‘How long must these sufferers wait for the compensation they deserve?’

That question was the title of an op-ed that I wrote for the Scotsman on 11 July 2000 about compensation for people with haemophilia infected by hepatitis-C through blood products in the NHS. The answer turned out to be decades, largely because the UK government has always resisted the idea of compensation for treatment by the NHS, but with exceptions in relation to HIV or with reference to wider financial support by the state.

Currently high attention in 2024 relates to the strong likelihood of a new UK government announcement on meaningful compensation, prompted largely by the work of the Infected Blood Inquiry . For a summary of key developments, see What is the infected blood scandal and will victims get compensation?

Below, I reproduce that Scotsman op-ed to provide background on UK government resistance to compensation, then link to some resources on how the issue played out in Scotland in the early years of devolution. In short, it became an intergovernmental relations issue when (1) there was pressure on the Scottish Government (then ‘Executive’) to respond, but (2) the UK government resisted successfully the idea that the Scottish Government could go its own way.

‘How long must these sufferers wait for the compensation they deserve?’

“SCOTTISH haemophiliacs are eagerly awaiting the results of a government investigation into the issue of hepatitis-C infection through blood products. However, this is an issue which should concern us all, not only because of the extent of suffering this type of infection causes, but also because it strikes at the heart of the whole question of compensation within the NHS.

It is also fitting that this issue should raise its head during the annual international AIDS conference, since – at least politically – the similarities between hep-C and HIV infection are uncanny. So how do we explain why HIV -infected haemophiliacs were compensated over ten years ago and yet haemophiliacs infected by hepatitis-C have had to wait until now even to hear if they have a case?

HIV and hepatitis-C are both particularly serious infections. The former – unless we believe Professor Duesberg – causes AIDS and diminishes the body’s ability to overcome subsequent infections, however slight. The latter, in the long term, causes chronic liver disease and cirrhosis. Either infection combined with haemophilia causes devastation among sufferers, their families and their friends. So why does one particular sufferer receive compensation and another doesn’t?

To put it bluntly, the main reason may well be that hepatitis-C is far less likely to capture the imagination of the public, Parliament or the government of the day. Hepatitis-C, unlike HIV, is only transmitted through blood and so its incidence within the general public is much less likely. Rather, on the whole it will only affect haemophiliacs and intravenous drug users. It is associated with minorities and/or deviance. It is unlikely to be able to maintain attention for any particular length of time. This is the key to the difference – HIV caught the public’s imagination because it was, and still is, presented as an infection which did or does not discriminate. It is transmitted sexually; it is transmitted through blood; it is transmitted from mother to baby; for a while it was thought that it might even be transmitted through saliva. It therefore affects us all and, albeit to a lesser and lesser extent, HIV continues to grab the headlines.

It is this crucial difference which informs much of the process of compensation. In both cases successive British (and now Scottish) governments attempted to deny responsibility for the compensation of those infected through blood products. However, this was largely unsuccessful with HIV because the issue just did not go away.

When, in the early Eighties, ministers denied the links between blood products and HIV, newspapers were filled with scientific reports which suggested otherwise. When ministers tried to delegate responsibility for HIV infections to haemophiliac specialists or health authorities, Parliament asserted its right to hold them to account. When the government accepted both the links and the responsibility, but not the need for compensation, the continuous public reaction forced a U-turn in government policy. And finally when the government accepted the need to compensate, but only those haemophiliacs who constituted a “special case”, it was again defeated by the threat of legal action supported by media, British Medical Association and MPs.

But is this likely to happen in the case of hepatitis-C? While those affected may take hope from the fact that the Scottish executive is finally taking their plight seriously, there is still one major obstacle to the granting of compensation – precedent. The most striking aspect of HIV in this regard was that the government could not afford to grant “no-fault” compensation to anyone suffering at the hands of the NHS for fear of opening the floodgates for a succession of similar claims. So, when granting a “trust fund” to HIV -infected haemophiliacs, it argued that these were “wholly exceptional circumstances”, with the implication that such compensation (although it was never termed as such) would never be repeated.

On the other hand, there is hope to be taken from this process, not least because since then the government has argued that those non-haemophiliacs infected with HIV through blood products were “also a very special case.” It seems, then, that to be successful a group just has to agree that what it is receiving is an exceptional compassionate payment rather than “compensation”.

More seriously, whether the government likes it or not, it has already set the precedent for haemophiliacs, when it recognised in 1990 that theirs were “wholly exceptional circumstances” and that haemophilia combined with another serious condition merited compensation, however this is phrased.

The government therefore has a responsibility to treat hepatitis-C sufferers in the same way as it treated those infected with HIV, irrespective of the findings of its investigation”

Attention in the Scottish Parliament (2001)

For example, the Scottish Parliament Health and Social Care Committee report in 2001 argued that sufferers should receive financial support, but largely rejected the idea of compensation:

‘100. Should this assistance that we advocate be described as compensation? “Compensation” implies negligence or fault, and on the (admittedly limited) basis of the evidence we considered, we do not think that this has been established. In the end, what matters most, in our view, is not what this assistance is called. What does matter is that it makes a clear, practical difference, and that it is delivered promptly. We would like to see a scheme established within twelve months’.

Compensation as an issue of intergovernmental relations (2003-)

By early 2003, the issue became an IGR issue. Barry Winetrobe’s report in February 2003 noted that:

“9.3 Hepatitis C referral to the JCPC

It has been reported in late January that differences in legal advice to the UK Government and the Scottish Executive over the latter’s proposal to make ex gratia payments to Hepatitis C sufferers, whose condition was caused by contaminated blood, may have to be resolved ultimately by the Judicial Committee of the Privy Council. Two difficulties appear to be relevant, one of which (similar to earlier arguments over free personal care) involves possible clawback through the (reserved) social security system of some of the payments made by the Executive. The other relates to the more general question of whether the Executive actually has the power to make such payments. This appears to be a reference to Head F (social security) of the list of reserved matters in schedule 5 of the Scotland Act, which, in its interpretation provisions, may exclude such payments from the Executive’s devolved competence or the Parliament’s legislative competence”

Cairney (2006: 433) relates compensation to disputes between the UK and Scottish governments:

“This imbalance of power is apparent when disputes rise to the surface. The most high profile policy of the first Scottish Parliament session (1999–2003) was the decision in Scotland to depart from the UK line and implement the recommendations of the Sutherland Report on ‘free’ personal care for the elderly. … if the UK government had been sympathetic to the policy a solution would have been found, but general Whitehall indifference to Scotland had turned to specific hostility (particularly since UK ministers failed to persuade their Scottish counterparts to maintain a UK line). This approach was also taken with the issue of Hepatitis C compensation in Scotland, with the Department of Work and Pensions threatening to reduce benefit payments to those in receipt of Scottish Executive compensation (Lodge, 2003 reproduced below). This case was taken further, with Whitehall delaying Scottish payments on the basis of competence (health devolved, but compensation for injury and illness reserved) until it came up with a UK-wide scheme to be implemented in Scotland (Anon., 2004a)”

Cairney (2011: 98-9) notes:

“Hepatitis C became a cause of relative tension, with the UK Government apparently willing to challenge the Scottish Executive’s right to provide compensation (payments related to injury and illness are reserved), until it came up with a UK-wide compensation scheme (with which Scottish ministers were less happy) (Winetrobe, February 2003: 39–40; February 2004: 42; May 2004: Cairney, 2006: 433; January 2007: 83). The Scottish Executive and UK Government also faced calls for a public inquiry into Hep C in 2006 (Cairney, September 2006: 75). The Scottish Government oversaw its own inquiry on Hep C, partly to put pressure on the UK Government to follow suit (Cairney, May 2008: 87; May 2009: 58)”

The ‘view from the centre’

May 2003: Guy Lodge’s report states that:

“The dispute between the UK government and the Scottish Executive, over the decision by the Executive to provide compensation to anyone who contracted Hepatitis C on the NHS in the 1970s and 1980s as a result of contaminated blood, has continued this quarter. The Scottish Health Minister, Malcolm Chisholm, announced proposals for ex gratia payments in January 2003, but has had to concede that no payments will be made until the Scottish Executive resolves the issue with Westminster. The dispute centres on whether or not the Department for Work and Pensions will try and ‘clawback’ the money used by the Executive in compensation through the social security system. There is also a debate over whether the Executive actually has the power to make such payments. 

In what many in Scotland have interpreted as a snub to the Scottish Parliament, Andrew Smith, the Secretary of State for Work and Pensions, has refused to appear before the Health Committee, which had invited him to give evidence on the issue. 

The SNP have been keen to raise the issue at Westminster. On 21 May, Annabelle Ewing quizzed the Prime Minister on why no compensation had been made during questions to the Prime Minister. 

Annabelle Ewing (SNP – Perth): The Prime Minister will be aware that the Scottish Parliament agreed at the beginning of this year to pay compensation to hepatitis C sufferers in Scotland who contracted the disease through contaminated NHS blood products. However, not a penny piece has yet been paid, as a result of dithering by Westminster over jurisdiction. Can I inject a sense of urgency into the debate and ask the Prime Minister to confirm today that Westminster will not frustrate the will of the Scottish Parliament to pay compensation under exemption from the benefits clawback regulations? Surely the Prime Minister would agree that the people involved have already waited far too long for justice.

The Prime Minister: I am aware of the Scottish Executive’s decision to pay compensation to hepatitis C sufferers. I am not aware of the other particular problem to which the hon. Lady has just drawn attention. I shall look into it, and write to her about it.

Annabelle Ewing also raised the issue on 20 May at Scotland Office questions in which Liddell suggests that a decision will be made after the elections in Scotland. 

Annabelle Ewing : Surely the key issue is whether she will fight for the right of the Scottish Parliament to pay compensation and for a 100 per cent exemption from the benefit clawback rules. If she will not do that, will she explain to hepatitis C sufferers in Scotland why on earth Scottish taxpayers are paying £7 million for the running costs of her office?

Mrs. Liddell: There are serious legal and policy-based issues in relation to hepatitis C. There have been extensive discussions between the Scottish Executive and the Department for Work and Pensions, not least on whether payments should be taken into account as capital or income when someone claims income-related benefits. Those discussions could not continue because of the Scottish Parliament elections. As soon as the Minister for Health and Community Care is in place in the Scottish Parliament, those discussions will continue”

How Can the Scottish Parliament Be Improved as a Legislature?

This post summarises my article (in 2013) that reflected on the Scottish Parliament’s role and influence as a legislature after its first decade. After 25 years of devolution, how many of these points still ring true? The aim is to work with the Centre for Scottish Public Policy to prompt debate among key people in Scottish politics.

Twenty-five years of devolution gives us plenty of evidence to assess the role and influence of the Scottish Parliament. In this blog, I summarise five previous concerns to prompt discussion about their contemporary relevance.

1. The Scottish Parliament did not live up to ‘new politics’ expectations.

It was once common to describe the gap between pre-1999 hopes for the Scottish Parliament and reality. Those hopes began with the Scottish Constitutional Convention’s description of a new political culture. They continued when the Consultative Steering Group (set up to design the Scottish Parliament’s standing orders) highlighted power sharing ‘between the people of Scotland, the legislators’ and the Scottish Government, and proposed strong powers for parliamentary committees, including to monitor government departments, assess the quality of government engagement with stakeholders, scrutinise legislation, and initiate its own legislation. Yet, the CSG also expected the government to govern, and envisaged improvements to a Westminster-style process in which the government would propose most legislation and parliament would legitimise policy via enhanced scrutiny.

2. The Scottish Parliament does not scrutinise government legislation sufficiently.

From 1999-2007, the problem was that a coalition government oversaw a punishing legislative schedule, giving insufficient time to scrutinise legislation. From 2007-11 a minority government passed less legislation, but the new threat of parliamentary opposition translated into the non-introduction of some bills rather than more time for scrutiny. From 2011 we saw majority government business-as-usual, then minority governments with less reliance on cross-party cooperation.

Committees could also engage in scrutiny via the inquiry process: to assess current policy and encourage new legislation to fill gaps, or to conduct post-legislative scrutiny to evaluate policy following implementation. However, the big splash reports tend to stand out as exceptions to the rule, and Scottish governments tend to reply with a polite ‘thank you’ rather than a substantive commitment to respond.

3. The Scottish Parliament does not have a sufficiently large professionally trained staff

These problems relate partly to capacity, in which dozens of committee staff try to keep track of an increasingly complex statute book delivered by a public sector with half a million employees. To be effective, committees need to prioritise a small number of issues. Even then, they often struggle to get enough information about legislation, and its impact on policy and public sector practices, to make an informed judgement. Still, few demand a boost to the capacity of the Scottish Parliament as an organisation (rather than a venue for party competition).

4. The party whip undermines independent scrutiny, or parties do not engage with the legislative process

These problems relate mostly to the party-political nature of parliamentary proceedings. The Scottish Parliament is a slightly more consensual mini-Westminster. From 1999-2007 a majority Labour-Liberal Democrat government had minimal interest in working with an opposition SNP. From 2007-11, and 2016 onwards, the SNP had to work with other parties to get things done, but minority government did not spark a new consensual culture of government-opposition relations.

5. The Scottish Parliament would benefit from an upper chamber

Of course, there is no prospect of a second chamber. The new Scottish political system was modelled as an alternative to ‘old Westminster’, containing an unelected second chamber in dire need of reform. Rather, the focus in Scotland regarded the extent to which a well-designed unicameral process could make up for the absence of the second chamber’s function, largely by front-loading scrutiny and investing high powers in committees. If so, it makes sense to reflect continuously on the gaps between hopes for design and actual execution.

