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Commissioning Economic Equality? Lessons from Scotland

Published online by Cambridge University Press:  01 January 2025

Rosalind Dixon Open the ORCID record for Rosalind Dixon [Opens in a new window]  and
Joseph Lavery
Rosalind Dixon
Affiliation:
University of New South Wales.
Joseph Lavery
Affiliation:
11KBW
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Abstract

The Scottish Poverty and Inequality Commission (hereafter ‘the Commission’) is a relatively new fourth branch institution with responsibility for addressing both poverty and inequality in Scotland. Nonetheless, it has made important, if modest and incremental, inroads in achieving these objectives, by encouraging the collection and use by government of relevant data in policy-formation; and the expansion and acceleration in the roll-out of important substantive policies focused on alleviating child poverty. The question this raises is what underpins this institutional success. The article draws attention to three key factors: the Commission’s distinctive combination of independence and a collaborative approach to policymaking, supported by a ‘triangular’ relationship between the government, Commission and civil society; its expertise and perceived legitimacy; and the unique policy context presented by the COVID-19 pandemic. These factors, it suggests, also offer useful lessons for constitutional and institutional designers elsewhere — about both the promise and contingency and four branch solutions to problems of economic exclusion and disadvantage.

Type
Special Issue: Inequality and Public Law (Part I)
Information
Federal Law Review , Volume 51 , Issue 3: Special Issue: Inequality and Public Law (Part I) , September 2023 , pp. 315 - 332
Copyright
Copyright © 2023 The Author(s)

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References

1. See Nick Robinson, ‘The Structure and Functioning of the Supreme Court of India’ in Gerald Rosenberg, Sudhir Krishnaswamy and Shishir Bail (eds), A Qualified Hope: The Indian Supreme Court and Progressive Social Change (Cambridge University Press, 2019) 23; Alyssa Brierly, ‘PUCL v Union of India’: at 212; Rosalind Dixon and Rishad Chowdhury, ‘A Case for Qualified Hope’: at 243; Varun Guari and Daniel M Brinks (eds), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge University Press, 2009) vol 7(3).

2. Rosalind Dixon, ‘Creating Dialogue about Socioeconomic Rights: Strong-Form versus Weak-Form Judicial Review Revisited’ (2007) 5(3) International Journal of Constitutional Law 391 (‘Creating Dialogue About Socioeconomic Rights’); Rosalind Dixon, ‘The Core Case for Weak-Form Judicial Review’ (2016) 38 Cardozo Law Review 2193 (‘The Core Case for Weak-Form Judicial Review’); Rosalind Dixon, Responsive Judicial Review: Democracy and Dysfunction in the Modern Age (Oxford University Press, 2022) (‘Responsive Judicial Review’).

3. Dixon, ‘Creating Dialouge about Socio-economic Rights’ (n 2) and Dixon, ‘Responsive Judicial Review (n 2).

4. Mark Tushnet, The New Fourth Branch: Institutions for Protecting Constitutional Democracy (Cambridge University Press, 2021).

5. See interview with M Treanor (Interview, 27 October 2021, file on hold with author) (‘Treanor Interview’); P Kelly (Interview, 16 November 2021, file on hold with author) (‘Kelly Interview’); A Cobham (Interview, 22 November 2021, file on hold with author) (‘Cobham Interview’); B Scott (Interview, 23 November 2021, file on hold with author (‘Scott Interview’); R Statham (Interview, 30 November 2021, file on hold with author) (‘Stratham Interview’).

6. Scottish Government, Every Child, Every Chance: The Tackling Child Poverty Delivery Plan 2018–22 (29 March 2018). The relevant priority families are lone parents, families with a disabled adult or child, young mothers, minority ethnic families, families with a child under 1, and larger families (with three or more children): at 8–9.

