Intergovernmental Relations in Scotland: what was the SNP effect?

Here is a copy of a paper that I will present at this conference – – on the 5th November

Paul Cairney, University of Aberdeen, AB243QY

Intergovernmental Relations in Scotland: what was the SNP effect?

In Scotland, the formation of a minority government in 2007 by the Scottish National Party (SNP) provided the potential for profound changes in intergovernmental relations. This followed eight years of Scottish Labour led coalition government characterised by a low-key and informal relationship with the UK Labour Government. From 1999-2007, discussions were conducted informally and almost entirely through political parties and executives. Although formal mechanisms for negotiation and dispute resolution existed – including the courts, concordats and Joint Ministerial Committees – they were used rarely. The Scottish Executive also played a minimal role in EU policymaking. Yet, an ‘explosive’ new era of relations between the Scottish and UK Governments did not arrive in tandem with a change of party in government. The aim of this paper is to explore these issues by asking two main questions: why were formal mechanisms used so rarely from 1999-2007, and what factors have produced muted rather than problematic IGR since 2007?

Keywords: intergovernmental relations – policy communities – asymmetry – minority government

The New Political Context
In Scotland, the formation of a minority government in 2007 by the SNP provided the potential for profound changes in IGR. It followed eight years of remarkably informal and uncontroversial relations between the UK and Scottish executives. From 1999-2003 and 2003-7, Scottish Labour and the Scottish Liberal Democrats formed a coalition (the Scottish Executive) which commanded the majority of MSPs in the Scottish Parliament. In each parliamentary session the parties produced a ‘partnership agreement’ setting out in detail their legislative and policy plans. While the Liberal Democrats may have done disproportionately well out of the agreement, Labour was the senior partner in both sessions (McGarvey and Cairney, 2008: 121). This allowed relations to develop between the UK and Scottish executives as if there was a shared party in government.

From 1999-2007 the Scotland-UK IGR strategy was clear: discussions were conducted informally and almost entirely through executives. Other mechanisms for negotiation and dispute resolution existed but were used rarely. The role of the courts was minimal. There were no references of Scottish bills to judicial review; the Scottish Executive was more likely to ‘remove offending sections’ than face delay (Page, 2005). The role of Holyrood-Westminster relations was limited, and the Scottish Parliament was restricted to the passing of ‘Sewel’ (legislative consent) motions, giving consent for the Westminster Parliament (and in effect the UK Government) to pass legislation on devolved policy areas (Cairney, 2006; Cairney and Keating, 2004). There was a clear bias towards informality between executives. Although a Memorandum of Understanding was produced to guide the conduct of executives, and individual concordats to encourage cooperation between departments, the day-to-day business was conducted through civil servants with minimal reference to them. As Horgan (2004: 122) suggests, there was an ‘informal flavour’ to formal concordats since – as in Canada and Australia – they are not legally binding. Rather, they represent a, ‘statement of political intent … binding in honour only’ (Cm 5240, 2001: 5). The Memorandum’s main function is to promote good communication between executives, particularly when one knows that forthcoming policies will affect the other. This emphasis is furthered in the individual concordats which devote most of their discussions to reiterating the need for communication, confidentiality and forward notice (the ‘no surprises’ approach, furthered by the ‘partnership agreement’ that allowed the UK, to a large extent, to see what was coming). For the civil servants that produced them they represented ‘commonsense’ with little need to refer to them (Sir Muir Russell, former Permanent Secretary, Scottish Office and Scottish Executive, in Commission on Scottish Devolution, 2008a: 2; see also Jack McConnell, former First Minister, Commission on Scottish Devolution, 2008b: 13).

Although the Joint Ministerial Committee (JMC) was designed to allow the UK government to call a meeting with the devolved governments to coordinate working arrangements, discuss the impact of devolved policy on reserved areas and vice versa, share experience and consider disputes, it met infrequently (Trench, 2004). The JMC is a consultative rather than an executive body, with issues to be referred to it on the rare occasions that discussions between executives break down. Such was the bias against taking issues to the JMC that its members found little to discuss (Jack McConnell, Commission on Scottish Devolution, 2008b: 12; Jim Wallace, former Deputy First Minister, Commission on Scottish Devolution, 2008c: 9). Instead, bilateral working relationships between government departments became the norm, while matters of concern were discussed through political parties (and Scottish and UK Labour ministers in particular). The existence of coalition in government in Scotland complicated matters to some extent, and the most high profile instance in which an issue ‘broke free’ from the quiet world of IGR related to a policy (free personal care for older people) linked closely to Liberal Democrat aims (there were also tensions on PR in local elections). Yet, there was no systematic pattern of disputes and little demand for high profile resolution. The formal system of IGR was prepared as an afterthought and treated as such (Mitchell, 2010).