In all five cases, a key difference is the passage of time, to move away from the highly optimistic language of reformers in the 1990s, and the initial honeymoon period of devolution, towards more pragmatic assessments in relation to real world politics. For example, the Commission on Scottish Parliament reform in 2017 focused largely on tweaks to current processes rather than radical redesign, and Steven MacGregor’s award-winning PhD research makes a convincing case for the non-trivial influence of the Scottish Parliament on government legislation. If so, in the absence of a big constitutional event, like devolution in 1999 or independence some other time, the Parliament will largely continue in its current form. The unexciting but satisfactory conclusion is that people may be vaguely satisfied with the Scottish Parliament because it performs its expected role competently.

We have a window of opportunity to improve Scottish devolution, so let’s start with parliamentary reform

Now is the perfect time to think about maximising the benefits of Scottish devolution. The first independence referendum produced important new constitutional changes, enshrined in the Scotland Act 2016. It now seems unlikely that there will be a second referendum any time soon. So, we have a window of opportunity to take a step back, understand the Scottish Government’s new powers, and consider how the Scottish Parliament can best hold it to account, encourage new voices in politics, and represent the views of the public. In other words, to think about how devolution’s original aims, summed up by the phrase ‘new politics’ (as compared at the time to ‘old Westminster’).

The Scottish Parliament is now a mature institution, supported strongly by the public, and here to stay. In the early years of devolution, it is understandable that there was more concern about public support and the financial cost of enhanced Scottish democracy. Now, it is time to start looking to the future, to note the Parliament’s success to date, and build on examples of good practice to make it as effective as possible as it takes on new responsibilities.

The Commission on Parliamentary Reform has been doing just that. It was set up by the Presiding Officer, Ken Macintosh MSP, with John McCormick its chair and consisting of representatives of all main parties. Although asked to give the Parliament an ‘MOT’, a metaphor which might suggest that the fewer issues raised the better, the Commission came up with a series of measures to turbo boost the Parliament.

To strengthen the role of the Scottish Parliament, it recommends:

• A more assertive role for the Presiding Officer, to control parliamentary business and encourage more effective scrutiny and debate.
• Leaner and stronger committees, led by elected convenors, and more able to set the political agenda rather than simply respond to the government.
• More independent MSPs, trained to be parliamentarians first and representatives of political parties second.

To enhance the Parliament’s equality and diversity principles, it recommends:

• Establishing a vision for an equal and diverse parliament, setting benchmarks for MSP recruitment from under-represented groups, backed up by measures to influence political party recruitment.

To engage in new ways with the public and give ‘the people’ a voice, it recommends:

• That the Parliament becomes a world leader in public engagement, experimenting with new ways to gather views and evidence, identifying the most excluded groups and ways to overcome barriers to engagement, and working with schools to encourage greater knowledge of the Scottish Parliament.

A big part of this shift of thinking should be about the ways in which we describe and appreciate MSPs. If elected politics should not be the part-time occupation of people with independent wealth and a larger income from other jobs, we should make sure it provides the kinds of pay and conditions that we’d take for granted in other parts of the public sector. If politics is a profession that requires particular skills which improve with experience, we should be more hesitant about complaining about a political class full of MSPs that never had a ‘proper job’. If we expect MSPs to work incredibly hard for their constituents and engage fully in Parliament, we should note that they routinely work well over the 35 hours we’d associate with most other public sector jobs, often at the expense of their long term health and life outside work. We should also be realistic about what we can expect from MSPs if the Scottish Parliament is to retain its ‘family friendly’ aims and allow MSPs to balance work and life.

This argument about appreciating MSPs should help us take an interesting story from the report. It doesn’t say that we should trade responsibilities and rights, but that we should place as much emphasis on their rights as we should their responsibilities.

So, it provides a series of recommendations which ask MSPs to reconsider their responsibilities to the Scottish Parliament, to focus a little bit less on partisanship and a bit more on the Parliament as an institution. We should expect MSPs to honour their responsibilities to the Parliament, to engage in parliamentary work as parliamentarians (particularly in committees), not simply representatives of their parties, and to help improve the quality of Scottish policy, not simply criticise policy from the Scottish Government.

It also suggests that MSPs deserve comparable employment rights to any other public employees, including the positive moves – such as parental leave and workplace flexibility – that help us remain effective at work and practice ‘self care’ and care for others. In fact, as a beacon for Scottish democracy, the Scottish Parliament should also be a beacon of progressiveness, turning its founding commitment to a ‘family friendly’ culture into best practice for all MSPs with caring and other personal responsibilities.  Further, MSPs should not have to apologise for being paid fairly while working hard for the Parliament or when claiming legitimate funds to support their work.

It is in that spirit that I’d suggest reading key parts of the report. Yes, the commission makes strong recommendations for important reforms in parliamentary rules and MSP behaviour. However, it also invites us to remember that the Parliament is here to stay, and a lot of the credit for its success should go to the people who work there.

The full report can be found here: https://parliamentaryreform.scot/

Paul Cairney is Professor of Politics and Public Policy at the University of Stirling. From January to June 2017 he was the advisor to the Commission on Parliamentary Reform, but these are his personal thoughts on the report.

 

The Scottish Parliament would be a bit less crap in an independent Scotland and some people care

See also: The Scottish Parliament would be crap in an independent Scotland and almost no-one cares

The Scottish Government made a recent amendment to the Scottish Ministerial Code to restrict the role of MSPs while ‘Parliamentary Liaison Officers’ (PLOs) in the Scottish Parliament. PLOs are not members or the Scottish Government, but they work closely with ministers and sit on committees scrutinising ministers, which blurs the boundary between policymaking and scrutiny.

While previous Labour-led governments made a decent effort to deny that this is a problem (1999-2007), the SNP (from 2007) perfected that denial by allowing PLOs to sit on the very committees scrutinising their ministers.

Now, after some (social and traditional) media and opposition party pressure, its revised guidelines in the 2016 Scottish Ministerial Code – remove a large part of the problem:

PLOs may serve on Parliamentary Committees, but they should not serve on Committees with a substantial direct link to their Cabinet Secretary’s portfolio … At the beginning of each Parliamentary session, or when changes to PLO appointments are made, the Minister for Parliamentary Business will advise Parliament which MSPs have been appointed as PLOs. The Minister for Parliamentary Business will also ensure that PLO appointments are brought to the attention of Committee Conveners. PLOs should ensure that they declare their appointment as a PLO on the first occasion they are participating in Parliamentary business related to the portfolio of their Cabinet Secretary.

The only thing that (I think) remains missing is the stipulation in the 2003 code that PLOs ‘should not table oral Parliamentary Questions on issues for which their minister is responsible’. So, we should still expect the odd question along the lines of, ‘Minister, why are you so great?’.

The Scottish Parliament would be crap in an independent Scotland and almost no-one cares

Here is a four-step plan to avoid having to talk about how powerless the Scottish Parliament tends to be, in comparison to the old idea of ‘power sharing’ with the Scottish Government:

1. Find something the SNP Government is doing and point out how wrong it is.
2. Have the opposition parties pile in, taking their chance to bemoan the SNP’s power hoarding.
3. Have the SNP point out that Labour used to do this sort of thing, so it’s hypocritical to complain now.
4. Convince the public that it’s OK as long as all of the parties would have done it, or if they have been doing it for a long time.

This pretty much sums up the reaction to the SNP’s use of Parliamentary Liaison Officers (PLOs) on Scottish parliamentary committees: the MSP works closely with a minister and sits on the committee that is supposed to hold the minister to account. The practice ensures that there is no meaningful dividing line between government and parliament, and reinforces the sense that the parliament is not there to provide effective scrutiny and robust challenge to the government. Instead, plenary is there for the pantomime discussion and committees are there to have run-of-the-mill humdrum scrutiny with minimal effect on ministers.

The use of PLOs on parliamentary committees has become yet another example in which the political parties – or, at least, any party with a chance of being in government – put themselves first before the principles of the Scottish Parliament (set out in the run up to devolution). Since devolution, the party of government has gone further than you might expect to establish its influence on parliament: controlling who convenes (its share of) committees and which of its MSPs sit on committees, and moving them around if they get too good at holding ministers to account or asking too-difficult questions. An MSP on the side of government might get a name for themselves if they ask a follow-up question to a minister in a committee instead of nodding appreciatively – and you don’t want that sort of thing to develop. Better to keep it safe and ask your MSPs not to rock the boat, or move them on if they cause a ripple.

So, maybe the early founders of devolution wanted MSPs to sit on the same committees for long periods, to help them develop expertise, build up a good relationship with MSPs from other parties, and therefore work effectively to hold the government to account. Yet, no Scottish government has been willing to let go, to allow that independent role to develop. Instead, they make sure that they have at least one key MSP on each committee to help them agree the party line that all their MSPs are expected to follow. So, this development, of parliamentary aides to ministers corresponding almost exactly with committee membership, might look new, but it is really an extension of longstanding practices to curb the independent power of parliaments and their committees – and the party in government has generally resisted any reforms (including those proposed by the former Presiding Officer Tricia Marwick) to challenge its position.

Maybe the only surprise is that ‘new politics’ seems worse than old Westminster. In Westminster committees, some MPs can make a career as a chair, and their independence from government is far clearer – something that it is keen to reinforce with initiatives such as MPs electing chairs in secret ballots. In comparison, the Scottish Parliament seems like a far poorer relation to its Scottish Government counterpart – partly because of complacency and a lack of continuous reform.

Almost no-one cares about this sort of thing

What is not surprising is the general reaction to the Herald piece on the 15^th August – and the follow up on the 16^th – which pointed out that the SNP was going further than the use of PLOs it criticised while in opposition.

So, future Scottish Cabinet Secretary Fiona Hyslop – quite rightly – criticised this practice in 2002, arguing that it went against the government’s Scottish Ministerial Code. Note the Labour-led government’s ridiculous defense, which it got away with because (a) almost no-one cares, and (b) the governing parties dominate the parliament.

Then, in 2007, the SNP government’s solution was to remove the offending section from that Code. Problem solved!

Now, its defence is that Labour used to do it and the SNP has been doing it for 9 years, so why complain now? It can get away with it because almost no-one cares. Of those who might care, most only care if it embarrasses one of the parties at the expense of another. When it looks like they might all be at it, it’s OK. Almost no-one pays attention to the principle that the Scottish Parliament should have a strong role independent of government, and that this role should not be subject to the whims of self-interested political parties.

So, I feel the need to provide a reason for SNP and independence supporters to care more about this, and here goes:

1. Most people voted No in the 1^st referendum on Scottish independence.
2. There might be a 2^nd referendum but it would be silly to expect a Yes vote this time without new and better arguments built more on actual plans rather than the generation of positivity and hope. For a political project to work, you really need to tell people what you will do if you win.
3. One of those arguments needs to be about political reform. The ‘architects of devolution’ recognised this need to offer political alongside constitutional reform, producing the sense of ‘new politics’ that we now use to show that Scottish politics fell quite short of expectations. The mistake was to assume that they had cracked it in 1999 and never needed to reform again. Instead, institutions need to be changing continuously in light of experience. So, the previous SNP White Paper (p355) was rubbish on this issue because it pretty much said that it would keep things as they were because they were working OK.

It is complacent nonsense, treating the Scottish political system as an afterthought, and it might just come back to bite the SNP in the bum. The implicit argument that The Scottish Parliament would be just as crap in an independent Scotland as it is now, and almost no-one cares is poor. Or, to put it in terms of the standard of partisan debate on twitter: shitey whataboutery might make you feel good on twitter, but it won’t win you any votes in the next referendum.

 

See also: Lucy Hunter Blackburn’s Patrick Harvie highlights close links between ministerial aides and parliamentary committees

The future of Scotland in the UK: does the remarkable popularity of the SNP make independence inevitable (version 2)?

This is an updated blog post. The original post provided notes for my lecture on the 15th June at the Centre for British Studies, Humboldt University of Berlin, as part of the  Ringvorlesung: The Future of the UK: Between Internal and External Divisions. I had written it before the vote in the UK to leave the EU, which provided the only realistic chance of a second referendum on Scottish independence. So, the background sections remain the same, but I update the contemporary section with reference to Brexit and its consequences.

The advertised abstract read:

The vote to remain in the UK, in the Scottish independence referendum in 2014, did not settle the matter. Nor did it harm the fortunes of the pro-independence party, the Scottish National Party. Instead, its popularity has risen remarkably, and major constitutional change remains high on the agenda, particularly during the run up to a referendum on the UK’s exit from the EU. This continued fascination with the constitution overshadows the day-to-day business of Scottish politics. Cairney highlights one aspect in particular: the tendency for limited public and parliamentary scrutiny of substantive policy issues when they are viewed through a constitutional (rather than substantive policy) lens, producing an image of weak accountability.

My aim is to:

• Explain why the Scottish National Party’s popularity is remarkable
• Note that none of us have predicted it – or indeed much of the short history of devolution – too well, and use this point as a cautionary tale
• Describe why independence is not inevitable (even though it often seems likely)
• Shoehorn in some analysis of the links between our fascination with the constitution and the more humdrum world of actual policy.
• Provide a brief update on the impact of the EU referendum, bearing in mind that I am no less hopeless than anyone else about predicting the future.

The remarkable popularity of the SNP

The SNP’s popularity is remarkable in two main ways:

1. In 1999, the main party was Scottish Labour

Scottish Labour had dominated Westminster and local elections in Scotland for decades before the first Scottish Parliament election in 1999 (it also won a plurality of European Parliament seats, but with far lower margins):

• Westminster (plurality electoral system). Labour won most Scottish seats in every election from 1959-2010. In 1997, it won 46% of the vote and 56 (78%) of 72 Scottish Westminster seats (Cairney and McGarvey, 2013: 45). The SNP won 22% of the vote and 6 (8%) seats. A similar pattern continued until 2010: Labour dominated Scottish Westminster seats even when the SNP began to win Holyrood elections.
• Local elections (plurality until 2003, single transferable vote from 2007). In 1995, its 44% of the vote translated into 613 (53%) of 1155 seats and it remained the largest party until 2007 (Cairney and McGarvey, 2013: 51).

