Design, delivery and maintenance of the devolution settlements: a central view of a very British process
p. 33-44
Texte intégral
1The United Kingdom experience of devolution is of a system designed as a British model for British circumstances. I am delighted that it is now of so much interest here in France. The French revolution started a French habit of exporting its constitutional ideas. It is good to have a chance to export some of ours. I aim to give a bit more of the flavour of how and why devolution happened including some background from the 1970s and 1980s from the point of view of someone who has been involved at a number of different levels. I will say a lot more about the Scottish experience than the Welsh and I will leave Northern Ireland aside. However, Northern Ireland is important and provided some of the models used in the systems of devolution implemented for Scotland and Wales. I will address four main themes: how and why did the traditionally centralist UK Government concede radical devolution settlements to Scotland and Wales; what were the key differences in design between the settlements proposed in the 1970s and those now in place and what is the effect of the differences between the Scottish and Welsh settlements; how devolution has affected the process of Government in the UK, the nature of the civil service and what may happen in the future; and how devolution in the UK works in the context of European affairs.
2First, let me remind you of the main elements of the Scottish system which underline why, in my view, it is both stable and particularly significant:
A parliament of 129 members elected by a system of proportional representation (the additional member system).
Full competence to make laws about everything not reserved.
There is no provision for day to day oversight of the Scottish Parliament’s law making or executive powers by the Government at Westminster.
There is an executive of Ministers drawn from MSPs supported by
a permanent administration separate from the Parliament.Finance is provided by a block grant which changes on the basis of an automatic formula.
The settlement maintains an independent judiciary.
3A key feature of the settlement in Scotland is the sheer extent of the powers devolved (i.e. not reserved) to the Scottish Parliament. Devolved powers include health, education, justice and home affairs, agriculture and fisheries, economic development, local government, transport and include limited local taxation and income tax powers. Powers reserved to the UK include all other taxation, social security, employment, immigration, defence and responsibility for international affairs and negotiations in Europe.
How and why did the UK government concede radical devolution?
4It is genuinely astonishing that a UK government conceded so much devolution to Scotland and gave up its hegemony in Wales. The UK has traditionally been a highly centralised state and governments elected to govern at Westminster have normally been highly reluctant to give up power. Yet on arrival in Government in May 1997 after 18 years in opposition, Labour used its massive majority to drive through the most radical programme of constitutional change ever undertaken in the UK, within the shortest possible persiod. Labour parties and their allies in Scotland and Wales drove the policy of devolution in Scotland and Wales. The circumstances of the two differed widely. Scotland had been a separate nation with its own Parliament until 1707. The 18th and 19th centuries saw the full integration of Scotland into the UK alongside a flowering of Scottish cultural life and the development of lowland Scotland as a major economic and industrial powerhouse. Scotland led British imperial growth but at the same time retained many of its own systems and traditions notably in law, education and finance.
5During the 20th century there was remarkable growth in administrative devolution to Scotland. This included, notably, the creation (after 1874) and the steady growth after the first world war of a department of state for Scotland within the UK Government with powers eventually covering most domestic issues. From the mid 20th century the idea of national self-expression began to be part of mainstream political debate. Increasing numbers of Scots began to support the idea of a national Parliament. The loss of a key by-election to the SNP in the 1960s by the then Labour Government prompted serious consideration of the political case for devolution and a major review was conducted by a Scottish judge, Lord Kilbrandon, during the subsequent Conservative government. After Labour returned to office in 1974 a Herculean attempt to design and implement a devolution settlement for Scotland and Wales began.
6Why did that attempt fail? Its fate (and that of the Government) was sealed by the failure of the referendum in Scotland in 1979 to get a large enough majority to cross an artificial threshold put into the legislation by recalcitrant government backbenchers. In Wales there was an absolute majority against devolution. The opposition among Labour’s own backbenches had already been reflected in the Cabinet itself. There were real weaknesses in the way the policy was developed within Government where it was led—and controlled by—the Cabinet Office with the departments for Scotland and for Wales consigned to a support role. And the prescription was flawed in many respects, including, in my view, the decision to define devolved subjects on the basis of what was to be devolved rather than what was to be reserved. The 1970s scheme also contained many oversight and reserve powers for the Secretary of State (i.e. the UK Government), which would have resulted in constant conflict between devolved and UK administrations. As it happened the loss of the referenda and the collapse of the Labour Government meant the death of the whole scheme.