In 2007, the SNP formed a minority administration and promptly changed its name to the symbolically significant Scottish Government. It had already stated that it would not continue with the existing arrangements. Instead, it would: push for an independent civil service; discourage Sewel motions; call for a reinstatement of regular JMC plenary meetings; challenge UK policies (such as nuclear power); and publicly ‘stick up for Scotland’s interests’ rather than (in Alex Salmond’s words) be careful not to be seen arguing with its ‘big brother’ (McGarvey and Cairney, 2008: 162) (McGarvey and Cairney, 2008). The new relationship appeared to begin almost immediately when then Prime Minister Tony Blair did not congratulate Salmond on his election as First Minister, and Salmond criticised Blair publicly for not consulting the Scottish Government on plans to create a prisoner transfer agreement with Libya (that would contribute to pressure on the Scottish Government to release the ‘Lockerbie bomber’ – see Cairney, 2009b). Developments in UK politics also spilled over into the relationship. The ascension of a Scot, Gordon Brown, to Prime Minister prompted an increase in UK media and (particularly Conservative) party attention to Scotland’s disproportionate share of UK public expenditure (McGarvey and Cairney, 2008: 165), the number of Scotland MPs and the ‘West Lothian’ question (see Cairney, 2009a: 23). Combined, the new UK and Scottish contexts provided the potential to reinforce a shift in IGR caused by party incongruence in 2007. Yet, the new era of IGR did not materialise; the post-2007 period has been marked by a striking level of continuity in UK-Scottish relations.

The aim of following sections is to explore these issues by asking two questions: why were formal mechanisms used so rarely from 1999-2007, and what factors have produced muted rather than problematic IGR from 2007-10? The common factors in both cases are a ‘logic of informality’ that suits both sides, but also an asymmetry of power between executives. The article also considers one factor specific to the SNP era: the effect of minority government and the tendency for inter-party relations to pre-empt intergovernmental relations. It concludes with a brief discussion of the initial effects of the formation of a Conservative-Liberal Democrat UK Government in May 2010.

The Logic of Informality
The logic of informal IGR has direct parallels to the ‘logic of consultation’ between interest groups and governments. As Jordan and Maloney (1997) argue, close and policy-community-like relationships between groups and government are pervasive as a ‘consequence of policy making requirements’. Governments and groups trade access and influence for information and advice; this ‘logic of policymaking … acts as a drive towards … stable, regulated predictable relations’. The logic of ‘bureaucratic accommodation’ refers to the benefits of reaching a consensus (or at least practical understanding) with interest groups rather than imposing decisions. Although the UK is characterised as a ‘majoritarian’ system associated with ‘top-down’ policymaking (Lijphart, 1999), it does not operate as such. Instead, the UK government shares a common policy style with governments in ‘consensus democracies’, based on the need of civil servants to gather information from interest groups and legitimise decisions through consultation (Richardson, 1982; Cairney, 2011a). This need is strong since it encourages group ownership of policy and maximises governmental knowledge of possible problems. Further, the size of the state and scope for ‘overload’ necessitates breaking policy down into more manageable sectors and sub-sectors that are less subject to top-down control (see Cairney, 2008a). Even during periods of political conflict, this logic ‘tends to reassert itself and policy community-type features can emerge in the context of the conflict’; on many occasions the resolution of high profile controversies requires disaggregation into a series of ‘less contentious manageable facets that are processable within policy community arrangements’ (Jordan and Maloney, 1997).