This dominance produced an expectation that Scottish Labour would become the largest party in the Scottish Parliament for the foreseeable future. In that context, the fortunes of Labour and the SNP changed remarkably quickly (see table 3). In 1999 and 2003, the main limit to Labour dominance was the electoral system: it won the majority of constituency seats comfortably but few regional seats (it also won most constituency seats in 2007). By 2011, this position had reversed and, by 2016, the regional list was the only thing standing between Scottish Labour and electoral oblivion.

In contrast, by 2011 the SNP achieved a majority of Scottish Parliament seats because the regional element of the mixed-member proportional system (56 of 129 seats) was not large enough to offset SNP dominance of constituency seats. This is a remarkable outcome if we accept the well-shared story that Holyrood’s electoral system was ‘chosen by Labour to stop the SNP ever the getting the majority it needed to push hard on the independence agenda’ (Cairney, 2011: 28).

2. The SNP’s popularity did not dip after the 2014 referendum

You could be forgiven for thinking that a No vote in the referendum on Scottish independence would damage the SNP. If it is a single issue party, and most voters rejected its position on the issue, wouldn’t you expect it to suffer? Yet, here is what happened instead:

• Its membership rocketed, from 25000 to 75000 in two weeks, then to 115000 by 2016
• It won 56 of 59 Westminster seats in Scotland (2015) on the back of 50% of the vote
• It won a third Holyrood election in a row, only missing out narrowly on a second majority in a row (in an MMP system).

It’s not so remarkable if you know that the SNP is not a single issue party. Instead, it is a highly professional organisation which has won elections on the back of valence politics as well as identity.

The SNP did well in 2007, and very well in 2011, because ‘most voters thought that the party would do a better job in office than its rivals’. People vote for a party when they respect its leader, its vision for the future, and have a high expectation of its competence while in office – and the SNP has benefited from being a party that looks highly professional (although one’s belief in the competence of the SNP may be linked strongly to one’s national identify and support for independence).

So, (a) it’s worth noting that the SNP is doing well partly because 45% of the vote will not win you a referendum, but it (plus a bit more) will do very nicely in a not-super-proportional election system, but (b) there is far more to the SNP’s story than a translation of national identity into support for independence into support for the SNP.

None of us predicted it well: a cautionary tale

You’ll always find someone who claims that they predicted these developments correctly, but that’s because of the immense number and range of hyperbolic predictions – from the claim that devolution provided a ‘stepping stone’ to independence, to the claim that it would kill nationalism ‘stone dead’ – rather than the predictability of politics.

So, for example, in retrospect we can say that devolution provided an important new platform for the SNP, but at the time we did not know that it would use this platform so effectively from the mid-2000s.

Similarly, maybe some people in the future will look back to argue that Scottish independence was inevitable, but without being able to predict the detailed mechanisms of decisions and events.

Scottish independence is not inevitable (even though it often seems likely)

Before the Brexit vote, I tried to sell the idea that 10 years is the magic figure between Scottish referendums (2014 and 2024): a short enough distance to keep pro-independence actors content, and long enough to hope that enough people have changed their minds. In the meantime, the SNP and Greens would produce some vague triggers (like a surge in opinion poll support).

Now, if a second referendum is to happen, it is because of the constitutional crisis prompted by Brexit. Overall, most UK voters chose to leave the European Union, but most voters in Scotland chose to remain. The SNP and its allies will push for a second referendum on that basis, with reference to a ‘democratic outrage’. It possesses the votes to pass a bill to that effect in the Scottish Parliament, and needs some cooperation from a UK Government led by the party that just used a referendum to justify major constitutional change. It is difficult to see why the Conservative government would oppose a referendum under those circumstances (rather than allow it to take place and argue for the Union) even though UK government ministers have rejected the idea so far.

If a second referendum happens, it could happen before 2020. I am hesitant to say when exactly, partly because there is so much uncertainty, which too many people try to fill with needless speculation. For example, Sturgeon confirmed that it could happen as early as 2017, but only because the BBC asked her what she would do if the UK government behaved unreasonably.  In the same interview, Sturgeon also suggested that it may take a long time for the UK to invoke ‘Article 50’, which triggers a notional two-year negotiation period before the UK leaves the EU.

Before we know if a second referendum is likely, and the likely date, we need clarity on two things: (1) the extent to which the UK can (and is willing to) negotiate a deal with the EU which satisfies the SNP and Scottish voters (by becoming Brexit-lite or providing Scotland-specific provisions on key issues like free movement of people); and, (2) the timing of Brexit, since a Scottish referendum would hopefully not take place until we know what we are voting for (which might not happen until near the end of the notional two-year negotiations). Still, it is likely that the vote would be binary, as some version of: stay in the UK out of the EU, or leave the UK and stay in the EU.

Dissatisfaction with devolution is not the same as support for independence

Recent events reinforce the sense that Scottish devolution will never seem like a ‘settlement’. Instead, until recently, we have had a routine process in which: (a) there is a proposed devolution settlement, (b) it sticks for a while, (c) there is a rise in support for independence or further devolution, (d) there is another settlement.

So far, this has happened in 1999 (the first modern settlement), from the SNP’s first Holyrood win in 2007 (producing the Scotland Act 2011), and during the referendum itself (producing the Scotland Act 2016).

The difference this time is the sense – often generated by supporters and opponents of independence – that the 2016 Act is the final offer. If so, before Brexit, we had two key scenarios:

1. This offer proves to be too unpopular to maintain support for devolution, there is a further referendum, and no-one can offer more devolution in exchange for a No vote.
2. The 2016 Act finally helps address the idea of a ‘democratic deficit’ in which (a) most people in Scotland vote for one party in a UK General election (usually Labour, now SNP) but get another (often Conservative), and (b) this problem helps produce the sense that the UK Government is imposing unpopular policies on Scotland. For the new Act to work, you would need to generate the widespread sense, among the public, that a Scottish Government could choose to mitigate the effects of a UK Government (perhaps without raising taxes).

Now, things are a bit more complicated, since devolution is no longer simply about Scotland’s position in the UK. Scenario two now has to be accompanied by the sense (however true) that the Scottish Government is able to negotiate a distinctive relationship with the EU while remaining in the UK.

What happens in the meantime? The humdrum world of scrutiny and policymaking

In the meantime, Scottish politics exhibits an unusual twist on the usual tale of Westminster politics:

1. We have the familiar disconnect between two understandings of politics, in which (a) we use elections and some parliamentary scrutiny to praise or blame governments, but also (b) recognise the limits to central control, which undermine a meaningful sense of accountability.
2. This confusion is complicated by devolution and ‘multi-level governance’ in which we are not always sure about which level of government is responsible for which policy (although Brexit will remove a level from many of those relationships!)
3. It is complicated further by the 2016 Act, in which there are many new shared responsibilities between the Scottish and UK Governments.
4. So, politicians tell very different stories about what the Scottish Government can do, who is in charge, and who should take the blame for policy outcomes.
5. And the Scottish Parliament continues to struggle to know how best to try to hold the Scottish Government to account (and it might soon struggle a bit more).

Perhaps one possible exception is the new debate on educational attainment. First Minister Nicola Sturgeon staked a large part of her reputation on reducing the gap in attainment between students in the most and least deprived areas of Scotland. Before the election, she promised to ‘close the attainment gap completely’.

Although the SNP manifesto in 2016 presents more equivocal language (reflecting the sense that it does not know how much it can reduce the gap), it remains significant: as an issue in which there are constitutional complications (the Scottish Government does not control fully the economic and social security ‘levers’ affecting levels of deprivation), but the SNP is not using them to qualify its aims.

This example supplements several ongoing debates of high party political importance, in which there is not a constitutional element (on, for example, the Scottish Government’s ‘named person’ policy and legislation on ‘offensive behaviour’ in relation to football).

In the original version of this post, I signed off by speculating: ‘maybe such cases suggest that, for at least the next few years, we will pretend that there is a Scottish devolution settlement that that we are not just killing time until the next referendum’. It already seems like an out of date hope: the constitution is back at the top of our agenda, and I can’t remember the last time I read a story about domestic policy in Scotland.

 

Politics and law-making in the Scottish Parliament

These are some notes for my short talk to the Scottish Public Law Group Annual Conference on the 13th June 2016. My session includes Andy Beattie, Chief Parliamentary Counsel (role includes drafting Scottish Government legislation) and Lynda Towers (former solicitor to the Scottish Parliament). So, as the only non-lawyer in the building, I am largely there as the entertainment. Or, in the more formal legal language of the invite, providing ‘reflections on the influence/impact of minority government on law/policy making, in addition to a more general policy/political studies perspective on law-making at Holyrood’.

I’d like to keep my discussion short, so will make a small number of points:

1. The uncertain importance of new politics.

In the olden days (1999), people talked about the Scottish Parliament and its committees representing the heart of ‘new Scottish Politics’. The phrase accompanied a vague suggestion about ‘power sharing’ and the committees having a more important role than their Westminster counterparts. Some of this related to necessity, and you can see the results (e.g. there is no second chamber, so they ‘front loaded’ the legislative process). Some of it related to vague hopes for a new culture of policymaking, and you struggle to see the results.

2. The importance of draft Acts.

The old literature on UK politics (on ‘policy communities’) talks about the political importance of draft Acts: by the time a bill gets to Parliament, the government (and its allies, involved in negotiating the policy in the draft) does not want to change it. It can modify at the margins, but a major change to the bill will necessitate more negotiation as well as more drafting. I think you can see this play out under ‘normal’ conditions: a government will signal which parts of the bill it can be flexible with, and the parts it will try to protect almost unchanged.

3. The meaning of high quality legislation.

I was struck by Andy Beattie’s reference (in his slides) to ‘Drafting legislation to: deliver Scottish Government policy; and, secure the Scottish Parliament’s reputation for making high quality law which serves the people of Scotland well’. We might discuss two criteria for ‘high quality’ which don’t always mix well: one is the professional/ technical criteria reflecting the skill in turning broad policy aims into specific laws and regulations; another is the political criteria reflecting the chance for Parliament to debate and change legislation when introduced. Maybe they don’t always rub up badly against each other, but the thing that would possibly help – ‘pre-legislative scrutiny’ or engagement – often seems as or more visible in ‘old Westminster’.

4. The impact of minority government.

Put simply, I didn’t see much difference during the last phase of minority government. There were two clear examples of major legislation not brought forward (on a referendum on independence, and on local income tax) and one important rejected section (on the minimum unit price of alcohol), but these examples related largely to temporary party politics rather than the more enduring government-legislature relationship.

5. The importance of ‘anticipated reactions’.

A key argument (made most strongly about Westminster) is that the power of Parliaments comes in the actions of ministers and civil servants. We talk of ‘anticipated reactions’ to describe the lengths that the government takes to ensure that the legislation it drafts will not be vulnerable to too much parliamentary opposition. This seems important, but so too does the need for government and parliament actors to tell that story because it suits almost everyone involved.

 

The future of Scotland in the UK: does the remarkable popularity of the SNP make independence inevitable?

This post provides notes for my lecture on the 15th June at the Centre for British Studies, Humboldt University of Berlin, as part of the Ringvorlesung: The Future of the UK: Between Internal and External Divisions.

The advertised abstract reads:

The vote to remain in the UK, in the Scottish independence referendum in 2014, did not settle the matter. Nor did it harm the fortunes of the pro-independence party, the Scottish National Party. Instead, its popularity has risen remarkably, and major constitutional change remains high on the agenda, particularly during the run up to a referendum on the UK’s exit from the EU. This continued fascination with the constitution overshadows the day-to-day business of Scottish politics. Cairney highlights one aspect in particular: the tendency for limited public and parliamentary scrutiny of substantive policy issues when they are viewed through a constitutional (rather than substantive policy) lens, producing an image of weak accountability.

I’ll begin my talk by apologising passive-aggressively for not being a specialist in this field. I know some things about Scottish politics, but specialise in public policy rather than elections, referendums, social attitudes, and the future. On that basis, I’ll:

• Explain why the Scottish National Party’s popularity is remarkable
• Note that none of us have predicted it – or indeed much of the short history of devolution – too well, and use this point as a cautionary tale
• Describe why independence is not inevitable (even though it often seems likely)
• Shoehorn in some analysis of the links between our fascination with the constitution and the more humdrum world of actual policy.

The remarkable popularity of the SNP

The SNP’s popularity is remarkable in two main ways:

1. In 1999, the main party was Scottish Labour

Scottish Labour had dominated Westminster and local elections in Scotland for decades before the first Scottish Parliament election in 1999 (it also won a plurality of European Parliament seats, but with far lower margins):

• Westminster (plurality electoral system). Labour won most Scottish seats in every election from 1959-2010. In 1997, it won 46% of the vote and 56 (78%) of 72 Scottish Westminster seats (Cairney and McGarvey, 2013: 45). The SNP won 22% of the vote and 6 (8%) seats. A similar pattern continued until 2010: Labour dominated Scottish Westminster seats even when the SNP began to win Holyrood elections.
• Local elections (plurality until 2003, single transferable vote from 2007). In 1995, its 44% of the vote translated into 613 (53%) of 1155 seats and it remained the largest party until 2007 (Cairney and McGarvey, 2013: 51).

This dominance produced an expectation that Scottish Labour would become the largest party in the Scottish Parliament for the foreseeable future. In that context, the fortunes of Labour and the SNP changed remarkably quickly (see table 3). In 1999 and 2003, the main limit to Labour dominance was the electoral system: it won the majority of constituency seats comfortably but few regional seats (it also won most constituency seats in 2007). By 2011, this position had reversed and, by 2016, the regional list was the only thing standing between Scottish Labour and electoral oblivion.

