The issue of pension inequality has again been in the news, after it was brought up in the UK parliament and people across the UK marched to demand help for the so-called WASPI women affected by the changes.
In response to a suggestion that the government was denying women their full rights to state pensions, the Conservative MP suggested that devolution allowed the SNP to mitigate such state benefits.
This was denied by a number of SNP politicians, including Hannah Bardell MP, who described the response as a “major error”.
David Liddington then made a major error by suggesting the Scottish Government could ‘top up’ those pension credits when in fact they are reserved. #backtoschool
— Hannah Bardell MP 🏴🏳️🌈 (@HannahB4LiviMP) February 6, 2019
The WASPI (Women against State Pension Inequality) campaign focuses on women who were affected when the pensionable age was equalised for men and women in 1995.
The increase in pension age from 60 to 65 for women left an estimated 343,000 women in Scotland who were born in the 1950s potentially out of pocket and facing financial hardship.
Many women were informed of the change as little as a year before their retirement was supposed to begin.
Campaigners have been pressuring the UK government to mitigate the effects of the increase, and the SNP has supported the campaign repeatedly in the Scottish and Westminster parliaments.
However, David Lidington suggested at Prime Ministers’ Questions on 6 February that the power lay with the Scottish Parliament to legislate over pension inequality and ‘top up’ the benefits for women affected.
In response to Ian Blackford’s question he said: “He knows that it is in the power of the Scottish Government, under devolution legislation, to top up social security benefits if they choose to do so.”
So what is the legislative power of the Scottish Government of social security benefits?
The original devolution settlement did not give Scotland the power over such benefits, and the responsibility over this issue was solely with Westminster. However, the Scotland Act 2016 devolved more power to Scotland, and adds the ability to provide new and different benefits to the UK “if the area is one of devolved responsibility”.
Section 28 of the act deals with new benefits which the Scottish Government could now create, and specifically says that it does not allow “providing assistance by way of pensions to or in respect of individuals who qualify by reason of old age.”
The explanatory notes to the act mention that “the Smith Commission Report specifically states that all aspects of pensions should remain reserved”.
This was the consultation which took place after the Scottish independence referendum to establish which new powers should come to Scotland’s parliament.
The report from the Smith Commission, released in November 2014, says: “All aspects of the state pension will remain shared across the United Kingdom and reserved to the UK Parliament. This includes the new single-tier pension, any entitlements to legacy state pensions whether in payment or deferred, pension credit and the rules on state pension age.”
So it appears that the Scottish Government does not have the ability to directly affect pensions. But there is evidence to suggest that mitigation of the WASPI issue could be possible through Scottish Government powers.
If the WASPI women are not yet in receipt of a state pension (which is the crux of the problem), SNP politicians and Scottish Government staff have argued that there is nothing to top up. They claim this means the powers of the Scotland Act could not be used to bolster the pensions of the women affected.
The wording of the Scotland Act is important here. Section 24 gives the Scottish Parliament the ability to ‘top up’ reserved benefits to “an individual who (a) is entitled to a reserved benefit, and (b) appears to require financial assistance, in addition to any amount the individual receives by way of reserved benefit, for the purpose, or one of the purposes, for which the benefit is being provided.”
In the Act, a reserved benefit is defined as “a benefit which is to any extent a reserved matter.”
This could be interpreted as an ability to top up reserved pensions, or provide mitigating payments to WASPI women, even though the power to create new benefits does not include pensions and many are not yet in receipt of pensions.
In a 2017 letter to the Scottish Government minister Jeane Freeman, the then-UK minister for pensions Richard Harrington stated that Scottish Government powers could be used to mitigate the issues caused by the pension age equalisation.
He suggested that discretionary payments covered in section 26 of the Scotland Act could be used, saying “this power was introduced to give you the widest possible scope to help meet the short-term needs of people in Scotland, which could include those who are affected by changes to the State Pension”. this was also stated by his successor Guy Opperman.
He also argued that section 28 of the Act, which gives the Scottish Government power to create new benefits, could be used to provide payments to those who have not reached the pension age (i.e. the WASPI women). This would not, he suggested, interfere with the clause excluding benefits which are given due to old age.
Therefore, it seems unlikely that the UK government would stand in the way if Scottish ministers decided to use Scotland Act powers to financially assist the affected women. The Scottish Government could face other legal challenges should they decide to legislate in this area.
However, this section of the act has yet to be tested, so it is difficult to say with any certainty whether the Scottish Government has the legal power to legislate around the pensions issue in this way.
Ferret Fact Service verdict
Hannah Bardell’s claim that Scotland could not ‘top up’ benefits for those affected by the pension equalisation is dependent on how the law is applied. While the Scottish Government believes the law does not allow them to top up pensions, UK government ministers have argued the Scotland Act gives leeway for the Scottish Government to make payments mitigating the impact of the pension equalisation. The Scotland Act section on this area is open to interpretation and has yet to be tested, so Ferret Fact Service has not come to a verdict on our scale.
Ferret Fact Service (FFS) is a non-partisan fact checker, working to the International Fact-Checking Network fact-checkers’ code of principles. All the sources used in our checks are publicly available and the FFS fact-checking methodology can be viewed here. Want to suggest a fact check? Email us at email@example.com or join our Facebook group.