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.
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.
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.
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.
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).