adam. We are very brief, but, as Mr McPherson has already said, it is transfer of to Parliament, and the Scottish Government cannot do that in its own. I am, if not practical in everything that I am trying to do, and the practical, you only have two choices in that scenario, which would be, one, the Scottish Government legislates every time it wants to create a new benefit, and it goes through primary legislation, which is most scrutiny and if the else gets the opportunity, or you delegate the pills to the Scottish Government to create via regulations, which I do not think that any of us would be too keen on the idea, because I think that, as everyone else has already mentioned, that kind of bypasses the whole structure of the Scottish Parliament itself, and I would prefer, and I know that the Government's option is for the Scottish Government to have to legislate in primary legislation when it creates a new benefit, so for me it is just a very practical way of moving forward. Let me start by making it clear, as I am sure Mr Tomkins and others know, that section 28 of the Scotland Act 2016 provides an exception to the reservation of social security matters. That is not a power that anybody other than this Parliament can exercise, or at least cannot exercise without the Parliament's consent. As colleagues have said, what we, as members of the Scottish Parliament, have before us is a choice. We can either choose to delegate that power to Scottish ministers on a case-by-case basis to provide for new benefits when the need for a new benefit is identified and create them via primary legislation so that Parliament can, as has been said, take evidence, debate and set out the purpose of any new benefit and its essential features in terms of who should be paid and what they should be paid. Or we can delegate the powers wholesale, which is what I believe Mr Tomkins is proposing we do via his amendments, which would insert a general provision into the bill enabling ministers to create new benefits by regulations. Given the discussion that we have had moments ago around the need in the view of committee members of DPLR and that Government is willing to consider further in terms of improvements to the superaffirmative procedure, I think that it would be contradictory for us now to go and pass an amendment that hands that blanket provision to ministers. Mr Tomkins's amendments allow for regulations created under this new power to be scrutinised by the commission, but they do not allow for the full scrutiny that would be applied to primary legislation. As members have said, that is entirely the wrong way to go. I do not believe that it is necessary to put in the face of the bill that Parliament has the power to create new benefits as that power comes with the restrictions and constraints, but nonetheless there, as it does from the Scotland act, we will at some point later in this committee's proceedings debate and discuss, as part of primary legislation, the creation of a new benefit under housing assistance. I think that that is entirely the correct way to do this, to maintain an appropriate balance between creating benefits in primary legislation and delivering them via regulations. Thank you, minister. I invite Mr Tomkins to wind up and to press or withdraw his amendment. Thank you to all the members who have contributed to this debate. Let me give an example of the kind of thing that I think we are talking about here. Let us suppose that we identify in Scotland that there is a particular problem with people leaving terms of imprisonment and sleeping rough and we want to create a new benefit that is directed at prisoners being released from imprisonment so that they do not have to sleep on the streets and that they have some kind of temporary accommodation provided for them. That is the kind of new benefit that could be created by us that falls completely within devolved competence, both justice and housing are within devolved competence. There is a sort of thing that we could do. Right now, at the moment, if ministers identified that that was a problem in Scotland, then ministers could use their budgets and there are about £75 million in the community's portfolio budget for this year's budget to design and deliver an ad hoc scheme of assistance, perhaps a housing first scheme of assistance to prisoners being released from jail to prevent them from sleeping rough on the streets. There would be absolutely no parliamentary scrutiny of that at all. It could all be done through ministers using their spending powers. The only scrutiny that we would have is the scrutiny annually in the budget process to decide whether we really wanted to give £75 million to this portfolio or whether we thought that £75 million would be better assigned to some other portfolio in some other way. Far from designing a scheme here that reduces parliamentary scrutiny, what I have tried to do is to design a scheme here that increases parliamentary scrutiny. At the moment, those things could happen without any parliamentary scrutiny at all, however. Absolutely. It is a really interesting example. If that is a concern, would it be possible to put on the face of the bill that the creation of new benefits would be done by primary legislation rather than regulation? That is an interesting question. I think that the sensible thing to do at this point, given the range of very strong exceptions that have been put to the scheme as proposed by me here, is not to be pressed at this point, but to pause and think in advance of stage 3 about whether there is a more satisfactory way of ensuring that the bill reflects the reality of the power in section 28 of the Scotland Act, which is the power to create new benefits, as well as the power to top up and the powers to create new benefits. I do not propose to press any of the amendments in this group, except for one. The one amendment that I propose to press is amendment 63. Amendment 63 simply alters. It increases and enlarges the definition of the Scottish social security system within section 7 of the act to ensure that any future enactment, that is to say primary legislation, which contains provision exercising the power provided for in section 28 of the Scotland Act to create new benefits, falls within the definition of the Scottish social security system and that any future use by this or any other government of that power through primary legislation would therefore be captured by both the principles and the charter would apply to that. That is not an amendment that seeks to delegate any parliamentary or legislative power to ministers. It is simply a tidying up exercise that ensures that the definition of Scottish social security system complies with what the Smith commission intended and complies with what the Scotland Act 2016 enact. I will press that amendment when we come to a convener, but I will not press the others in this group in my name. Are the committee content that amendment 119 be withdrawn? Yes. Thank you. I call amendment 63, in the name