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.
I Introduction
The Scottish Poverty and Inequality Commission was established in 2017, with the goal of promoting the reduction of poverty and inequality in Scotland.
It is too early to assess the Commission’s long-term legacy, but there are signs that it is making an important — even if modest and incremental — contribution to tackling economic disadvantage in Scotland.
In the last few years, it has had made several important contributions to promoting a more economically inclusive and equal Scotland: it has promoted the gathering and use of relevant data in policymaking; the expansion of certain programs, such as free school lunches; and helped accelerate the roll-out of new programs, such as the government’s child support grant. It has even begun to tackle broader structural issues of intersectional inequality and economic inequality in the Scottish tax system.
What, then, underpins this success of a new institution tackling some of the most difficult economic and social challenges of our time, even if it is success that is modest and incremental in nature? In a comparative context, scholars have shown that constitutional courts can play an important role in helping expand and accelerate access to justice, including in the context of various social and economic rights, such as the right to food and social welfare support. 1 Even governments committed to addressing economic disadvantage and inequality do not always succeed in doing so. They can lack the information or data necessary to do so or be subject to ‘blind spots’ and ‘burdens of inertia’ affecting the achievement of these commitments. 2 Under the right conditions, courts can also play an important role in countering these various blockages — they can prompt the gathering of relevant information, draw attention to unforeseen policy holes or consequences, suggest policy alternatives and increase pressure or momentum for action in certain areas. 3
Our research further suggests that under certain favourable conditions, independent commissions or ‘fourth branch institutions’ can play a similar role. 4 To analyse this question in a Scottish context, we engaged in both a comprehensive analysis of the Commission’s outputs and a more focused analysis of its processes through a mix of documentary research and interviews with members and observers of the Commission. 5 And this analysis pointed to real, if modest and incremental, improvements in policies aimed at addressing poverty in Scotland in the relevant period.
A number of factors also appear to have contributed to this success: the Commission was adopted by the Scottish Nationalist Party (‘SNP’) government as part of a broader commitment to creating a ‘well-being society’, and in particular to addressing the economic needs of children and a range of ‘priority families’. 6 This background has clearly aided the success of the Commission, in that many of the Commission’s recommendations have met with a receptive response from government. The Commission has expertise in relevant policy areas and has worked to develop a ‘triangular’ relationship with government and civil society or the third sector in Scotland. 7 This echoes the conditions for success of courts in comparable contexts, such as the role of the Supreme Court of India in countering legislative and bureaucratic inertia in the roll out of the midday meal program for school children in India. 8
Additionally, the work of the Commission has arguably contributed to a broader project of Scottish nationalism or independence. Scottish aspirations for independence have encouraged the Scottish National Party to adopt policies and practices that differentiate Scottish laws and policies from those of Westminster. And this politics of ‘progressive differentiation’ has arguably supported a greater willingness on the part of the government and broader public to support changes, such as increases in child welfare payments or differential responses to the COVID-19 pandemic, which are distinct from the more conservative response of the UK government.
Similarly, COVID-19 has arguably presented both challenges and real opportunities for the Commission to establish a role in policy making in Scotland. The economic fallout of COVID-19 has meant that overall rates of poverty, including child poverty, have increased. 9 And COVID-19 has made it more difficult for the Commission to engage with those with lived experience of poverty, and has put enormous strain on the resources of the Commission. 10 But it has meant that there has been a clear need for the government to focus on economic and social inclusion and to draw on the expertise of bodies such as the Commission in doing so.
This does not mean that the workings or impact of the Commission have been seamless. So far, the Commission has made only modest headway in addressing inequality, as compared to poverty, in part stemming from limits on the devolved powers enjoyed by Scotland. At the same time, the limits of devolution in Scotland motivate the government to engage in progressive differentiation designed to make the case for independence, while providing a potential basis for the government to evade responsibility. And there are always risks to the independence of a commission that does, and is seen, to work closely with government and civil society. But overall, there are promising early signs of impact and success.
What does this mean for the broader global community and the future of the Commission within Scotland? Comparative experience suggests that there almost always risks to institutions in the ‘second period’ — that is, the period after the initial political commitment to an institution has diminished and/or the founders of an institution have departed. This second period risk is also very real for the Commission: the Commission is currently staffed by some of the leading Scottish experts on economic and social inclusion, who arguably bring both an unusual degree of authority and passion to the role. This also helps compensate for the fact that the Commission is currently resourced at quite a low level in both absolute and relative terms. For the Scottish government, the implications of this are clear. It needs to increase and build on the success of the Commission to date by fully institutionalising it as a better resourced commission, on par with equivalent commissions, with full-time commissioners and an adequately staffed secretariat. 11
The lessons for the world are equally clear, if more difficult to operationalise. To succeed in promoting economic inclusion and equality, fourth branch institutions need appropriate resources and expertise, a supportive government and a close working relationship with civil society. Their chances of success will also increase if the goal of eradicating poverty can be linked to a broader popular political narrative, such as a project of national independence or renewal or moment of crisis that encourages greater attention to the insights of relevant fourth branch institutions. None of these conditions are easy to create and some may be positively dangerous.