7Yet the early 80s began a long build up of support for devolution and— in Scotland—the development of a coherent scheme with wide public support. Margaret Thatcher the new Conservative Prime Minister was totally opposed to devolution and was bemused by her failure to appeal in Scotland. She drove forward economic and structural reforms that modernised the Scottish economy but greatly increased the sense of alienation of the Scottish people. The groundswell of support for devolution during that period was caused largely by a sense that Scotland was being governed harshly by a party for which only a minority of Scots had voted. Labour used devolution both to cement its support in Scotland as against the Tories and to outflank the Scottish National Party. It believed that granting a substantial measure of devolution would squash any significant desire among Scots for independence. But the key was the development of a comprehensive body of cross party and cross sectoral support for a detailed scheme of devolution through the Scottish constitutional convention. The SNP shot themselves in the foot by withdrawing from this at an early stage because independence was declared not to be on the agenda. In the event the Convention came up with an approach which formed the basis of the 1997 scheme and generated a wide measure of public support for it. There was no such guide in Wales.
8Labour’s commitment to devolution was largely pragmatic and political although some of its senior Scottish figures, notably Donald Dewar, had a deep and genuine commitment to the principle of creating a new Scottish Parliament. Tony Blair on the other hand showed very little understanding of the huge constitutional significance of the plan: during the 1997 election campaign he famously compared a future Scottish Parliament to the Parish council of an English village. Labour politicians were uncomfortable talking about the constitutional principles, which were in their view for academics not real people. Everything was to be judged on what it would deliver in terms of policies and results— schools and hospitals for example—rather than on the principles of constitutional change. That is perhaps a pity since a clearer basis of principles might have helped us now.
9The process of creating the devolution scheme Government was about as exciting as Government work gets. All of us (in the Civil Service) were waiting for an election date which we knew had to come very soon since John Major’s government had delayed an election as long as possible and by the start of 1997 it had to take place by June of that year. In the end the date was set for early May. There was a strong likelihood that the Labour opposition would win the election and would be determined to bring in its devolution scheme rapidly in order to avoid the delays and controversy typical of the 1970s scheme. During March and April 1997 urgent preparations for a new administration were carried on in secret since civil servants were still working for the former Conservative government. Over six weeks Government departments led by the Scotland and Wales Offices and coordinated by the Cabinet Office drew up a comprehensive and detailed plan of action. While the Constitutional Convention had provided a guide Ministers would need a blueprint.
10Before the election we took some critical decisions on how policy was to be resolved within Government. In the 1970s, the Cabinet Office had led devolution policy for Scotland and Wales centrally in Whitehall. This time it was agreed even before Labour had taken office that the Scottish and Welsh Offices should lead policy for their territories. A Cabinet committee chaired by the Lord Chancellor would take formal decisions and resolve problems and disputes with other Departments (like the Home Office and Social Security) but the fact that the territorial offices led was crucial in getting comprehensive settlements designed separately for Scotland and Wales. By 5 May—the date of the election—we had a complete dossier of proposals drawn up. During the days immediately after the election more decisions were taken than now seems possible. New Ministers were presented with a comprehensive plan, large chunks of which were simply accepted because they reflected the blueprint drawn up by the Scottish convention. The powers of the new Parliament were to be based on the existing powers of the Scottish Office but this approach was far from complete, leaving many areas for negotiation and argument.
11The first key milestone was the publication of a White Paper in July 1997. Intensive discussions inside Government were required to settle the policies in the White Paper during the preceding two months dealing in some detail with the terms of the arrangements—including structure, powers, functions and operational details of the Parliament—which would then be put into draft legislation. When published it looked simple. It was far from that. However clear the principles some issues provoked much debate within Government, with some new Ministers suspicious of the whole concept. One key example was over the definition of powers. The simplest way in our view was to allow the new Parliament competence over everything not specifically reserved—a model used previously in legislation for the government of Ireland in the 1920s. Defining the dividing lines however proved extremely difficult involving long debate with Whitehall departments intent on preserving the role of the UK government and protecting the interests of England. Some of the results were odd—for example legislation relating to abortion was reserved to the UK government whereas most elements of criminal justice including the question of whether or not there should be any form of capital punishment was not. Much of this was because of an inability to distinguish the power to do something (such as reintroduce capital punishment or place different restrictions on abortion) from any likely intention to do so.
