The effect of constitutional change on politics and policymaking #POLU9SP

This is one of two opportunities in the course to consider the role of further constitutional change. In this lecture, we can explore the changes associated with Scotland Bills (and their causes). In the final lecture, we can take a step back and consider how much the territorial nature of the constitution/ political system compares with ‘universal’ aspects of the policy process.

The Scotland Act 1998 set up the modern Scottish Parliament, outlining its new institutions (including the electoral system) and policy responsibilities. Although I have tried to qualify-to-death the idea that Scottish devolution changed policymaking in Scotland, this was the big one. At the heart of our discussions of the ‘Scottish policy style’ is the knowledge that the Scottish Government has significant policymaking responsibilities and it uses its powers in often-distinctive ways.

The Act also represents the initial ‘settlement’ arising from a decades-long push for political devolution in Scotland. However, it did not prove to be the final settlement. Instead, the UK Government and ‘unionist’ political parties have sought ways to extend devolution enough to maintain Scottish support for the union.

Note the role and endurance of the ‘democratic deficit’ argument

In the 1990s, devolution was often described as a way to solve the ‘democratic deficit’. The charge was that people in Scotland voted for one party in a UK general election (Labour) but received another (Conservative) on many occasions.

This problem was exacerbated by a long spell of Thatcher-led government (1979-1990). A frequent argument is that devolution (made possible by a vote in 1979) could have ‘defended Scotland from Thatcherism’, and allowed the maintenance of Scottish traditions of participative democracy and social democracy. In that context, the new Scottish Parliament represented the idea that Scottish devolution would cushion the blow of any future UK Conservative government.

Yet, as we saw during the independence debate, devolution was often described by Yes supporters as a poor solution to the democratic deficit because the UK Government still makes decisions – particularly on the reform of the welfare state – which have a profound effect on Scotland, with little scope for the Scottish Government to produce an alternative.

The Scotland Acts of 2012 and 2016

The Scotland Act 2012 amended the Scottish Parliament’s and Scottish Government’s responsibilities. It represents the second major attempt at a devolved settlement, following the election of an SNP (minority) government in 2007 and the rise of an independence agenda. The prospect of independence has prompted Scotland’s other main parties (Labour, Conservative, Liberal Democrat – all of which are part of British parties) and the UK Government to consider further devolution; to try to produce a devolved solution that will settle the matter once and for all.

The Calman Commission recommended further devolution in 2009. It prompted the Scotland Act 2012, to introduce further tax devolution (part of income, land and landfill taxes), the ability of the Scottish Government to borrow to invest in capital projects, and new powers in areas such as Scottish Parliament elections, air weapons, driving and drug treatment. The Scotland Act 2012 was designed to be implemented after the referendum, giving opposition parties the opportunity to guarantee further devolution after a No vote.

Yet, this promise of further devolution proved to be insufficient and, during the referendum period, each party produced separate plans to extend devolution further. The parties then came together, in the lead up to the referendum to make what is now called ‘The Vow’ of ‘extensive new powers’ (and a retained Barnett formula) for a devolved Scotland. The Smith Commission was set up to take this agenda forward. It reported on the 27^th November 2014, and its recommendations include to:

• make the Scottish Parliament ‘permanent’.
• devolve some fiscal powers, including the power to: set income tax rates and bands (higher earnings are taxed at a higher rate) but not the ‘personal allowance’ (the amount to be earned before income tax applies); set air passenger duty; and to receive a share of sales tax (VAT).
• increase the Scottish Government’s borrowing powers.
• devolve some aspects of social security, including those which relate to disability, personal care, housing and ‘council tax’ benefits (council tax is a property tax charged by local authorities to home owners/ renters and based on the value of homes).
• devolve policies designed to encourage a return to employment.
• devolve the ability to license onshore oil and gas extraction (which includes hydraulic fracturing, ‘fracking’, for shale gas).
• control the contract to run the Scottish rail network.
• encourage greater intergovernmental relations and a more formal Scottish Government role in aspects of UK policymaking.

In response, the UK Government has produced a new draft Scotland Bill.

To a large extent, the proposals reflect the plans of the three main British parties, rather than the SNP (which requested ‘devo max’), although they go further than those parties would have proposed in the absence of the referendum agenda. Again, they are designed to represent a devolved ‘settlement’, reinforced by the knowledge that 55% voted against Scottish independence in 2014 (the turnout was 84.6%).

Yet, this sense of a ‘settled will’ is not yet apparent. Indeed, it seems just as likely that the proposals will merely postpone a second referendum (although it is difficult to predict how long it will take the SNP to think it will win).

What will happen until then?

In the meantime, we can discuss how further devolution might affect the discussions we have had so far. For example, some things don’t seem destined to change much, such as the lack of ‘new politics’ or participatory democracy, the pervasiveness of networks, the development of the ‘Scottish approach’, or the importance of central-local relations. Others might see some significant developments:

• The Scottish Parliament. If you think it is peripheral to the policy process now, think what will happen when the Scottish Government gets new responsibilities but the Parliament has the same paltry resources for scrutiny (see also McEwen, Petersohn and Swan).
• MLG and IGR. Nicola McEwen and Bettina Petersohn know more about this than me, and they go into (by drawing on relevant international comparisons) the kinds of issues that the UK and Scottish Governments will face when they develop a shared powers model. The biggest issue is that that there will be far more overlaps in policy responsibilities than before. Under the original settlement, their respective responsibilities were fairly clear. Now, they are expected to cooperate on issues such as taxation, social security, and the energy mix. There is also a weird-looking requirement for the actions of one government to have ‘no detriment’ on another, the effects of which we do not yet know.
• The Barnett formula. David Bell knows more about this than me, and he thinks that the new arrangements will place a great strain on the formula, partly because the new taxation arrangements give the Scottish Government more power to set its own budget (at least notionally) than rely on a block grant from the Treasury.
• It’s more difficult to work out the effect of its new responsibilities on tax and social security, but I predict that little will change (albeit in the knowledge that I am not known for my good predictions). Kirstein Rummery knows more about this subject than me. See her commentary on the Scottish Government’s budget and the longer term potential for major change.

See also: Special issue of Political Quarterly (introduced here) and regular CCC blog posts.