of Adam Tompkins, already debated with 119 and asked Mr Tompkins to move or not move. Move. So the question is that amendment 63 be agreed. Are we all agreed? No. There will be a division. The question is that amendment 63 is agreed. Those in favour, please raise their hands. Those against? Abstentions. Thank you. Sorry, clerks, I have not been able to get the whole vote. Can I ask for those for the amendment to please raise their hands? Those against? Abstentions. The result of the division are three votes for, five votes against and one abstention. The amendment is therefore not agreed. I am conscious of time, and as we are about to move to new grouping, can we have a comfort break? I would ask members to be back at 10.36 at the latest ready to commence. Thank you very much. Thank you. We now move to the next group, which is the definition of Scottish social security system. I call amendment 120, in the name of Mark Griffin, in a group on its own, and I ask Mr Griffin to move and speak to the amendment. Thank you, Cymru. Moving amendment 120, I will be brief, since it is in a group on its own. I feel that the definition of Scottish social security is currently too narrow and fails to take account of other schemes that are already devolved and support low-income households. Amendments to automate benefits on the take-up of assistance and income maximisation that we have passed in the session last week largely rely on the existing Scottish social security system definition, and I feel that widening that definition would give additional weight to the ambition in those clauses. Amendment 120 would ensure the same principles, and safeguards afforded to devolve, to centralise social security are extended, to devolve locally administered schemes, and I would ask members to support amendment 120. From my benefit, can you just formally move on to the 20th? Do you have any other members' wishes to come in, Ms Boyer? Thank you, convener. I have concerns about this amendment, principally, in that it is bringing in things that are not going to be delivered by the social security agency. A question that I would have for Mark Griffin would be about school meal and clothing grants, discussion housing payments and council tax reduction. In fact, many of those things are delivered by local authorities. What consultation have you carried out with local authorities to understand the implications of applying the principles and the charter to the delivery of school meals and clothing grants? I am sorry. I will go very quick. I suppose that another key thing is what redress people would have if they felt that the local authority had not carried out properly. In my opinion, the amendment 120 from Mr Griffin extends the definition of the Scottish social security system to matters over which Scottish ministers have no direct control, such as the delivery of school meals and clothing grants, which are the responsibility of local authorities. The amendment also makes unrelated matters subject to the charter, but then fails to follow that through and consider the implications for charter redress. I do not support the amendment, which puts in place a perverse system of accountabilities, in my opinion, where people are accountable for the delivery of certain things, they have no hand in delivering and people who deliver them are not accountable. The amendment creates additional confusion and, in effect, provides for apparent accountability, which is, in practice, false. Logically, if the amendment is supported and ministers are to be held accountable, it would be wise for ministers to seriously consider assuming direct delivery for some of those services, a consequence in terms of how our local authorities may feel, as well as the locality of those delivery, which I am sure Mr Griffin would not wish us to pursue. There are a number of questions in terms of how an individual who believes that they have not received the correct support or in the manner via local authority assistance would achieve meaningful redress, and so I urge the committee not to support this amendment. Thank you. I invite Mr Griffin to wind up and press or withdraw the amendment. Thank you. I take on board the points that have been made and will not be pressing this amendment. I think that we will seek to achieve the ambition, which is to link some of the positive changes that we have already made around take-up of assistance, income maximisation and automation of assistance in ways that are more likely to gather support of committee and address the point of consultation that Ruth Maguire raises, so I will not be pressing my amendment 120. I seek to withdraw. Thank you. Are the committee condemned that that will be withdrawn? Thank you. The question is that section 7 be agreed to. Are we all agreed? Thank you. We now move to new grouping on Scottish Social Security Agency, and I call amendment 149 in the name of Pauline McNeill, grouped with amendment 151. I ask Ms McNeill to move amendment 149 and speak to both amendments in the group. Thank you very much. I want to say what I submitted to the amendments at the moment. The primary concept behind 149 is to ensure that ministers carrying out the functions have regard to the social security principles. Some of the organisations that gave us evidence as the committee has heard are concerned that the current UK system does not treat people with dignity and respect. That is, of course, enshrined in the charter and is a primary theme of the new social security agency created by the Scotland Act and in this bill. To ensure that the principles in the bill will be applied and that ministers will be held to account if they are not upheld. To ensure a clear duty that ministers have to have to regard to all of the principles in the charter when framing any regulations or guidance overseeing the operation of the new social security agency, you may be designed to give greater accountability to ensure a right-based culture as opposed to its belt and braces. I am aware that the minister will probably draw attention to a letter that she has issued to me. I do not know why that is circulated suggesting that the wording of it is not even designed to do that. I am interested to hear what the minister has to say. The minister may well take the view that it is covered by the amendments and other provisions in the bill, but I would like to hear the response to that, so I move amendment 149. Would any other members like to speak to this group? Perhaps Ms McNeill anticipated that the Scottish Government opposes these amendments and that our rationale for that is because we believe that they are unnecessary. As the committee heard last week in relation to Mr Balfour's amendment 60, duties that the bill places on ministers are automatically and legally placed on the agency. Nothing further needs to be said in the bill. Its silence about the agency is deliberate and correct. Adding those amendments would have unintended consequences because they make provision for the agency to carry out