There are, however, some useful lessons about how and when fourth branch institutions can be relied on — either in conjunction with or as an alternative to courts — as a means of promoting economic justice. If there is sufficient ongoing political support and resourcing of such institutions, they can play an important, albeit modest and incremental, role in tackling issues of both social and economic disadvantage and inequality — not just more traditional human concerns. 12
The remainder of the article is divided into four parts, following this introduction. Part II examines the Commission’s history, structure, and mandate. Part III explores the Scottish government’s commitment to addressing poverty inequality, about how it may, at times, fall short of realizing this commitment, due to lack of evidence, blind spots, and burdens of inertia. Part III also documents the early and important successes of the Commission in countering these blockages. Part IV considers the limits and pre-conditions for that success. Part V considers the likely future of the Commission and its work.
II The Commission: History, Structure, and Mandate
The Scottish Poverty and Inequality Commission was established by the Child Poverty (Scotland) Act 2017 section 8, as amended by The Public Services Reform (Poverty and Inequality Commission) (Scotland) Order 2018. The Commission’s functions are: advising Scottish Ministers on matters related to poverty or inequality in Scotland; monitoring progress in reducing poverty and inequality in Scotland; and promoting the reduction of poverty and inequality in Scotland. 13 The Commission has summarised this remit as empowering it to provide advice, scrutiny, and advocacy in the area. 14 In order to fulfil this purpose, the Commission is empowered to gather evidence, carry out research, and prepare and publish reports, among other things. 15 The Commission may establish committees in order to carry out its functions, 16 the contemporary examples of which being the Covid-19 Response Working Group and the Addressing Low Income Policy Group. 17
The Commission’s membership consists of a chairperson and four to eight other members, 18 who are appointed by Scottish Ministers and must be approved by Parliament. 19 When appointing members, Ministers must have regard to securing that the Commission, taken as a whole, has experience and knowledge in the areas of poverty and inequality, and that the membership includes persons who have experienced poverty or inequality. 20
The Schedule declares that the Commission is independent from the Scottish government, 21 but, necessarily, the government has some level of control over the Commission. Government Ministers are responsible for appointing members of the Commission. Ministers may remove a member if they consider the member unable to perform their functions, subject to Parliamentary approval. 22 And finally, Ministers are responsible for providing the Commission with staff and resources as it requires to carry out its functions. 23
The Commission is also comprised of members with public, private, and academic backgrounds, and with expertise in a wide range of areas. At present, the Commissioners are as follows:
24
• Bill Scott, the Chair, has extensive experience working in the public sector. He has worked at Inclusion Scotland, a disability advocacy charity, for 12 years, including as CEO. He is on a number of Scottish government advisory groups. • Linda Bamford has worked for the National Health Service, disability advocacy organisations, and has extensive experience in child-related issues. • Yvonne Blake is a lifelong social justice anti-poverty campaigner, with a particular focus on migrants. • Alex Cobham is Chief Executive of the Tax Justice Network. He is a developmental economist and has worked extensively on inequality and tax. • Lindsay Graham, the Deputy Chair, is a former community nurse and local government officer from the Highlands, has founded two children’s charities, and has chaired the All Party Parliamentary Group on School Foods ‘Holiday Hunger Task Group’. • Shona Stephen is the Chief Executive of Queens Cross Housing Association and has previously been a senior Civil Servant in the Housing and Regeneration Directorate. • Professor Morag Treanor is Professor of Child and Family Inequalities at Heriot-Watt University, focusing on child and family poverty. • Douglas White is Head of Advocacy at the Carnegie UK Trust, a foundation that aims to improve wellbeing with a focus on communities experiencing disadvantage. • Katie Schmuecker is Deputy Director of Policy and Partnerships at the Joseph Rowntree Foundation, leading activity to develop solutions to poverty in the UK. She is a regular commentator on the issue in the media.
The Commission has issued ad hoc reports on certain priority issues and areas, and engaged in a process of annual reporting. At the time of writing, the Commission had published 28 reports, six research briefings, and five letters to government officials in respect of various issues. The Commission’s only statutorily mandated output is its scrutiny of the government’s child poverty progress reports. Per section 10 of the Child Poverty (Scotland) Act 2017, Scottish Ministers must prepare an annual report on the progress made during the year towards meeting the child poverty targets: under subsection (4) the Commission must be consulted on that report and under subsection (5) the report must include any comments or recommendations made by the Commission. The Commission’s annual Child Poverty Delivery Plan Progress Reports scrutinise the broad child poverty trends in the country and comment on both the government’s overall approach to the issue and specific policy recommendations.