The broader lesson is that few governments are willing or able to bear the cost of continuous top-down policymaking, even if their political structures appear to give them a particular advantage in this regard. Therefore, a consistently top-down approach to IGR is no more likely than a top-down approach to consultation. Instead, we would also expect executives to find ways to cooperate for mutual gain. This logic can be linked to what McGarvey and Cairney (2008: 167) call ‘positive’ reasons for informal IGR, bearing in mind that they may be more positive for the executives involved rather than those they represent and are accountable to (Cairney, 2009a: 5-7). The classic example is the Barnett formula used to determine changes to devolved public expenditure. There is considerable debate in the literature about the origins of the formula, what it was designed to do and what its effect has been (described in Cairney, 2009a: 5-6 and 23, note 5). For our purposes, the most relevant reason to maintain Barnett is that it suited both parties. For Scottish administrations it was one way to minimise a reduction in Scotland’s share of UK public expenditure, while for the Treasury it was a way to avoid spending a disproportionate amount of time on protracted annual budget negotiations for sums that are small when compared to its overall commitments.

A key tenet of the policy communities literature is that policy issues are portrayed as dull affairs to limit public interest and participation. If an issue can be successfully presented as a ‘technical’ issue for experts (related to a problem which has largely been solved), power can be exercised behind the scenes by a small number of participants (Baumgartner and Jones, 1993; Jordan and Maloney, 1997). In this sense the Barnett formula represents a successful attempt by decision-makers in Scotland and the UK to keep the big and potentially most contentious questions of funding off the political agenda. Barnett ‘solved’ the problem of devolved finance and the annual budget rounds became almost automatic, with scope for negotiation only on the ‘technical’ issue of Barnett consequentials (the sums received by devolved governments when levels of spending in England change). Further, their relationship was helped considerably during the 1999-2007 period by significant rises in UK and Scottish public expenditure. The types of disagreements on the adequacy of the funding settlement that we are now witnessing between the UK, Scottish and other devolved governments are unusual; fundamental issues of territorial finance have tended to arise sporadically, for example when linked to other events such as the election of a nationalist party just before the rise of a Scottish Prime Minister or an economic crisis.

A second example is the extensive use of Sewel motions (79 were passed from 1999-2007). The Sewel motion became a convenient tool to minimise negotiations to coordinate separate legislation, when the boundaries between reserved and devolved responsibilities were unclear and/ or when a UK-wide approach was necessary to maintain consistency of standards. Instead, the UK government legislated on Scotland’s behalf and often devolved the day-to-day responsibility for policy to Scottish ministers (‘executive devolution’). In many cases, the issues were innocuous and commanded cross-party support. Yet, there were also instances of political cowardice when the Scottish Executive seemed keen to remove issues from its agenda, reinforcing opposition party claims that the Scottish Parliament was marginalised from issues of IGR and that formal contact on Westminster legislation affecting Scotland should involve a relationship between legislatures as well as executives (Winetrobe, 2005; Page and Batey, 2002).

The overall lack of formality in IGR was also criticised by the House of Lords Select Committee on the Constitution (2002). Since most contact between ministers and parties was by email, telephone or ‘quick words when people meet socially’ it was not recorded in the same way as formal minuted meetings. The report suggests that such informality depends on the ‘fundamental goodwill of each administration toward the others’. However, if the importance of formal contacts, for example through the JMC, was not made clear from the start, this may store up problems when Scotland and the UK do not share the same party of government (or at least when those in key posts no longer know each other – Jack McConnell, Commission on Scottish Devolution, 2008b: 14).

Yet, such fears proved to be largely unfounded, in part because the Scottish Government frequently had as much to gain from the relationships fostered by the Scottish Executive. Although there have been more instances of high profile disagreements (see Cairney, 2009a: 21-3), there is a tendency for this charged atmosphere to give way to a more humdrum, day-to-day relationship as different actors (usually civil servants) work through the details. In this context, our research question regards the extent to which the SNP Government would accept the relationship in the same way as its predecessor. Again, we can draw parallels with group-government relations and the decision by interest groups to engage in insider or outsider strategies (Grant, 1995; Maloney et al, 1994). If we treat the SNP as a radical group, we may wonder if its leadership behaviour revolves, ‘around one central point: how many recruits will this bring into the organization?’ (Alinsky, 1971: 113; Grant Jordan, in correspondence). Ministers may be driven by the pay-offs associated with standing up for Scotland’s interests; engaging in, and publicising, disputes even if there is no hope of winning them. Indeed, this motivation may be stronger for parties than interest groups. Yet, as Mitchell (2008) argues, it is difficult to treat the SNP as radical. Instead, the ‘fundamentalists’ have been replaced by ‘pragmatists’ in the SNP hierarchy which is ‘more in search of respectability than revolution’ (2008: 248) and which has found it more effective to recruit members through the ‘presidentialization’ of its leader and professionalisation of the party’s operations (McGarvey and Cairney, 2008: 63).