all functions related to social security that ministers may carry out under the act. They would give the agency the power to carry out various functions, which it simply would not be appropriate for an agency to undertake. It means that the agency would be able to make subordinate legislation, for example, which is one of the minister's functions under the act. If the concern behind those amendments is that ministers might create some form of unaccountable body to deliver social security, I think that the reassurance that we have in passing Mr Adam's amendment last week, amendment 77, that the delivery of social security is a public service, is assurance enough in that regard. We oppose those amendments, we believe that they are unnecessary and would have unwelcome consequences, and I urge Ms McNeill not to press them. I invite Pauline McNeill to wind up and to press or withdraw the amendment. I think that, in view of what the minister has said, I am persuaded that they are not required. All of the things that I would seek to achieve are supported in other aspects of the bill so far, so I therefore seek to withdraw amendment 149. The committee content that that will be withdrawn. We now move to new grouping on residence conditions. I call amendment 64, in the name of Jeremy Balfour, grouped with amendments 65, 66, 70, 71, 72, 73, 153A and 76. I ask Mr Balfour to move amendment 64 and speak to the other amendments in the group. I move amendment 64, convener, in regard to residence conditions. I have to say that one of the things that surprised me most about the bill when it was first published last summer was that there was no definitional residency within the bill. The bill, as it was published, gave no indication as to what an individual would have to do to get this benefit, whether he would have to live, how long he would have to live there for or anything like that. It was almost, I think, and others who have got better knowledge of me, almost unique in regard to this type of bill in not having any residency within it. It was just completely blank, and I know that, having spoken to many organisations and charities, they too were bemused by the lack of definition. What I have sought to do in regard to amendment 64 is to put in a fairly standard residency condition that you will find in other statutes that have already passed. I think that that absolutely clarifies at the basic level of what you have to do to be able to get receipt of this benefit, how long you have to have lived within Scotland. I understand the Government's intention is that they want to have a residency clause for each of the benefits that are coming forward. I think that that goes in contradiction to what they are trying to do in regard to this piece of legislation, and that is to make it understandable and open to people to claim. If we are literally going to have a residency, a slightly different residency clause, for each of the different benefits and any benefits that might come in future years, how are people going to know to apply? Will it put people off applying? If there are different rules, if they do not get one, will they think that, well, I feel the residency clause on that one, I am not going to apply for another one? I accept the Government's perspective that, for some of the benefits, there needs to be a tweaking of amendment 64. My intention at this stage will be to withdraw those amendments and hopefully work with the Government in coming up with a general residency condition with the provision that, where it is required and not only where it is required for a particular benefit, it could be authored by regulation brought forward by a minister. I generally do believe that we need a residency condition at the heart of this bill so that people know how to apply and what those conditions are that they can apply for. However, I accept that amendment 64 does not quite achieve what I want to achieve in regard to that, and I hope that the Government will work with me or other opposition groups will work with me in regard to getting that. However, I would be interested at this stage to get some view of where the Government is in regard to that. I know that Jeremy Balfour has been bringing this up at every section and the whole process. It was only self that brought this issue up, and I do not decryde that it is an important issue. However, in my own way of looking at it, the way that it stands is that it is effectively in primary legislation. Would it not give us more flexibility if it was in regulations to be able to change it as and when things are going forward? It really makes it difficult, in my opinion, to just make it more complex the way in which it has currently got it, but I do agree that Mr Balfour has already said that he wants to work with others to try and make it work. However, I have concerns. If we go down the issue, we have to get it correct and get it right. It was not one of the major issues in the whole debate that we had, but if we go down the issue, we have to get it the right way. I also think that Jeremy Balfour has brought an important issue to the committee for consideration, and I agree that the wording of it could be critical in the operation of the act when it comes to pass. I would just like to be clear, though, what it is that you are trying to capture. The term residency has a specific legal meaning for most pieces of legislation, which I think is usually three years. I wonder if there might be some confusion if you continue to use that term, depending on what it is that you are trying to achieve. I have assumed that what you are trying to achieve is that, when people move their permanent address, which is perfectly legitimate to move from living in England to Scotland, you might be obviously governed by the new living benefits, and the rules need to be clear about that. I just wanted to clarify what you are trying to capture. If that is the case, can you say to the committee what happens now under the UK system? If you move your address from Birmingham to Glasgow, what do you have to show to the UK agency that you have moved home? I understand not making a difference because the benefits will be different, but I wonder why you would not follow the same process. I would be interested to hear if you can answer any of those. I would be grateful, Mr Balfour, if you could elaborate on the timescales that you present, not less than 104 weeks out of 156. Is that based on some sort of consultation? Is it based on Westminster legislation? I would be interested to understand where those precise figures came from when you are summing up. Thank you very much. I am grateful to Mr Balfour for his indication that he does not intend to press those amendments. I do think that, as they stand, the amendment 61 creates an absolutely requirement that a person must be present in Scotland for a period of two out of the last three years to qualify for all the forms of assistance that are outlined in chapter 2 of the bill—a blanket presence that is incorrectly