In addition, the Commission publishes annual reports, which identify its plans during the forthcoming year and reflect on its output during the preceding year. The majority of its publications are reports on issues it identifies containing detailed policy recommendations. Notable reports include those addressing food insecurity in schools, the Scottish Welfare Fund, Local Authority Child Poverty Action Reports, the National Transportation Strategy, and Housing Wealth Inequality. Finally, the Commission publishes reports aimed at making procedural policymaking recommendations, such as those advocating for the involvement of intersectional perspectives and experts with experience of lived poverty into the process.
The Commission also meets monthly to discuss reports and recommendations, in separate working groups focused on specific areas, and engages in informal dialogue with government. 25
In doing so, as we explore further below, the Commission works closely with a range of government and civil society or ‘third sector’ organizations. It also works closely with other fourth branch institutions, such as the Equality & Human Rights Commission and the Children’s Commission, though notably not the Scottish Human Rights Commission (‘SHRC’). 26 So far, at least, the Commission has adopted a more domestic practical, policy focus, where the SHRC has focused on the international plane and legislative change. 27
III Promoting Economic Inclusion and Equality: Evidence, Expansion, and Acceleration
The current Scottish government has pledged itself to pursuing a ‘well-being society’ and to the eradication of child poverty. The pro-independence Scottish government often positions itself in contrast to the conservative UK government, and so pursues, broadly, social democratic policies. As such, the pursuit of greater equality has loomed large in Scottish politics. For instance, in 2016, the government published the Fairer Scotland Action Plan, which signals the government’s commitments to making society fairer and sets out specific policies which it intended to implement. 28 The SNP reiterated this overarching approach in their 2021 election manifesto, writing that ‘kindness, compassion, fairness, equality and enterprise’ must be at the country’s ‘heart’. 29 A major component of this agenda is the reduction of child poverty, the core of this policy agenda being the Child Poverty (Scotland) Act 2017, which by section 1 commits Scottish Ministers to meeting certain child poverty targets by 2030.
At the same time, like in any democratic process, there are often practical and political obstacles to achieving these objectives. Democratic processes are sometimes subject to pathologies driven by public choice or interest group dynamics, but even without pathologies of this kind, legislators are often subject to limited foresight. They work under time pressures and constraints. Like all of us, they are subject to bounded forms of rationality. And when it comes to policy development or legal drafting, they have limited expertise. With the exception of ministers, they are generalists rather than specialists in particular policy areas. They can therefore overlook ways in which rules or policies could affect, or be adapted, to promote the interests of certain groups, especially economically and socially marginalised groups not directly represented in the legislature. This is what elsewhere one of us has called the problem of ‘blind spots’ of application, accommodation and perspective. 30
In addition, democratic processes are often subject to delay. Sometimes, this delay reflects principled commitments to deliberation. But more often it reflects the realities of political prioriti sation and bargaining. Legislatures cannot address all issues at once. They must prioritise, and in doing so they are often encouraged by the design of the electoral system to prioritise the demands of electorally powerful groups. Linked to this is the degree to which, in a competitive electoral system, party leaders may decide there are certain issues that divide their party that are best left off the legislative agenda. If both parties take a similar approach, in a two-party system, or one party dominates electorally, this can also mean that certain issues consistently fail to reach the top of the legislative priority list or to be put on the actual agenda of the parliament. That is, legislative processes may be subject to priority-driven and coalition-driven ‘burdens of inertia’. 31 Legislative burdens of inertia may also intersect in some cases with administrative or bureaucratic burdens of inertia.
Courts and independent institutions — such as fourth branch commissions — can play an important role in helping counter these various forms of blockage. As this part explores in more detail, the Commission has arguably improved the evidentiary basis for decision-making by government; expanded access to existing programs, such as the free child school lunches program; and accelerated the roll-out of other key programs such as the child welfare benefit program. In each case, this has helped counter arguable blind spots and burdens of inertia.
Of course, the Commission has not been a cure-all for these democratic blockages. Nor has it been a major driver of policy change. This is consistent with the experience elsewhere and suggests that political reforms should be cautious not to over-estimate the capacity of fourth branch institutions to address problems of economic and social disadvantage and inequality. 32 Indeed, they should be alive to the possibility that by creating institutions focused on addressing inequality, but which can only do so incrementally and at the margins, neo-liberal governments do more to legitimate the current economic order than to transform it. But subject to these caveats, the last 5 years in Scotland suggest that there is basis for optimism about the capacity of such institutions to create a more inclusive and equal set of social and economic policy outcomes — in ways that lead to meaningful, even if only incremental, policy change.
A Evidence
The Child Poverty Delivery Plan 2018–22, which Scottish Ministers were obligated to prepare under section 9(1)(a) of the Child Poverty (Scotland) Act 2017, identified six categories of family as ‘priority families’ for government action aimed at addressing child poverty: lone parents, families with a disabled adult or child, young mothers, ethnic minority families, families with a child under 1 year of age, and larger families (with three or more children). The government, however, took only limited steps to collect or analyse data tracking the progress of these priority families.