The SNP has largely been willing to adopt an insider strategy which includes an acceptance of the ‘rules of the game’, or a willingness to engage in self-regulating activities (the value of which some of the party rank-and-file may not appreciate) in the short term, to allow it to benefit in the long-term. The best example may be the SNP’s attitude to negotiations with the UK over EU policy formulation. There has been a stronger rhetoric on Scotland’s independent role on the world stage (marking a shift, to some extent, from para- to proto-diplomacy – Keating, 2010: 162) and the desire of the Scottish Government to enjoy a higher status than before in relation to the UK, perhaps even taking the lead in UK/ EU negotiations in areas such as fishing (Cairney, 2011b). Yet, SNP ministers have also operated within UK structures, agreeing to uphold a principle that they criticised in opposition: ‘the devolved administrations are involved in the formulation of the United Kingdom line but on the basis that they may not disclose to anyone – including their own legislature or assembly – what disagreements they have had with the UK Government over the formulation of that line’ (Johnston, 2007; Cairney, 2009a). Overall, the SNP approach has been ‘pragmatic’, consisting of a greater propensity to make direct submissions to EU institutions (e.g. regarding the North Sea ‘supergrid’) but ‘not to disrupt the UK position’ and based on an understanding of the ‘reality of the pecking order where member states have the weight’ and devolved governments make a relatively small contribution to EU policymaking (interview, July 2009; Keating, 2010).

We can also see more pragmatism than posturing on domestic matters. The SNP has pursued strongly the formalisation of IGR through the JMC machinery and has also sought the cooperation of its counterparts in Wales and Northern Ireland to boost the status of devolved governments in relation to the UK Government. However, it has rarely pursued this agenda through anything other than diplomatic means. Overall, the SNP Government has ‘surprised many by not being overtly confrontational’ and by encouraging its civil service to be, ‘open, cooperative and helpful to their counterparts in the UK Government, rather than to maximise points of friction’ (Trench, 2007: 46; Trench, 2008b: 56). While there have been publicised short-term disagreements, these often give way to longer term negotiations behind the scenes. For example, the issue of Barnett consequentials for the London Olympics has parallels in Jordan and Maloney’s (1997) discussion of Brent Spar (which began as a Greenpeace protest and public denunciation of BP, followed by a lower profile negotiated settlement using the government machinery). What began as a public dispute soon changed into an issue processed behind the scenes. Similarly, the SNP’s criticism in opposition of Scottish Executive attempts to pilot an airgun licensing scheme in Scotland, as part of an overall UK strategy, was followed by its pursuit of the same idea when in government (Cairney, 2008b; McGarvey and Cairney, 2008: 163). These examples supplement the more ad hoc links between executives during crises (such as the terrorist attack on Glasgow airport, the fuel crisis caused by strikes at the BP Grangemouth oil refinery, the foot-and-mouth outbreak and the spread of swine flu – Trench, 2007; Mitchell, 2010). Overall, ‘a surprising amount of the old informality and co-operation has re-emerged as ministers at both levels realise that they have problems in common and need each other’ (Keating, 2010: 146).

The SNP Government’s promotion of Sewel motions also suggests that the expediency and convenience of the process extends beyond governments with the same party (Mitchell, 2010; Crawford, 2007; Crawford, 2010). It approved proportionally fewer motions and has sought, when possible, to promote Scottish parliamentary measures instead. However, we have not witnessed the type of sea change we might have expected from a party which, in opposition, presented principled stances against the process (for a taste of the parliamentary debate on this issue, see Cairney, 2009a: 12).