7. Cf Brierly (n 1); Dixon and Chowdhury (n 1).

8. See, eg, Robinson (n 1); Brierly (n 1); Dixon and Chowdhury (n 1).

9. Scottish Government, ‘Child Poverty Summary’ (Web Page, 25 March 2021) <https://data.gov.scot/poverty/cpupdate.html>.

10. Statham Interview (n 5).

11. For example, the Scottish Law Commission has a budget of £1.6 million: Scottish Law Commission, Annual Report 2020 (Annual Report, 19 March 2021) 25. The Children and Young People’s Commissioner Scotland has a budget of £1.311 million: Children & Young People’s Commissioner Scotland, Annual Reports & Accounts (Annual Report, 31 March 2021) 26. The Scottish Human Rights Commission has a budget of £0.988 million: Scottish Human Rights Commission, Annual Report 2019–20 (Annual Report, 29 October 2020) 39.

12. Cf the general position advanced in Samuel Moyn, Not Enough: Human Rights in an Unequal World (Belknap Press, 2018).

13. Child Poverty (Scotland) Act 2017 (Scot) s 8(2) (‘Child Poverty Act’).

14. See, eg, the use of this language in Poverty and Inequality Commission, Poverty and Inequality Commission Work Plan November 2019–June 2020 (Report, December 2019).

15. Child Poverty Act (n 13) s 8(2A).

16. Ibid sch s 12.

17. ‘Our Working Groups’, Poverty and Inequality Commission (Web Page) <https://povertyinequality.scot/about/our-working-groups/#more-17>.

18. Child Poverty Act (n 13) sch s 1(1).

19. Ibid sch ss 1(2)–(3).

20. Ibid sch s 1(4).

21. Ibid sch s 2.

22. Ibid sch s 9.

23. Ibid sch s 10(3).

24. ‘Who We Are’, Poverty and Inequality Commission (Web Page) <povertyinequality.scot>.

25. Treanor Interview (n 5).

26. Email from Bill Scott to Rosalind Dixon (20 December 2021) held on file with author.

27. Ibid.

28. Scottish Government, Fairer Scotland Action Plan (Report, 5 October 2016).

29. Scottish Nationality Party, SNP Manifesto 2021: Scotland’s Future (15 April 2021) 3.

30. Dixon, ‘Creating Dialouge about Socio-economic Rights’ (n 2) and Dixon, ‘Responsive Judicial Review (n 2)’.

31. Ibid.

32. Cf Roberto Gargarella, Latin American Constitutionalism, 1810–2010: The Engine Room of the Constitution (Oxford University Press, 2013); Richard Holden and Rosalind Dixon, From Free to Fair Markets: Liberalism after COVID-19 (Oxford University Press, 2022); Rosalind Dixon, ‘Fair Market Constitutionalism: From Neo-Liberal to Democratic Liberal Economic Governance’ 2022 20(20) Oxford Journal of Legal Studies 1.

33. Poverty and Inequality Commission, Child Poverty Delivery Plan 2019–20 (Scrutiny Report, July 2020) 4.

34. Scottish Government, Tackling Child Poverty Delivery Plan: Second Year Progress Report 2019–20 (Report, 20 August 2020) 74.

35. Poverty and Inequality Commission, Involving Experts by Experience (Report, October 2020) 13.

36. Poverty and Inequality Commission, Annual Report 2020–21 (Report, June 2021).

37. See, for example, Poverty and Inequality Commission, Intersectionality: Revealing the Realities of Poverty and Inequality in Scotland (Report, May 2021).

38. Statham Interview (n 5).

39. Ibid.

40. Poverty and Inequality Commission, Free School Meal Provision during the COVID-19 Crisis (Report, June 2020) 4.

41. Treanor Interview (n 5).

42. The National Minimum Wage is UK-wide, set yearly by the UK Government under the National Minimum Wage Act 1998 (UK) s 2, which is a Reserved Matter outside the Scottish Parliament’s jurisdiction under the Scotland Act 1998 (UK) sch 5 pt II head H.

