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Brexit and devolved social security in Scotland: a tale of two referenda

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This article discusses the possible impact of withdrawal from the EU on social security in Scotland. Despite the relatively limited role of EU membership in shaping the UK social security system, the effects of Brexit could be significant, even if largely indirect. The recent EU and independence referenda have allowed devolved elites to portray Scotland as more concerned with social justice and more internationalist than the UK as a whole. Maintaining or enhancing EU citizens’ social rights would be in keeping with this self-image. The Scottish Government’s view that Scotland has a greater need for immigration than other parts of the UK provides a further, pragmatic argument for enhancing its attractiveness as a destination by allowing migrants to access family benefits in particular. The limited extent of devolved social security competences means this is not currently an option. Even if the push for a second independence referendum following the Brexit vote has been put on hold for now, the possibility remains that the Scottish Government will seek renegotiation of the constitutional settlement. Social security is an obvious field for further devolution. The door could hence be opened to divergence from the Department for Work and Pensions on the entitlements of EU migrants.

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This book presents a socio-legal examination of national and devolved-level developments in social protection in the UK, through the eyes of politicians and officials at the heart of this process. Since its inception in 1998, devolution has altered the character of the UK welfare state, with dramatic change in the 10 years since 2010. A decade of austerity at national level has exposed diverging view in how governments in London, Edinburgh and Belfast view the social rights of citizenship. This political divide has implications for both social security law, as the devolved countries begin to flex their muscles in this key area for citizens' economic welfare, and the constitutional settlement. The book reflects on the impact of austerity, the referendum on Scottish independence and subsequent changes to the devolution settlement, Northern Ireland's hesitant moves away from parity with Westminster in social protection, withdrawal from the European Union (Brexit), and the possible retreat from austerity during the COVID-19 pandemic. The social union may or may not be weakening; its character is unquestionably changing, and the book lays bare the ideological and pragmatic considerations driving legal developments. TH Marshall's theory of citizenship provides the lens through which these processes are viewed, while itself being reinterpreted in light of the national government's increasing delegation of responsibility for social rights – whether to individuals, the voluntary sector or lower tiers of government.
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Article
Zeitschrift für Sozialreform 187; see also L Conant, 'When courts decide: foreigners' rights and social citizenship in Europe and the US
  • K Sieveking
K Sieveking, 'Der Europäischen Gerichtshof als Motor der sozialen Integration der Gemeinschaft' (1997) 43(3) Zeitschrift für Sozialreform 187; see also L Conant, 'When courts decide: foreigners' rights and social citizenship in Europe and the US' (2008) 7
Public d'Aide Sociale d'Ottignies Louvain la Neuve (C-184/99
  • Grzelczyk V Centre
Grzelczyk v Centre Public d'Aide Sociale d'Ottignies Louvain la Neuve (C-184/99) [2002] 1 CMLR 19
EU migrants: David Cameron sets out more benefit restrictions
  • See
  • Wintour
See, for example, P Wintour, 'EU migrants: David Cameron sets out more benefit restrictions' (Guardian, 27
Benefits delay is obstacle for jobless immigrants, says Iain Duncan Smith' (Guardian
  • R Mason
  • Wintour
R Mason and P Wintour, 'Benefits delay is obstacle for jobless immigrants, says Iain Duncan Smith' (Guardian, 18 December 2013) <http://www.theguardian.com/uknews/2013/dec/18/benefits-delay-immigrants-iain-duncan-smith> accessed 24 January 2014; P Dominiczak, 'We will block benefits to new EU migrants, says Cameron' (Daily Telegraph, 18 December 2013) <http://www.telegraph.co.uk/news/uknews/immigration/10524285/We-will-block-benefits-to-new-EUmigrants-says-Cameron.html> accessed 24 January 2014
JSA(IB)-three months residence requirement
Department for Work and Pensions, 'JSA(IB)-three months residence requirement' (Memo DMG 28/13, DWP, 2013)
Sub-national immigration policy: can it work in the UK?' (Migration Observatory
  • R E See
  • Wright
See RE Wright, 'Sub-national immigration policy: can it work in the UK?' (Migration Observatory, 18
Brexit and human rights in Scotland
  • A Miller
A Miller, 'Brexit and human rights in Scotland' (2016) 74 Scottish Human Rights Journal 2, 2
The Sun gets regulator reprimand and publishes correction for misleading on human rights' (UK Human Rights Blog
  • C Harvey
C Harvey, 'Reflections on human rights and citizenship in a changing constitutional context' (Brexiting and Rights conference, Belfast, September 2016) <http://www.caj.org.uk/files/2016/10/11/3_Brexiting_and_Rights_-_Colin_Harvey_CAJ-TJI_2016.pdf> 63 A Wagner, 'The Sun gets regulator reprimand and publishes correction for misleading on human rights' (UK Human Rights Blog, 26 June 2013) <https://ukhumanrightsblog.com/2013/06/26/the-sun-gets-regulatorreprimand-and-apologises-for-misleading-on-european-human-rights/> accessed 1 June 2017; K King, 'Daily Express forced to make huge correction to human rights story, again' (Legal Cheek, 23 March 2017) <https://www.legalcheek.com/2017/03/daily-express-forced-to-make-huge-correction-to-human-rights-storyagain/> accessed 1 June 2017