12Nevertheless the requisite deals were done and the results put to the Scottish people in a referendum in the autumn of 1997 in which over 70 % voted for the proposed scheme. Devolution could then reasonably be described as “the settled will of the Scottish people”. The legislation was completed the following year (1998) and the process of implementation followed with elections for the new Parliament in May 1999. In July 1999 the new parliament met for the first time, opened by The Queen amid much celebration by the Scottish people. The new Government (assisted by its civil servants of course) had designed and delivered not just a Parliament but also a whole new constitutional system for Scotland within just over two years. A Scottish Parliament sat for the first time in nearly 300 years with the full support of the Scottish people. Yet Scotland remains part of the United Kingdom and Parliament at Westminster remains sovereign.
13No one party won an overall majority in the May 1999 election and a coalition executive in Scotland was inevitable. This was an almost inevitable consequence of the electoral system intended partly to ensure that a single party committed to independence would be unable to achieve a majority in the Parliament without massive public support. Yet the idea of coalition was challenging to say the least for Labour. It brought the Liberal Democrats into Government for the first time since the 1920s and, despite being the smaller of the partners they achieved an enormous amount in the negotiations for the coalition and in subsequently working it out. The fact of a coalition was a big change in the style of government but the two parties adapted to it surprisingly well.
14The first Parliament from 1999-2003 was remarkably successful. Over 40 items of new primary legislation for Scotland were enacted covering a wide range of domestic policy. The Executive established a stable administration which survived despite coalition politics and the loss of two First Ministers—one, Donald Dewar, who died in office, and one, Henry McCleish, who had to resign. Meanwhile the organisation of government in Scotland underwent huge changes as the Scottish Office became the Scottish Executive. There was a significant expansion of the civil service in the light of the greater administrative and political work, the growth of legal work and the creation of new bodies, notably the Parliament itself and its organisation.
15At the same time there was a growing row over the cost, design and timing of the construction of the new Parliament’s building, which came to overshadow the first years of operation. More fundamentally many people had extremely and unreasonably high expectations of the new Parliament, which were much more about what the executive Ministers might do than about the constitutional achievement or even the passage of new laws. There were also the seeds of a wide range of potential disputes with the UK government on issues where policy in Scotland might diverge from the rest of the UK including those which had to be negotiated in Brussels.
Key differences: 1970s vs. 1990s, Scotland vs. Wales
16The UK devolution system is asymmetrical and almost unique—only the Spanish system has been at all comparable. The nature of the settlements was designed specifically for each territory and England continues to have no material devolution at all. So Westminster manages to be the Parliament for all English business as well as for the United Kingdom. The differences between the Scottish and Welsh settlements were (and remain) remarkable.
17The Welsh settlement was much more limited than that for Scotland reflecting widely different attitudes towards culture and national identity and a very different history. There was a majority against devolution in Wales in the referendum of the 1970s and only a narrow majority in favour in 1997. Yet Wales has a very strong strand of cultural and linguistic nationalism, which demanded expression through a devolution scheme. The 1997 Settlement itself was very limited by comparison with Scotland: the Wales Assembly can only enact secondary legislation; primary laws for Wales are left to Westminster; there was no comprehensive definition of devolved powers; it is an Assembly not a Parliament; and the executive was made part of the same corporate body as the Parliament, a model much more like local authorities in the UK than a national Parliament. The Government of Wales Act 2006 is bringing about major changes to the Welsh settlement. I won’t go into the details here but say simply that although it has brought the Welsh arrangements a lot nearer to those in Scotland it will need another referendum before the Welsh have a settlement comparable to Scotland’s.
18The 1990s settlement was much better than that of the 1970s at least for Scotland. Reasons for this include the fact that it was genuinely home grown being largely based on the constitutional convention and, at Government level, having been largely led by the Scottish Office not the Cabinet Office and with extremely effective Ministerial leadership from Donald Dewar, the Scottish Secretary. Also a major factor was the definition of reserved rather than devolved powers and the fact that there was no provision for override powers except to protect defence and foreign/EU commitments. Otherwise the Parliaments powers depend on the judgement over whether or not actions fall within competence. Overall the Scottish Parliament has much more comprehensive powers and it feels and looks like proper Parliamentary and Cabinet Government.