43. ‘What is the Real Living Wage’, Living Wage Scotland (Web Page, April 2023) <scottishlivingwage.org>.

44. ‘What is the SNP policy on the Minimum Wage and Living Wage?’, Scottish Nationalist Party (Web Page) <https://www.snp.org/policies/pb-what-is-the-snp-policy-on-the-minimum-wage-and-living-wage/>.

45. Scottish Government, Scottish Public Sector Pay Policy 2021–22 (March 2021) 7. It should be noted, however, that several public bodies are not subject to the Pay Policy, whether because wages are set by a national body (eg, police officers and teachers) or because competence is reserved to the UK Government (eg, senior civil service and the judiciary): see ‘Public Sector Pay: Bodies Governed By Other Pay Arrangements’, Scottish Government (Fact Sheet, 28 November 2016), <https://www.gov.scot/publications/public-sector-pay-bodies-governed-by-other-pay-arrangements/>.

46. See, eg, the Commission’s discussion of the issue in Poverty and Inequality Commission, What Has Happened Since ‘Shifting the Curve’? (Report, January 2019) 13–14, in which they recommend that the Government pursue large employers in order to have the greatest impact.

47. Scott Interview (n 5).

48. Treanor Interview (n 5).

49. Poverty and Inequality Commission, Evidence to Light the Road Towards Ending Child Poverty in Scotland (Blog Post, 11 June 2021) <https://povertyinequality.scot/evidence-to-light-the-road-towards-ending-child-poverty-in-scotland/>.

50. Fraser of Allander Institute, Mission (Not) Impossible: How Ambitious Are the Scottish Government’s Child Poverty Targets? (Web Page, 11 June 2021) <https://fraserofallander.org/mission-not-impossible-how-ambitious-are-the-scottish-governments-child-poverty-targets/>.

51. Cobham Interview (n 5); Kelly Interview (n 5); Scott Interview (n 5).

52. Scott Interview (n 5).

53. On the power to provide top-ups, see Social Security (Scotland) Act 2018 (Scot) s 79. On whether top-ups of this kind count as income for the purposes of UK welfare eligibility and the blurred lines of responsibility in this area, see generally Joseph Rowntree Foundation, Our Governments Must Use Their Powers to Choose to End Poverty (Web Page, 9 September 2021), <https://www.jrf.org.uk/blog/our-governments-must-use-their-powers-choose-end-poverty>.

54. The Commission’s ability to act in this area has been extremely limited, comprising only a letter to the UK Home Secretary on the Aspen Card Scheme: Poverty and Inequality Commission, Letter to the UK Government Home Secretary on the Aspen Card Scheme (10 June 2021) (‘Aspen Card Letter’). One could presume that the Commission’s engagement in this area has been limited in light of its limited capabilities in the area.

55. Poverty and Inequality Commission, Involving Experts by Experience (n 34).

56. Ibid.

57. See, eg, Gina Davidson, ‘Demand for Scottish Child Payment to Be Doubled Immediately To Tackle Poverty’, The Scotsman (online, 23 June 2021) <https://www.scotsman.com/news/politics/demand-for-scottish-child-payment-to-be-doubled-immediately-to-tackle-poverty-3284329>; Louise Wilson, ‘Making Poverty History: Interview with Bill Scott, Chair of the Poverty and Inequality Commission’, Holyrood (online, 17 Dec 2020) <www.holyrood.com/inside-politics/view,making-poverty-history-interview-with-bill-scotland-chair-of-the-poverty-and-inequality-commission>.

