“DEVO MORE” A MAJOR ALTERNATIVE TO SCOTTISH INDEPENDENCE BY ALAN TRENCH

January 25, 2013 1 Comment

The report Funding Devo More: Fiscal options for strengthening the Union is published on Friday 25 January, and is available from IPPR’s website HERE. 

On Friday, IPPR are publishing a major paper of mine setting out a model for enhanced financial devolution (available here).  It is intended first of all to offer a meaningful option for extended devolution in Scotland, where all three unionist parties have said that further devolution will be on offer if there is a vote to stay in the Union in the 2014 referendum.  That is not all it does, though; it is also intended to work for Wales and Northern Ireland as well, if they wish to go down the path of further fiscal devolution.

This paper draws on work on both devolution finance and the working of federal systems that I have been doing for many years now, starting with my time at the Constitution Unit in the early 2000s working on its Leverhulme-funded programme ‘Nations and Regions: the dynamics of devolution’, as well as work on Brazil and Switzerland I carried out at Edinburgh University.  If nothing else, this indicates how academic research often takes a long time to pay off, and can do so in ways that were unexpected at the outset.

An option like this is badly needed, for two reasons.  First, there is clear evidence that it is what the people of Scotland want.  They like devolution and want more of it; in particular, they want devolution to affect control of taxation and welfare.  That has been shown clearly in numerous opinion surveys, particularly the Scottish Social Attitudes ones, and their 2012 findings just released confirm the point.  Outright devolution of those is very difficult within the Union – it would only be possible with some sort of ‘devo max’ approach, which is emphatically not what I am proposing.  Apart from anything else, it would not be viable for Wales or Northern Ireland.  Significant control of those is, however, possible, and that is what this paper (and the wider ‘Devo More’ project of which it forms the first output) is investigating.  Finding practicable ways to ensure devolved control of these functions is part of making sure that Scottish devolution (and devolution elsewhere) matches the aspirations of the Scottish people, a basic democratic goal.  It also serves a more fundamental constitutional purpose; it ensures that government in Scotland (and elsewhere) is, and should remain, legitimate.  Devolution in 1998 was, after all, a response to similar problems that arose both Wales and Scotland in the 1980s and 1990s.

Second, it relates to the 2014 independence referendum.  An ‘enhanced devolution’ scheme is not on the ballot paper, of course.  That is probably right; it would be hard (though not impossible) for a referendum to offer multiple choices to the voters in such a way that it would also establish a clear mandate for independence, if that were the choice of the electorate.  Once the SNP committed itself to having a single referendum on independence, it effectively ruled out putting an ‘extra devolution’ option to the voters in the same poll, even though it dangled the prospect of that in front of Scottish voters after the 2011 election.

There are good practical reasons why more devolution could not have been on offer in any event.  There was no such scheme on the table, and still is not.  You could not prepare for a referendum in which one of the options was essentially undefined until the last minute.  (The Welsh referendum on legislative powers in 2011 shows how badly such polls can go if an expected player doesn’t show up.)  Such a scheme would need to have agreement across the unionist parties to be viable, as the Calman proposals had.  It’s fair to say that before now the unionist parties where in no mood to consider such an option.  This is only a proposal for a scheme which is meant to work for all the unionist parties; we shall see whether they embrace it, and how enthusiastically they do so.  But defining such an option plays into the wider referendum debates by ensuring that the offer of ‘more powers after a referendum’ can be a credible one.  The battle-ground in the referendum campaign is voters who support that; if they do want more devolution but do not believe that promises of it will be delivered after a poll, the risk increases that a referendum will be lost.

Part of what has to define an ‘enhanced devolution’ scheme is what works in the interest of the UK as a whole.  This scheme is meant to do that; it is intended to work for Wales and Northern Ireland as well, if they wish to go down the path of fiscal devolution.  It is also designed to be ‘union-reinforcing’ rather than ‘union-weakening’, as ‘devo max’ would be, and as devolution of taxes like corporation tax, inheritance tax or fuel duties would be likely to be.

