Proposal at the Scottish Parliament for a Scottish Employment Injuries Advisory Council Bill

A recently-proposed Member’s Bill at the Scottish Parliament would, if enacted, set up a new Scottish Council to “research, shape and scrutinise the social security available to people injured in the course of their employment”, with a continuing duty to advise and recommend changes. The proposal will only proceed to the three-stage Scottish legislative process if it attracts cross-party support from at least 18 MSPs in addition to its proposer, Mark Griffin MSP (Scottish Labour).

In general terms, social security policy is reserved to Westminster however certain social security benefits, including industrial injuries benefits, were devolved in 2016 to the legislative competence of the Scottish Parliament. The Social Security (Scotland) Act 2018 then provided for the replacement of industrial injuries benefits with employment-injury assistance (EIA) but the relevant provisions of this legislation have yet to be brought into force and Scottish Ministers have not yet made any regulations on eligibility for, or the levels of, EIA.

At present, there is a UK-wide non-departmental public body, the Industrial Injuries Advisory Council (IIAC), which advises on industrial injuries benefits by scrutinising relevant regulations and making recommendations on additions to the list of prescribed industrial diseases relating to certain occupations. However, interaction with IIAC is reserved to UK Ministers, meaning that Scottish Ministers are not able to directly work with it. The core proposal of the Bill (a link to which is here) is therefore is for a new Scottish body to replicate the role of IIAC in Scotland but with its powers extending, unlike IIAC, to commissioning and conducting its own research. As currently proposed, the council would comprise a range of experts, including relevant clinicians, workers with experience of being exposed to the risk of workplace injury and their representatives, including trade unions.

Aside from the perceived institutional need identified in the proposal, the Member explains his view that the existing arrangements are too slow to respond to new or emerging industrial injuries both in identifying injuries, including diseases, and also in identifying the occupational settings in which employees may be exposed to a risk of them. Although there are two passing references to COVID-19 in Mr Griffin’s statement of reasons, the scope of the Bill is much wider than a reaction to the pandemic.

One aspect of this proposal that the insurance industry may wish to consider is the potential for the proposed new Scottish body to act, by implication, as a potential driver of civil claims in areas of emerging risks because of its enhanced research role in comparison with the IIAC. The impact of this could be seen UK-wide even if the separate jurisdictions of Scotland and England & Wales are to diverge on social security payments in this area.

Andrew Gilmour, Partner, BLM

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