applied to Scotland rather than to the wider UK. Our legislative approach to residency reflects the general commitment to minimise complexity. The intention is to set out residency conditions in the regulations for each form of assistance for good reasons. It reduces the scope for confusion and allows the full eligibility criteria for each benefit to be set out in one place. It is also sensible because residency and presence criteria may differ for different types of assistance. For example, disability benefits may include temporary absence and presence conditions that are not relevant in the case of other devolved benefits such as best start grant. A single set of criteria may therefore be unworkable. Although I am always content to discuss further with members how the issue that is pressing on them may be accommodated in primary legislation in this case, I have to say that I think that finding a general clause that is then deliverable in regulations of necessity will vary from benefit to benefit will be a difficult ask. I am perfectly happy to look and see if it can be done, but I think it is a very difficult ask indeed, not least because we also, in benefit by benefit, have to take account of residency requirements in other matters, not least in terms of EU nationals and so on. I am pleased that Mr Balfour, and I am grateful to him for not pressing those amendments. I am happy to continue discussion with him on whether or not what he wishes is something that the Government could support, but I feel obliged to say that I think that finding a form of words for a general condition in primary legislation will be a difficult one and one that, depending on how it is worded, as currently is the case with amendment 65, could not be amended by regulations. We would be boxing ourselves into a very tight corner indeed, but I am happy to look at that. I invite Jeremy Balfour to wind up and to press or withdraw his amendment. I am conscious of the time, so I will be briefing my summoner to answer Alison Johnstone's question in regard to the timescores that are taken from other bits of legislation in regard to the residency clauses. I suppose that, the most extreme, if you do not have a residency definition, anyone can apply for a Scottish benefit. We have to have some kind of understanding that this benefit is for people who live in Scotland and reside in Scotland. That is what I am trying to at least get to the basic point, but if I live in Cornwall, I cannot suddenly start applying for Scottish benefits. That is my concern as the face of the bill was. I accept that it will come with regulation, but I still think that it is important that we have at least an attempt at having a definition of what it means to be able to get a Scottish benefit in regard to residency, and I will try to work with the minister and others in regard to that. I withdraw amendment 64, 65, 66, 70, 71, 72, 73, 15, 38 and 76. The Questions Committee is content that that will be withdrawn. I now call amendment 121, in the name of Adam Tomkins, already debated with amendment 119, and I ask Mr Tomkins to move or not move. I now call amendment 122, in the name of Adam Tomkins, already debated with amendment 119, and I ask Mr Tomkins to move or not move. The question is that section 8 be agreed or be all agreed. We now move to a new group in determination by Supreme Court, and I call amendment 19, in the name of the minister and a group in its own, and I ask the minister to move and to speak to amendment 19. Thank you, convener. I will be very brief. Amendment 19 is a technical adjustment to make clear in the face of the bill that it is possible for an appeal to end with the decision of the UK Supreme Court, and I move the amendment in my name. Thank you. Does anyone wish to speak to this amendment? No. Minister, do you wish to wind up? I will wind up formally, convener. The question is that amendment 19 be agreed or be all agreed. So the question is that section 9 be agreed or be all agreed. And the question is that section 10 be agreed or be all agreed. Move to next grouping, which is more than one cared for person, and I call amendment 173, in the name of Alison Johnson, grouped with amendments 174, 175, 176, 177, 178, 179, 180, 181 and 183. I invite Ms Johnson to move amendment 173 and speak to all the amendments in the group. Thank you, convener. Since lodging these amendments, I have discovered that in the lawyers world, as Ms Freeman pointed out earlier, an individual can be more than one person. Prior to lodging those amendments, I was off the view, as I'm sure many colleagues are, that an individual was indeed only one person. If only I could be more than one individual when it came to voting. Alas, it seems that that's not the case. That being the case, and having now acquainted myself with section 22 of the Interpretation and Legislative Reform Scotland Act 2010, I will therefore be withdrawing amendments 173, 174, 175, 177, 178, 179—I'm terrified of getting this wrong—I will be retaining 81 and 176 at the moment for further discussion and I'd like to go on to that now if I may. During stage 1, many groups representing carers who gave oral evidence or submitted written evidence raised the issue of carers who provide care for more than one person. Those groups include carers Scotland, carers trust Scotland and the national carers organisation. The issue was also raised by the health and social care alliance Scotland. The current carers allowance can only be claimed in respect of one person. That means that someone who cares for more than one person isn't recognised for the additional care that they provide. People with multiple caring roles are also significantly less likely to be able to take up paid work and they also incur extra costs looking after more than one person. Because of the 35-hour minimum care requirement, if you provide 20 hours of care for one person and 15 for another or perhaps various arrangements that add up to more than 35 hours, that is disregarded if it is not for only one person. People who need support miss out on it as the hours requirement only recognises one cared for person. Those are perhaps natural outcomes of the fact that carers allowance is officially an income replacement benefit rather than being a deliberate attempt to not recognise additional caring responsibility. Nonetheless, with carers assistance, we are going right back to the drawing board and we can build in recognition of the fact that people who care for more than one person require additional support. Research from Spice suggests that, in 2018-19, around 15 per cent of carers allowance recipients in Scotland will be caring for more than one person. That is around 12,000 people who provide extra care but do not receive any recognition for it. I appreciate that the Government already recognised the issue, having pledged to pay a supplement to carers caring for more than one disabled child. I am sure that we all agree that that is really welcome, but I think that we need to go further. The