One issue that seems to contradict the idea of party continuity is the diminished ability of the civil services to maintain close links since 2007. Yet, the links between civil servants in the early years of devolution have been exaggerated and they have weakened naturally over time as devolved governments deal increasingly with different issues. The need for mobility between Edinburgh and London was ‘a decisive argument in the decision to keep a unified civil service’ (Keating and Cairney, 2006: 53), but 70% of senior civil servants in Scotland have not enjoyed a spell working in a Whitehall department (2006: 55). Further, the idea of a Whitehall club in which civil servants in Scotland were consistently invited to policy meetings (Parry and Jones, 2000: 63), and developed personal networks, has been undermined over time by significant Whitehall ignorance of political differences in Scotland and a decreasing willingness among civil servants to trade-off time spent in the UK for time lost developing policy in Scotland. This is particularly the case in departments such as health and education where policy has diverged and policymakers in UK and Scotland face different problems. Evidence from the Scottish Government’s former Permanent Secretary John Elvidge suggests that the informal contacts between civil servants in Scotland and England had already diminished before the SNP took office. The SNP’s handling of a high profile disagreement on foot-and-mouth compensation in 2007 was said to have undermined the UK government’s willingness to engage informally through the civil service network – but this would be, ‘breaking quite a slender thread’ (McGarvey and Cairney, 2008: 131). In other words, the SNP era merely accelerated a natural reduction, but not abolition, of the formal and informal circulation of papers and ideas across the UK civil service network (Keating, 2010).

The Asymmetry of Power
The UK is asymmetrical in two senses – first because devolution was extended to a small share of the population, with Scotland (8.6%), Wales (4.9%) and Northern Ireland (2.9%) accounting for 16.4%; and, second, because the balance of power is tipped towards UK policy departments dealing predominantly with the English population and, in particular, the Treasury which is both a player and the referee in negotiations with devolved governments. As Keating (2005: 120) suggests, the UK ‘centre’ is faced with small devolved governments which do not match the powers of federated or devolved authorities in countries such as Germany, Spain, Belgium or Canada. Scotland, Wales and Northern Ireland are not part of a collection of powerful regions and the UK does not have a ‘supreme constitution’ guaranteeing a level of autonomy for devolved governments (Watts, 2007). This imbalance of power was summed up by the early role of the Secretary of State for Scotland as the UK Government’s representative in Scotland. Under its first Secretary John Reid, the Scotland Office was prepared to intervene in Scottish politics in a way viewed by the Scottish Executive as interference (Leicester, 2000: 27; McGarvey and Cairney, 2008: 159), while under its second, Helen Liddell, there was still a perception that it was a legitimate Scottish Secretary role to manage, if not the policy process, then at least the internal affairs of the Scottish Cabinet (Mitchell et al, 2001: 56).

While the visibility of the Scottish Secretary receded from 2002, this was at the prerogative of the UK Government. Indeed, it reinstated the full-time role in 2007, in part reflecting the need for more mediation between different parties but also the desire for Labour to regain political ground in Scotland. Although Jim Murphy was initially at pains to stress his role as ‘Scotland’s man in the cabinet rather than the cabinet’s man in Scotland’ (Trench, January 2009a: 71), it is difficult to ignore the party-political overtones of statements about the ‘arc of insolvency’ (in relation to Alex Salmond’s previous discussion of certain independent countries as the ‘arc of prosperity’) and the apparent strategy of refusing First and Prime Ministerial meetings to ‘equate Salmond on a par with Murphy and therefore less important than Brown’ (Cairney, 2011b). Murphy’s involvement has also produced, from the perspective of some members of the Scottish Government, a ‘less smooth, less direct’ relationship, or a ‘wedge’ between previously direct Scottish and UK Government departmental relationships as more issues are funnelled through a third party (interview, July 2009). Certainly, relations seemed smoother when the Scottish Government previously dealt with David Cairns (Minister of State) when the Scottish Secretary was still a part-time role (Mitchell, 2010).

The asymmetry of power has three main effects. First, the devolved governments do not have a mechanism with which to oblige the UK government to consult and there has been a tendency for UK ministers to disengage from the formal IGR process. The lack of JMC meetings during a Labour-led Government was: ‘a clear indicator that devolution is no longer a prime concern of the Prime Minister and other politicians’ (Trench, 2004: 515–6). The UK Government was also slow to agree to the SNP’s call for the reinstatement of regular JMC meetings – the JMC plenary met only twice from 2007-10, while the JMC (Domestic) met once (Trench, 2008a; 2009a).