58. Scotland, Parliamentary Debates, Scottish Parliament, 30 May 2019, session 5 col 48.

59. Scott Interview (n 5).

60. Statham Interview (n 5).

61. Treanor Interview (n 5).

62. Scott Interview (n 5); Cobham Interview (n 5).

63. Poverty and Inequality Commission, Housing Wealth Inequality in Scotland Summary Report (Report, July 2019).

64. Treanor Interview (n 5).

65. Ibid.

66. Treanor Interview (n 5); Scott Interview (n 5).

67. Treanor Interview (n 5); Cobham Interview (n 5).

68. Tarun Khaitan, ‘Guarantor Institutions’ (2022) 16(1) Asian Journal of Comparative Law (forthcoming) raises the question of whether constitutional courts are themselves properly viewed as fourth branch institutions, but my view is that they are better classified separately as analogous institutions not institutions of the same kind.

69. See Brierly (n 1). Cf Dixon and Chowdhury (n 1).

70. See David Landau, ‘Courts and Support Structures: Beyond the Classic Narrative’ in Rosalind Dixon and Erin F Delaney (eds), Comparative Judicial Review (Edward Elgar Publishing, 2018) 226.

71. Kelly Interview (n 5).

72. Ibid.

73. Ibid.

74. Dixon and Chowdhury (n 1).

75. Bhuvan Bagga, ‘What makes NDS’s ‘India Shining’ campaign the ‘worst’ poll strategy in Indian history’, India Today (online, 14 May 2013) <https://www.indiatoday.in/india/story/nda-india-shining-worst-poll-strategy-162922-2013-05-14>.

76. Cobham Interview (n 5); Scott Interview (n 5); Statham Interview (n 5).

77. Cobham Interview (n 5); Scott Interview (n 5).

78. Aspen Card Letter (n 54).

79. Treanor Interview (n 5).

80. ‘The Palma’ The Uncounted (Web Page) <http://uncounted.org/palma/>; Treanor Interview (n 5).

81. Treanor Interview (n 5).

82. Treanor Interview (n 5); Scott Interview (n 5); Kelly Interview (n 5).

83. Kelly Interview (n 5).

84. Scott Interview (n 5).

85. Treanor Interview (n 5). See, for example, Scottish Government, Tackling Child Povert Delivery Plan: Third Year Progress Report 2020–2021 (Report, 23 June 2021) details the actions the Government has taken and funds it has established to offset the impact of the UK Government’s welfare cuts, which include the Scottish Welfare Fund, novel pandemic payments, the Scottish Child Payment, Best Start Grants, Best Start Foods, increased support for carers, Job Start Payments, Funeral Support Payments, Child Winter Heating Assistance, and focusing on maximising take up of benefits. Of these policies, the Commission has addressed the Scottish Child Payment, the Best Start Grant, and the Scottish Welfare Fund directly.

86. Treanor Interview (n 5). In January 2021, the report by the Social Renewal Advisory Board, If not now, when? — Social Renewal Advisory Board Report: January 2021 (Report, 21 January 2021) was released, drawing on the work and competences of the P&IC. Bill Scott, the P&IC Chair, was a member of the Advisory Board. The Board makes recommendations which rely on the competence of the P&IC to implement, such as mandating the P&IC to carry out additional tasks. The Board engaged those with lived experience throughout its work, drawing on P&IC recommendations to do so as part of a progressive policymaking process.

87. Treanor Interview (n 5).

88. Rosalind Dixon, ‘Constitutional Design Two Ways: Constitutional Drafters as Judges’ (2017) 57(1) Virginia Journal of International Law 1.

89. The April 2020–March 2021 budget was £297,000, the bulk of which is taken up by staff costs with only a relatively small amount paid to the Commissioners themselves: Poverty and Inequality Commission, Annual Report 2020–2021 (Report, June 2021) 14.

90. Poverty and Inequality Commission, Poverty and Inequality Commission Biodiversity Report 2019–2020 (Report, December 2020).

91. Indeed, Scottish Labour is required to follow the policies of British Labour, and hence has limited freedom as well as incentive to pursue policies that demonstrate a case for Scottish independence. Cf Kelly Interview (n 5).

92. Kelly Interview (n 5).

93. Cf Duncan Kennedy, A Critique of Adjudication: fin de siècle (Harvard University Press, 1998).