Memorandum submitted by Professor Charlie
Jeffery, University of Edinburgh
INTRODUCTION
1. This memorandum draws on findings from research
supported by the Economic and Social Research Council under its
research programme on Devolution and Constitutional Change, which
ran from 2000-6 under my direction. In particular it draws on
work done in collaboration with the Institute for Public Policy
Research as reported in books on Devolution in Practice, Public
Policy Variations in the UK in 2002 and 2005.
2. It is an inherent feature of devolved systems
of government that the packages of public policies experienced
by citizens vary from place to place. Devolution in the UK, as
elsewhere, is intended, inter alia, to bring greater proximity
of decision-making and in that way to reflect better different
territorial preferences and identities in public policy in different
jurisdictions.
3. It is no surprise, therefore, that devolution
here, as elsewhere, has produced greater divergence of public
policy. Indeed, post-1999 divergences have built on long-standing
practices of territorially differentiation of public policy that
are in part rooted in the different terms of union among the different
nations of the UK, and the administrative practices developed
before 1999 by the Wales, Scotland and Northern Ireland Offices.
The UK has long experience of territorial policy variation.
THE STRUCTURE
OF DEVOLUTION
4. But the UK also has a structure of devolution
that is very, and in comparative terms, unusually open to far-reaching
policy variation and lacks the mechanisms employed elsewhere to
balance divergent territorial preferences with overarching state-wide
concerns.
5. There are three features of that structure
that promote variation. The first is the relatively tidy division
of powers between those reserved to Westminster and those variously
devolved in Wales, Scotland and Northern Ireland. The division
is neatest in the Scottish and Northern Irish cases, though Wales
after the 2006 Government of Wales Act is moving in a similar
direction, all the more so if a referendum is held and won on
full legislative powers. The tendency is to establish four discrete
jurisdictions in a range of important policy fields, including
health, education, local government, planning and so on.
6. The second feature promoting variation is
the UK's system of financing devolution through block grants transferred
to devolved administrations by central government. These grants
are transferred unconditionally; the devolved administrations
in principle have complete discretion in how they spend those
grants.
7. The third feature promoting variation is
the different terms of political competition in Wales, Scotland
and Northern Ireland as compared to Westminster. Westminster is
dominated by a classic left-right contest between Labour and the
Conservatives. The Conservatives are very weak in Wales and Scotland,
and left-leaning Nationalist parties pull party competition there
to the left (while also introducing constitutional questions into
party competition that are generally marginal at Westminster).
The terms of political debate in Wales and Scotland therefore
diverge significantly from those at Westminster, as they do in
Northern Ireland, where there is an entirely distinctive party
system and constitutional debate.
8. Discrete policy responsibilities, full discretion
on spending, and different terms of party political competition
have already fostered—and are likely to do so all the more
over time—notable territorial policy variations in Wales,
Scotland and to a lesser extent Northern Ireland. These extend
some way beyond those variations inherited from pre-devolution
arrangements. There are few institutional counterbalances to that
dynamic of variation. In particular the UK lacks those forms of
systematic intergovernmental coordination that exist in most other
decentralised states to identify and pursue common objectives
across jurisdictional boundaries and to build understandings of
the legitimate scope of cross-jurisdictional policy variations
and the implications for cross-border relationships that arise.
CROSS-BORDER
POLICY VARIATION
9. There is a growing number of examples of
policy variation. Some of the innovations of the devolved administrations—for
example in children's policy in Wales and on smoking in Scotland—have
prompted UK-wide changes. Other devolved innovations—on
free personal care, prescription charging, the licensing of NHS
treatments, or tuition fees—have not been generally emulated.
As significant a source of variation has been Westminster in its
role as legislature for England. Its changing approach to the
structure and performance management of public services has not
been emulated and in many cases has been rejected by the devolved
administrations. England also is a force for divergence.
10. A patchwork of different territorial packages
of public services has resulted. This—it bears repeating—is
entirely consistent with the purposes of devolution. But without
an institutional framework for a discussion of the cross-border
and UK-wide coordination issues and other implications of cross-jurisdictional
policy variation, the UK's policy patchwork is and will remain
ad hoc, inconsistent and confusing for the citizen.
11. Some have pointed to the potential for territorial
policy variation to corrode the UK's `social citizenship', the
postwar commitment to a welfare statehood that treated all citizens
equally irrespective of income or place of residence. Public attitudes
surveys suggest that citizens in all parts of the UK share broadly
the same values on the role and scope of the state and the obligations
of citizens to one another. They also suggest (without the same
depth of evidence) that citizens in their majority disapprove
of the idea of territorial policy variation (even while endorsing
devolved, and therefore potentially divergent decision-making
in clear majorities outside England).
12. In these circumstances an under-coordinated
structure of devolution runs the risk of producing perceptions
of inequity that might lend themselves to political mobilisation.
One example of this on a small scale was the recently reported
(and, no doubt, methodologically suspect) commercial opinion poll
in Berwick-on-Tweed which suggested that the majority of Berwick's
population would prefer re-unification with Scotland to enjoy
what are perceived to be better public services there. Equivalent
pollster-led skirmishes are conceivable on the Anglo-Welsh border,
where in particular different prescription charging policies have
been contentious.