In contrast, by 2011 the SNP achieved a majority of Scottish Parliament seats because the regional element of the mixed-member proportional system (56 of 129 seats) was not large enough to offset SNP dominance of constituency seats. This is a remarkable outcome if we accept the well-shared story that Holyrood’s electoral system was ‘chosen by Labour to stop the SNP ever the getting the majority it needed to push hard on the independence agenda’ (Cairney, 2011: 28).

2. The SNP’s popularity did not dip after the 2014 referendum

You could be forgiven for thinking that a No vote in the referendum on Scottish independence would damage the SNP. If it is a single issue party, and most voters rejected its position on the issue, wouldn’t you expect it to suffer? Yet, here is what happened instead:

• Its membership rocketed, from 25000 to 75000 in two weeks, then to 115000 by 2016
• It won 56 of 59 Westminster seats in Scotland (2015) on the back of 50% of the vote
• It won a third Holyrood election in a row, only missing out narrowly on a second majority in a row (in an MMP system).

It’s not so remarkable if you know that the SNP is not a single issue party. Instead, it is a highly professional organisation which has won elections on the back of valence politics as well as identity.

The SNP did well in 2007, and very well in 2011, because ‘most voters thought that the party would do a better job in office than its rivals’. People vote for a party when they respect its leader, its vision for the future, and have a high expectation of its competence while in office – and the SNP has benefited from being a party that looks highly professional (although one’s belief in the competence of the SNP may be linked strongly to one’s national identify and support for independence).

So, (a) it’s worth noting that the SNP is doing well partly because 45% of the vote will not win you a referendum, but it (plus a bit more) will do very nicely in a not-super-proportional election system, but (b) there is far more to the SNP’s story than a translation of national identity into support for independence into support for the SNP.

None of us predicted it well: a cautionary tale

You’ll always find someone who claims that they predicted these developments correctly, but that’s because of the immense number and range of hyperbolic predictions – from the claim that devolution provided a ‘stepping stone’ to independence, to the claim that it would kill nationalism ‘stone dead’ – rather than the predictability of politics.

So, for example, in retrospect we can say that devolution provided an important new platform for the SNP, but at the time we did not know that it would use this platform so effectively from the mid-2000s.

Similarly, maybe some people in the future will look back to argue that Scottish independence was inevitable, but without being able to predict the detailed mechanisms of decisions and events.

Scottish independence is not inevitable (even though it often seems likely)

I’ll try to sell you the idea that 10 years is the magic figure between Scottish referendums: a short enough distance to keep pro-independence actors content, and long enough to hope that enough people have changed their minds. We now have 5-yearly elections, so it would be a commitment in the 2021 Holyrood election to hold it in 2024.

However, it’s no more than an idea because nothing about this process is inevitable:

Even a second referendum is not inevitable

In the short term, the only event that matters is the ‘Brexit’ vote this month. If most UK voters choose to leave the European Union, and most voters in Scotland vote to remain, we will have a constitutional crisis. The SNP and its allies will push for a second referendum on Scottish independence, it will have the votes to pass a bill to that effect in the Scottish Parliament, and the main obstacle will be a UK Government led by the party that just used a referendum to justify major constitutional change! It is difficult to see why the Conservatives would bother to oppose a referendum under those circumstances.

In the absence of this constitutional crisis, is difficult to see how the SNP could justify – and, more importantly, expect to win – another referendum within five years of the first. This problem is reflected in the SNP’s manifesto and Sturgeon’s defence of its vague position. It appears to want to keep independence on the agenda for the long term without proposing a referendum within five years. So, its idea is that, in the absence of a Brexit crisis, the only other prompt is a major and sustained upswing in support for independence:

‘the Scottish Parliament should have the right to hold another referendum if there is clear and sustained evidence that independence has become the preferred option of a majority of the Scottish people’ (Scottish National Party, 2016: 23).

Sturgeon confirmed that this measure would be from opinion polls – ‘We would have to see, in a range of polls over a period of time, that independence had become the preferred option of the majority’ – but without stating how many polls, what level of support, or how sustained (BBC News, 2016b).

The unsatisfactory nature of this position seems reinforced by the SNP’s electoral position in 2016: the last referendum was fairly recent, it lacks a strong statement of intent in its manifesto, it now relies on the Scottish Greens (2016: 35) to produce a pro-independence majority in the Scottish Parliament, and the Greens’ trigger for a second referendum – a petition by maybe 100,000 voters – seems equally vague and problematic.

Don’t assume that we can predict the future (revisited)

These limitations are not problematic in the longer term: the SNP can afford to wait until the time is right for a second referendum. Yet, think about some of the other conditions that need to be met before a second vote is worthwhile:

1. There is a sustained rise in support for Scottish independence. From opinion polls, the SNP would be looking for levels of sustained support (high 50s, low 60s?) that are not present even in single surveys.
2. The SNP sustains a Holyrood majority, or it has enough pro-independence allies in Holyrood. At the heart of our short-term discussion is the assumption that the SNP continues to do remarkably well in elections. Yet, Scottish Labour provides a cautionary tale, or the evidence of how quickly a party’s support can disappear. Further, the SNP wouldn’t even have to lose much support to give the sense that it lost ‘momentum’.
3. The SNP can recreate 2011. Instead, it would just have to lose the sense of moral victory that it secured in 2011: the appearance of its Holyrood ‘avalanche’ election victory made a referendum difficult to oppose; its opposition lost ground, and the UK Government struggled to explain why it would not support a referendum. This feeling is difficult to recreate even if (as in 2016) it secures a similar proportion of votes.

Dissatisfaction with devolution is not the same as support for independence

It is possible that Scottish devolution will never seem like a ‘settlement’. Instead, we have had a routine process in which: (a) there is a proposed devolution settlement, (b) it sticks for a while, (c) there is a rise in support for independence or further devolution, (d) there is another settlement.

So far, this has happened in 1999 (the first modern settlement), from the SNP’s first Holyrood win in 2007 (producing the Scotland Act 2011), and during the referendum itself (producing the Scotland Act 2016).

The difference this time is the sense – often generated by supporters and opponents of independence – that the 2016 Act is the final offer. If so, we have two key scenarios:

1. This offer proves to be too unpopular to maintain support for devolution, there is a further referendum, and no-one can offer more devolution in exchange for a No vote.
2. The 2016 Act finally helps address the idea of a ‘democratic deficit’ in which (a) most people in Scotland vote for one party in a UK General election (usually Labour, now SNP) but get another (often Conservative), and (b) this problem helps produce the sense that the UK Government is imposing unpopular policies on Scotland. For the new Act to work, you would need to generate the widespread sense, among the public, that a Scottish Government could choose to mitigate the effects of a UK Government (perhaps without raising taxes).

What happens in the meantime? The humdrum world of scrutiny and policymaking

In the meantime, Scottish politics exhibits an unusual twist on the usual tale of Westminster politics:

1. We have the familiar disconnect between two understandings of politics, in which (a) we use elections and some parliamentary scrutiny to praise or blame governments, but also (b) recognise the limits to central control, which undermine a meaningful sense of accountability.
2. This confusion is complicated by devolution and ‘multi-level governance’ in which we are not always sure about which level of government is responsible for which policy.
3. It is complicated further by the 2016 Act, in which there are many new shared responsibilities between the Scottish and UK Governments.
4. So, politicians tell very different stories about what the Scottish Government can do, who is in charge, and who should take the blame for policy outcomes.
5. And the Scottish Parliament continues to struggle to know how best to try to hold the Scottish Government to account (and it might soon struggle a bit more).

Perhaps one possible exception is the new debate on educational attainment. First Minister Nicola Sturgeon staked a large part of her reputation on reducing the gap in attainment between students in the most and least deprived areas of Scotland. Before the election, she promised to ‘close the attainment gap completely’.

Although the SNP manifesto in 2016 presents more equivocal language (reflecting the sense that it does not know how much it can reduce the gap), it remains significant: as an issue in which there are constitutional complications (the Scottish Government does not control fully the economic and social security ‘levers’ affecting levels of deprivation), but the SNP is not using them to qualify its aims.

This example supplements several ongoing debates of high party political importance, in which there is not a constitutional element (on, for example, the Scottish Government’s ‘named person’ policy and legislation on ‘offensive behaviour’ in relation to football).

So, maybe such cases suggest that, for at least the next few years, we will pretend that there is a Scottish devolution settlement, and that we are not just killing time until the next referendum.

Scottish Parliament committees: when radical change isn’t radical change

You can find some very useful suggestions for Scottish Parliament committee reform in the summary and full speech (2015) by former Presiding Officer Tricia Marwick. They follow some useful suggestions by the Consultative Steering Group, which set out its plans for the committees in 1998.

The theme in both cases is: let’s find a way for the Scottish Parliament to be important, and for business-like committees (not partisan plenary debate) to be at the heart of its operation. Put more critically: let’s produce some good structures or reforms in the hope that political parties don’t act like political parties.

So, while the CSG expressed some hopes that the committees would perform a new role consistent with Scottish Constitutional Convention’s hopes for ‘new politics’ (‘more participative, more creative, less needlessly confrontational’), Marwick perhaps expresses some disappointment that it didn’t work out too well.

That said, Marwick’s suggestions get to the heart of many practical limits to the operation of committees. To demonstrate, look first at the way I summarised parliamentary life so far (for the Sunday Post):

“The Scottish Parliament’s committees have always suffered from a gap between expectations and reality. When the Scottish Parliament was introduced, there were high hopes that it would function far more effectively than Westminster. The architects of devolution rejected a second chamber in favour of a powerful unicameral Parliament with committees at the heart. To make up for the lack of a revising chamber, they front-loaded the legislative scrutiny process, with committees tasked first to consider the principles, then amend, draft bills. To reinforce committee power, they made many of them permanent, and gave committees the functions of two different kinds of Westminster committee – Standing (to scrutinise legislation) and Select (to monitor government departments and ministers). They have the ability to hold agenda setting inquiries, monitor the quality of Scottish Government consultation, and initiate legislation. The idea is that committees become specialist and business-like (leave your party membership at the door) and their members become experts, able to hold the government to account, and provide alternative ideas if dissatisfied with the government’s response.

The reality rarely lives up to the rhetoric. The party system still dominates, with MSPs whipped to ensure government control of parliamentary business (apart from the brief period of minority government from 2007-11). Parties control committee membership and have overseen a large turnover, which undermines MSP expertise. The committees are ill-resourced, and they struggle to generate the amount of information they need to perform scrutiny well. So, it is no surprise that committees struggle to keep on top of the evidence given to them. They have the ability to do little more than one piece of work before moving on to the next”.

Marwick’s suggestions at least address the latter points

Scottish Parliament committees are ill-resourced and their MSPs are spread too thin. They will often serve more than one committee and move between committees – which, if combined with high MSP turnover in every election, undermines their ability to become specialists in their field. So, Marwick recommended a smaller number of larger committees to reduce that thin spread and encourage more effective scrutiny.

Marwick also pushed for elected convenors to address the problem of committee/ government distance. Right now, the governing party can appoint its share of convenors (and members) and ensure that there is little distance between the governing/ scrutiny roles. The Scottish Parliament is also small and there is not the same chance (as in Westminster) to make a career out of being a backbencher/ convenor of committee. Electing those roles would make convenors ‘directly accountable to Parliament’ rather than subject to the whims of parties (maybe).

These moves would represent radical reforms in the Scottish Parliament, but …

I wonder if anyone outside of Holyrood would notice the difference. Certainly, they would not radically change the fairly traditional Westminster-style relationship between government and parliament in which the government governs and the parliament struggles to provide scrutiny with limited resources. Nor would they change the very strong tendency for MSPs to act along party lines. You can train new MSPs in the ways of the parliament (an abstract concept that takes time to appreciate), but also expect them to be socialised and whipped by their parties (a concrete process that you’ll be expected to recognise immediately).

These reforms would take place during a time of diminishing parliamentary influence

In a Political Quarterly article, I identify two aspects of devolution that may diminish the Scottish Parliament’s role in the near future:

1. further devolution from the UK to Scotland will see the Scottish Parliament scrutinise more issues with the same paltry resources
2. further devolution from the Scottish Government to local public bodies will see the Scottish Parliament less able to gather enough information to perform effective scrutiny.

Both issues highlight the further potential for the Scottish Parliament, heralded as a body to ‘share power’ with the government and ‘the people’, to play a peripheral role in the policy process. To all intents and purposes, the new Scotland Act will devolve more responsibilities to Scottish ministers, without a proportionate increase in parliamentary resources to keep tabs on what ministers do with those powers.

Perhaps more importantly, the Scottish Parliament can only really keep tabs on broad Scottish Government strategies. What happens when it devolves more policymaking powers to local public bodies, such as the health boards that give limited information to committees and the local authorities that claim their own electoral mandate?

In other words, the proposed reforms address the practical limits to parliamentary influence at a time when those limits are being further tested.

Are there any issues on which the parties can agree?

They also don’t really solve the problem of partisanship, which means (for example) that it will be difficult to get the parties to agree about the kinds of issues they should examine in depth. To be effective as a group, MSPs really need to prompt the Scottish Government to do something (perhaps more quickly) that it already wants to do, or find an issue that transcends party politics (perhaps such as the representation of women in the Scottish Parliament, as part of an inquiry into the extent to which it represents important social groups). In most cases, this won’t happen.

So, let’s welcome some parliamentary reform but be realistic about its effect.

[I discussed these issues briefly on Good Morning Scotland, 10.5.16 at 7.07am. It’s true – ask my cousin. He heard the whole thing.]