It also offers benefits for England, chiefly because the transfer of fiscal capacity to Scotland and other devolved governments will both enable and require them to finance spending on better services than those in England out of their own resources.  Free university tuition in Scotland has become a politically toxic symbol of supposedly generous financing of Scotland.  Some of this anger is misplaced, and is to do with choices made by devolved governments – funding, say, free prescriptions at the cost of other functions.  But some of it has a point.  Transferring a significant degree of fiscal capacity means that, if the Scottish Government wishes to provide an overall higher level of public services, it can do so – but Scottish taxpayers will have to pay for it, and the Scottish Government will have to make the case to its voters for that.  That is what autonomy means.

Fiscal devolution does not stop the UK Government undertaking redistribution across the UK, if it wishes.  A ‘vertical fiscal imbalance’ – a gap between the revenues a regional-level government can raise using its own tax powers, and its spending obligations – is common in federal systems.  In the UK it is unavoidable.  There are many taxes which are not suitable for devolution, either because the administrative costs of doing so would be disproportionate, or because of the character of the taxes themselves.  Take fuel duties as an example.  These are a useful source of revenue (they account for about 5 per cent of total UK tax revenues, proportionally more in Wales and Northern Ireland).  However, devolving something so obviously and necessarily mobile would trigger widespread avoidance, tax competition or both, and even then would incur considerable compliance costs.  The same applies to a good many other taxes, which are best left in UK Government hands.  Scottish, Welsh and Northern Ireland taxpayers will continue to contribute to the UK as a whole, through a wide range of non-devolved taxes, and it is for the UK Government to decide how to use those.

The recipe I have come up with involves handing over four sets of revenues to devolved governments:

  • All personal income tax, including decisions about rates, thresholds, exemptions and relief.  There will need to be some practical restrictions on this, if HM Revenue & Customs are to continue to collect income tax across the UK (and there are good reasons why they should), but those should be as minimal as possible for administrative reasons.
  • All land taxes.  This should be uncontroversial; to a large degree, it has already been accomplished for Scotland through the Scotland Act 2012, and is recommended for Wales by the Silk Commission (and supported by the Welsh Government).  Land taxes are not a major source of revenue, but they are a secure and easily devolvable tax base, and are an important instrument of policy as well.
  • ‘Sin taxes’, meaning duties on alcohol and tobacco.  This faces serious legal problems, but there is such a close relationship between the harm these products can do and other devolved functions, notably public health, that devolved governments should have control over tax levers as well as regulatory mechanisms when dealing with them.  They are also quite useful as sources of revenue.
  • Assign a large proportion – 10 points, of the 20 currently levied – of Value Added Tax.  EU law prevents devolution of VAT, although sales taxes are commonly levied by state or regional-level governments in federal systems.  Assigning it – passing the revenues directly to a devolved government, which does not have control of the rate of tax or what the tax is levied on – was considered and dismissed by the Calman Commission for Scotland, and the Holtham and Silk Commissions for Wales.  But, if we are looking at going meaningfully beyond that model of fiscal devolution, we have to think again.  VAT is a major source of revenue, and in the hunt for ‘devolvable’ taxes the choice of good taxes to devolve is a very limited one.  A major consumption tax is an attractive proposition for regional-level governments, and assigning it is the best one can do.

This is not so much the end of my work on devolution finance as establishing a clear starting point.  It is impossible to work out a scheme for devolution finance without working out what it is you are financing.  I have used the current division of functions between the devolved governments and London for this work, and if there were further devolution of expensive functions (notably welfare benefits, but also policing and criminal justice in Wales) it would be necessary to look at this again.  In later work in IPPR’s ‘Devo More’ project, we shall be considering those issues; that will mean returning to financial issues afterward as well.  But using 2010-11 figures, this model would have put £21.7 billion directly into the hands of the Scottish Government, £9.7 billion into those of the Welsh Government, and £6.1 billion into those of the Northern Ireland Executive.  That equates to 60.6 per cent of Scottish devolved spending, 62.2 per cent of Welsh devolved spending and 55.6 per cent of devolved non-social security spending in Northern Ireland.  Of that, large proportions would come from wholly devolved taxes: 42.1 per cent of Scottish spending, 44.2 of that in Wales, and 34.3 per cent of that in Northern Ireland.  That contrasts with the measures in the Scotland Act 2012, which would devolve taxes revenues accounting for around 30 per cent of devolved spending in Scotland, and the Silk Commission’s proposals, which would account for about 25 per cent in Wales.