Impact of devolution on UK government and civil service
19Devolution has had a massive impact on the processes and structures of Government at the same time as the impact of other constitutional reforms including the entrenchment of human rights, the creation of a Supreme court, changes to the House of Lords, and the introduction of a regime of freedom of information. The overall aim of the devolution settlements was to create a robust system, which would prevent the break up of the United Kingdom. Key to this was the maintenance of the sovereignty of the Parliament at Westminster. This is not a federal system: devolved powers are given by legislation at Westminster and could be taken away by the same means. Also important in maintaining the UK as a unitary, sovereign state was the reservation to the UK Government of powers which are vital to the coherence of the state, notably EU and international and security affairs but also the major economic powers and detailed areas of regulation such as health and safety which depend on common application.
20The other side of the coin was the clarity of the mechanism for devolving powers and the deliberate avoidance of any normal system of policy oversight. Only the breadth of competence limits the powers of the Parliament and the Executive in Scotland; there is provision for disputes over competence to be decided in the courts. From a public perspective it was also important to retain UK cabinet ministers who could speak for Scotland and Wales and who could oversee the settlements for each country. While these Ministers represent Scotland and Wales in the UK cabinet their more important function is to represent the UK government and to convince the people of Scotland and Wales that the UK is still important. This has not proved to be a tidy or effective solution but any change to it is hampered by political factors.
21The settlement retained the sovereignty of Westminster including a full role for Scottish MPs at Westminster. Again this was a very deliberate choice since the alternatives were thought to threaten Union and weaken Labour given its relative strength in Scotland and Wales. The role of Scottish MPs at Westminster has come under increasing scrutiny because they can still vote on matters which in Scotland are devolved. Therefore they help decide things in England on which English MPs have no say in respect of Scotland. The conservatives look like proposing major restrictions on the voting rights of Scottish MPs at Westminster—without properly addressing the constitutional consequences.
22Disagreement over policy was expected to provoke significant difficulties but until May 2007 largely failed to do so. Decisions on—for example—student funding or care of the elderly—can have a major impact on policy right across the border and there is nothing to stop different policies emerging. The aim has been to avoid such problems or resolve them when they arise through a series of very British, non-statutory means. So there is a network of concordats and memoranda of understanding between UK and Scottish and Welsh departments. The central principle running through them is openness and advance information about decisions.
23Serious public disagreement has generally been avoided. That is no doubt partly due to the close political relationship between the UK governing party and the dominant party in the Scottish and Welsh administrations from 1999 to 2007. While this was by no means the whole answer and did not prevent many issues arising it has meant that both sides shared an interest in maintaining the settlement and proving that it works. Since the election of a minority SNP government in Edinburgh in May 2007 we have begun to see how a party which has little long term commitment to the 1997 settlement can exploit issues in order to provoke dispute and leave the impression that things are not working. Nevertheless most disputes so far have been driven by public relations and politics and have lacked substance. There is a tendency for disputes to be about reserved issues over which the Scottish Government has no role rather than over its exercise of powers which are within its grasp.
24The continuing relationship between civil servants in London, Edinburgh and Cardiff who still form part of one UK civil service has also been a factor in the relative smoothness of relationships since 1999. Civil servants who cooperated before devolution continued to do so afterwards. There has been some interchange between London based and Edinburgh based staff between London and Edinburgh although this has declined and the common understanding between civil servants in London and Edinburgh looks likely to reduce. The loyalty of civil servants to the administration they serve is absolutely clear but their shared experience has been helpful so far—and that is now clearly at risk.
What of the future?
25Political change was always inevitable at some stage and it duly occurred at the elections to the Scottish and Welsh Parliament in May 2007 when Labour in both cases lost ground to the nationalists (and other parties in Wales). In Scotland the Scottish National Party have established a minority administration whereas in Wales after lengthy negotiations there is a coalition still led by Labour but including the nationalists. We now have the chance to see if the settlement we designed is genuinely robust. Already it is clear that the SNP intends to make as much political capital as possible out of various disagreements with London and it may seek to blame London for the lack of resources to fund the SNP’s ambitious spending plans. Yet the SNP is also seeking to show that it is a responsible party of government and will not wish to go too far in provoking rows.