13. On a larger scale there have been repeated
contributions in some sections of the London-based media, in parts
of the Conservative Party, but also parts of the Labour Party
in London and in northern England (and more mischievously the
Scottish National Party in Scotland) that the arrangements for
devolution outside of England are unfair to people in England.
A particular focus has been on the seeming connection between
the higher level of per capita public spending in Wales, (especially)
Scotland and Northern Ireland as compared to England, and the
perceived generosity (in some views, profligacy) of public services
outside England.
14. These contributions have largely been misguided.
They tend to misunderstand both the system used to allocate funding
to the devolved administrations, and the pattern and sources of
post-devolution policy variation, much of which has been driven
by Westminster in England, and in many cases might be said to
produce there `better' or `more generous' public services than
those available outside England. However misguided, these contributions
point to a potential for the political mobilisation of territorial
difference.
MECHANISMS OF
CROSS-BORDER
COORDINATION
15. To summarise: the post-devolution political
system
— Has a lack of institutional counterbalances
to a structure that promotes territorial policy variation
— And runs the danger—in part
through widespread misunderstanding of the reasons for policy
variation—of causing conflict over perceived inequities
between the component parts of the UK
16. Other political systems provide examples
of how more robust institutional balances and more rounded understandings
of cross-jurisdictional equity and coordination can be achieved.
Among the institutional techniques used elsewhere, but absent
in the UK, are:
— Statewide policy-making by intergovernmental
agreement between central and devolved governments
— Statewide framework legislation leaving
a wide scope for detailed regulation and implementation at the
devolved level
— Joint central-devolved funding of
agreed common policy objectives
— Specific-purpose transfers of central
funding to devolved administrations to achieve statewide objectives
— Systems of fiscal equalisation to
ensure all jurisdictions have sufficient resources to deliver
equivalent levels of services
17. Typically, such institutional techniques
are underpinned by codified, routinised and systematic processes
of intergovernmental coordination. These processes provide forums
for identifying common purposes, resolving any disputes that may
arise, managing the interfaces between jurisdictions, and pursuing
joint decision-making. They also, through their codes and routines,
generate enduring common understandings about the purposes, benefits
and limits of territorial policy variation as balanced against
statewide objectives.
18. The UK's system of post-devolution intergovernmental
relations is extraordinarily underdeveloped. It would be difficult
to assess it as fit for purpose. The UK does have codified arrangements—for
example Joint Ministerial Committees—but these in most cases
are not used. Intergovernmental relations instead work typically
through ad hoc, case-by-case interactions among different and
changing groups of officials. There is an absence of routine and
as a result a failure to embed understandings of the `rules of
the game' in balancing UK-wide and devolved interests. Without
clear, enduring common understandings of balance the devolution
arrangements remain vulnerable to their own inconsistencies and
the consequent danger of partisan mobilisation of territorial
conflict.
CHOICES
19. This is an unsatisfactory situation. Its
uncertainties are reflected in formal debates about constitutional
relationships in Wales and Scotland, and at the UK level in the
constitutional `review' or `commission' under discussion by the
three main unionist parties. A number of options might be considered
in this context:
20. The status quo. The discussion above
suggests that the ill-coordinated ad-hockery of current arrangements
is not the optimal route forward. Two alternative trajectories
appear possible.
21. Renewal of union. Some mixture of
the types of technique listed under paragraph 16. are introduced,
and underpinned by a more systematic approach to intergovernmental
relations. This option would involve the identification of, and
measures to achieve, UK-wide objectives across jurisdictional
borders. In doing so, it may require some restrictions on the
current scope of devolved responsibilities; it is not clear that
the devolved administrations would be willing to accept this.
A more systematic approach to joint decision-making would also
require a conception in Westminster and Whitehall of power-sharing
with the devolved administration in the identification and pursuit
of common objectives; it is not clear that Westminster and Whitehall
would be willing to accept this.
22. A state of the autonomies. This option
would not involve the pursuit of a wide range of shared objectives,
but rather the acceptance of growing territorial policy variation
by the devolved administrations and by Westminster acting for
England. In effect England would be governed as a unitary sub-state
of the UK by Westminster, while Scotland, Wales and Northern Ireland
would pursue autonomous objectives, no doubt on the basis of a
fuller devolution of powers than at present, including extensive
fiscal autonomy. The effect would be to harden the UK's internal
borders and limit the scope of citizenship rights enjoyed uniformly
across the UK. It is not clear that this option would receive
public support, for reasons stated above in paragraph 11.
23. These alternatives are presented here in
bald terms. Presented baldly they each appear to present difficult
problems. No doubt there are elements in them that are reconcilable
(for example the Liberal Democrats' Steel Commission in Scotland
proposed devolution arrangements with greater autonomy alongside
measures to strengthen the UK union). Yet put baldly they raise
issues of principle whose resolution would appear a precondition
for sustainable reform: do we want a more consciously integrated
union than at present, with limits on the scope of cross-border
variations; or are we happy to see far-reaching differentiation
in what the UK state does for its citizens from one part of the
UK to the next?
March 2008
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