Whatever form fiscal devolution takes, it is important to think about it as a package. Devolving one or two taxes on their own increases the risk of government revenues being exposed to serious shocks.  That is especially the case with volatile taxes like corporation tax.  Some devolved services are simply inflationary in character (notably health). Others are counter-cyclical, with demand increasing somewhat when times are bad (notably education).  None of them get cheaper to provide in hard times.  As there’s no such thing as a counter-cyclical major tax, stable revenues are needed to pay for them, and if the UK Government is to cease to manage the risk of fluctuations in revenue (which it does at present, through the block grant and formula system), devolved governments need tax revenues that are relatively stable, and if possible that balance the fluctuations among them.  The combination of devolved income tax and assigned VAT, in particular, does that.  Assigning VAT might not give devolved governments any control over policy levers, but the revenues are relatively stable, act as a counterweight to income tax ones (they shrink and grow on a different cycle), and over time it is a growth tax.

This model is an attempt to make a devolved UK work better; to enable it to be both more devolved, but also more unified.  Quite a lot of work remains to be done, but it hard to see that any sort of durable and workable solution would not draw heavily on it.

 

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Answering the unanswerable question: the UK Government’s commission on the West Lothian question

January 18, 2012 2 Comments

This is the text of my article in today’s Scotsman about the UK Government’s ‘Commission on the consequences of devolution for the House of Commons’, announced on Tuesday.  The Commons written statement announcing the Commission can be found here.  There’s also news coverage of the Commission from the Guardian here and the Western Mail here (both quoting me), and the Scotsman here.  The article, slightly cut for publication, can also be found on the Scotsman‘s website here.

The UK Government’s announcement of its Commission on the West Lothian question is an attempt to resolve an insoluble problem.  The West Lothian question – the anomaly that Scottish MPs can vote on matters like health or education that affect England, but English ones cannot vote on similar matters for Scotland as they are devolved – is a logical consequence of asymmetric devolution.  If all parts of the UK had devolution, it would not arise.  Because Scotland elects predominately Labour MPs at Westminster, and few if any Conservatives, this constitutional anomaly gets a lot of political air.

Conservative MPs feel a strong sense of grievance about the question, which also has resonance with the general public in England.  The anomaly is not just a theoretical problem; Scottish MPs accounted for the Labour UK government’s majority on key votes that brought in ‘top-up’ higher education fees in England, and created foundation hospitals.  If Scottish Labour MPs hadn’t been loyal to the party whip when some of their English colleagues rebelled, these policies would not have reached the statute book.  More generally, Scottish MPs (being free of constituency pressures about ‘English’ issues) tend to be more obedient to the party line than English ones. Conservatives see Scotland as a land of Labour lobby-fodder, skewing the electoral system even further against them.  The Tory party has fought all the post-devolution UK elections with commitments to some form of ‘English votes for English laws’ in their manifestoes.  That commitment explains why we have this commission; Conservative policy may have been clear but it is not shared by the Liberal Democrats.

Sorting out the West Lothian question is easier said than done, though.  There are three basic solutions to the problem.  One is an English Parliament, within a federal structure for the United Kingdom.  However, that is problematic if the goal is to maintain the Union, as so unbalanced a union (England is 85 per cent of the UK’s population) would not be stable and would probably not be sustainable.  No similarly unbalanced federal system has lasted more than a few years.  The second option is the ‘Stormont discount’ – reducing the number of MPs from Scotland, Wales and Northern Ireland, as happened for Northern Ireland between 1922 and 1972.  The problem with that is that it means Scotland, Wales and Northern Ireland have a reduced say on matters like health in England – but their say on non-devolved matters like defence or foreign affairs is also reduced.  The Stormont discount is a blunt instrument to solve complex problems.  The third option is ‘English votes for English laws’ or EVEL, as promoted by the Conservatives.  This is an ‘in and out’ solution; MPs would be eligible to take part in some votes but not others, depending on the constituency they represent.  It creates serious problems too; it would be very hard to implement, and creates problems of ‘governabiltiy’ if the party with an overall majority at Westminster doesn’t also have a majority of English seats.  That is a problem for Labour but not the Conservatives – Labour might be in a position to form a UK Government without a majority of English seats, but the Conservatives would not.