amendments 176 and 183 take us in that direction. Amendment 176 ensures that any regulations that set an hours requirement will need to take into account hours spent caring for a second person or more people. Amendment 181 is intended to make clear that higher or additional payments can be made to people with additional caring responsibilities. I appreciate that no rules have yet been decided on eligibility. Eligibility rules or value for carers assistance and the details of how carers assistance will work will rightly be laid out in regulation. I do not want to pre-empt any process of consultation, but I do believe that that is an important enough issue and has been raised with us enough times by the relevant groups that we should make it absolutely clear now that the regulations can be drawn to reflect a situation where the carer provides care for more than one person and to ensure that when the time comes to set up carers assistance the issue that I and many carers groups and individuals have raised is given due consideration. I know that the minister shares broad intention of those amendments and I am willing to listen to any concerns that she might have around the wording and any suggestions that she might offer around working together at stage 3 to ensure that the issue is addressed. I wonder if Mr Johnson for procedure would move amendment 173 and withdraw after the debate. I invite other members to speak to the group. My understanding is that the bill allows for all the flexibilities that Alison Johnstone is looking for in terms of caring for multiple people. Perhaps the minister or Alison Johnstone could clarify that. We are getting carers assistance regs will come here and I think that it would be quite important to look at the whole package that we offer for carers and as well as gathering more evidence. I know that we have had information from carers organisations but I just feel that it would be good to do it in the round at that point. I am grateful to Ms Johnson for withdrawing the amendments. We have had some interesting insights into the legal mind and world this morning. I want to turn to what is the substantive amendment 176, which, as Ms Johnson said, would put a requirement on the Government to base any calculation of eligible hours for carers assistance on the total number of hours spent caring for multiple people. I fully appreciate the point that Ms Johnson is making and that many of Scotland's carers are splitting their hours of care between more than one person and may be missing out on support despite significant caring responsibilities. I am also sympathetic to the principle behind the amendment that we should recognise a wider range of caring situations and ensure that we are providing support to those who need it. I want to ensure that we fully support carers, just as I know Ms Johnson does. She has always been an effective champion for carers and indeed persuaded this Government to introduce a young carers allowance. If assurance is being sought that the bill as drafted provides the powers for changes to be made in the number of hours of care required for carers assistance to be varied based on the number of people being cared for or for hours to be aggregated, I am happy to give Ms Johnson and the committee that assurance. However, there are many potential improvements to be made to carers support. I believe that in order to do that, we should do that together through the development of and consultation on carers assistance regulations, which will be brought forward following passage of the bill. We have already made it clear our commitment to go designing those regulations with relevant organisations and partners and to allowing for any changes proposed to be consulted on with the public that is considered by the committee. Importantly, we would also consult with the carer benefit advisory group and the independent disability and carer benefits expert advisory group, as well, of course, as a future Scottish commission. I believe that that approach ensures that changes to carers assistance are made in a robust and coherent way and take into account what priorities should be. I would ask Ms Johnson not to press this amendment, invite her instead to take part in the discussions with me as we develop carers assistance regulations. I value her opinion in the past and would very much welcome her advice again as we take forward this work. I appreciate the minister's comments in response to Ms Maguire. I agree that the bill allows such actions, but I am seeking a requirement on the Parliament and on the Government. However, taking into account what the minister has said, I would like to reflect further on that. I will reserve the right to bring back an amendment at stage 3, but I will not push those amendments today. I will not move them today. The committee content that amendment 173 be withdrawn. The question is that sections 11 be agreed. I call amendment 174 in the name of Alison Johnson, already debated with amendment 173, and I ask Ms Johnson to move or not move. I call amendment 175 in the name of Ms Johnson, already debated with amendment 173, and I ask Ms Johnson to move or not move. I call amendment 176 in the name of Alison Johnson, already debated with amendment 173, and I ask Ms Johnson to move or not move. I call amendment 177 in the name of Ms Johnson, already debated with and ask Alison Johnstone to move or not move. Amendment 17.8, to the name of Alison Johnstone, has already debated and has asked Ms Johnstone to move or not move. Amendment 16.5, in the name of Jeremy Balfour, has already debated with amendment 64 and has asked Mr Balfour to move or not move. Maes i gafaiwn i'n gŵr i siarad從un positions ni yn cael hwnau iawn. 279, roedd Mwynol wedi ddweud gwaith i'n agorig, ac wedi ddweudio i'n agorig na ddweudio i, ac roedd Mwynol wedi ddweudio i-dod, a'r corwch am 218 wedi ddweudio i, a ddweudio i-ddweudio i, ac byddwch yn gŵr a'r corwch ar おrth ddweudio i, a pwych ac yn gallu iddynt i, a palï fentfrurd, a newid i ob Touchmene yn agorig. Rwy'n cywpio'n gweithio'r grwp, yn ffordd o'r fonwyr, ac dydd yn y niwn 20—gyrchu'n cwpio'n gweithio'n gweithio. Felly mae'n dobl gyda'r grwp wedi cynnig ymol000. Felly mae'n dod yn cwpio'n gweithio lle. Mae'n adael gan maeddau grwp o'r listr, yn ddigwydd a dweud o'r mwywyr gan ddwy'n All amendments in the group—thank you very much, convener. I'm pleased to move these amendments in my name. Our policy intention has been clear from the outset, and that is to ensure that an individual has the right to choose the form in which they receive their assistance, and we have never suggested that payment informs other than money would be imposed. Provision for assistance in kind is already included in the bill to allow Scottish ministers flexibility to explore options for other forms of assistance that might be offered as an alternative to money where that might be appropriate. However, in response to concerns raised by a number of stakeholders during stage 1, I am bringing forward