Daily Archives: October 15, 2015

Intergovernmental relations and shared policymaking #POLU9SP

In the previous lecture we discussed multi-level governance and a tendency for policy responsibilities to overlap, even when they look separate on paper. In this lecture, we discuss how governments deal with the overlaps. The ‘take home’ message is that UK-Scottish Government relations have been generally informal and remarkably smooth, largely because they resolve potential disputes behind closed doors and have found a way to turn potentially controversial funding and legislative issues into dull routines.

To make sense of intergovernmental relations (IGR) in the UK, it helps to compare them with IGR in other countries. This comparative literature prompts us to ask the following questions:

Is the UK a unitary or union state?

Devolved territories have subordinate status, but the terms of the union protect (to some extent) some Scottish institutions (which ones?).

Can it be meaningfully compared with federal or quasi-federal states?

We can identify: the distribution of some legal, executive and fiscal powers to allow devolved territories a level of autonomy; ‘umpires’ to rule in disputes between levels of government (examples?); and territorial representation at the national level (examples?). However, UK devolution is asymmetric (in what three ways?) and it lacks a supreme constitution to protect subnational bodies.

What is the role of key organisations/ institutions?

Until 2007, UK and Scottish Labour party links were important (an issue that we can revisit when discussing ‘policy convergence’). Also note that the coordinating role of the executives is far more important in the UK than the role of parliaments or the courts.

p195

How are issues generally resolved, and how often do governments resort to formal dispute resolution?

The short answers are ‘quietly’ and ‘not’.

The UK-Scottish Government has been remarkably smooth, when measured with reference to the number of high profile disputes:

  • Guiding documents, such as the Memorandum of Understanding between the governments, and individual concordats between departments, reinforce a sense of IGR resolution through convention/ cultural practices.
  • Formal mechanisms for dispute resolution, such as Joint Ministerial Committees, are used rarely and Scottish bills are not opposed by the UK Government (compare with the process in Wales).
  • Instead, both governments have preferred to use ‘bilateral’ and less formal links.
  • When policy overlaps involve legislation, the governments relied heavily on ‘Sewel motions’ or ‘legislative consent motions’ (LCMs), passed by the Scottish Parliament to allow Westminster to legislate on its behalf. Scottish ministers would identify expediency, heavily entangled responsibilities, the need to avoid loopholes, and the need to set up UK-wide public bodies, as reasons to pass LCMs. Or, the legislation would devolve more responsibilities to Scottish ministers.

What happens when each government is headed by a different party?

From 1999-2007, very few issues arose in public between the UK Labour government and Labour-led Scottish Government. A small number of exceptions, such as on free personal care, were perhaps linked to policy divergences promoted by the Liberal Democrats.

There were differences when each government has headed by a different party, such as when the SNP headed the Scottish Government from 2007, but not as many as you might associate with this image or my description of early expectations (p234):

boom and bust up Sun

p234 BJPIR

Why were UK-Scottish Governmental relations so smooth from 1999-2007?

One reason is that the arrangements suited both governments: Labour Party links allowed them to keep issues in-house; civil servants were able to conduct negotiations out of public spotlight; and, the ‘Barnett formula’ (next lecture) and Sewel convention allowed them to deal with financial and legal issues routinely.

Another explanation is that the UK government is more powerful: the Scottish Executive struggled to get the UK to engage, and was reluctant to challenge UK authority. Although a focus on power generally dramatizes these innocuous IGR arrangements, their relationship on EU matters is instructive: the UK government saw EU affairs as reserved UK responsibilities, ‘rebuffed’ former First Minister Henry McLeish when he sought a stronger Scottish Government role (p134), and often ignored Scottish Government concerns (p100).

Why was there no ‘boom and bust up’ from 2007?

A lot of the same explanations still applied under SNP government. My article suggests that we can draw on ‘British policy style’ discussions to explain a ‘logic of negotiation’: imposition is costly for the UK and the SNP often adopts an ‘insider strategy’ (generally making reasonable demands, negotiating quietly, and accepting the imbalance of power). The SNP also supported the use of ‘Barnett’ implicitly (it argues for reform in public) and the Sewel convention explicitly:

SG SEWEL May 2008 (still on website)

Further, during minority SNP government, the more contentious issues between opposing parties – including the Scottish Government’s budget settlement, and the implications of a local income tax – played out in the Scottish Parliament, while the biggest bone of contention – a referendum on Scottish independence – had been delayed by opposition parties in the Scottish Parliament, not the UK Government.

Did Conservative-led UK Government make a difference?

A Tory government might be handy for the SNP’s electoral ambitions, and its favoured story on the need for independence, but Conservative ministers did not make it easy to portray them as aloof or top-down minded. Instead, David Cameron pursued a ‘respect’ agenda and gave his support to more regular formal meetings between UK and Scottish ministers via the JMC process. The SNP government has also been generally non-confrontational. Indeed, can you give me any examples of public disputes between the two governments?

Independence is the exception?

We might point to Scottish independence as the biggest and longest-running bone of contention between the SNP and Conservative or Labour governments. However, if you look at the way the referendum was designed and run, it has the hallmarks of negotiation and respect that we can identify in most other areas, including: Conservative government respect for the SNP’s mandate to hold a referendum, UK support to ensure the legality of the referendum and allow the Scottish Government to coordinate much of the process, and UK and Scottish Government negotiations on the wording and timing of the question.

Indeed, the UK/ Scottish process may become an international standard, or model for similar countries to follow.

In the next lecture, we will delve further into the Barnett formula, as one of the things that keeps IGR smooth, and then consider the likely effect of further constitutional change on these practices.