One of the early interventions of the Commission was also to draw this limitation to the attention of government — and show how and why it was valuable for achieving the substantive aims of the Act for the government to begin collating and analysing data in a way that explicitly considered impacts on priority families. The government was also receptive to this argument and began collecting data on this basis. The Commission’s third recommendation in the 2020 Child Poverty Delivery Plan Scrutiny Report was that there should be a greater focus on priority families in developing and delivering actions, ‘with better data and evidence gathering to ensure that we know how different policies and interventions are impacting on priority families.’ 33 The government, in its Progress Report, responded that ‘Section 2 outlines the Scottish Government’s commitment to investigate methods to produce a quantitative, cumulative impact assessment of the policies on child poverty and the importance of this kind of modelling for assessing the impact of existing policies’. 34 In contrast to the 2019 Report, the 2020 Report does contain such figures addressing the levels of child poverty in priority families.
In addition, the Commission has drawn the attention of government to the benefits of identifying relevant problems and obstacles to addressing poverty and inequality by drawing on ‘experts by experience’ or those with lived experience of poverty and inequality. The Commission engaged the Poverty Alliance to co-produce guidance for how experts by experience should be involved in the Commission’s work. The guidance, published in October 2020, proposed 10 principles by which experts with experience can be effectively involved in the policymaking process. 35 In its 2020–2021 Annual Report, the Commission committed to setting up an experts by experience panel over summer 2021 to work with the Commission on child poverty advice. 36 However, the Commission has also begun to implement the voices of experts by experience in an ad hoc fashion over and above this general commitment. 37 This process took some time and was made more difficult by the onset of COVID-19. 38 But it has emerged as a key success of the Commission in encouraging a broader view of policy-making that relies on experts by experience in this, as well as other policy areas. 39
B Expansion
The Commission has likewise played an important role in expanding existing programs aimed at the eradication of child poverty, including notably the free school lunch program. Following the onset of COVID-19, many Scottish local authorities began delivering school lunches through other mechanisms including the provision of cash to families. But the roll-out of these substitute nutrition programs was uneven in ways that led to rising food inequality and disadvantage across many parts of the country. It was not clear that the government fully appreciated the magnitude of the problem.
The Commission responded through a series of formal reports and informal meetings with government aimed at drawing their attention to the issue and suggesting viable policy solutions. For instance, in its Free School Meal Provision Report, the Commission recommended that cash substitutes be made universally available throughout Scotland, and furthermore continued during the summer months, both as a response to COVID-19 and a broader structural recognition of the need to address food insecurity for children outside of school terms and the educational context alone. 40 Members of the Commission also met separately with the Deputy First Minister to highlight the issue. 41
These recommendations and informal meetings led to a series of policy changes from the government, including the ultimate adoption of a universal, year-round school meal program largely involving the payment of food allowances to families.
Similarly, the Commission has recently played an important role in expanding access to a real living wage in Scotland. Westminster, not Scotland, has power over employment and wage-setting in the private sector across the UK. 42 But the Scottish government is free to pursue its own approach in setting (Scottish) public sector wages; it has used that power to encourage the adoption of a real living wage (of £10.90 GBP per hour, or 72p above the minimum wage). 43 The Scottish government has paid all staff within their pay scheme the real Living Wage since 2011, 44 committing to do so once again in their 2021–22 Public Sector Pay Policy and noting the that progressive approach proposed ‘helps to reduce overall income inequality’, ‘may also help in positively working towards reducing the gender pay gap’ and ‘will positively benefit lower paid staff and in particular those with one or more protected characteristic’. 45 The Commission has also led efforts to expand these efforts to private sector companies receiving government funds, or carrying out government contracts. 46
The Commission led a recent ‘policy circle’ on the issue, and worked with a range of third sector experts and organizations, and the Social Policy Renewal Board (that the Commission itself helped lobby for the creation of), to encourage the government to make a real Living Wage a required part of government grants and procurement processes. 47 The government also accepted these recommendations, thereby expanding existing government efforts to encourage payment of the real Living Wage in Scotland.
C Acceleration
Another area in which the Commission has had impact is in the acceleration of the roll-out of certain key policies, such as the Scottish government’s child welfare grant. The Scottish government had a longstanding commitment to expanding access to free childcare for all Scottish families and to introducing a cash grant to families with children designed to supplement relevant UK welfare payments. Both these policies were expensive and subject to clear burdens of inertia in their roll out. After the beginning of the COVID-19 pandemic, some members of the government also argued for their further delay — for both budgetary and logistical reasons.