amendments 20 to 32 to make policy intent clear. They set out that an individual must agree to receive payment of their assistance in a form other than money. In addition, they also make clear that an individual has the right to withdraw agreement if they are receiving assistance in kind and revert to receiving money. Those amendments also provide that ministers cannot make deductions from someone's assistance in order to recover an overpayment unless the individual either agrees to that or has refused to agree to a repayment plan unreasonably. That too gives legal expression to a policy commitment that the Government has made from the beginning, which is that we should always, in the first instance, try to agree a mutually acceptable repayment plan with an individual where there has been an overpayment that falls to be recovered. Turning to Mr Griffin's amendments, I have to say that I do not understand the point of those amendments. They do not appear to change the legal effect of my amendments and, in my view, do not represent good lawmaking, so I cannot support Mr Griffin's amendments. In every case, his A amendments state that regulations must provide for assistance to be given in the form of money unless they do not. I do not see the point of that proposition. Obviously, if the regulations do not provide for assistance to be given in a form other than money, the assistance has to be given in the form of money. His B amendments unnecessarily complicate the text. My amendments state that assistance can only be given in a non-monitory form if the individual has agreed to that. Mr Griffin's amendments add a further statement that, before agreeing to receive non-monitory assistance, the individual has to be first offered assistance in the monetary form. I am not at all sure that his amendments are technically going to the right points of my amendments. More importantly, I do not understand the apparent assistance that the offer of one form of assistance should be made before the offer of another. If we are asking someone to choose between money and, for example, other forms of assistance, we should be presenting the person with both options at the same time so that they can choose between them. If the concern is that people will somehow be led into taking assistance in a non-monitory form without understanding that they have a choice, I think that that indicates that there is a lack of understanding of the basic principles that, in Scots law, agreement requires an offer and acceptance. In summary, convener, I do not believe that Mr Griffin's amendments add anything in legal terms or in deliverability to the amendments that I have brought forward and would urge the committee not to accept them. I move the amendments in my name. Thank you. I invite Mr Griffin to move and speak to amendment 28 and the other amendments in the group. Thanks, convener. I will be supporting the amendments in the name of the minister and the amendments in my name are simply probing the amendments that I will not be pressing. Those were lodged off the back of concerns by outside organisations, such as the Public Reaction Group and INIB, Citizens Advice Scotland and Inclusion Scotland, among others, and it related to the concern that the minister set out that there was the potential that people could be led down a particular course of action in agreeing to accept the non-monitory form of assistance, and the amendments were, as they were, an applicant was to be offered assistance and money without the alternative to make it clear that it was right to accept that or not before starting a discussion on alternative payments. However, I accept the minister's reason for not accepting those and we will perhaps enter into discussion with the minister as to how we best reflect the ambition of the organisations that have relayed the concerns to me. Does anyone else wish to speak to the group? No. Can I invite the minister to wind up? In winding up, convener, can I simply thank Mr Griffin for his withdrawal of his amendments? I think that the amendments in my name now give us a bus position in which to move forward. For procedure, Mr Griffin, can you move 20 and seek to withdraw it for the committee? Move 20 and then seek to withdraw. The committee can think that 20 has been withdrawn. I call amendment 20B in the name of Mark Griffin already debated with amendment 20 and asked Mr Griffin to move or not move. Amendment 20C in the name of Mark Griffin already debated with amendment 20 and asked Mark Griffin to move or not move. I ask the minister to press or withdraw amendment 20. I am moving to a possible final group for today. It is a group on terminal illness. I call amendment 182, the name of Mark Griffin, grouped with amendments 67, 68, 69, 189, 191 and 192, and I ask Mr Griffin to move amendment 182 and speak to all amendments in the group. Thank you, convener. I move amendment 182 in my name. We will be supporting Jeremy Balfour's amendment 67 and 68, backed by MND Scotland and Marie Curie, but we would not be supporting amendment 69 in Jeremy Balfour's name. The current system uses a definition of the last six months of life, which means currently far too many people dies and lost with a terminal illness. Don't get the support that they need quickly enough or have to go through a face-to-face assessment. The outside evidence that I have received is that clinicians simply do not feel confident enough to make a prediction that a person has within the last six months of life for a range of conditions and particularly motor, neuron disease clinicians do not feel that they have the appropriate information to predict a disease trajectory to be able to predict that someone would be in the last six months of life and then allow them to access the fast-tracked benefits that are present. Only those with terminal cancer diagnosis are receiving benefits in that way, and we feel that expanding the definition to the last two years of life, as proposed, will allow more conditions such as MND, heart failure and COPD to qualify. Amendments 182, 189, 191 and 192 in my name complement those of Jeremy's, which we will be supporting. They seek to establish, as exists under the current system, special rules for those qualifying for social security, which includes a fast-track process, a less intrusive assessment process, a higher rate and more flexible payments. At present, there is nothing on the face of the bill that will allow for such a system, and those amendments would allow for that system with the details to be set out in regulations. With all that said, I appreciate the course of action that the minister has undertaken, and the lack of formal consultation that has been undertaken on that particular issue. While it was an issue that we flagged in our stage 1 report that we felt had to be addressed, I would be happy to work with the Government at the conclusion of that consultation stage, along with MND Scotland, Maricuri and the other organisations that have been rightly lobbying hard for a change