The practicalities of EVEL are pretty daunting too.  Westminster legislation commonly touches on a variety of parts of the UK; some clauses in a typical bill will relate only to England, others to England and Wales, or Great Britain, or England, Wales and Northern Ireland.  UK Government departments tend to use a bill as the vehicle for dealing with a range of problems, not just the main subjects of the bill.  Sorting out which provisions only affect England will be quite a challenge for those in charge of drafting legislation, forcing Whitehall to change deeply-ingrained habits.  Moreover, some legislation on devolved matters needs – under the Sewel convention – to be considered at Westminster too, so MPs from devolved governments should be entitled to vote on that.  It will also be a challenge for those responsible for legislation in Parliament, who will have to make sure that the right clauses are flagged in the right way, and only those MPs eligible vote or speak on them.  Even then, there is the question of finance.  While we have a system of financing devolved governments that allocates shares of changes in spending depending on what happens in England, any change in legislative arrangements raises the question of whether it is right to have devolved funding depend on decisions taken for purely English reasons in that way.

Although EVEL is fraught with problems, there is little reason to believe that it is an answer to the problem with wider appeal.  Even if it is the first step, it will not be the last.  Data from the Institute for Public Policy Research, due for publication next week, suggest a growing number of English voters are concerned about the ‘unfairness’ of the present arrangements and want something more than a limited change at Westminster.  What solution they might want – or how that might work – is less clear.  The case for an English Parliament has recently been taken up by UKIP, but still has little organised support.  England’s isolation from the debates about the relationships of the various governments in the UK is showing in that English confusion.  Altering Westminster procedures may be popular among Tory MPs, and appears to have much wider public support, but it does not provide a positive solution to the problems of representing England in a devolved and increasingly decentralised United Kingdom.

However, the Mackay Commission is weighted toward finding technical solutions to a narrowly defined problem.  The commission’s remit limits it to looking at how the House of Commons deals with legislation.  It therefore has limited scope to look at other, non-legislative aspects of how Parliament works, with issues affecting UK Government – or indeed to look at the role of the House of Lords.  (Such issues have also been kept out of the work of the Joint Committee on Lords Reform as well.)  Moreover, the commission has been set up as a body of independent experts to advise about solutions, not to re-define the problem.  Three of the commission’s six members have spent their working lives grappling with the legislative machinery of Westminster.  The key decisions remain to be taken by politicians after the commission has reported.  As its report is due in the next Westminster session (before May 2013), that probably means we reach decision time at some point in 2013-14.  Given growing concerns in England, though, this is unlikely to be able to tackle the issues that now need to be addressed.

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The endgame for the Scotland bill

December 17, 2011 3 Comments

The Scotland bill, framed to implement the Coalition’s Programme for Government commitment to implement the recommendations of the Calman Commission, had its second reading in the House of Lords in October.  It has also been reconsidered by the Scottish Parliament during the autumn, following a first consideration in late 2010 and early 2011.  The Lords Committee stage has been put on hold pending its reconsideration at Holyrood. Following May’s election, the new Parliament has a very different composition to the old one.  Despite the conditional approval given to the bill by the old Parliament before the election and the wider demands of the SNP majority, the UK Government has declined to change the bill.  

The report of the second Holyrood  committee considering the bill was published last week.  This comment on it by Alan Trench appeared in The Scotsman on Friday 16 December (it’s also on the paper’s website here). 

There’s further discussion of the report and the bill generally on Alan’s blog, Devolution Matters.

WITH the Scotland Bill committee’s report, the constitutional politics surrounding the bill start to enter the endgame.