 

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Scottish policymaking in the context of multi-level governance #POLU9SP

This is the first of two lectures in which we consider MLG, as the diffusion of power from central government to other governments and non-government actors, and IGR, as the ways in which those governments share power and cooperate. These concepts can represent two different ways to study the same thing: MLG often describes fluid and unpredictable policy processes, while IGR often focuses on formal powers, the role of institutions, and the resolution of disputes. Referring to MLG and IGR, the subsequent two lectures examine Scottish public expenditure (and the ‘Barnett formula’) and the likely effect of the new Scotland Act.

When I describe multi-level governance (MLG) in the UK, I contrast it with the ‘Westminster model’. The comparison allows us to identify a diffusion of power in two ways:

  1. Vertically – at supranational, national, regional and local levels (hence multi-level).
  2. Horizontally – shared between ministers/ government departments and many non-governmental and quasi-non-governmental organisations (hence governance rather than government).

An initial focus on the UK allows us to challenge (again) the idea that its policy process is ‘majoritarian’, in which power is concentrated at the centre, and governments tend to make policy in a ‘top down’ and uncompromising way. Our previous discussions of policy networks/ communities/ styles already helped us question this image and the idea that its political system contrasts with Scotland’s alleged ‘consensus democracy’. A focus on MLG reinforces this argument, by identifying a tendency of many governments to share power and policymaking responsibility with other actors in and out of government.

MLG also helps us understand the wider context of Scottish policymaking. We have already discussed the idea of ‘horizontal’ power diffusion by identifying the role of interest groups in territorial policy communities, and one aspect of ‘vertical’ diffusion by identifying:

So, imagine MLG as the formation of policy networks that span more than one level of government, and the ‘emergence’ of policies and practices from multi-level activity. It is important to identify which actors are responsible for those outcomes in theory, to inform discussions of accountability, but difficult to know who to blame in practice when there are blurry boundaries between the actors who make or influence policy.

As we discuss next week, this problem may be exacerbated by further constitutional change, which is built on a level of shared responsibility, between the UK and Scottish Government, not envisaged in the original devolution ‘settlement’.

Multi-level policymaking: the division of responsibilities

For now, let’s start with the original settlement, set out in the Scotland Act 1998, which stated which policy areas would remain reserved to the UK Government (why does it matter if the legislation sets out reserved or devolved responsibilities?). Reserved areas are in the left hand column, which allows us to work out the main responsibilities of the Scottish Government (which it inherited largely from the old Scottish Office – devolution did not prompt a major review of its responsibilities). In the middle are some examples of UK/ Scotland overlaps, followed by examples of policy issues that are devolved and ‘Europeanised’.

table 10.1

If we simply compare the left/ right columns, the divisions seem fairly clear. Indeed, compared to many other systems – in which, for example, national and regional governments might share control over healthcare or education – they are.

The ‘Europeanisation’ of policy

Yet, many policy areas were becoming controlled or influenced increasingly by the European Union as they were being devolved. Further, the UK Government is the Member State, with three main implications:

  1. It is responsible for the implementation of EU directives across the UK, which gives it a monitoring role on Scottish policy in devolved areas.
  2. It tends to treat the EU as an extension of foreign affairs/ international relations – a reserved issue – rather than a collection of policy areas which can be reserved or devolved.
  3. It is difficult to consider constitutional change without taking into account key EU rules, in areas such as corporation tax and renewable energy obligations (next week).

Outside of the obvious areas, such as EU rules on free trade and the free movement of people, the most Europeanised and devolved areas tend to be in:

  • Agriculture and fishing. The Common Agricultural Policy and Common Fisheries Policy are negotiated and set at the EU level, often with minimal Scottish Government involvement but with some discretion during implementation.
  • Environmental regulation. Similarly, Scotland’s environmental policies begin with the need to be consistent with EU rules in areas such as water quality and environmental protection.

Then, there is a miscellany of EU advice and regulations with the potential to have a major impact on otherwise devolved policies. For example, the ‘working time directive’ (do you know the details?) has an impact on doctors’ working conditions, while the habitat directive impacts on planning processes. This is on top of a more general sense that EU rules on trade and the free movement of people have a major impact on any policy area.

The blurry boundaries between reserved and devolved issues

There are many examples of areas in which at least two levels of government are involved. In some cases, this potential for multi-level involvement produced uncertainty about how to act:

  • In the very early years, Scottish ministers expressed uncertainty about their role in issues such as industrial policy and a register of sex offenders.
  • The ‘smoking ban’ raised interesting issues about the ‘purpose test’ to determine who is primarily responsible for key policies. It is part of a larger set of tobacco control policy instruments produced by Scottish, UK, and EU policymakers.
  • Scottish Parliament legislation to introduce a minimum unit price for alcohol has been delayed by court action (it is currently being considered by the ECJ).

In some cases, there were tensions about the overlaps of responsibilities:

  • The Scottish Government’s policy on ‘free personal care’ for older people reduced many people’s entitlement to UK government social security payments. It faced similar issues when proposing a local income tax.
  • The UK’s Home Office policy on ‘dawn raids’ on unsuccessful asylum seekers was carried out in Scotland by a devolved police force.

In others, an overlap of responsibilities seems inevitable, since many policy areas are ‘cross-cutting’; they involve many policy instruments and government departments:

  • Fuel and child poverty are addressed with a mix of taxes, benefits, and public services.
  • Cross-cutting UK initiatives – such as the New Deal and Sure Start – require a degree of cooperation with devolved public services.
  • The Scottish Government’s ‘Fresh Talent’ initiative required Home Office approval.

In other words, overlaps are inevitable when any government tries to combine devolved discretion with national control. In the next lecture we can discuss how the UK and Scottish Governments dealt with these overlaps.

 

 

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