In the Scottish Parliament election, the only clear majority was secured by men

Although the symbolic representation of women in the Scottish Parliament was a key plank of the ‘new politics’ of Scottish devolution, women continue to secure just over one-third of seats. In 2016, women secured 45 of 129 seats (35%), which compares with 37% in 1999, 40% in 2003, 33% in 2007, and 35% in 2011.

The number of women in the Scottish Parliament used to depend strongly on the fate of Scottish Labour: the high point of 40% in 2003 was on the back of 28 Labour MSPs representing 56% of its group and accounting for 55% of women MSPs (Cairney and McGarvey, 2013: 106; Cairney et al, 2015). At the time, it was the only party to ‘twin’ constituencies and alternate women/ men candidates on the regional list (Mackay and Kenny, 2007: 86-7).

Other parties pursued less systematic or effective measures: the Liberal Democrats’ were ‘half hearted’ (Kenny and MacKay, 2013: 8; Cairney, 2011, 30); the SNP had ‘an informal rule of thumb that [regional] lists should be more-or less gender balanced’ (Mackay and Kenny, 2007: 87), the Conservatives sometimes ensured that women ‘were generally placed in favourable positions on the party lists’, and the Greens alternated men and women on party lists with uncertain effect (Kenny and MacKay, 2013: 9).

Now, as Labour’s fortunes have dropped, the decision by the SNP to use stronger measures – including All Women Shortlists for seats vacated by retiring MSPs – seems particularly important (Kenny and Mackay, 2013; Kenny, 2015; Swann, 2016a; on the substantive representation of women, see Engender 2016a; 2016b).

You can see the difference in the membership of the parties that really try …

Women MSPs, by Party, 1999-2016

	1999	2003	2007	2011	2016
SNP	15 (42.9%)	9 (33.3%)	12 (25.5%)	19 (27.5%)	27 (42.9%)
Conservative	3 (16.7%)	4 (22.2%)	5 (31.2%)	6 (40.0%)	6 (19.4%)
Labour	28 (50.0%)	28 (56.0%)	23 (50.0%)	17 (45.9%)	11 (45.8%)
Greens	0 (0%)	2 (28.6%)	0 (0%)	1 (50%)	1 (16.7%)
Lib Dems	2   (11.8%)	2   (11.8%)	2   (12.5%)	1   (20.0%)	0 (0%)
Total	48 (37.2%)	51 (39.5%)	43 (33.3%)	45 (34.9%)	45 (34.9%)

 

Source: adapted and updated (using figures from Gender Politics, 2016 and Swann, 2016b) from Cairney et al (2015: 9). Table does not include ‘other’ parties/ independents.

Apologies for the Harvard versus weblink referencing. This is a short section  copy/pasted from an article  that I am writing for Scottish Affairs (to be published in August 2016). You can find the full paper here:  Cairney 2016 Scottish Parliament election 2016 in Scottish Affairs 11.5.16

The Scottish Parliament Election 2016: another momentous event but dull campaign

Abstract. The Scottish Parliament election in 2016 produced two surprising results: it represents a reversal of SNP/ Labour party fortunes so complete that we now take it for granted, but the SNP did not achieve a widely-expected majority; and, the huge surge of support for the Scottish Conservatives was enough to make it (easily) the second largest party. A mistaken sense of inevitability of the result – another SNP majority – helped produce a dull campaign and keep alive the prospect of a second referendum on Scottish independence. This article has four main sections: putting the 2016 election in recent historical context; considering the implications of consistently high SNP support on the constitution; highlighting key issues in the election campaign; and, examining the SNP’s policy agenda from 2016.

Introduction

The Scottish Parliament election in 2016 was momentous, but not entirely for the reasons we expected. The main outcome is the SNP’s third victory in a row since 2007, which is likely to keep it in office until at least 2021. The results eclipse the former record by Scottish Labour, which governed Scotland in coalition with the Scottish Liberal Democrats from 1999-2007. The SNP also improved its constituency votes and seats, but lost enough ground in the regional list to deprive it of a second outright majority in a row. Consequently, given such high expectations for the SNP – on the back of its ‘landslide’ victory in 2011 and thumping win in the UK General Election in 2015 – its third Holyrood election victory in a row can be interpreted as a further indicator of its success but also a sign that its dominance should not be taken for granted. Its circa-45% share of the vote was enough to produce a majority in 2011 but not 2016.

Further, while the now-predictable decline of Scottish Labour seems almost complete, this time the main beneficiary was the Scottish Conservative and Unionist Party which became the main opposition in Holyrood for the first time. The Liberal Democrats have also seen their fall from grace confirmed by a second poor showing which relegates them to the fifth and smallest party in Holyrood.

The historical significance of these trends is difficult to overstate. In the first Holyrood election in 1999 it seemed inevitable that Scottish Labour would be the largest party, with the SNP likely to represent an opposition party well off the pace. The early years were premised on the idea that, with devolution secure, the biggest party could focus on the political reforms associated with ‘new politics’, combining key measures associated with symbolic politics (including the greater representation of women and participation in politics beyond the ‘usual suspects’) and substantive policy change.

This expectation continued in 2003 but ended in 2007 when the SNP became the largest party by one seat. In 2011, its ‘landslide’ victory to secure a majority of seats – and trigger a process which led to a referendum on Scottish independence in 2014 – seemed extraordinary (particularly since Holyrood uses a mixed-member-proportional, not plurality, system).

Now, in 2016, the SNP has become so dominant of Scottish politics that its majority seemed inevitable. This sense of inevitability was bolstered by its showing in the UK General election 2015, when the party that always previously secured a small minority of seats – its highest ever number of seats was 11 (of 71, from 30% of the vote in October 1974) – won 56 of 59 (aided by a plurality system which exaggerated the effect of its 50% share of the vote). By 2016, on the back of several opinion polls, many expected its electoral dominance to be complete (although compare Philip, 2016 with Carrell and Brooks, 2016a).

Consequently, although the change over 17 years is phenomenal, this recent sense of inevitability helped produce a dull campaign. In all other Holyrood elections there was either the promise of novelty (from 1999) or high competition between the two main parties (from 2007), to produce a sense of the high stakes involved. So, we saw meaningful competition to accentuate important differences between parties on key policy issues or portray a party’s better vision and image of governing competence. This time, we knew that, for the most part, one manifesto counted far more than the rest.

It is also difficult to find evidence of success when the other parties have tried to interrogate the SNP’s record in government on issues such as health, education, and policing (Cairney, 2016b). This limitation helped produce, in early post-election commentary, a feeling (albeit with limited evidence) that the SNP didn’t need to rely as much on this image of governing competence, since so many of its new members and high number of voters seem to remain enthused more by the implications of SNP electoral success (more constitutional change) than its record in office. SNP spokespeople countered with the argument that the election represents a public vindication of its record.

So, we need to wait for detailed analysis on the role of valence politics and, in particular the parties’ images of governing competence, which was so central to SNP success in 2007 and 2011 (‘most voters thought that the party would do a better job in office than its rivals’ – Johns et al, 2013: 158).

Still, this legacy of the 2014 referendum can be found in the election debates in 2016. While the SNP has been looking for ways to keep alive, but postpone, a second referendum, the three main opposition parties continue to describe the SNP as a one issue party or extol the possibilities for policy change already afforded by further devolution in 2015. Of the few substantive issues to be discussed without a referendum frame, perhaps only educational attainment stands out because it is the issue on which First Minister Nicola Sturgeon has asked to be judged (while ‘fracking’ remains the issue that many in the SNP leadership would like to ignore).

Overall, this election comes with a strong sense of unfinished business elsewhere. In the short term, it has been overshadowed either by UK party politics (in the run up to local and mayoral elections) or the ‘Brexit’ referendum (June 2016) on the UK’s future in or out of the European Union. In the longer term, the SNP’s continued dominance keeps the issue of Scottish independence high on the agenda.

This has been the introduction to an article  that I am writing for Scottish Affairs (to be published in August 2016). You can find the full paper here:  Cairney 2016 Scottish Parliament election 2016 in Scottish Affairs 11.5.16

The Scottish Parliament election 2016: the talking points so far

It would be tempting to ignore the Scottish Parliament election campaigns in 2016 because the result seems like a foregone conclusion: the SNP will form a majority government for the next 5 years. Yet, let’s not give in to that temptation by confusing the boring predictability of the result with its monumental nature. It will represent the peak of a transformation in Scottish electoral politics since 1999 that almost no-one predicted (apart from the Nostradamus-style harbingers of doom and wild optimists). As a result, it presents an intriguing mix of talking points: some of them relate to the specific issues that have arisen so far, while others are bubbling under the surface.

The big talking point: the likely result 

The SNP’s victory will happen despite an electoral system (‘mixed-member proportional’) designed to be far more proportional than the plurality system of Westminster: 56 seats from regional lists, using the d’Hondt divisor, offset some of the distribution of the 73 constituency seats determined by a plurality vote. Yet, they only make it more proportional. The SNP’s 50% share of the vote secured 56 of 59 MPs (95%) in the 2015 UK General election. If, as seems likely from the polls, it can maintain that level of support in constituency votes, it might already secure a majority before the regional votes are counted (one forecast is a total of 72, or 56%, of seats, compared to Labour’s 32 and Conservatives’ 18).

The likelihood of an SNP majority has produced a weird game of chicken in which we all know what will happen regardless of the campaign but the party leaders still dare each other to declare the result, knowing that admitting defeat opens you to claims of defeatism (as with Conservative leader Ruth Davidson) while hinting at victory wins you the most ‘arrogant’ prize. Further, while the smaller parties mattered in 2003, they have now become a sideshow. The most consistently serious party remains the Scottish Greens which may secure as many (4) seats as the former-coalition-government Scottish Liberal Democrats, with the increasingly comic UKIP likely to receive none.

Talking points in the election so far

The main talking point is that the Scottish independence referendum in 2014 did not settle the constitutional debate. Instead, the main opposition parties (and Scottish Labour in particular) have woven into their 2015 and 2016 campaigns the idea that the SNP will use any election victory to push for a second referendum. Yet, the only plausible trigger (in the short term) relates to the referendum on the UK’s membership of the EU: if most voters in Scotland vote to stay in, and most voters in the UK overall vote to leave, it would ‘almost certainly’ prompt SNP demands for the second vote.

The prospect of a Yes vote in the Scottish referendum also prompted the main UK parties to promise substantially greater devolution (before the May 2016 election) to secure a No vote. So, the Scotland Act 2016 contains provisions to enhance the Scottish Government’s powers, including a greater ability to modify income tax rates and bands and reform some aspects of social security.

Greater devolution has prompted much debate but no resolution on how to use the so-called ‘Scottish rate of income tax’. What could have been a values-driven discussion about the benefits and costs of raising income tax to fund services, or about who should win and lose from taxation changes, has generally turned into a pedantic and (perhaps deliberately) confusing debate about the meaning of ‘progressive’ taxation (David Eiser describes a rise in SRIT as ‘slightly progressive’), the likely income from each 1p change in taxation, and the unintended consequences of greater higher-rate taxation in Scotland.  Further, since we all know the SNP will win the election, it is relatively hard to take seriously the tax plans of the other parties, including Scottish Labour’s planned 1p rise and the Scottish Conservatives’ unfulfilled hopes to reduce it (alongside its proposal to reintroduce tuition fees). Similarly, gone are the days when the Scottish Greens’ more radical income and land tax plans had any chance of success.

The lack of a settled constitution has also contributed to the lack of a proper debate on the SNP’s record in office – which is weird if you consider that, until recently, the main factor in the SNP’s electoral success in 2007 and 2011 is ‘valence politics’, which describes the tendency for political parties to promise similar things and run campaigns on things like the image of their leader, their vision for the future, and their image of governing competence. The SNP did particularly well to maintain an image of competence in 2011, but it is tempting to think that the popularity of Nicola Sturgeon, and the post-referendum bump for the SNP, has made this less of an issue in 2016. Opposition parties have been trying to maximise concerns about the performance of the NHS and Police Scotland, and the SNP’s failure to reduce the ‘attainment gap’, but there is little evidence to suggest that anything sticks – particularly when crises like the Edinburgh schools closures can generate attention but call into question Labour’s record on capital finance up to 2007.

Some important points are often not talking points …

One issue which could have hurt the SNP is ‘fracking’ because there is some internal division in the SNP about the Scottish Government’s decision to maintain a moratorium rather than complete ban on shale oil and gas development (Scottish Labour now supports a ban). Yet, the moratorium, along with with Sturgeon’s recent description of her position as ‘highly sceptical about fracking’ and the decision of the SNP’s leadership not to debate the issue at its annual conference, has meant that it can remain a non-talking point until after the election.

… but sometimes that’s a good thing

Perhaps the most promising non-talking point was Kezia Dugdale’s decision to ‘share with the world that I’m in love with a woman’, generally receive praise, and establish the Scottish Parliament as the home to an unusually large number of LGB party leaders. There is also some evidence to suggest that gender-based equality of selection is ‘catching on’ again (and reinforced by the high number of women in party leadership roles) after a few false dawns. Although the SNP will dominate party politics for years to come, some issues like ‘microcosmic representation’ are bigger than parties.

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.

New politics: a central or peripheral role for the Scottish Parliament? #POLU9SP

In many ways, the Scottish Parliament became the alternative to ‘old Westminster’ described initially by the Scottish Constitutional Convention. Its electoral system is more proportional, it contains a larger proportion of women, it has a more ‘family friendly’ and constituency friendly design, and it has no House of Lords.