Social security systems based on dignity and respect (Glasgow: Equality and Human Rights Commission
  • G See M Simpson
  • A M Mckeever
  • Gray
Child Poverty (Scotland) SP Bill (2017) [6]; for discussion, see M Simpson, G McKeever and AM Gray, Social security systems based on dignity and respect (Glasgow: Equality and Human Rights Commission, 2017)
Brexit: protecting human rights in Scotland in a changing relationship with Europe
Scottish Human Rights Commission, 'Brexit: protecting human rights in Scotland in a changing relationship with Europe' (Edinburgh: SHRC, 2016)
Department for Exiting the European Union, Legislating for the United Kingdom's withdrawal from the European Union
  • J Collins
J Collins, 'Liz Truss confirms British Bill of Rights on hold until after Brexit' (Rights Info, 23 February 2017) <https://rightsinfo.org/liz-truss-confirms-british-bill-rights-will-hold-brexit/> 71 Department for Exiting the European Union, Legislating for the United Kingdom's withdrawal from the European Union (London: DExEU, 2017) para 2.22
McLaughlin's application for judicial review
McLaughlin's application for judicial review, Re [2016] NIQB 11;
R (on the application of DA) v Secretary of State for Work and Pensions
R (on the application of DA) v Secretary of State for Work and Pensions [2017] EWHC 1446 (admin)
The legitimacy of the EU referendum requires that citizens are informed of the implications of their decision' (Democratic Audit
  • K Boyle
K Boyle, 'The legitimacy of the EU referendum requires that citizens are informed of the implications of their decision' (Democratic Audit, 22 April 2016) <http://www.democraticaudit.com/2016/04/22/the-legitimacy-ofthe-eu-referendum-requires-that-citizens-are-informed-of-the-implications-of-their-decision/>
Putting the justice into social justice: how international human rights can deliver progressive social change for Scotland
  • Sm Mccall
Rights of Children and Young People (Wales) Measure 2011; SM McCall, 'Putting the justice into social justice: how international human rights can deliver progressive social change for Scotland' (2016) 72 Scottish Human Rights Journal 3
Reflections on human rights and citizenship in a changing constitutional context' (Brexiting and Rights conference
  • C Harvey
C Harvey, 'Reflections on human rights and citizenship in a changing constitutional context' (Brexiting and Rights conference, Belfast, September 2016) <http://www.caj.org.uk/files/2016/10/11/3_Brexiting_and_Rights_-_Colin_Harvey_CAJ-TJI_2016.pdf>
Welfare rights, austerity and the decision to leave the EU: influences on UK social security law
  • N Harris
N Harris, 'Welfare rights, austerity and the decision to leave the EU: influences on UK social security law' (2018) 25(X) Journal of Social Security Law XX
The territorial politics of social policy development in multilevel states' (2005) 15(4) Regional and Federal Studies
  • N Mcewen
N McEwen, 'The territorial politics of social policy development in multilevel states' (2005) 15(4) Regional and Federal Studies 537, 543
The social citizenship of lone parents
  • M Simpson
M Simpson, 'The social citizenship of lone parents, 2010-2015: evolution and devolution' (PhD thesis, Ulster University, 2016);
Is Scotland more left-wing than England?
  • J Curtice
  • Ormston
J Curtice and R Ormston, 'Is Scotland more left-wing than England?' (Edinburgh: ScotCen Social Research, 2011);
Independence and the territorial politics of welfare' (ESRC conversation 2: delivering social security: options in Scotland's constitutional debate
  • N Mcewen
N McEwen, 'Independence and the territorial politics of welfare' (ESRC conversation 2: delivering social security: options in Scotland's constitutional debate, Edinburgh, 2013) 3
EU referendum: where do Scotland's political parties stand?' (Scotsman
  • C Mccall
C McCall, 'EU referendum: where do Scotland's political parties stand?' (Scotsman, 26 February 2016) <http://www.scotsman.com/news/politics/eu-referendum-where-do-scotland-s-political-parties-stand-1-4038649>
What price Scottish independence for an army of cross-border workers?' (Guardian
  • P Collinson
P Collinson, 'What price Scottish independence for an army of cross-border workers?' (Guardian, 19 April 2014) <https://www.theguardian.com/money/2014/apr/19/scotland-vote-independence-yes-no-tax-pensions-workers>
More devolution rather than independence: time for the SNP to rediscover the "middle way
  • M Simpson
M Simpson, 'More devolution rather than independence: time for the SNP to rediscover the "middle way"' (LSE British Politics and Policy, 10 July 2017) <http://blogs.lse.ac.uk/politicsandpolicy/time-for-the-snp-torediscover-the-middle-way/>
Leader's speech (Scottish National Party conference
  • N Sturgeon
N Sturgeon, Leader's speech (Scottish National Party conference, October 2017)
Scottish independence: Brown to push for more devolution in event of no vote
  • R Syal
R Syal, 'Scottish independence: Brown to push for more devolution in event of no vote' (Guardian, 5
Gordon Brown pushes "patriotic" third option for Scotland after Brexit' (Guardian
  • S Carrell
S Carrell, 'Gordon Brown pushes "patriotic" third option for Scotland after Brexit' (Guardian, 18 March 2017) <https://www.theguardian.com/politics/2017/mar/18/gordon-brown-to-push-patriotic-third-option-formore-powerful-scotland-after-brexit>