26More significant may be growing resentment in England over the favourable financial position of Scotland and the implementation of policies in Scotland (such as the abolition of student fees and loans) which many in England would like to benefit from too. Such changes fuel the further resentment caused by the fact that Scottish MPs at Westminster continue to be able to vote on domestic issues which are devolved to Scotland—so they can decide such matters for England but not for their own constituents. The situation cannot be solved by the pragmatic goodwill of civil servants which has been important so far. At some point the administration might demand a separate Scottish civil service with different values. Even if that doesn’t happen the civil service in London and in Edinburgh is inevitably growing apart. There is much less shared background and many fewer common experiences. Many Scottish civil servants also share the political desire for stronger self-expression in Scotland even if they don’t want independence.
27There is also a very clear problem over European policy. The settlement reserves the right to negotiate to the UK Government whereas the devolved administrations must implement on devolved matters. The UK is clear that it must lead and has no desire for a Belgian or German approach which would provide a more formal and structured way of securing the agreement of devolved administrations to UK positions on EU matters. Scottish/Welsh Ministers on the other hand must be seen to influence outcomes in Brussels and drive up EU recognition of their concerns. Otherwise devolved powers can effectively be neutered by UK decisions on EU negotiations. There are formal agreements designed to ensure that Scottish and Welsh interests are taken into account in the preparation of the United Kingdom’s negotiating position in Brussels and there is a Joint Ministerial Committee on Europe designed to resolve issues of this kind although the devolved administrations have no means of guaranteeing that their views will be heeded.
28There are also informal arrangements to ensure that Scottish officials and ministers can participate in detail in the preparation of United Kingdom positions in London. That has normally worked well in some sectors e.g. agriculture. Devolved Ministers and officials may also be involved in working group and council delegations in Brussels if the lead UK Department agrees. Practical constraints—like the pressure on space in Brussels meeting rooms—restrict this. But the principle of Scottish official and ministerial involvement is very well established: our ministers will normally be present at key councils such as agriculture, fisheries and often environment and justice and home affairs. They can and do speak—but only to put forward the UK’s agreed position not one favouring Scotland or Wales. In addition informal contacts take place with the Commission and with other member states where Scotland and Wales can and do put their concerns across subject to a broad agreement that they will not undermine the UK position. Scotland and Wales have offices in Brussels and unusually for regional representations in Brussels they work closely with the United Kingdom’s Permanent Representation and benefit from diplomatic status. This gives them access to the Commission, the Council, European Parliament and all the other EU institutions.
29The systems do exist therefore through which the devolution can be made to work in the sensitive area of European policy but only with hard work and goodwill in both London and Edinburgh. Since that looks as if it may be in rather short supply for the next year or so this has considerable potential to cause serious disputes.
Conclusions
30As an overall conclusion I would just like to underline six points from my own experience:
Devolution to Scotland and Wales was a truly radical experiment with the UK constitution with far reaching effects;
The settlements were designed to be robust. So far they have been but they may well require new and more formal systems of communication, management and dispute resolution if they are to carry on working;
The core principle for Labour was the maintenance of the Union. Otherwise the settlements were pragmatic rather than principled albeit that several key people who drove the policy were personally deeply committed to it;
The very different approaches in Scotland and Wales reflected the different backgrounds and the different levels of enthusiasm for the project;
Europe remains a potential crunch point however well it has been managed so far;
The next few years will see major challenges for the system and Government and civil service will have to evolve to meet them. The shape of these challenges seems clearer after the elections of May 2007.
Auteur
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David Crawley
Scotland office, 2002-2005
Crawley David, diplômé de l’Université d’Oxford, est rentré dans la haute fonction publique britannique en 1972 où il a occupé divers postes de responsabilité ministérielle, notamment au sein du Scottish Office et du Foreign and Commonwealth Office. Chef de Cabinet du Secrétaire Permanent du Scottish Office lors des premières tentatives de dévolution dans les années 1970, puis Chef de Cabinet du Secrétaire d’État chargé de l’Écosse à la fin des années 1980, il a joué un rôle clé dans la conception de la dévolution à l’Écosse lorsque le parti Travailliste est revenu au pouvoir en 1997. De 2002 à 2005, il a dirigé le Scotland Office, le ministère du gouvernement britannique responsable de la mise en œuvre de la dévolution. Il a également exercé des responsabilités au niveau européen, notamment comme conseiller de la Représentation Permanente du Royaume-Uni auprès de l’UE de 1990 à 1994 et comme directeur européen de l’exécutif écossais et responsable de son bureau à Bruxelles de 2005 à 2006.
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