The Royal Society of Edinburgh (RSE) is pleased
to respond to the House of Lords Committee on the Constitution inquiry
into Devolution: inter-institutional relations in the United Kingdom.
The RSE is Scotland’s premier Learned Society, comprising Fellows
elected on the basis of their distinction, from the full range of academic
disciplines, and from industry, commerce and the professions. This response
has been compiled by the General Secretary with the assistance of a
number of Fellows with experience of the devolved and UK legislatures.
The Society believes that the inter-institutional arrangements have
worked well up to now with the informal relationships being effective
enough to make formal procedures unnecessary. However, this has in a
large part been due to compatible political majorities in London, Edinburgh
and Cardiff and the system has not yet been tested under political conflict.
The specific issues identified in the inquiry are addressed below:
Relations between administrations
The formal structure and the operation of inter-governmental relations
(IGR)
The acid test of relations between the administrations will only occur
when there are different parties in power North and South of the Border.
However, one of the best ways of ensuring good inter-governmental working
relationships has been to encourage the widest possible range of informal
contacts across all official and ministerial levels. This has worked
well and as long as politicians at Scottish and UK levels want the system
to work effectively for their people they are likely to see the value
of good informal working arrangements, even if there are fundamental
policy differences between them. The formal arrangements, while at present
having more of a presentational value, are still valuable in case either
side felt it was being frozen out or ignored in the informal processes.
Arrangements within the Government of the United Kingdom
The Secretary of State for Scotland is responsible for helping to ensure
that the devolution arrangements continue to work well and for making
sure that ministers with UK or GB responsibilities are fully aware of
any special implications for Scotland and lobbying them if necessary.
This will be particularly important when there are different parties
in Government in Scotland and the UK. The Cabinet Office have to ensure
that both the formal and the informal arrangements are working well
and themselves provide the secretariat for the formal arrangements
Machinery and practice for dispute resolution
Since these arrangements were designed, there have been no reasons to
doubt procedures for the resolution of political and legal disputes
between the four administrations. However, if either administration
actively wanted to wreck the settlement (as opposed to merely disagreeing
with the other side) it will be difficult to devise a procedure which
would stop them. Devolution essentially depends on a degree of goodwill,
or at least acquiescence, to succeed. While there may have been early
concerns that the Judicial Committee of the Privy Council would quickly
become clogged with disputes relating to Scottish devolution as soon
as the Parliament was in being, this has not happened in practice.
Finance, fiscal matters and the Barnett formula
The effect of the Barnett formula has been to determine the size of
the total change in the resources allocated to Scotland for devolved
services in a particular year by applying a ratio (close to the current
population ratio) to the total change in resources allocated to England
(for a few services, England and Wales) as a result of the decisions
of the UK Cabinet for that year. The starting total, however, is taken
as given and is unaffected.
Because spending on devolved services in Scotland is significantly
higher than on the same services in England, the formula normally allows
Scotland a smaller percentage growth in these services than has been
determined for England, so that spending per head in Scotland should
slowly converge on that for England. There could be a case for higher
spending per head in Scotland on a range of services, and that convergence
should be halted before parity is reached, but to establish what this
amounts to will need some kind of assessment of relative need, and previous
attempts at this have been highly contentious. At present the formula
is still probably advantageous to Scotland and while it saves a deal
of acrimonious argument, it may need to be reviewed. Funding can also,
in principle, be allocated (or withdrawn) outside the formula if the
outcome of the formula resulted in significant unfairness.
It could be argued that it is in line with devolution for finance disputes
to be resolved in the UK Cabinet. If there was a federal arrangement,
however, then the situation would be formally different but not necessarily
any easier to resolve (for example the difficulties experienced in Canada
and Australia).
The role of the Parliaments and Assemblies
Consideration and scrutiny of Westminster legislation affecting
the devolved institutions
In terms of the role of the Parliaments, the Scotland Act provisions
need to be given a chance to operate over a longer period as its operation
is still on a learning curve. If Westminster is to legislate for Scotland
in a devolved matter it should only be as a matter of convenience and
must be with the knowledge and consent of the Scottish Parliament in
order to avoid confusion.
European Union
Input from the devolved institutions
The Scottish Executive interacts with the EU in two ways: informally
through its direct contacts with EU officials and commissioners (including
contacts via Scotland House) and formally through the UK delegation
and representation at meetings of the various ministerial councils.
The latter strand is supported by a great deal of informal contact between
Scottish Executive ministers and officials and their UK counterparts
in order to ensure that Scottish views and interests are fully taken
into account in formulating the single UK policy on any issue. As noted
above, without these informal activities the formal arrangements would
not work as well.
In terms of the Scottish Parliament, it has the opportunity and responsibility
to consider the full range of EU issues as they affect Scotland and
it is important for regional and other local institutions to participate
fully in the European Union’s consultation processes. The Committee
of the Regions, however, has been most conspicuous by its invisibility,
despite the earlier hopes placed on it, and there is no consistent pattern
of sub-Member State institutions within the Union. The importance of
the Member States in the decision making process, therefore, is likely
to continue for the foreseeable future and the final decision-making
seems likely to remain with the Council of Ministers.
Devolved matters
A key issue is that the UK government depends on the Scottish Executive
and Scottish Parliament to implement EU obligations relating to devolved
matters. This point was well understood when the devolution settlement
was being framed and has gone smoothly to date, but the implementation
of EU obligations will always need to be monitored.
Crown service
A single civil service is another mechanism for assisting the smooth
operation of theinter-administration arrangements. There were perceived
to be enormous advantages in retaining, at least initially, a unified
civil service throughout Great Britain to ensure compatibility of standards
of recruitment, interchangeability of staff and adherence to a common
code of behaviour. Whether these arrangements will be perpetually desirable
or feasible remains to be seen. Different political parties in power
in England and Scotland could change that as strained relations between
the two administrations could give rise to a situation in which the
"loyalty" of the Executive's civil servants to a UK service
came to be increasingly questioned. A single civil service is desirable
but its continuance depends on political developments.
The United Kingdom
There is a case for saying that devolution has already eased tensions
which would otherwise have had a damaging effect on the unity of the
UK, by allowing greater variation in the development and implementation
of policies in Scotland and Wales. As to the future, if politicians
want to retain the union they will find ways of protecting it under
devolution, even if there are major disagreements between Edinburgh
and London. However, further constitutional change is likely to require
popular consent.
Additional Information
In responding to this inquiry the Society would like to draw attention
to the following Royal Society of Edinburgh responses which are of relevance
to this subject: How the Scottish Parliament Should Work (June 1998);
Enquiry into the application of the Consultative Steering Group Principles
in the Scottish Parliament (September 2001) and Governance and the future
of the European Union: what role for Scotland? (September 2001).
March 2002
Professor Andrew Miller CBE
General Secretary
The Royal Society of Edinburgh
22-26 George Street
Edinburgh EH2 2PQ
Further information is available from the Research Officer, Dr
Marc Rands |