Second, civil servants in Whitehall often forget about Scotland and neglect to consult, then make statements on UK policy without a Scottish qualification or opt-out – a problem which grew over time as devolution faded from view in London (Keating, 2005: 125; Keating, 2010; McGarvey and Cairney, 2008: 167; Cairney 2011b). In other words, devolved governments may generally pursue an insider strategy, but are often treated effectively as outsiders. These issues were discussed briefly in the public domain following a leaked report from the Scottish Executive’s EU office (Aron, 2006; SNP, 2006). The main finding is that the best way for the Scottish Executive to influence Europe is through Whitehall (particularly since the UK government discouraged the Scottish Executive’s direct EU involvement – Cairney, 2011b), but its success depends on a disproportionate amount of coordinated work by Scottish officials. In some cases, Whitehall departments have deliberately excluded their Scottish counterparts from the process, while in most cases the problem is that the Executive is not consulted at a stage early enough to influence the direction of policy. The overall success of IGR also varies strongly by policy area (and, in some cases, personalities) with, for example, a long tradition of cooperation in agriculture contrasting with areas such as economic development in which UK Government/ Scottish Office contact was minimal (interview, Scotland Office, 2009).

Third, Scottish actors are reluctant to challenge the authority of the UK. For example, Page and Batey (2002: 513; Page, 2002) suggest that the UK government drove the agenda for policy coordination. Most Sewel motions came from UK departments after the legislative slot had been secured, with Scottish ministers ‘effectively forced to agree to Westminster legislation in the devolved areas’ given the uncertainty over devolved government powers and the prospect of the UK government referring the issue to the Judicial Committee of the Privy Council. Further, in high profile issues of disputes – such as free personal care for older people and Hepatitis C compensation – the Scottish Executive was reluctant to ‘rock the boat’ and instead accepted UK ‘victories’ to maintain its good relationship with Whitehall (Trench, 2004; although a focus on a very small number of disputes exaggerates their overall importance). The SNP is also, to some extent, stoical about its status as one of many UK Government departments (interview, July 2009). In particular, it recognises the limits to its negotiating power with a Treasury department that exerts considerable power across the UK Government as a whole. Overall, the SNP finds itself in a difficult position. One of its main aims has been to present an image of governing competence (to further its agenda on independence), in part by demonstrating that it can use its existing powers effectively. This is not consistent with a strategy of continuously venting its frustration with the power of the UK Government.

Inter-Party Relations
The third aspect of informal IGR results from minority government: many potential intergovernmental issues are played out within Scotland without necessarily reaching a decision-making point at the UK level. For example, the SNP Government may have relished a debate with the UK government over its plans for a local income tax to replace the council tax (it would have triggered a loss of UK social security benefits to Scottish residents; the UK government was not sympathetic on this or previous occasions). However, it did not have enough opposition party support to pass the legislation. Parliamentary opposition, along with the uncertainty over funding (particularly since the Scottish Government was preparing for an overall reduction of its budget), was cited by Finance Secretary John Swinney as the reason to withdraw the policy (Scott, 2009: 75). Similarly, although the Scottish Government was highly critical of its budget settlement in 2007, much of this debate was played out in the Scottish Parliament as Scottish ministers attempted to deflect opposition criticism and justify the incomplete delivery of manifesto commitments.

Perhaps most importantly, IGR has been rather muted because the fundamental bone of contention between the SNP and UK governments – constitutional change – has not come to a head. Instead, the SNP initiated a ‘national conversation’ with the Scottish population, in part as a means to keep the issue on the public agenda but also put off a decision until the SNP’s preferred 2010 referendum. Again, most debates about the referendum process itself were played out in the Scottish Parliament, with the SNP needing the support of at least two other parties to pass a referendum bill. This did not happen. Indeed, the opposition parties (Scottish Labour, Conservative, Liberal Democrat) appeared eager to reject the bill before the UK general election 2010, prompting the SNP to publish a draft bill for public consultation rather than parliamentary consideration (Gunn, 2010). Instead, the more likely constitutional change will come from the recommendations of the Commission on Scottish Devolution led by Professor Kenneth Calman. These include plans to: reduce UK income tax by 10 pence in the pound to oblige the Scottish Parliament to make a decision on how much tax should be raised; devolve Stamp Duty, the Aggregates Levy, Landfill Tax and the Air Passenger Duty; devolve responsibility for Scottish Parliament elections, airgun regulation, drink-driving limits, national speed limits, animal health funding, marine nature conservation, the Deprived Areas fund, discretionary elements of the reformed Social Fund and the prescribing of controlled drugs (e.g. heroin) to treat addiction; and formalise and extend the process of IGR. Yet, there was a certain irony in the fact that the party which has arguably been most in favour of implementing Calman’s recommendations quickly has been the SNP. Notably, while Labour and the Conservatives welcomed the report’s recommendations in principle, there has been no serious commitment to take them forward quickly. The Labour Government produced a White Paper (Cm 7738, 2009) based on Calman’s proposals, but this came too close to the 2010 general election to take forward (and it rejected a motion passed in the Scottish Parliament calling for the early transfer of some powers – see Trench, 2010a).