The Commission’s response was to emphasise the increased urgency of these policies, and especially the child support grant, during COVID. The Commission noted the economic stress on families caused by the pandemic, especially priority families, and the capacity of the grant to help alleviate that stress — and called for the immediate roll-out of the grant. And both members of the Commission and external observers credit the Commission as playing an important role in helping accelerate the ultimate roll-out of this program. 48
In addition, the Commission has played an integral role in advocating for an increase in child benefits. On 29 November 2021, the Scottish Government announced that the Scottish Child payment would be doubled from £10 to £20 per week per child under 6 from April 2022, benefiting an estimated 105 000 children and thereby significantly offsetting the potential increase in poverty caused by the UK Government ending its COVID-induced universal credit uplift. Prior to this, the Commission also strongly advocated for this increase, funding the Fraser of Allander Institute to build analytical modelling capacity which found that an increase in the Child Payment to £40 a week would allow Scotland to meet the interim poverty target. 49 The Institute described the Child Payment as an ‘obvious lever’ to meet this target. 50
IV Limits to Success? Poverty vs Inequality
One potential criticism of the Commission’s work thus far could be that it has focused primarily on poverty rather than inequality. And the criticism has some validity: poverty is easier to measure, and address, than inequality in almost all settings. By setting clear standards and reporting obligations in respect of child poverty, but no similar obligations in respect of inequality more generally, the structure and mandate of the Commission also reinforce this. 51 While it includes experts on tax, such as Alex Cobham, the Commission’s members are drawn primarily from the social rather than economic sector (in spite of the latter tending to have greater expertise in inequality-related interventions), and not all have extensive economic training or policy expertise. 52
Moreover, there are important structural constraints on the Commission’s work in this context. In most countries, the key policy tools for promoting economic equality are the tax and transfer systems. In Scotland, however, welfare policies are largely determined by the Westminster Parliament; and there is even debate as to whether ‘top up’ or increased welfare payments by the Scottish government would be counted as income, for UK purposes, in ways that would ultimately lead to no net increase in income for recipients. 53 There have also been only relatively few instances in which this ambiguity has been resolved in favour an effective top up — and that was in the context of child welfare payments that, in the end, only partially offset the effect of the £20 GBP decrease in payments over the same period, introduced by the British government. Immigration policy is likewise determined by the Westminster Parliament. Efforts to address the social and economic disadvantage of refugees and asylum-seekers in Scotland are thus doubly constrained — by UK welfare policy, and immigration policies that limit the work rights of these groups. 54
This, however, underestimates the Commission’s work in the inequality context in two ways. First, it overlooks the important work the Commission has done in advocating for improvements in the decision-making process across public and private bodies, such as highlighting the need to view issues of poverty and inequality in Scotland through an ‘intersectional’ lens. 55 Procedure-related advocacy does not directly translate into substantive policy changes directly attributable to the Commission, but better procedures indirectly lead to better substantive policies. In May 2021, the Commission issued a major report on intersectionality, calling for a deeper appreciation of intersectional forms of economic disadvantage, and more collection and analysis of data relating to intersectional forms of disadvantage — such as cultural and ethnic background. 56 Prior to the Report, there had been little attention to these issues in Scotland. And while most of the Report’s recommendations are yet to be implemented, it led to a clear increase in attention to and debate over the issues involved. For example, the Commission has featured in media coverage, with its work being used to lend gravitas to the urgency of issues and Commissioners being interviewed. 57 Further, the Commission’s work is cited in debates in the Scottish Parliament in order to press Ministers on failures to reach targets. 58
In carrying out other aspects of its work, the Commission has adopted a similarly intersectional approach. In recent efforts to expand access to the living wage, for example, the Commission invited contributions from a wide range of organizations, including those representing Scots with lived experience of disability, and advocating for gender pay equity and LGBTQI rights. The Commission has continued to advocate for pay increases for care-workers — partly to address poverty and economic inequality, but also so as to promote greater gender equality (both for care-workers who are overwhelmingly female-identifying and workers who rely on child-care for their own capacity to work and increase their income and wealth). 59 It has arguably made less progress in addressing issues of economic and racial inequality through an intersectional lens. But some observers attribute that to the relative dearth of third sector organizations focused on these issues in Scotland, rather than failure by the Commission actively to attempt to engage with these issues or civil society groups. 60
Second, prior to COVID-19, the Commission began an important set of projects examining how Scottish tax policies could be better designed to promote equal economic outcomes. The Scottish government, for example, has repeatedly pledged to review the current property tax system. But to date it has not done so — likely because of priority driven burdens of inertia. The review is likely to benefit many lower-income Scots but at the same time increase the tax burden on middle-class homeowners, whose homes are taxed at values set several decades ago. This has contributed to members of the government deciding to postpone a review, and prioritise other, more electorally saleable policy priorities. The Commission, however, has begun the work of thinking about what a review might look like and produce, in ways that have begun the process of developing a more progressive local tax system in Scotland. 61 Similarly, the Commission has begun to canvas ideas about how to make local property rates more progressive, and raise and redistribute more revenue within Scotland. 62 It has also published a report on Housing Wealth Inequality in Scotland. 63
For the most part, this work has not been visible to the broader public because it has involved informal research and meetings with government rather than any formal reporting by the Commission. In part this reflects the effects of the COVID-19 pandemic, and the need for the Commission to focus formal report writing on the Commission’s COVID response. But it is a more general feature of the informal work done by the Commission, and similar fourth branch institutions. Often, fourth branch institutions will be most effective where they use a mix of ‘hard’ and ‘soft’ power, or rely on both public accountability mechanisms and private pressure on government. The difficulty with soft power of this kind, however, is that it may lead to meaningful policy change that is not visible or ‘legible’ to the broader public, and thus that does little to increase an institution’s perceived power and legitimacy.
