Social Security (Residence Requirements) (Afghanistan) (Scotland) Regulations 2021: scrutiny report

The speed with which these Regulations needed to be put into place had direct implications for our approach to scrutiny. This is the first time that SCoSS has been obliged to report after the laying of Regulations. It seems unlikely that this will be the only occasion where there will be a need for emergency legislation. It has been a prompt for us to review our processes to ensure they accommodate such eventualities. The Minister has confirmed that Scottish Government will respond to recommendations and observations to this report in the usual way. We will also seek to explore any implications with the Social Justice and Social Security Committee.

As the Social Security (Scotland) Act 2018 is currently framed, Ministers are obliged to refer to SCoSS draft Regulations falling under Chapter 2 Part 2 and section 79 of the Act, and SCoSS is obliged to scrutinise and submit them in the form of a report (see section 97). While SCoSS feels there is still value in our reporting on these Regulations after they have been laid and come into force (as it should help facilitate the identification of issues at an early stage) it may be worth considering whether this will always be the case, or always be a top priority. If not, an amendment to the Act would be required.

SCoSS was first informed about this need to legislate on Wednesday 8 September, when the Chair was briefed by lead officials and members then discussed and sent some immediate thoughts and queries. This included a query on why all refugees are not similarly treated. We are pleased that a draft amendment to address this has subsequently been brought forward. SCoSS had further discussion with officials at our Board meeting of 28 September. We received responses to the points we raised initially and at that meeting on 20 October. Individual members met with Programme officials to understand more about the interface between Scottish Government officials working in different areas and with the UK Government. In view of the critical importance of rapid, efficient delivery to achieve the policy goal, we approached Social Security Scotland officials who helpfully provided information on a number of points. See annex for timeline. We extend out thanks to them all.

We also contacted stakeholders working with refugees to ask if they had views on the draft Regulations. We received no responses, quite possibly because the Regulations themselves are seen as unproblematic. We remain keen to understand more about their perspective on devolved social security and the lived experience perspective of refugees, with the aim of informing future reports.