In other ways, Holyrood became part of the ‘Westminster family’ (to reflect the UK Government’s influence on its design). The executive resides in the legislature, it produces and amends the vast majority of legislation, and it generally controls parliamentary business with a combination of a coalition (1999-2007) or single party (2011-16) majority and a strong party ‘whip’. Scottish parliamentary committees have performed a similar scrutiny function to Westminster. Holyrood is a hub for participatory and deliberative democracy, but more in theory than practice. The Scottish Parliament enjoyed minority government from 2007-11, but this made far less of a difference than you might expect.

Overall, it is a body with unusually strong powers in relation to comparable legislatures such as Westminster, not the Scottish Government. It is often peripheral to the policy process. Further, two aspects of devolution may diminish its role in the near future: further devolution from the UK to Scotland, and from the Scottish Government to local public bodies.

Distinctive elements of the Scottish Parliament

The Scottish Parliament’s electoral system, mixed member proportional, combines 73 constituency seats elected by a plurality of the vote, plus 56 regional seats elected using the D’Hondt divisor:

You can see its more-but-not-completely proportional effect in Scottish Parliament electoral results since 1999. Since there are more constituency than regional seats, the system still exaggerates the size of the party which dominates the plurality vote: Scottish Labour in 1999, 2003, and 2007, and the SNP in 2011.

Still, from 1999-2011, the system had the desired effect. In 1999 and 2003, Labour was the largest party but it required support from the Scottish Liberal Democrats to form a coalition majority government. In 2007, the SNP was the largest party by one seat, and it formed a minority government. Only in 2011 did we see a single party SNP majority built on approximately 45% of the vote. This is likely to rise in 2016.

The representation of women

There was a clear devolution effect on the election of women in the Scottish Parliament. At its peak in 2003, 40% of MSPs were women (35% from 2011) while 18% of MPs were women (29% from 2015). This level relied heavily on Scottish Labour which, in 2003, had 50 seats, of which 28 (56%) were women.

Family and constituency friendly working

The Scottish Parliament has restricted working hours, with committee and plenary business restricted largely to business hours Tuesday to Thursday, which provides more opportunity for MSPs to (for example) combine work commitments with caring responsibilities than MPs in Westminster, which conducts business on more days and longer days. Holyrood was also designed to allow MSPs to spend a meaningful amount of time in their constituencies. We can discuss in the lecture how you think MSPs actually use their time.

A unicameral Scottish Parliament with significant powers

The SCC’s rejection of an unelected House of Lords did not come with a desire for an elected second chamber. Instead, the Scottish Parliament’s unicameral system is designed to make up for the lack of a ‘revising chamber’ by ‘front loading’ legislative scrutiny: specific committees consider the principles of a bill before it is approved, in principle, in plenary (stage 1); and, they amend a bill (stage 2) before the final amendments in plenary (stage 3).

Many of these specialist committees are permanent (such as the audit committee). All committees combine the functions of two different kinds of Westminster committee – Standing (to scrutinise legislation) and Select (to monitor government departments, including, for example, the ability to oblige ministers to report to them). They also have the ability to hold agenda setting inquiries, monitor the quality of Scottish Government consultation before they present bills to Parliament, and initiate legislation (the process for MSPs to propose bills is also simpler).

The idea is that committees become specialist and business-like (leave your party membership at the door) and their members become experts, able to hold the government to account in a meaningful way, and provide alternative ideas or legislation if dissatisfied with the government’s response.

Part of the Westminster family

Yet, the operation of the Scottish Parliament is similar to Westminster in key respects. It is set up to allow the Scottish Government to govern and for the Parliament to scrutinise its policies. It does not have the resources to act routinely as an alternative source of legislation or to routinely set the agenda with inquiries. When engaged in scrutiny, it relies heavily on the Scottish Government for information, has few resources to monitor the details of public sector delivery, and tends to focus on, for example, broad strategies and principles. Turnover is high among MSPs, who struggle to generate subject-based expertise. The party whip is strong, and a government with a majority of MSPs tends to dominate both committee and plenary proceedings.

This imbalance of resources between government and parliament is reflected in key measures of activity: the government tends to produce and amend the vast majority of legislation. Committees had a clear influence on some bills (can you give me some examples?), and MSPs have passed some of their own (what were the most important?), but we might say something similar about Westminster.

Did coalition, minority, and single party government make a difference?

The Labour-Liberal Democrat coalition operated, from 1999-2007, in a way that you might associate with a majority party in Westminster. It dominated the parliamentary arithmetic, produced and amended most legislation, and won almost all votes. Both parties signed up to a ‘partnership agreement’ that set a 4-year policy agenda each term, and the whip was remarkably strong (more so than in Westminster). There were many examples of cooperative working between government and parliament, bills produced by MSPs, and agenda setting inquiries – particularly during the initial ‘honeymoon’ period – but these cases should be seen in the overall context of a fairly traditional relationship.

Minority government changed things, often significantly, but not as much as you might expect. Crucially, it was unable to gain support for a bill to hold a referendum on independence (doesn’t that seem like such a long time ago?). It also had insufficient support for its legislative plans to reform local taxation and introduce a minimum unit price on alcohol (what has happened in these areas since then?). It lost more parliamentary votes, albeit mostly in relation to ‘non binding’ motions (although it responded in a major way to the motion to fund the Edinburgh trams project), and had to think harder about how to gain the support of at least one other party.

On the other hand, it continued to produce and amend the bulk of legislation. It was also able to pursue many of its aims without legislation or significant parliamentary consent (such as capital finance and public service reforms). The Scottish Parliament did not pursue a new role: it produced few memorable inquiries and very few bills.

So, the notable effect of single party majority government should be seen in this context. Clearly, the SNP has the ability to influence parliamentary proceedings in a way not enjoyed by any other single party in the Scottish Parliament’s history. However, there was not a fundamental shift of approach or relationship following the shift from minority to majority government. The government continues to govern, and the parliament maintains a traditional scrutiny role with limited resources and minimal willingness to do things differently (we can explore this point in more depth in the lecture).

Future developments: will greater devolution diminish the Scottish Parliament’s role?

In a Political Quarterly article, I identify two aspects of devolution that may diminish the Scottish Parliament’s role in the near future:

1. further devolution from the UK to Scotland will see the Scottish Parliament scrutinise more issues with the same paltry resources
2. further devolution from the Scottish Government to local public bodies will see the Scottish Parliament less able to gather enough information to perform effective scrutiny.

Both issues highlight the further potential for the Scottish Parliament, heralded as a body to ‘share power’ with the government and ‘the people’, to play a peripheral role in the policy process. To all intents and purposes, the new Scotland Act will devolve more responsibilities to Scottish ministers, without a proportionate increase in parliamentary resources to keep tabs on what ministers do with those powers.

Perhaps more importantly, the Scottish Parliament can only really keep tabs on broad Scottish Government strategies. What happens when it devolves more policymaking powers to local public bodies, such as the health boards that give limited information to committees and the local authorities that claim their own electoral mandate? Who or what will the Scottish Parliament hold to account on behalf of the public?

Further reading: this final point about the tensions between traditional notions of democratic accountability and new forms of public service delivery are not unique to Scotland.

Devolution and ‘new politics’ in Scotland: the implications for policymaking #POLU9SP

The phrases ‘new Scottish politics’ or ‘new politics’ should be understood with reference to ‘old Westminster’. They represented important reference points for the ‘architects of devolution’, or the reformers keen to present devolution as a way to transfer policymaking responsibilities and reform political practices.

These aims can be associated with two documents specific to Scotland. The first is the Scottish Constitutional Convention’s (1995) Scotland’s Parliament: Scotland’s Right, which made a general case for political reform:

the coming of a Scottish Parliament will usher in a way of politics that is radically different from the rituals of Westminster: more participative, more creative, less needlessly confrontational.

The second is the Consultative Steering Group’s (1998) Shaping Scotland’s Parliament, which designed the operation of the Scottish Parliament with regard to four key principles: ‘power sharing’, ‘accountability’, ‘equal opportunities’, and ‘openness and participation’.

However, I’ll show you that the debate links to a broader distinction between ‘majoritarian’ and ‘consensus’ democracy.

This focus on new political behaviour was an important reference point for politicians and commentators in the early years of devolution. Now, you don’t hear it so much. Yet, it gives us a reference point, to highlight limited progress towards ‘new politics’ and identify continuities in politics and policymaking despite these expectations for novelty.

In particular, I’ll show you, in a series of lectures, that Scottish devolution came with a set of measures combining new and ‘old Westminster’ elements, and it soon became a political system that would not look out of place in the ‘Westminster family’. Then, we can note that the slow or limited progress of new politics did not feature prominently in the debate on Scottish independence. Although the previous debate on constitutional change gave advocates a major opportunity to pursue political reforms, the independence debate did not. Finally, we can discuss the overall implications for policymaking: did the new politics agenda change how people make policy in Scotland?

From a ‘majoritarian’ to a ‘consensus’ democracy?

When you read some of the literature describing new Scottish politics as an alternative to old Westminster politics, note how similar it sounds to Lijphart’s discussion of majoritarian and consensus democracies. Neil McGarvey and I summarise Lijphart’s argument in Scottish Politics (see also my co-authored comparisons with the UK, Sweden, and Switzerland):

(click on them to make them bigger)

These discussions suggest that, for many commentators, ‘Westminster’ represents an archetypal centralised political system with an adversarial and top-down political culture. This is an image that we should examine critically throughout the course rather than take for granted.

For now, note the link between the formalised rules to govern behaviour, such as on the style of election or the division of powers between organisations, and the informal rules or ‘cultures’ that they are alleged to promote. In particular, note that we might hesitate to expect that a shift in the voting system, from plurality to proportional, will necessarily prompt a major shift in political culture.

Scottish politics: combining new and ‘old Westminster’ elements

‘New politics’ is a meaningless phrase without a clear definition or reference to specific objectives. In Scottish politics, you can take your pick from quite a long list of ‘old Westminster’s’ alleged failings (the next section is in pages 12 and 13 of the 1st ed of Scottish Politics):

‘Electoral system – the first-past-the-post system exaggerates majorities and excludes small parties. It tends to result in a majority which, combined with a strong party system, ensures that one party dominates proceedings.

Executive dominance – this ‘top-down’ system, in which power is concentrated within government, is not appropriate for a Scottish system with a tradition of civic democracy and the diffusion of power. In Westminster, the centre not only has the ability for force legislation through (and ignore wider demands), but also to dominate the resources devoted to policy. Parliament does not possess the resources to hold the executive to account.

Adversarial style – most discussions in Westminster take place in plenary sessions (the whole House sits together) with a charged partisan atmosphere. There is insufficient scope for detailed and specialist scrutiny in an atmosphere conducive to consensual working practices. This extends to committees – the partisan nature of politics undermines real scrutiny and there are limited resources to investigate or monitor departments. Given the distinction between select and standing committees, there may be a problem of coordination and a lack of potential for long-term consensual styles to emerge.

Too much power is vested in the House of Lords – an unelected and unrepresentative second chamber.

Although the government may consult with interest groups, this tends to be with the ‘usual suspects’. This reliance on the most powerful and well resourced groups (such as big business) reinforces the concentration of power in a ruling class.

Since power is concentrated at the centre there are limited links between state and civic society. Outside of the voting process, there are limited means for ‘the people’ to influence government.

Parliamentary overload – Parliament is too focused on scrutinizing government legislation. This leaves MPs with too little time to devote to their constituencies.

Parliament as a whole does not reflect the people that elect it in terms of microcosmic representation. There is a particular lack of women in Parliament as well as a tendency for MPs to be drawn from a ruling class’.

These deficiencies would therefore be addressed with a number of aims:

A proportional electoral system with a strong likelihood of coalition and bargaining between parties.

A consensual style of politics with a reduced role for party conflict.

Power-sharing rather than executive dominance.

A strong role for committees to initiate legislation, scrutinize the activity of the executive and conduct inquiries

Fostering closer links between state and civic society through parliament (e.g. with a focus on the right to petition parliament and the committee role in obliging the executive to consult widely)

Ensuring that MSPs have enough time for constituency work by restricting business in the Scottish Parliament to three days per week.

Fostering equality in the selection of candidates and making the Scottish Parliament equally attractive to men and women’.

Why did so few people discuss ‘new politics’ during the independence referendum?

In this lecture, I’m going to ask what you think of this list: how many of these aims do you think have been fulfilled? For example, is the Scottish Parliament more representative in terms of social background?

We can discuss briefly why you think that an evaluation of devolution, and a discussion of further political reform, did not seem to be a central feature of the independence referendum debate. Did most people assume that a Yes vote was – yet again – a rejection of ‘Westminster politics’ without thinking about the extent to which it was different from Holyrood politics? Or, if it didn’t come up much, what were people talking about instead?

We can then go into some detail on participation, the role of the Scottish Parliament, and ‘pluralist democracy’ in subsequent lectures.

What can we conclude about the distinctiveness of Scottish policymaking?

Finally, we will come back to the main theme or guiding question of the course: what difference do these things make to policymaking in Scotland?

In particular, let’s see what you think of these two arguments:

1. The argument specific to Scotland. Despite these hopes for greater ‘power sharing’ between the government, parliament, and ‘the people’, Scottish government largely operates in the same way as UK government. Most policy is processed by governments who consult with ‘pressure participants’ such as interest groups.
2. The more general argument. There is a ‘universal’ logic to this kind of policymaking in majoritarian and consensus democracies. Although they look different, they engage in very similar policy processes.

Is our understanding of Scottish politics stuck in the past?

The good news is that there has been refreshingly high attention to the substance of Scottish politics lately. Concerns about the operation of Police Scotland, and the new exams system, show that we can talk about more than the next referendum, election, or leadership race.

The bad news is that a lot of this discussion betrays an old fashioned sense of Scottish politics: power is concentrated in central government; and we can hold ministers to account for everything that goes wrong.