Overall, however, the record remains one of success rather than failure; and suggests some real promise for the idea that fourth branch bodies may be able to make incremental advances in addressing both economic poverty and inequality.
V Preconditions for Success
What, however, have been the preconditions for the Commission’s success in this context? What lessons can the world learn from this success in terms of the necessary legal and political pre-conditions necessary for effective fourth branch action in this context?
A Independence and Collaboration
One of the defining structural features of the Commission is its independence. Paragraph 2 of the Schedule to the Child Poverty (Scotland) Act 2017 provides that: ‘In performing its functions, the Commission is not subject to the direction or control of any member of the Scottish Government’. This is bolstered by paragraph 5, which prohibits Ministers from appointing those involved in politics as Commissioners, paragraph 6, which sets a 5-year appointment period, and paragraph 9, which requires approval of the Scottish Parliament to remove a Commissioner. The Government does have control over the Commission’s resources, but paragraph 10(3) states that Ministers ‘are to provide the Commission with such staff and resources as it requires to carry out its functions’ (emphasis added), implying that adequate funding of the Commission is an obligation rather than a matter of discretion. But the Commission has also adopted a relatively flexible, functionalist definition of what independence means — that has allowed it to engage in processes that involve working closely with government and third sector organizations, and pro-actively to engage with a wide-range of stakeholders as a means of generating more informed and inclusive policies.
The Commission has also operated against a backdrop of strong government support. Commissioners have had direct access to government ministers and department secretaries and have had a series of informal, constructive engagements with ministers and department heads in addition to the more formal mechanisms of reporting that the commission undertakes. 64 In general, the government has also been responsive to the recommendations of the Commission. 65 This reflects the broader context for the commission’s adoption, namely a strong commitment on the part of the Scottish National Party to democratic socialist or social democratic principles and a desire to make economic inclusion and equality a key policy priority for the government.
In addition, the Commission has sought consistently to ‘engage’ with civil society. 66 First, the Commission has engaged with a range of experts in the academy and third sector. 67 Second, the Commissioners has consistently engaged with a panel of experts with lived experience of economic disadvantage. This has again promoted informed, evidence-based decision-making and recommendations by the Commission. And it has arguably increased the perceived legitimacy of the Commission, as an institution seen as reflecting the experiences and aspirations of those living in conditions of poverty or economic disadvantage.
This kind of ‘triangular’ relationship — between the Commission, the government and civil society — also mirrors the kind of relationship that have underpinned successful judicial attempts to counter economic disadvantage, or promote constitutional socio-economic rights. 68
In India, for example, the Indian Supreme Court has played a notable role in promoting the mid-day meal program for school children in India. This program is remarkable in its scope and ambition — it involves the daily provision in schools of a cooked meal of defined nutritional value to approximately 110m Indian school children each day. It is also designed to improve childhood nutrition, promote attendance at school and the integration of Indian society across caste lines. The Supreme Court has played a notable role in its expansion and implementation, first, by ordering its nation-wide roll out on this basis, and second, through a process of continued monitoring. But at the heart of this monitoring process has been a triangular relationship between government, the Court and civil society, including most notably the ‘Right to Food’ campaign (‘the Campaign’). 69 It was the Campaign that first brought the claim seeking the expansion of the school midday meal program before the Court, and thereafter that supplied by the Court with information about implementation, and helped maintain pressure on various states to implement the Court’s order. The Court itself, however, created a special bench and commission to monitor implementation, which included members of the Campaign. A similar triangular relationship can also be seen in other well-known cases in India and Colombia involving wide-spread structural remedies aimed at addressing economic disadvantage and inequality. 70
Any relationship of this kind carries risks: if a commission that is independent works too closely with government, this may undermine the perception of independence from government, in the eyes of the public. 71 Similarly, if a commission works too closely with civil society — for example, by publicly endorsing its priorities or campaigns — this could undermine government confidence in its independence. 72 But so far, the Commission seems successfully to navigated these risks. 73
B Progressive Differentiation
It is likewise important to note the broader political context for this kind of triangular relationship. In India, for example, one of the striking parts of the background to cases such as the Midday Meal Case was the degree of Union government support for the program, in some form, and the degree to which that support was linked to a broader political narrative of progress and modernism for India. 74 Moreover, this ‘India Shining’ narrative had overtly nationalist overtones — it was part of the 2004 campaign slogan of the Hindu nationalist BJP party. 75 There is also arguably a similar context for the narrative of a well-being society and social inclusion in Scotland.
Part of the SNP’s campaign for independence is built on the idea that an independent Scotland would be more progressive and inclusive than Scotland under Westminster rule. This means that the Commission is operating in a political context where its work can be seen as contributing to a broader project of Scottish independence.