to the definition of terminally ill from the six months to a clearer definition that would allow those people who have terminal diagnoses to benefit from some of the changes that we would like to see and to avoid the situation that we have seen currently where there have been occasions where people have died before they received the benefits that they are entitled to, so I will not be pressing the amendments in my name following the minister's letter. Thank you. I invite Jeremy Balfour to speak to amendment 67 and the other amendments in the group. Thank you, convener. I move amendment 67 in my name. I think that this bill, and hopefully act, is there to protect the most vulnerable in our society, and there can be nobody more vulnerable when we go to a hospital and are told that they are going to have a terminal illness. I think that all of us have had friends or family who have gone through that experience, and it is a devastating experience to go through, and one I'm sure none of us hoped to go through ourselves. What I seek to do is not to change any of the regulations or rules in regard to what happens at the moment. All I seek to do is extend the definition of terminal illness from six months to two years. As I said slightly sarcastically, during the evidence, we are all terminally ill, and at some point we have to make a judgment call as to where that number goes. I do also welcome the letters that we received from the minister this morning in regard to going out to consult with medical professionals and individuals. However, I'm still going to press this, because I do believe that we want to indicate at this stage that I personally don't believe, and I hope that the committee doesn't believe that six months is appropriate in regard to where we are today. We may come back and say that 24 months isn't the right figure either. Once we have that evidence and once we've had that consultation discussed, I would be happy to work with our MSPs to find an appropriate figure. However, clearly, things have moved on. Things do change in regard to illness, the way that doctors can do their work and predict that. I do believe that, at this stage, we're going to move to a two-year figure indicating where we want to go and it's helpful. I believe that it will give greater security to people who have had this term when their illness is hanging over them. I think that it is important to point out that there have been quite a number of cases. I appreciate that the system is going to be different and things will be different under how we go forward, but people do apply and end up not getting the money before they die. I'm actually missing me to miss the whole point of having benefits is that it's there to help you with the illness or disability that you have. Can I move briefly in summary to amendment 69, which is unhelpful, but has been picked up by MSPs who are not part of the committee and have not been read as a whole. I will not be moving amendment 69 in my name today, but I do think that, at some point within regulations or if that is approved, that we need to look at it again. The reason I do that is that some people very gratefully, although they get a terminal ill diagnosis due to medicine, science and whatever reason, survive way beyond the three years. I give the indication to the committee that, when I was sitting as a tribunal member, somebody came to us who had been on high-rate care, high-rate mobility for nearly 25 years, having gone through the terminal illness and had survived that and was living a very normal life thanks to medication that he was on. That wasn't my individuals thought, nothing had changed in his circumstances and the department had missed it. The reason for that was not in any way to try to intervene on someone who is close to death, but it is to make sure that the benefits are going in the right way to the right people. However, I accept that perhaps, again, the wording is not exactly how it should be, and so I will withdraw amendment 69. I do think that it is important, though, that we have had lobbying letters from different groups saying that six months is simply too short a period. I do accept that, even within the third sector, there are different views on that time number, but I think that 24 months, for me at the moment, and I'm happy to see the evidence in due course, is the right one. I think that it gives a very strong message if we allow us to go through today, if we pass through today to say to people we understand what you're going through and we want the benefits to help you while you are alive, not once you have gone. Thank you, Mr Walford. Does anyone else wish to come in? Mr Adam, I'm very conscious of time, but I will try to get you both in. In this issue, I really want to be known information from clinicians exactly where they stand on this whole scenario as well, because I think that the evidence that we took, we have not actually had something from the clinicians telling us exactly where we stand on this. However, one of the bigger concerns that I have is—I know that Mr Walford isn't pressing at today's 69—is the fact that this arbitrary way of looking at terminal illness, if, by the grace of God or luck, someone is still there or gone into remission after a two-year position, I really don't think that we can actually start there and making judgments at that stage. People can go into remission in the long-term conditions, people can be okay, but they still could end up with a terminal condition. I'm a bit concerned where we're going. I do appreciate that he's already said that he's not going to press that, but I do have some serious concerns with regards to that issue in itself. On the other part, I think that we really need to get more information and get everything right in this one again, because if we don't, we could be leaving things open. Thank you, Mr McFessen. Thank you, convener. I'll be as succent as possible. I commend both members for bringing those six amendments forward. I think that this is extremely important. I've also been in correspondence with Marie Curie on this issue and in private correspondence with the Government. I absolutely welcome Mark Griffin's decision not to press his amendments. I think that the issue of fast-tracking is fundamentally important, and I warmly welcome the fact that you want to work with the Government to get it absolutely right so that we deliver fast-tracking for those who need it, and I urge the Government to engage as constructively as possible with Mark Griffin to get that absolutely right. On the general point about the definition of terminal illness, I appreciate Mr Balfour's withdrawing of a number of amendments. I would also urge withdrawal of the remaining amendments, because I think that the minister has written it into clinicians. Let's gather that evidence and let's get this absolutely right. I would hope that Mr Balfour's proposal to fall at this stage and not to have the chance to approach this at stage 3. Let's all work together and get this