Instead, since devolution, successive Scottish governments have been reforming the public landscape, reinforcing the role of non-departmental public bodies, devolving responsibility for public sector performance to local and health authorities, and expecting those bodies to form new relationships with stakeholders, communities, and the users of public services. In this sense, they have been pursuing the idea that we all share responsibility for policy outcomes.

Further, this blurring of central/local accountability comes on top of a more general sense that we don’t know exactly what the Scottish Government is responsible for: the devolved settlement might look clear on paper, but the level of UK/ Scottish Government overlaps and shared responsibilities (which will rise following the new Scotland Act) gives too many people the sense that Scottish ministers are not fully in control and therefore can only take so much of the blame.

These developments help explain why so many SNP ministers seem to be Teflon whenever anything seems to go wrong in government. Of course, most of their ability to remain popular stems from our ongoing fascination with the constitution – but not all of it. Indeed, many people vote SNP because it has developed a hugely impressive image of governing competence (which is the main explanation for its 2011 majority). This image will suffer if it looks like Scottish ministers are making bad decisions which have a direct effect on policy outcomes.

In light of these developments in accountability, it would be right for people to complain that they make it harder to hold central government, and specific ministers, to account in a meaningful way – through parliamentary and media scrutiny, and in Scottish Parliament elections based on the Scottish Government’s record.

It would be wrong, instead, to carry on as normal on the assumption that none of these developments have taken place. In this case, partisan (and some media and a lot of social media) criticisms just don’t hit the mark. They make a general case for SNP ministers to take the blame for something – using argument (a) the buck stops with ministers, or (b) you have been too obsessed with independence to pay attention to government – but don’t present a convincingly specific case which links poor ministerial decisions to poor outcomes.

So, if you see me on twitter arguing that certain criticisms don’t hit the mark, it is not because I am defending the SNP’s record in government. Instead, I am suggesting that too many criticisms of its record are too lazy or scattergun or vague to have any meaningful effect.

The language of complexity does not mix well with the language of Westminster-style accountability

A common argument in British politics is that the UK Government has exacerbated its own ‘governance problem’. A collection of post-war reforms, many of which were perhaps designed to reinforce central control, has produced a fragmented public landscape and a periodic sense that no one is in control. This outcome presents major problems for the ‘Westminster’ narrative of central government and ministerial accountability to the public via Parliament. If ministers are not in control of their departments, how can we hold them to account in a meaningful way?

Yet, in many cases, it is misleading to link these outcomes to specific decisions or points in time, since many aspects of the ‘governance problem’ are universal: policymakers can only pay attention to a small fraction of the issues for which they are responsible; they do not have enough information to make decisions without major uncertainty; policy problems are too multi-faceted and ‘cross-cutting’ to allow policymaking without ambiguity; there is an inescapable logic to delegating decisions to ‘policy communities’ which may not talk to each other or account meaningfully to government; and, delivery bodies will always have discretion in the way they manage competing government demands.

In this context, policymaking systems can be described usefully as complex systems, in which behaviour is always difficult to predict, and outcomes often seem to emerge in the absence of central control. Further, the literature on complexity provides some advice about how governments should operate within complex systems. Unfortunately, much of this literature invites policymakers to give up on the idea that they can control policy processes and outcomes. While this may be a pragmatic response, it does not deal well with the need for elected policymakers to account for their actions in a very particular way. What seems sensible to one audience may be indefensible to another. In particular, the language of complexity does not mix well with the language of Westminster-style accountability.

What we need is a response that sets out a governmental acknowledgement of the limits to its powers, combined with the sense that we can still hold elected policymakers to account in a meaningful way. Ideally, this response should be systematic enough to allow us to predict when ministers will take responsibility for their actions, redirect attention to other accountable public bodies, and/ or identify the limited way in which they can be held responsible for certain outcomes. Beyond this ideal, we may settle for a government strategy based on explicit trade-offs between pragmatism, in which governments acknowledge the effect of administrative devolution (or, in the case of local authorities, political devolution), and meaningful representation, in which they maintain some degree of responsibility for decisions made in their name.

The aim of this post’s further reading (updated 10.5.2022) is to draw lessons largely from the Scottish experience, which demonstrates an attempt to mix strategic responsibility with an element of flexibility and delegation. While we should not exaggerate the coherence of government strategies, we can meaningfully describe a ‘Scottish policy style’, identified in empirical studies, and a ‘Scottish approach’ as a self-styled description of policymaking by the Scottish Government. Further, the Scottish context is comparable enough to the UK to offer lessons. Although much of the rhetoric of ‘new Scottish politics’ suggests that it is markedly different from ‘old Westminster’, it has inherited a Westminster-style focus on government accountability to the public via Parliament (and an assumption that ‘the government governs’). Although Scotland is smaller, and the Scottish Government is able to design a governance style based on greater personal contact with interest groups and public bodies, this only serves to reinforce the importance of ‘universal’ problems when the problems that arise in Scotland resemble those faced in the UK. Overall, Scottish policymaking demonstrates that many problems related to ‘governance’ cannot be solved. Rather, the Scottish experience prompts us to identify important trade-offs between the delegation of administrative functions and the maintenance of central accountability.

To explain these issues, several papers:

1. Summarize how UK or Scottish governments have allegedly exacerbated governance problems
2. Separate this focus on specific outcomes from the universal constraints on central control common to all complex policymaking systems
3. Contrasts the practical advice that arises from a focus on complexity theory with the political imperative, in Westminster systems, to present policy outcomes as the responsibility of ministers.
4. Identify the balance struck between accountability and delegation by the Scottish Government since 2007, and the transferable lessons to other systems.

The relevant publications include:

1. Paul Cairney (2015) ‘How Can Policy Theory Have an Impact on Policy Making?’ Teaching Public Administration, 33, 1, 22-39 PDF
2. Paul Cairney (2015) ‘What is complex government and what can we do about it?’ Public Money and Management, 35, 1, 3-6 PDF
3. Paul Cairney (2015) ‘Scotland’s Future Political System’, Political Quarterly, 86, 2, 217-25 PDF
4. Paul Cairney (2016) ‘The future of Scottish government and public policy: a distinctive Scottish style?’ in (ed) McTavish, D. Politics in Scotland (London: Routledge) PDF
5. Paul Cairney, Siabhainn Russell and Emily St Denny (2016) “The ‘Scottish approach’ to policy and policymaking: what issues are territorial and what are universal?” Policy and Politics, 44, 3, 333-50 PDF
6. Paul Cairney (2017) “Evidence-based best practice is more political than it looks: a case study of the ‘Scottish Approach’”, Evidence and Policy, 13, 3, 499-515 PDF
7. Paul Cairney and Kathryn Oliver (2017) ‘Evidence-based policymaking is not like evidence-based medicine, so how far should you go to bridge the divide between evidence and policy?’ Health Research Policy and Systems (HARPS), DOI: 10.1186/s12961-017-0192-x PDF AM
8. Paul Cairney, Malcolm Harvey and Emily St Denny (2017) ‘Constitutional Change, Social Investment and Prevention Policy in Scotland’ in (ed.) Keating, M. A Wealthier, Fairer Scotland (Edinburgh: Edinburgh University Press)  PDF
9. Paul Cairney and Emily St Denny (2020) Why Isn’t Government Policy More Preventive? (Oxford University Press) Preview Introduction Preview Conclusion (Google Books) Blogs
10. Paul Cairney (2020) “The ‘Scottish Approach’ to Policymaking’ in (ed) Michael Keating The Oxford Handbook of Scottish Politics (Oxford: Oxford University Press), 463-80 Preprint
11. Paul Cairney, Emily St Denny, and Sean Kippin (2021) ‘Policy learning to reduce inequalities: the search for a coherent Scottish gender mainstreaming policy in a multi-level UK’, Territory, Politics and Governance, 9, 3, 412-33 https://doi.org/10.1080/21622671.2020.1837661 PDF
12. Paul Cairney, Emily St Denny, and Sean Kippin (2021) ‘Policy learning to reduce inequalities: the search for a coherent Scottish gender mainstreaming policy in a multi-level UK’, Territory, Politics and Governance, 9, 3, 412-33 https://doi.org/10.1080/21622671.2020.1837661 PDF
13. Paul Cairney (2021) ‘The contested relationship between governance and evidence’ in (eds) Christopher Ansell and Jacob Torfing Handbook on Theories of Governance (Cheltenham: Edward Elgar) PDF
14. Paul Cairney (2021) ‘Would Scotland’s political structures and policy-making change with independence?’ in (eds) Eve Hepburn, Michael Keating and Nicola McEwen Scotland’s New Choice: Independence after Brexit (Edinburgh: Centre on Constitutional Change and The Hunter Foundation) PDF whole book

Some of the wider issues are discussed here:

Policy Concepts in 1000 Words: the Westminster Model and Multi-level Governance

Policy Concepts in 1000 Words: Complex Systems

What is ‘Complex Government’ and what can we do about it?

Sharing professional and academic knowledge: The role of academic-practitioner workshops (on turning policy and complexity theories into something consistent with Westminster politics)

Life goes on after the Scottish independence referendum (3000 words and a lecture)

The Scottish political system and policy process share the same ‘complex government’ features as any country (LSE 1200 words)

You can also find these themes in a half-written book called Politics and Policymaking in the UK.

The Smith Commission: will greater powers come with greater democratic accountability?

The main focus of the Smith Commission is to decide which powers should be devolved to the Scottish Parliament. Yet, in practice, these powers are held by the Scottish Government and devolved to, or shared with, a large number of governmental, non-governmental and quasi-non-governmental bodies. As a result, no one is quite sure who is responsible for decisions made in the name of the Scottish Parliament. This makes it almost impossible to identify a democratic system in which there are meaningful levels of accountability – either through the ballot box or in our day to day scrutiny of government policy. The Smith process should not just be a means to devolve greater powers. Rather, it should consider how to make sure that, with greater responsibility, comes greater democratic accountability.

Scotland has an apparently simple accountability process: power is concentrated in the hands of ministers, who are accountable to the public through Parliament. This simple picture of ministerial accountability is increasingly misleading. The Scottish Government plays an overarching role in policymaking: it sets a broad strategy and invites a large number of public bodies to carry it out. Ministers devolve most day to day policymaking to civil servants. Most policy is processed in ‘policy communities’, which bring together civil servants, interest groups, and representatives of an extensive public sector landscape, including local, health, police, fire service and other service-specific bodies. This generally takes place out of the public spotlight and often with minimal parliamentary involvement. Indeed, few non-specialists could describe how these bodies interact and where key decisions on Scottish policy are being made.

Further, the Scottish public sector landscape is changing. The Scottish Government has moved from the production of short term targets to long term outcomes measures which go beyond the five-year terms of elected office. It often encourages localism. It has, since 2007, produced a National Performance Framework and rejected the idea that it can, or should, micromanage public sector bodies using performance measures combined with short term targets. Instead, it encourages them to cooperate to produce long term outcomes consistent with the Framework, through vehicles such as Community Planning Partnerships. Further, following its commitment to a ‘decisive shift to prevention’, it has begun to encourage reforms designed to harness greater community and service-user design of public services.

Most of these measures seem appropriate, particularly when they foster decision-making by local actors with greater knowledge of local areas. Yet, they are also troubling, because it is increasingly difficult to know who is responsible for policy outcomes – and, therefore, who or what to hold to account. In the Scottish political system, the Scottish Government processes the vast majority of policy, the Scottish Parliament is generally peripheral to that day-to-day policy process, and the public has limited opportunities for direct influence.

This is important background which should inform the current debate, most of which focuses on more powers and neglects the need for more accountability. The Smith agenda gives us a chance to evaluate the devolution experience so far, and consider what might change if there is further devolution. As far as possible, we should focus on the Scottish political system as a whole, including the relationship between the Scottish Parliament, public participation, the Scottish Government, and a wide range of public sector bodies, most of which are unelected.

Consider, for example, if the system follows its current trajectory, towards a greater reliance on local governance. This development has great potential to undermine traditional forms of parliamentary scrutiny. The Scottish Parliament already lacks the ability to gather information independently – it tends to rely on bodies such as the Scottish Government to provide that information. It does not get enough information from the Scottish Government about what is going on locally. Scotland lacks the top-down performance management system that we associate with the UK Government, and a greater focus on long term outcomes removes an important and regular source of information on public sector performance. Local and health authorities also push back against calls for detailed information. More devolution to local authorities would exacerbate this tension between local and national accountability.

Local decision-making also has the potential to change the ‘subsystem’ landscape. Currently, most Scottish policy is processed by civil servants who consult regularly with pressure participants. Most ‘lobbying’ to the Scottish Government is done by (a) other parts or types of Government and (b) professional and interest groups. Civil servants rely on groups for information and advice, and they often form long term, efficient and productive relationships based on trust and regular exchange. When policy is made at the Scottish level, those groups organise at the Scottish level. The Scottish Government is a key hub for policy relationships; it coordinates networks, referees disputes, and gathers information and advice at a central level. One consequence of devolving more power locally is that these groups must reorganise, to shift from lobbying one national government to 32 local governments. Such a shift would produce new winners and losers. The well-resourced professional groups can adapt their multi-level lobbying strategies, while the groups working on a small budget, only able to lobby the Scottish Government, will struggle.

Such developments may prompt discussions about three types of reform. The first relates to a greater need to develop local participatory capacity, to take on the functions performed less by these national organisations. For example, the ERS Scotland’s suggestion is that more local devolution could produce a more active local population. Even so, we still need to know more about how and why people organise. For example, local communities may organise in an ad hoc way to address major issues in their area as they arise; to engage in a small part of the policy process at a particular time. They do not have the resources to engage in a more meaningful way, compared to a Parliament and collection of established groups which maintain a constant presence and develop knowledge of the details of policies over time.

