Constitutional illiteracy and revising devolution in Scotland

It’s long been a puzzle why Labour managed to make so much of a mess of its one major policy successes. The new Labour government made devolution for Scotland, Wales and Northern Ireland happen, and happen remarkably quickly, after decades of protracted debate. To do so was a major political achievement. As Vernon Bogdanor (and others) have observed, its full constitutional implications are yet to be seen, but it shifts fundamentally the structure of power in the United Kingdom. Labour managed, however, to undermine that achievement. It did so largely by its constitutional conservatism.

The arrangements put in place in 1998-9 were limited, even for Scotland, and were inevitably going to need to develop. Ron Davies famously said ‘devolution is a process, not an event’ – a phrase almost as true for Scotland as it was for Wales. Instead, the UK Government treated devolution as an event, not a process. Once done, it was quickly forgotten. This was particularly marked in areas I’ve studied closely, intergovernmental relations and finance, but applies more widely as well. And the fact that devolution was going to develop meant the need for wide-ranging debates about how what would change and how, which were neglected while Labour governed in London and dominated government in Edinburgh. Labour could have taken the initiative then, but the only changes made between 1999 and 2007 were to maintain size of the Scottish Parliament when the number of Scottish seats at Westminster was reduced, and to devolve some powers relating to rail transport to the Scottish Executive.  Labour’s resistance to change until after the 2007 elections created a strong impression of constitutional complacency.

The debates in Scotland since 2007 show how dysfunctional these debates have become. Scotland has had two constitutional reform processes underway – the ‘National Conversation’ launched by the SNP Scottish Government, and the Calman Commission set up by the Unionist parties. The National Conversation suffered from limited financial resources, the refusal of the other parties to take part and despite efforts at a wide engagement attracted limited public interest and considerable hostility from the press and opposition. Its outcome – an expression of support for independence – may have been clear from the outset, though the way it developed a ‘devolution max’ option suggests that the SNP’s position has evolved a good deal.

The Calman Commission had many advantages, but had some serious weaknesses too (discussed in detail HERE). One was its limited range, with independence as a possible option excluded from the outset. A second was its peculiar status as a commission reporting to both the Scottish Parliament and UK Government. This ignored usual principles of the division of powers, and kept the commission’s work in the hands of those committed to a particular overall outcome (even if it would also help secure implementation of its recommendations). Third was its need to secure agreement among a range of members some of whom knew relatively little about devolution and others of whom had opposed it in the 1990s. Fourth, its approach to its work meant it had to fuse looking at constitutional issues with consideration of complicated economic ones. The former was seen as determining not just the broad contours of its economic recommendations, but quite a lot of the detail as well – which underpins the economic critique of such figures as Drew Scott and Andy Hughes-Hallett (set out first here, as well as in their evidence to the Scotland Bill Committee at Holyrood).

The worst casualty of this way of approaching the debate was the Scottish people. Deserving a serious debate in which the various options for their future were laid out and could be set against each other, what they got was two parallel discussions which have never really engaged with each other. The National Conversation treated the sort of autonomy that comes with independence as its reference point; the Calman process failed to engage with arguments for substantially enhanced Scottish autonomy within the union, and came up with a constitutionally conservative report, adding a measure of ‘fiscal accountability’ to the 1998 settlement.

The second casualty of this approach was imaginative constitutional thinking. This way of framing the options excluded many other ways by which Scotland might be able to enjoy the self-government sought by the most people there with remaining part of the Union (also supported by most people). There are various ways by which this might be done; allowing the Scottish Parliament to legislate on welfare so as to increase (but not reduce) UK levels of welfare, for example, or creating a financial system in which fiscal autonomy might be limited to certain taxes (or certain parts of taxes), but be real as far as those devolved taxes are concerned. (My ideas for a ‘more or less federal model’ of devolution finance are part of that.) Even the idea of these options has been kept out of the debate so far.  Holyrood’s Scotland Bill Committee – which has decided to look at fiscal autonomy as well as what the Scotland bill actually contains – is the first time since 2007 that these two debates have been publicly joined up. But it’s happening late, in circumstances that mean the outcome of the debate is pretty clear, and with little time for their consideration. It’s a pretty flawed way of putting these options alongside each other.

What we’ve had, instead, is a debate characterised by a high degree of political partisanship and animosity. The political parties have treated the constitutional debate as politics as usual, with all the rancour and manoeuvring for advantage that has become a feature of British politics. That may be how to win an election, but it’s not the way to approach constitutional politics. Constitution-making is an art, and it calls for a different approach. Constitutions aren’t just ways to rig the structure to suit oneself, or disadvantage one’s opponents. They are fundamental rules for the conduct of political life, which will bind all sides. Each party needs to remember it could be on the ‘receiving end’ of what a constitution contains, as well as the ‘giving end’. A constitution needs to be built out of compromise and a broad consensus, not just relentless partisanship.