The committee seeks a raft of changes to the bill. The trickiest for the UK government is recommendation 6, that there be “joint approval” of the introduction of the income tax power and related cut in the block grant. This has been a key demand of the Scottish Government, but the UK government has failed to spell out how the cut will be made in the two-and-a-half years since the Calman Commission’s report was published.

Both the Secretary of State and Advocate General for Scotland have signalled it is unacceptable. Michael Moore has said he should be trusted to have Scotland’s best interests in mind when the effect of the new tax power on the block grant is calculated. However, without any clear statement of UK government policy on how the cut will be made (which is simple) or adjusted in subsequent years (which isn’t), it would be an imprudent government or parliament that simply took another’s word on an issue of such importance.

If the parliament insists on this provision – fairly likely, as the SNP have put much emphasis on it – one of five things may happen. The UK government could accede to the request and amend the bill (though that will make for a choppier passage in the House of Lords). If London doesn’t amend the bill, either the parliament will pull back and approve it anyway, or Holyrood will reaffirm its earlier position and vote against the bill. If Holyrood approves the bill, it can pass on to the statute book.

If Holyrood doesn’t approve the bill, either UK will drop it, or Westminster will pass it, despite the Sewel convention saying that such legislation “normally” requires devolved approval. That would put the Scottish Parliament in much the same constitutional position as an English local authority.

So the ball is in London’s court, but it has to remember it is making the pro-Union pitch that devolution works for Scotland. The SNP, on the other hand, know that they can use a narrow approach from Westminster, or the outright failure of the bill, to strengthen the case for independence.

How London responds to this move at Holyrood is going to be interesting to watch. The UK government’s position is much trickier than it may seem.

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The commission on the West Lothian question looms, sort-of

September 9, 2011 Leave a comment

Thursday’s UK Government announcement about the long-proposed ‘commission on the West Lothian question’ is more of a non-announcement.  The Commission was of course promised in the Coalition agreement of May 2010, but precious little has been heard about it since then.  The use of a commission suggested an attempt to kick the issue into touch more than anything, as it’s not a pressing issue once the Conservatives are in office and it’s a bone of contention between the Conservatives and the Lib Dems.  In this, it has clear resemblances to the commission on the UK bill of rights, finally established in March and which produced a rather sketchy issues paper in July.  Mark Harper’s brief statement is available here.  There news reports from the BBC here and the Scotsman here (though they don’t add much to the statement).

Clearly the pressure of Harriet Baldwin’s bill on territorial extent clauses, and the need to throw some red meat to the Conservative back benches, has led to an announcement that … there will be an announcement in due course. A remit will be set out in October.  It’s not clear whether members will be announced then, or later.   This sequence of announcements that don’t have anything new in them is all rather reminiscent of the ongoing process surrounding the ‘Ap Calman’ commission in Wales, of course.

The most interesting point is that the Commission is to be composed of independent academic experts.  Some (notably Robert Hazell) have suggested this would be a task best discharged by a joint committee of both Houses of Parliament, including senior parliamentarians from both Houses (and presumably all parties).  That would have called for very careful management to avoid party differences leading it to a stalemate.  Instead, the choice has been made to try to depoliticise it (though there is to be consultation with the Speaker and input from the parties.   However, as the issue is of its nature highly political, it looks as though the key decisions will fall to be resolved by politicians after the Commission has reported.

(This post also appears on Alan Trench’s blog, Devolution Matters, which can be found here.)

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The Welsh referendum result: Wales said Yes

March 9, 2011 Leave a comment

The results from the referendum on the National Assembly’s legislative powers on 3 March produced a very clear mandate for the Assembly to have primary law-making powers: the vote is 517,132 votes in favour, and 297,380 votes against (or 63.5 per cent to 36.5 per cent).  There’s news coverage from the BBC here and the official results from the Electoral Commission are here.  Of the local authority areas used for counting, only Monmouthshire voted No – and that by just 320 votes.  While the Yes vote appears to have been weaker in eastern parts of the country, it varied relatively little across the country (and much less than it did in 1997).  There’s a good discussion by Roger Scully of the result on the BBC News website, available here.