The second relates to governance reforms which focus primarily on the relationship between elected local authorities, a wide range of unelected public bodies, and service users. There is some potential to establish a form of legitimacy through local elections but, as things stand, local authorities are expected to work in partnership with unelected bodies – not hold them to account. There is also some scope to develop a form of user-driven public service accountability, but separate from the electoral process and with an uncertain focus on how that process fits into the wider picture.

The third relates to parliamentary reform. So far, the Scottish Parliament has not responded significantly to governance trends and a shift to outcomes-focused policymaking. Its main role is to scrutinise draft Scottish Government legislation as it is introduced. Its committees devote two to three months per year to the scrutiny of the annual budget bill. In general, this scrutiny has a very narrow focus, with a limited emphasis on pre- or post-legislative scrutiny, and its value is unclear. It has the potential to change its role. It can shift its activities towards a focus on Scottish Government policy in broader terms, through the work of inquiries in general and its finance and audit functions in particular. However, its role will remain limited as long as it has a small permanent staff. The devolution of greater responsibilities to the Scottish Government, without a proportionate increase in Scottish Parliament research capacity, could simultaneously enhance and undermine the Scottish Parliament’s powers.

The Smith Commission provides a brief ‘window of opportunity’ to consider these issues of governance, participation and accountability – and how these problems may be exacerbated by the devolution of greater powers. We face the possibility of a Scottish system, in which we already struggle to hold policymakers to account, taking on more responsibilities without a proportionate increase in accountability measures. For example, the Scottish Parliament will have to scrutinize more activity with the same, limited, resources.

The Smith agenda should already prompt us to consider how powers would be used if they were devolved. This is not about the different policy decisions that each party would make with extra powers, which Smith has, appropriately, decided is outside of his remit. Rather, it is about how, for example, new tax and welfare powers interact with already-devolved powers over public services – such as when the devolution of relevant taxes and housing benefit can be linked to housing policy.

Similarly, it is difficult to consider the devolution of greater powers without considering how they will be used – and what effect more devolution would have on Scottish democracy. People already struggle to know who to hold to account in a relatively simple system in which there is a quite-clear list of devolved powers and tax/ welfare powers stay with the UK. We should think more about how we can understand a further devolved system, in which powers are shared across levels and, for example, ministerial accountability to parliament may only scratch the surface of a complex accountability landscape. This aspect of the process may, in principle, appear to be beyond the Smith remit but, in practice, there is no way to separate the long-term constitutional question from the day-to-day democratic question.

I discuss most of these issues in this paper: Cairney Political Quarterly workshop 23.10.14

See also: Public Lecture: ‘Will life go on after the Scottish Independence referendum?’

The Scottish political system and policy process share the same ‘complex government’ features as any country

 

Social investment, prevention and early intervention: a ‘window of opportunity’ for new ideas?

In policy studies, we talk about the rare occasions when some problems or policy solutions ‘take off’ suddenly or when an ‘idea’s time seems to come’. Indeed, one aim of Kingdon’s ‘multiple streams analysis’ is to show us that ideas come and go, only to be adopted if the time is right: when attention to a problem is high, a well-thought-out idea exists, and policymakers have the motive and opportunity to adopt it. Only then will policy change in a meaningful way.

If only life were so simple. Instead, look again at that word ‘idea’. It means at least two things: a specific policy solution to a clearly defined problem, or a potentially useful but vague way of thinking about a complex and perhaps intractable (or, at least, ‘wicked’) problem. If it is the latter, the ‘window of opportunity’ may not produce the sort of policy change we might expect. Instead, we may see a groundswell of attention to, and support for, a policy solution that is very difficult to ‘operationalise’. We may find that everyone agrees on the broad solution, but no-one agrees on the detail, and we spend years making very little progress.

This is the danger with several potential solutions which highlight the possibility of addressing: the fall-out from austerity and reduced budgets; the need to reduce demand for acute public services by addressing socio-economic problems at an early stage; the need to ‘join up’ a range of government responsibilities; and, a desire to move away from unhelpful short term targets towards more long term and meaningful measures of policy success. Several solutions are currently in good currency, including: the social investment model, the wellbeing agenda, prevention (or preventative spending) and early intervention.

In each case, there may be a window of opportunity to promote such solutions, but the following obstacles arise:

• Each example represents an idea, or way of thinking about things like public expenditure, that could either underpin new ways of thinking within government, become faddish before being rejected, or provide a gloss to justify decisions already made.
• If the former, it could take decades for this way of thinking to become ‘institutionalised’, turned into ‘standard operating procedures’ and detailed rules to coordinate action across the public sector (suggesting that it requires meaningful, sustained cross-party support).
• During this time, governments will still face hard choices about which areas are worthy of the most investment. In each case, the aim is vague, the evidence is often weak, it is difficult to compare the return from investments in different public services, and the process has a tendency to revert to a political exercise to determine priorities. In the face of uncertainty, policymakers may revert to tried and trusted rules to make decisions, and reject the more risky, new approach, with uncertain measures and outcomes.
• The budget process is, in many ways, separate from a focus on social investment, activity and outcomes – largely because it remains an exercise to guarantee spending on established services and departments, or to reduce spending on some services at the margins.
• There is a level of unpredictability in politics that makes such long term investment problematic – particularly when investment in one area, with quiet winners, comes at the expense of another service, with vocal losers (as demonstrated by any move to close a local hospital, rural school or university department). A tension between long term central planning and short term electoral issues often produces incremental and non-strategic changes, in which services receive ‘disinvestment’ and are allowed to wither.

To some extent, these issues may be addressed well during regular interactions between governments and their ‘social partners’, such as when governments, business and unions get together to produce something akin to a framework in which other policy decisions are made. In that sense, group-government relations represent a form of ‘institutional memory’. Governments and politicians come and go, but group-government relations represent a sense of continuity. This could be the main way to keep social investment on government agendas, as a salient topic or, perhaps more powerfully, as a way of thinking that is taken for granted and questioned rarely, even when new parties enter office.

Yet, there are problems with this ‘corporatist’ aim if it refers to government-wide group-government relations, since policy networks tend to develop on a ‘sectoral and subsectoral’ scale. Governments tend to deal with complex government by breaking it down into manageable chunks. Consequently, for example, medical and teaching unions could engage as one of many trades unions in concert with business, but they tend to speak mostly to education and health departments, in areas with minimal union-business links. Further, such groups tend to be more concerned with the targets and priorities identified at sectoral levels. They may like the idea of soft targets and long term, more meaningful, outcome measures, but have to address short term targets; they may pay attention to cross-sectoral aims when they can, but focus most of their attention on particular fields and priorities specific to their work.

The Scottish Government case

The issues I described are not unique to one government. Yet, some governments also face distinctive problems. For example, in Scotland, as part of the UK, there are specific issues around the links between policy instruments, shared responsibility, and joined up thinking:

• The Scottish Government remains part of a UK process in which monetary and fiscal policies are determined largely by the Treasury, with the Scottish Government’s primary role to spend and invest.
• Its position raises awkward questions about the consistency of policies, when spending decisions based on a ‘universalism’ narrative cannot be linked directly to the idea that redistribution should be achieved through taxation. The Scottish Government may be overseeing a spending regime that favours the wealthy and middle classes (universal free services with no means testing) as long as taxation is not sufficiently redistributive.
• These issues have not become acute since devolution, partly because the Scottish Government budget has been high, and the independence agenda has postponed some difficult debates on new budget priorities. However, they are likely to become more pressing as budgets fall and organisations compete for scarcer resources.

Current issues: more powers, more accountability?

These issues are important right now, because the Smith Commission is currently considering the devolution of further powers to the Scottish Parliament/ Government:

• A focus on policies such as ‘prevention’ should prompt us to consider how to align priorities and powers. The parallel is with economic policy, in which a key concern relates to the alignment of fiscal powers with monetary union. With prevention, we should ask what’ more powers’ would be used for. For example, would the Scottish Government seek to address health and education inequalities by addressing income inequalities? If so, what powers could be devolved to address this issue without undermining that broader question of macroeconomic coherence?
• A focus on shared powers raises new issues about accountability. As things stand, accountability is already a problem in relation to outcomes based measures and the devolution of policies to local public bodies. In a ‘Westminster’ style system, we are used to the idea of government accountability to the public via ministers accounting to Parliament, or directly via elections. Yet, if the responsibility for outcomes is further devolved, and outcomes measures span multiple elections, how can we hold governments to account in a meaningful way? Or, as importantly, if elected policymakers still feel bound by these short-term accountability mechanisms, how can we possibly expect them to commit to policies with short term costs, with pay-offs that may only begin to show fruit after they have retired from office?
• These issues are further exacerbated by a shared powers model, in which we don’t know where UK government responsibility ends and Scottish Government responsibility begins.

This sort of discussion may prompt us to re-examine the idea of a ‘window of opportunity’ for change, at least when we are discussing vague solutions to complex problems. A window may produce a broad change in policymaker commitment to a policy solution, but that event may only represent the beginning of a long, drawn out process of policy change. We often talk about ‘policy entrepreneurs’ lying in wait to present their pet solutions when the time is right – but, in this case, ‘solution’ may be a rather misleading description of a broad agenda, in which everyone can agree on the aims, but not the objectives.

The Scottish Independence Debate: a missed opportunity for political reform?

This post appears on the Crick Centre Blog: http://www.crickcentre.org/blog/scottish-independence-debate-missed-opportunity-political-reform/

It is commonplace to argue that the Scottish independence referendum has reinvigorated political debate: grabbing the attention of people who would normally not engage; producing high TV audiences for debates; and packing the town halls with people hungry for information. Yet, two problems should give us pause for thought. First, public knowledge of the issues is patchy – as expressed in polls as general uncertainty or incorrect answers to specific questions. Second, public attention to a small number of issues – including the future of a currency Union, Scotland’s membership of the EU, Scotland’s NHS, and Trident – comes at the expense of attention to political and policy processes. The referendum on Scottish independence has not produced the same focus on political reform as the referendum on Scottish devolution.

In the lead up to the referendum in 1997, the proposed Scottish Parliament was at the heart of debates on political reform. Elite support for devolution – articulated by political parties, local governments, and ‘civil society’ groups, via the Scottish Constitutional Convention – was built on the idea of a crisis of legitimation, linked to an image of top-down Westminster politics based on the concentration of government power and marginalisation of Parliament and ‘civil society’. Devolution was accompanied by an electoral system designed to diffuse power among parties, and some measures to help put the Scottish Parliament at the centre of new forms of participative and deliberative democracy. The Consultative Steering Group, a cross-party group with members drawn from ‘civil society’, articulated the principles it would seek to uphold: ‘the sharing of power’ between government, parliament and ‘the people’; accountability of government to parliament and the people; accessibility; and, equal opportunity.

Scottish devolution had an important impact in key areas: producing a more transparent legislature, coalition and minority governments, and increasing the representation of women. Yet, it had a limited impact on ‘power sharing’ and accountability. The Scottish system remains part of the ‘Westminster family’, with a traditional focus on the accountability of ministers to the public via Parliament. This outcome became problematic in several respects: Scottish Parliament committees have limited resources to scrutinise policy and question ministers effectively; they rarely engage in meaningful or direct contact with civil servants; they struggle to gather information on the work of public bodies; and, local authorities generally argue that they are accountable to their electorates, not Parliament. Periods of coalition majority (1999-2007), minority (2007-11) and single party majority (2011-) government have reinforced this image of an often-peripheral body. The Scottish Parliament is a powerful body at the heart of accountability on paper, but not in practice.

Nevertheless, there has been no major debate on the role of the Scottish Parliament since it was established in 1999, and no major reforms have taken place. There have been some individual reports, such as ERS Scotland’s Democracy Max, but nothing like the scale of the SCC. This lack of attention seems significant for three reasons. First, other Parliaments, such as Westminster, have engaged in modernisation during this period. Second, the lead up to the referendum on independence in 2014 seemed like the perfect opportunity to revisit its role within Scotland’s independent or further-devolved political system. Yet, if people have discussed the Scottish Parliament, it is largely to confirm that they have no plans to reform (see footnote 2, citing the Scottish Government’s Scotland’s Future).

Third, the Scottish policy process has changed. The focus of the Scottish Government and its partners has changed markedly, towards the importance of ‘outcomes’, rather than ‘inputs’, as the key measure of government success. The Scottish Government plays an overarching role in policymaking: it sets a broad strategy and invites a large number of public bodies to carry it out. Ministers devolve most day to day policymaking to civil servants. The Scottish Government has also moved from the production of short term targets to long term outcomes measures which go beyond the five-year terms of elected office. It encourages localism, respecting the competing mandate of elected local authorities and encouraging them to work with other public bodies through community planning partnerships. This is not a recent event; it has been the approach of the Scottish Government at least as far back as the National Performance Framework, established in 2007, to provide a strategic framework for policy outcomes and invite a range of public bodies to meet its aims.

Until recently, the Scottish Parliament did not respond to these changes. Its procedures and activities are generally focused on inputs to the political system. Its main role is to scrutinise draft Scottish Government legislation as it is introduced. Its committees have devoted two to three months per year to the scrutiny of the annual budget bill. In general, this scrutiny has a very narrow focus, with a limited emphasis on pre- or post-legislative scrutiny, and its value is unclear. In many ways, its activities do not seem to match the hopes of the Consultative Steering Group.

Consequently, like Westminster, the Scottish Parliament is part of an apparently simple accountability process: power is concentrated in the hands of ministers, who are accountable to the public through Parliament. Yet, as in Westminster, this simple picture of ministerial accountability is increasingly misleading. The Scottish Government oversees a complex public sector, with a large number of accountability mechanisms, most of which do not involve the Scottish Parliament. As things stand, this will continue regardless of the vote in the referendum. Policy will continue to be made out of the public and parliamentary spotlight.