right at stage 3. Ms McNeill, first. I'll try and shorten what I was going to say. I think that it's unfortunate that this group is going to be split by the need to finish up. I'm supportive of Jeremy Balfour's suggestion that we should indicate the general direction that we want to head in. I would like to think that, when we've heard from the consultation that ministers are conducting to get some feedback from the medical profession that there will be, hopefully, some consensus around where we would end up in that. I'm certainly of the view that has been spoken to the organisations that have been mentioned already, that the six months are far, far too short of where we want to be. I just wanted to finally add that I'm pleased that Jeremy is withdrawing amendment 69. I don't know what the answer to that question is. There will be cases where people live way beyond their expectations. It's something that we may just have to accept, but what I'm absolutely against is the idea that the agency must review after three years. Perhaps if there was some discretion, that might solve it, but it's vital and important that we don't head down in that direction of that prescriptive period of time and making that an absolute obligation on the agency. I'd like to congratulate both Mark Griffin and Jeremy Balfour for bringing forward those amendments because this is a hugely important issue. From what I've heard today and the action that the minister is taking, I'd like to make it clear that I wholeheartedly agree that six months are entirely inappropriate, and we absolutely have to look at that. Mr Balfour said that there's a judgment call on what number we use when referring to the two years, and I'm just wondering if that is the best approach in this instance. I can see clearly, and I'm sure that Mr Balfour does too, the benefits of consulting with a range of learned experience professionals on this to ensure that we get the right outcome. If taking time discussing us with the Government means that you could bring back a better proposal, perhaps one that there's no requirement to consider whether the patient no requirement around that issue of time. It may be that you're constraining and limiting options here that could be better explored with those groups. I'm finding this issue rather difficult, but I would like the minister, when the minister is speaking, to give absolute clarity and assurance that anything that the Government might bring at stage 3 will be at the very minimum as strong as what Mr Balfour is suggesting. When I'm talking to 67 and 68, I wholeheartedly agree that 69 should not be moved. Can the minister confirm that anything that the Government brings forward at stage 3 would not weaken what Mr Balfour is suggesting but would build on that? Perhaps Mr Balfour could suggest whether or not he feels that it would be worthwhile taking advantage of the expertise and offer to bring back a strength and proposal working with the Government at that point. I start by welcoming Mr Griffin's move not to press his amendments. I'm grateful to him for that. I'm very happy to work with him in terms of ensuring that we have a clear proposition in terms of fast-tracking, which has a minimum replicates the current special rules in terms of how we fast-track individuals who have a diagnosis of terminal illness. With respect to Mr Balfour's amendments, I would ask him not to press any of his amendments. I'm grateful to him for not pressing amendment 69. That is the right course of action. That is a very difficult question, as Ms McNeill indicated in her contribution, to work out exactly what, in all fairness, could be done in a circumstance where an individual has a diagnosis of terminal illness but lives, fortunately and happily, beyond the expectation of that diagnosis. I am unsure whether, indeed, anything should be done in those circumstances. I think it is a very difficult question for us to deal with. I cannot give Ms Johnson the assurance that she seeks precisely because it is important to hear the view of our clinical, medical and health professionals, which is why I have written to them in the way that I have. Not only are they charged with determining whether an illness is terminal, they will also be responsible, in many respects, for the deliverability of what we do here. It would be wrong of me, just as I think it is wrong in terms of Mr Balfour's amendments, for me or this committee to presume what that clinical community is likely to say on what is a complex and difficult matter in advance of them having the opportunity to say it. That is why, in my opinion, we should not press those amendments. If they are pressed, I would hope that the committee will oppose them, so that we can have the benefit collectively of that community's professional and expert opinion to help us to reach a view on how we might define terminal illness already with my commitment in terms of how we will take forward fast tracking. There is no consensus in the stakeholder community. It is important to state that. That is an indication of the complexity and difficulties around this matter. At the end of the day, any definition of terminal illness that the agency works from is a definition that the clinical and health community will have to be comfortable with, believe is deliverable and is deliverable in a fair and consistent manner across the country. For that reason, I would ask Mr Balfour not to press any of his amendments, but to work with us and the committee to work with us. I will, of course, share the opinion that I receive as a result of the consultation with the committee, and, as I have said, I am grateful to Mr Griffin for not pressing his. If Mr Balfour does press, then I would ask the committee to oppose him. Can I move to Mr Griffin and ask him to formally move 182 and seek to withdraw it from the committee? Thank you. I formally move 182 and seek to withdraw knowledge that it seems all members of the committee and the Government are in agreement that a change would be desirable and more than happy to work with the Government and the professionals that she has consulted with and the external stakeholders who have put forward evidence to the committee to reach a mutually agreeable way forward. I appreciate that. Thank you very much. I am content that that will be with John. Can I call amendment 21 in the name of the minister? Already debated with amendment 20. Moved. Question 21 is to be agreed or we all agreed. Call amendment 183 in the name of Alison Johnson. Already debated with amendment 173 and asked Mr Johnson to move or not to move. Thank you. The question is that schedule 1 be agreed to or we all agreed. And the question is that section 12 be agreed to or we all agreed. Yes, that's very helpful. We know we've run one but thank you very much to the committee for the perseverance. We will continue after recess and a new marshaled list will be issued a week on Monday and look to see everyone well refreshed after recess. Thank you very much for attending this morning.