This broader context again carries some risks for the Commission’s work: it means that if there is a change of government, the narrative might change, and thus cease to provide the relevant degree of support. The fact that Commission’s work is linked to debates over devolution and independence could also allow the Scottish government to deny responsibility for problems of inequality and poverty, not just advocate for the increase in their powers and responsibility. 76 Again, however, this dynamic does not seem to have prevented meaningful engagement by the government with the Commission’s work, and an overall context in which the politics of progressive differentiation supports the Commission’s mandate. 77
At times, the Commission itself has also taken steps to overcome the limits imposed by the nature of devolution, and engaged directly with Westminster, for example, in relation to migrants’ access to the Aspen card. The Aspen Card is a debit payment card given to asylum seekers by the Home Office. The Commission was informed by local agencies and asylum seekers that new cards were often not received or did not work, and wrote the Home Secretary to request intervention to provide emergency cash support to asylum seekers. The Commission considered engaging with the UK Government appropriate in this exceptional case as resolution of the issue did not appear forthcoming and the Home Office failures significantly harmed the human rights of asylum seekers. 78 This is unlikely to be a frequent strategy used by the Commission, but one that, even if used sparingly, may help mitigate some of the downsides of limited devolution in relation to welfare state policies.
C Evidence-Based Policy Making
In addition, in engaging with government, the Commission has consistently drawn on the expertise of its members. Members of the Commission include leaders of the third sector, academic experts on social and economic disadvantage and inclusion, with expertise in a variety of sectors—including health, housing, data analysis, and tax policy. This has also promoted the capacity of the Commission to engage in holistic, non-siloed forms of analysis and to encourage the same approach from the government.
It has likewise allowed the Commission to take an appropriately intersectional approach to issues of inequality as the Commission comprises members from a wide variety of third sector organisations with a focus on the rights of children, migrants and those with disabilities.
In addressing specific issue areas, the Commission has also drawn on both the general and specific issue area expertise of its members. For instance, in relation to the gathering and use of data, the Commission drew on the expertise of Morag Treanor. 79 In relation to tax policy and redistribution, the Commission drew on the work and expertise of Alex Cobham, who has a long track record of arguing for the measurement of economic inequality internationally, including the use of the Palma ratio. 80 This has added both to the expertise and credibility of the Commission’s interventions. Furthermore, this holds a central place to the Commission’s actual efficacy in countering democratic blind spots and arguably increases the Commission’s perceived legitimacy in the eyes of government. 81
Linked to the Commission’s triangular approach has also been a willingness to draw on the expertise and knowledge of other academics and members of third sector organisations. In formulating its reports and recommendations, the Commission has actively reached out to these experts to learn from their knowledge and experience in ways that have further enlarged the circle of expert knowledge that feeds into the deliberations and work of the Commission. 82 The creation of the Commission was also something strongly supported by these third sector organisations and experts. 83
Finally, the Commission has drawn on, and benefited from, the expertise of its Secretariat — a professional civil service body with significant expertise in poverty and inequality. The Commission was preceded by a statutory poverty commission, which helped establish norms of independent advice-giving to government in this area. It also helped develop relevant expertise that carried over to the current Commission via the appointment of one of the earlier commissioners (Katie Schmuecker) to the current Commission, and continuity in the composition of the Secretariat. 84
D A Unique Political Context? The Commission and COVID-19
Another important factor in the Commission’s success thus far has been the COVID-19 pandemic (‘COVID’). COVID has clearly created significant challenges for the realisation of goals of economic and social inclusion. It has meant that rates of poverty and especially child poverty have increased rather than decreased in recent years, continuing a trend of increasing child poverty rates dating back to 2012, in ways that might be seen as a sign of the Commission’s failure rather than success. This, however, radically underestimates the counterfactual. But for the Commission’s intervention, cuts in the UK welfare payment would have undoubtedly led to much greater inequality in Scotland.
The Commission’s work in accelerating the roll out of additional child welfare support payments has not fully offset the cuts made by Westminster but made a significant difference in closing the gap that might otherwise have emerged. 85 Similarly, by encouraging access to the free school meal program during school holidays, lockdowns or school closure periods, the Commission has helped address nutritional and educational disadvantages for children in ways that can have long lasting and lifelong impacts. COVID has undoubtedly put great pressure on the resources of the Commission. The desire to address tax inequality, for instance, has had to proceed on a slower, more informal basis compared to more pressing COVID-related priorities in the past few years.
COVID has also put strain on the relatively modest staffing and resources of the Secretariat. Despite this, COVID has opened up a window of opportunity for the Commission because the Scottish government during COVID has clearly recognised the need to address issues of economic disadvantage in ways that have led it to engage with a wide range of actors. As part of its COVID response, the government created three recovery panels — an economic, educational, and social renewal recovery group, with the Commission playing a critical role in the social recovery program. 86 It was involved in the renewal program’s low-income policy circle and made a range of recommendations to it. 87 Along with civil society or the third sector, it thus contributed to government policy quite directly and arguably educated the government about its own role in creating more evidence-based and effective responses to poverty and inequality.