Turn out was 35.2 per cent; not high, but higher than in some other referendums, and higher than some predictions.  Given the limited public visibility of the campaign (compounded by True Wales’s decision not to apply to become a designated campaign organisation), the inherent obscurity of the issue and the confusing nature of the question, that has to be regarded as a comparatively strong showing.  Rachel Banner of True Wales has accepted that it’s a clear mandate for an Assembly with legislative powers.  This result suggests strongly that legislative devolution is indeed the settled will of the people of Wales.  Perhaps the shadows created by the defeat in 1979 and narrowest of victories in 1997 will now pass into history.

Ironically, the result comes just as the Boundary Commission for Wales announces how it plans to review the Westminster constituency boundaries, so as to reduce the number of Welsh MPs from 40 to 30 (the same quota as for England or Scotland).  One of the problems that hobbled No campaigners was the prospect of reduced representation at Westminster whatever happened.  If Wales had voted No, it would have faced the double whammy of that combined with limited devolved legislative powers – a sure way to minimise Wales’s overall influence over government.

The referendum result has triggered a flurry of activity on other fronts.  First, there is the question of bringing the new powers into force.  The First Minister announced on Tuesday that an order regarding that would be laid later in the week for debate on 29 March, and providing for the new powers to come into effect on 5 May (polling day in the Assembly elections, of course).   His statement is here.  That means the new Assembly will have primary law-making powers as soon as it meets.  At the same time, work is underway on formalities like letters patent and a Welsh seal for signifying Royal assent to Assembly Acts.

Second, the debate about the Assembly’s finances has revived.  The referendum put this on hold – Welsh politicians didn’t particularly want to talk about it during the campaign, and the UK Government had signalled that it would only take action if there was a Yes vote.  But now confusion reigns.  Some politicians – including Nick Clegg and Cheryl Gillan, both speaking at their parties’ conferences in Cardiff at the weekend – have stuck to the Coalition’s commitment in the Programme for Government about a further commission to look at the issue, despite the work of the Holtham Commission.  Other UK politicians have moved beyond this and talked about implementing Holtham, though with greater interest in tax powers than a ‘fair’ (needs-related) grant.  Carwyn Jones, on the other hand, is keener on a ‘fair grant’ than tax-varying powers.  There’s also the question of whether a further referendum on that would be needed.

All this makes for exciting times in Wales’s developing constitution, in the short interval between the referendum and the start of the Assembly election campaigns.

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Michael Moore, the Scottish Affairs Committee and the Scotland bill

February 23, 2011 Leave a comment

When Michael Moore, the Scottish Secretary, gave evidence to the Commons Scottish Affairs Committee last week, he largely played a straight bat and avoided giving much away.  But late in the session (which is still recycling periodically on the BBC Parliament channel), he made two pretty startling statements.

One was to announce that the UK Government wouldn’t necessarily respect the Sewel Convention if the Scottish Parliament requested ‘fundamental’ changes to the Scotland bill – say, increasing the devolved income tax power from 10 points to 15 – which the UK Government didn’t wish to make.  Rather, it would push the bill through regardless.

This is startling because the Sewel Convention is the foundation on which devolution rests.  The Convention provides that the UK Parliament will not legislate for devolved matters without the consent of the devolved legislature involved.  While there’s an ambiguity about how it affects the UK Parliament, the UK Government has clearly committed itself to the Convention in the Memorandum of Understanding.   The Convention is a powerful and ingenious constitutional tool, which squares the circle between a division of power set out in a written constitution and then set in stone, as in most federal systems, and the principle of the sovereign UK parliament conferring legislative powers on other legislatures.  It rebuts Enoch Powell’s claim that ‘power devolved is power retained’, and makes devolution a viable alternative for a country with an unwritten constitution.   The saving clause in it (it talks of the UK Government ‘normally’ complying with devolved wishes should only be used in the direst of emergencies – not a case where there’s a serious constitutional disagreement between the Scottish Parliament and UK Government over the nature of devolved powers.