The lack of Scottish Government ability to innovate with legislation has the potential to cause an imbalance of conflict towards instances in which the Scottish Government can obstruct UK policies. The main example has been nuclear power. While the issue of energy is a reserved matter, the Scottish Government has final responsibility for planning decisions and has signalled a willingness to refuse planning permission for any new nuclear power plant. Yet, the boundaries between devolved and reserved in this area have always been unclear and the Scottish Government’s power has never been fully established. The line by the previous Scottish Executive was that it could make decisions on nuclear power under the executive devolution granted by the UK government (Cairney, 2006: 441) and that planning powers to secure energy supplies were reserved (Summers, 2002). More importantly, a Scottish-UK dispute has rarely seemed likely. Tony Blair assured Alex Salmond in 2002 that the final decision rested with the Scottish Parliament (Summers, 2002), while an acceptance of the Scottish veto was also contained in its energy White Paper in 2008 (Trench, 2008b; even though UK ministers criticised the SNP stance).

The SNP and Local Government
Perhaps surprisingly, the SNP’s biggest effect has been in its relations with local government, but this represents a further move towards cordial relations. Again, this followed a combination of pragmatism and principle. Pragmatic benefits ranged from the need to present an image of governing competence (by fostering consensus and avoiding unnecessary disputes where possible) and the desire to establish policy distance between it and Labour, to the specific need to ensure local authority cooperation for its plan to freeze council taxes until it introduced a local income tax (perhaps with the added benefit of a sense of detachment from unpopular council decisions during cutbacks). Therefore, Finance Secretary John Swinney was quick to embark on a tour of councils and Alex Salmond signalled a ‘culture change in the relationship between central and local government in Scotland. The days of top-down diktats are over’ (Cairney, 2011b). The Scottish Government then oversaw a series of measures to give to local authorities what they most wanted, or at least had been stripped of in previous decades. This includes, most importantly, a new concordat between the Scottish Government and COSLA which not only refers to ‘mutual respect and partnership’ but also (unlike previous agreements) reinforces the message with a series of tangible commitments: to not consider reforming local government structures; to introduce broader and longer term single outcome agreements (signalling a strong move away from centrally driven targets); to reduce ring-fenced funding; to allow local authorities to keep their efficiency savings; and, in effect, to stop ‘micromanaging’ local government. These measures are consistent with its agenda on decentralisation, which also extends to moves towards direct elections to health boards (to make boards accountable to local populations as well as central government, through targets), and its growing adaptation to minority government in which it is obliged to seek rather than impose agreement (interview, Scottish Government July 2009).

The UK intergovernmental style is informal. This was particularly the case when the Scottish and UK governments effectively shared a party of government: formal mechanisms to discuss and resolve intergovernmental issues were rare. Instead, the executives worked through their civil services and shared Labour party and ministerial contacts, and relied on measures, such as the Barnett formula and Sewel motions, to make the process of IGR semi-automatic. The formation of an SNP government had an effect on this intergovernmental relationship. There have been more public disputes, the Scottish Government has pursued measures to formalise IGR, and the reduction in relatively close personal relationships may have necessitated a higher degree of formality between ministers. The SNP has also been less receptive to the Sewel process and has been content to consider funding alternatives to Barnett when in government.

Yet, the overall effect has largely been piecemeal, with high profile SNP calls for the reinstatement of JMC meetings having, at best, an uncertain effect. Whitehall departments have also shown a continuing ability to forget to consult the Scottish Government (Trench, 2008b: 56). Informal and ad hoc relationships between ministers and civil servants in each executive are still the norm. These relationships endure for three main reasons: the logic of informality or mutual gain, in which the UK government has minimal incentive or ability to consistently impose policy from the top and the SNP Government often has as much to gain from pursuing an insider strategy; the asymmetry of power, which often allows the UK government to neglect the relationship and dissuades Scottish executives from pursuing issues in public; and, inter-party relations, in which most policy and constitutional issues which could have caused intergovernmental conflict were instead processed by parties in the Scottish Parliament.