VI Conclusion: Lessons for Scotland and Beyond
What lessons does this suggest for Scotland or global decision-makers in the future? For constitutional courts, comparative scholars have noted what might be called a ‘second period’ problem — or the problem of what happens when the founding generation is replaced. There is also good reason to think that fourth branch institutions will suffer from a similar problem.
On one level, support for successful constitutional institutions should only grow with time, as their track record of successful operation and intervention increases. But there are factors pointing in the opposite direction — the government that adopts an institution may have a special commitment to it, and when they lose power, political support for that institution may decline. Similarly, the individuals who staff an institution in the first period are often the ‘founders’ with a special commitment to the institution’s success — that is, individuals involved in creating the very institution on which they then serve. 88 Or else, they are leading experts with a special claim to knowledge of or leadership in a field. Over time, as these founders or experts retire, an institution may also come to be staffed by less passionate and knowledgeable leaders, thereby reducing both the effectiveness of the institution and its perceived value and legitimacy.
What does this mean for the Commission itself? To begin with, it suggests real risks to the Commission’s role and reputation, as key founders and experts move on. But this risk is arguably increased by virtue of the Commission currently ‘punching’ substantially above its weight in terms of resources. As part IV notes, the Commission is currently staffed by leading experts and has a highly professional secretariat. But it is not well resourced, in either absolute or relative terms—all of its commissioners are part rather than full time and paid on the basis that they spend 1 day a month on Commission work, when in fact they often spend considerably more time. The budget for the Secretariat is also relatively small. 89 The Commission does not have its own office, with secretariat staff working at the Scottish Government office nearest their home, although one may be less inclined to view a physical office as conducive to an effective organisation post-pandemic. 90 This contrasts with the position of several comparable fourth branch institutions in Scotland, including the Human Rights and Children’s Commission — both of which have full-time, salaried commissioners and a much larger secretariat.
There is an additional risk in the Scottish context, albeit a small one in the short-term, that a future Scottish government could substantially undermine support for the Commission’s work. For instance, because a new government was less committed to social democratic policies, or the idea of well-being and inclusion based measures and approaches, or because (as say in the case of the Scottish Labour party) it had ties to British Labour that made it less focused on developing independent economic and social policies. 91
Many of these risks are impossible to counter or anticipate through institutional design. But one of means of further institutionalising the Commission’s role would be grant it additional budget and resources. There is good reason to think that it should do so. 92
The lessons for constitutional designers elsewhere are clear, if more complex — creating an independent commission with broad jurisdiction over issues of poverty and equality can be an important tool for addressing democratic blockages affecting the realisation of commitments to economic dignity and equality in a democracy. But to succeed, a commission of this kind must be staffed by commissioners with the expertise necessary to make constructive recommendations and enjoy the respect of relevant government decision makers.
Moreover, to be fully successful, both the Scottish and broader comparative experience suggest, fourth branch institutions of this kind must enjoy ongoing political support from government and engage with both government and civil society in an active and collaborative way. This further suggests that these institutions must understand their jurisdiction and independence in a way that is sufficiently substantive and flexible to allow for such engagement.
In addition, background social and political conditions must favour the success of a commission’s work. In Scotland, COVID was a major challenge but also opportunity for the Commission to play a constructive role in addressing challenges of economic disadvantage and inclusion. The link between an anti-poverty agenda and a broader project of Scottish independence was also helpful to encouraging government and popular support for the Commission’s work.
These are all factors that are extremely difficult for constitutional or institutional designers to engineer. Constitutional designers can create mechanisms that encourage the appointment of expert but flexible and collaborative leaders to staff a commission. They can also use language that justifies the creation of a commission, and initial choice of commissioners, in ways that encourage a political culture that supports this understanding and ethos. But beyond that, they cannot control how those mechanisms are used, or how commissioners see or exercise their role. Nor can they control how the commission’s work connects to broader political crises or narratives.
The creation of poverty and inequality commissions, therefore, can be an important tool for promoting economic. But it should not be seen as a silver bullet, or substitute for political action on these questions. By itself, the existence of an independent commission does nothing to address poverty or inequality. Rather, it is the work it does in drawing attention to these issues and promoting expanded or accelerated programs aimed at addressing poverty and inequality.
Whether it succeeds even incrementally in achieving these goals will also depend on the commissioners chosen to lead the institution, their expertise, and how they relate to government and civil society, as well as broader political currents and circumstances. Governments must support the role of a commission for it to succeed, but the reason for that support cannot be that the commission does little or nothing to criticise government or hold it to account. A commission of this kind may face little political opposition, but it will do more to legitimate than legitimise government policy. 93
In this sense, the Scottish experience confirms our broader comparative understanding that constitutional design and formal institutions matter, but they are not all that matter. They are an important first step, but not the end of the journey toward realising a more just society.