The reasons for that aren’t just because one wants to be ‘nice’. This is about the underlying interests of the parties – ensuring that constitutional rules are workable and durable. They also need to draw on the expertise, and support, of those who don’t hold and wouldn’t seek elected office. It’s not good enough to say (as Alan Cochrane of the Telegraph has, here) ‘It may not be a polite way to treat people and it may not be fair. But it is the way of the world.’  Engaging seriously with interests and concerns is part of the process that’s needed for a constitution to be regarded as legitimate, not just by those engaged in politics but also by the public at large. Those whose only political activity is to cast a vote when asked need to believe that the constitutional rules are in some sense ‘right’ or ‘fair’. If they don’t believe that, they won’t vote, and they may not support the system at all. That can lead to some very dangerous places.

It’s a crying shame that Scotland’s constitutional processes have been so flawed and partisan over the last few years. It’s easy to look at the work of the Scottish Constitutional Convention through rose-tinted spectacles, but that was a genuine attempt to build a broad consensus for a particular form of devolution, and a particular sort of politics for the new devolved institutions. That model is still looked on with admiration elsewhere, whether in Wales or overseas. The next phase of considering how Scottish devolution develops – and one certainty of the Scotland bill is that there will be a next phase – needs to be handled in a very different way to the last one. The real losers from the last few years have been the Scottish people.



Filed under Calman Commission/Scotland bill, Scotland

7 responses to “Constitutional illiteracy and revising devolution in Scotland

  1. DougtheDug

    “It’s easy to look at the work of the Scottish Constitutional Convention through rose-tinted spectacles, but that was a genuine attempt to build a broad consensus for a particular form of devolution…”

    The SCC was as partisan as Calman in that it refused to look at independence as an option which was the reason that the SNP withdrew from the SCC and that Labour was happy to stay on.

  2. n conway

    Dougthedug, it could be argued that if the SNP had been part of the convention they would have argued for Independence but compromised and got fiscal autonomy and the Scots parliament and Scotland would be in a stronger place than what it is in now.

    • DougtheDug

      n conway:

      It would have been pointless in arguing for independence in a convention which had ruled independence out before it even started to discuss the options.

      The SCC was against the founding principle of the SNP so there was no way they could stay on as members. Even if they had stayed on there would have been no more fiscal autonomy on the table as the Scottish Parliament was regarded as local government and therefore should be funded by a block grant based on the, “principle of equalisation of expenditure”, across the UK.

      The Calman commission was played out as a unionist spoiler against the background of an existing devolved parliament with an SNP Government riding high in the polls and even then Calman could only come up with raising the 3p limit on the unused Scottish Variable Rate to 10p and splitting the current block grant into two parts. One part dependent on the income tax base in Scotland and one part a top up block grant to ensure that the total of both parts always came to the Barnett formula level. Scotland has no more fiscal autonomy than it had before under Calman and now will be dependent on the economic performance of the UK Government to keep the income tax base stable between top-up block grant reviews. In the light of this the idea that the SCC would have proposed fiscal autonomy with SNP participation when the parliament was set up simply doesn’t hold water.

      SNP non-participation in the SCC was a statement of principle and ensured that they also laid down a marker which made it easy to stay well clear of the Calman Commission which also refused to look at independence as an option.

  3. “Once done, it was quickly forgotten”

    Indeed, and once the referendum in the North East of England for a regional assembly failed efforts were made to forget things even more quickly.

    This left us with the current imbalance and English question. If only they had been more adventurous and open minded perhaps Cornwall would have been listened to.

  4. Michael Knowles

    ‘The real losers are the Scottish people’ this author says. Pull the other one! The Scottish people have done very well indeed out of devolution. Need I describe how? Hardly. The real losers have been the English. Not only none of the huge benefits the Scots have had out of it but not even the most basic aspect of devolution, namely constitutional and political recognition of their existence as a distinct nation. What we have got out of it has been to watch from the sidelines and pay for it in Scotland and Wales out of our taxes. I personally wouldn’t take back a single benefit, not a single penny, from what the Scots and the Welsh have got out of it. Good luck to them I say. I agree emphatically with the distribution of wealth. I would just like us English to have the same. And England to stand in the same relationship to the Scots and the Welsh and to the Union as they do to us. That is what a Union should be. The UK is a Union of the three nations. Each should stand in the same relationship to each other and to the centre. Personally I think that will mean a federal Union. And why not? Anyway, to get back to the initial point. Scotland has done very well out of devolution. They haven’t anything to complain about at all. But we English have had nothing out of it. And it is about time we did.

  5. Eric Falconer

    Hi Michael

    Leaving aside the myth of Scottish dependence on English taxes, you look forward to a “federal” union between the countries of the UK. That would mean something like a Senate where all countries had absolutely equal representation, and which had real power, such as a veto over all-British legislation. Are you happy with that? Do you think English voters would be happy with that?

  6. Pingback: Constitutional reform and flawed constitutional processes « Devolution Matters

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