Moore’s other statement relates to clause 23 of the Scotland bill, a curious provision that enables UK Ministers to act regarding devolved matters if that is to fulfil a UK international obligation.  The Command paper explaining the bill offered no clear rationale for this.  The trigger turns out to be two cases where the Scottish Government took a year longer than the UK Government to implement agreements concerning two minor organisations ancillary to the European Union.  But the Memorandum of Understanding protects the UK Government from any financial liability (it’s passed on to the devolved administrations), and the UK already has power to implement EU obligations anyway.  It’s now clear that this clause is much wider than is needed to deal with any harm the UK can suffer.

I’ve written more detailed posts about both these issues on Devolution Matters; that on the Sewel Convention is available here, and that on clause 23 is here.

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Legislative consent from Wales, or not: blocking Police and Crime Panels

February 16, 2011 Leave a comment

There was an interesting development in Wales last week, when the National Assembly voted against giving its legislative consent under the Sewel convention to the Westminster legislation creating Police and Crime Panels.  These are part of the proposals for elected police commissioners that are the centrepiece of the Coalition government’s Police Reform and Social Responsibility bill.

This is the first time a Westminster bill has been denied legislative consent under the Sewel convention – this has never happened to any bill affecting Scotland.  The reason is partly to do with party politics – while Conservative and Lib Dem AMs supported the UK bill, it was opposed by Labour and Plaid Cymru.  It’s also to do with what looks like legislative laziness, as the Police and Crime Panels are constituted as local authority committees (the bulk of their members will be councillors, but they’re not constitutionally part of any local authority).

Having got into this jam, the initial indications are that Home Office intends simply to insist that Westminster, as the sovereign parliament, has power to enact the legislation despite the National Assembly’s views.  As I’ve explained in a detailed post on Devolution Matters available HERE, that would be a grave mistake.  It would seriously upset the constitutional relationship between the devolved legislatures and UK Parliament, and risk a very messy legislative situation.  Moreover, with the Scotland bill under consideration at both Westminster and Holyrood, it would raise the stakes relating to that as well.

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The Scottish Government lifts the veil on intergovernmental relations

February 16, 2011 Leave a comment

This post also appears on Alan Trench’s blog, Devolution Matters, where it can be found here.

The Scottish Government has clearly, in its last few weeks, decided to stop playing nicely when it comes to intergovernmental relations. Hitherto, it’s scrupulously observed the convention that relations are, for the most part, to be conducted behind closed doors. After taking considerable amounts of criticism, it’s decided to place large quantities of correspondence and other records of its dealings with the UK Government (and other parties) into the public domain.

The documents they’ve released relate to two controversial issues. One is the debate about devolution finance: the UK Government’s proposals to implement the Calman recommendations, and its alternative of full fiscal autonomy. These cover the period from May 2010 to January this year.  The other is the release of Abdelbaset Ali Al-Megrahi, the Lockerbie bomber, following the publication of Sir Gus O’Donnell’s review of the papers. These cover the period from August 2009 to October 2010, though some relate to earlier events.  These records are going to be a treasure trove for researchers and others interested in how intergovernmental relations in the UK work, especially as they’re exempt from disclosure under the Freedom of Information Act 2000; our own version of the Wikileaks disclosures of US diplomatic cables, perhaps.

The finance papers can be found here.  The Lockerbie papers are here.

In releasing these papers, the Scottish Government appears to be sending two clear warnings to the UK Government. First, that the UK Government should assume that everything said or done in the course of those relations may be put into the public domain, so it shouldn’t assume that it can pursue one line in public and another in private. Second, the UK Government shouldn’t seek to use selective disclosure of documents and questionable précis of them as a way of trying to win the public end of that debate.  The use of that tactic by UK Government, for example over the Scottish variable rate, has significantly undermined the sort of co-operation and mutual respect for confidentiality that are much emphasised in the Memorandum of Understanding and have been regarded as underpinning intergovernmental relations up to now.  It would be an exaggeration to call this a ‘crisis’ in intergovernmental relations, but it is a serious blow to the established way of doing things, based on the UK’s assumption that there’s a broad consensus behind what it does and if not that it can out-muscle devolved governments.  It strongly suggests that the UK Government will need to take a much more coherent and strategic approach to intergovernmental relations than it has done, particularly recently.

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