A strong confirmation of continued IGR informality comes from the Calman commission’s recommendations on formality. First, it argues that the Joint Ministerial Committee (supplemented by a JMC Domestic and JMC Finance) should become a body to foster close working and cooperation relationships (perhaps like the JMC Europe) rather than just dispute resolution. Second there should be more training for UK civil servants to improve their knowledge of devolution and that the civil service code should be amended to ensure cooperation and mutual respect. Third, the Sewel process must be used better to foster meaningful links between Parliaments (and there should be a Westminster equivalent to the Sewel motion). Yet, it is unclear how much demand there is within government for such reforms. Further, even if formal intergovernmental mechanisms become more of a regular feature, we may still find that policymakers are reluctant to engage and, instead, find other arenas in which to resolve issues (a feature that has strong parallels with group-government relations where formal consultations are supplemented by pre-consultation).

A more likely source for IGR reform was the formation of a Conservative-led coalition government in the UK (perhaps combined with the fallout from the economic crisis in 2010). The policy communities literature has long demonstrated that the need to appear legitimate in the eyes of those they govern is a strong driver for unelected decision makers to consult widely (hence part of the reason that civil servants consult so much with pressure participants). This is an issue that the Conservative party effectively faces in Scotland because in 2010 it returned only one MP. The result was qualified to some extent by the Conservative coalition with the Liberal Democrats, a party with a respectable number of Scotland MPs (11, compared to Labour’s 41 and the SNP’s 6) and providing the likely recruitment ground for all Scottish Secretaries. The Conservative position was also helped by the status of the Scottish Conservatives in the Scottish Parliament – not only as the holder of 17 seats (13%) but also as a party with often-similar views to the SNP and the key player in the SNP’s successful attempt to maintain a minority government for a full 4-year session (the Conservatives and SNP voted together on parliamentary motions 72% of the time – MacGregor, 2010). Yet, there was still a sense (at least until the prospect of a referendum diminished) that the SNP Government could use any dispute with the UK government as a way to remind Scottish voters of the legacy of Thatcherism (associated, particularly in Scotland, with a top-down, impositional style of policymaking) and increase support for independence.

However, the Conservative’s most significant response was not the formalisation of IGR. The UK and devolved governments produced a revised Protocol For Avoidance And Resolution Of Disputes (Cabinet Office, 2010) – a logical progression from the Memorandum of Understanding that was produced in 2001 and rarely referred to by executives (Trench, 2010b). Further, the JMC plenary met less than a month after the 2010 election, was chaired by David Cameron, and produced a schedule of further meetings (Scottish Government, 2010). Yet, the most intriguing development has been the promotion by the UK government of the rather vague idea, promoted by David Cameron (2009) during the general election campaign, that it would govern the Scots with respect. Of course, this idea is subject to interpretation and a similar process of informality and neglect may develop.

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See Cairney (2009a) for further details on the standings and structures of Scottish parties.
The JMC ‘plenary’ did not meet from 2003-7. The JMC (Europe) met much more frequently.
Although Salmond had less criticism for Brown, the pair did not meet regularly. See H. MacDonell 6.2.08 ‘Crisis – but First Minister and Brown haven’t met for a year’ The Scotsman–
7 or 8 per year compared to 10 per year under the former Executive (although it has passed more in proportion to its own legislation than the Executive).
This narrative is disputed by the Scotland Office (interview, July 2009). There is disagreement about the extent to which the Scotland Office helped or hindered a deal with the Ministry of Justice over the Somerville case (see Trench 2009b: 86) and the issue of Forth bridge funding.
The Scottish Office was the pre-devolution UK government department in Scotland which was effectively inherited by the Scottish Executive. The Scotland Office is the much smaller office now acting as a conduit between the UK and Scottish Governments.
For example, while one of the first measures of ‘respect’ was to welcome devolved ministers to European council meetings, this was followed quickly by SNP complaints that it was not consulted on measures to reduce public spending – such as the UK government’s bonfire of the quangos (Edwards, 2010) and its brief flirtation with the abolition of milk at school (although the latter would not have obliged the Scottish Government to follow suit).

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