Week 7'1 Convergence and Divergence

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Week 7.1 Convergence and Divergence

• Reasons for and against/ The significance of
  Sewel Motions.

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Initial points to consider

• Issues of measurement legislation (primary/
  secondary), implementation, service delivery
• The significant departures how divergent are
  they in practice?
• The rush to policy - what will happen when
  things calm down?
• Scotlands administrative devolution (unusually
  in Europe) means that policy is already
  different and so identified difference may not
  mean divergence

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Reasons for divergence (In no particular order)

• Social attitudes?
• Larger role for public sector professionals
• Those professions more inclined to universalist
  forms of provision
• Politicians making their mark
• Concessions and coalition politics
• Different party competition right in England,
  left in Scotland?
• Labour and the middle classes in England/
  tackling the threat of opt-out
• Scottish policy style/ lack of direct control in
  England
• Differences in economic structure
• Different policy conditions.
• Existing differences
• The role of respective parliaments

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Reasons for convergence/ limited divergence

• Finance and the role of the Treasury
• EU commitments
• UK single market
• UK welfare state/ welfare immigrant problem
• Reserved/ devolved issues (see Sewel)
• Issues may cross departmental/ policy boundaries
• Party and ministerial links
• Civil service uniformity
• Policy learning
• UK professions
• The role of ideology across jurisdictions
• Problems that defy solutions?
• And finally similar policy conditions.

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The Significance of Sewel Motions

• Live issue see resources in Procedures Inquiry
• What are Sewel Motions?
• These are passed by the Scottish Parliament to
  give Westminster the authority to legislate on
  devolved matters
• Confusion Also used to describe reverse-Sewel
  procedures

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Definitions

• Westminster legislation for devolved purposes
  the biggest category
• Westminster legislation altering legislative
  competence (NB examples of this are thin on the
  ground)
• Westminster legislation altering executive
  competence or reverse-Sewel
• Given that all of these examples are lumped
  together, one may argue that Sewel motions cede
  responsibility back to the UK and that they give
  more powers to Scotland!
• NB evolution of process/ Incidental issues

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TYPES OF SEWEL MOTION(1) Policy Uniformity,
Convenience or Expediency (3)

• Scottish Executive adopts same policy for
  pragmatic reasons
• Quick resolution without precluding Scottish
  Parliament legislation in future
• Anti-terrorism opt-outs with corruption law,
  racial hatred, face coverings
• Representation of People extends postal ballots
  to local authorities to avoid anomaly
• Sexual Offences political cowardice? NB
  Parliament Act

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(2) Entangled Responsibilities (19)

• Largest category, common to federal/ devolved
  systems
• Crime the most common policy area
• International Criminal Court demonstrates
  perceived need to take no chances with loopholes
  and status of Scottish Parliament legislation
• Other examples when devolved - e.g. civil and
  criminal law, powers of arrest, crime prevention
  meets reserved e.g. drug trafficking, money
  laundering and taxation, extradition, customs and
  excise.
• Blurred boundaries apparent in other areas
  marine safety reserved, definitions of a marine
  craft devolved regulation of business
  associations reserved, limited liability
  partnerships devolved emergency services
  devolved, the pension rights of emergency workers
  operating abroad reserved, etc.

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(3) Motions which Cover UK Regulatory Bodies or
Minor Administrative Matters

• Covers UK-wide agencies (with a Scottish arm)
  operating in devolved areas
• E.g. FSA, FSA, CRE
• Also minor administrative
• E.g. Police secondment to tribunal
• Transfer of DSS functions to local authorities in
  community care (NB expediency)

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(4) Motions which Provide for the Devolution of
Powers in the Future (9)

• Reverse-Sewel?
• Giving Scottish ministers rights to produce
  subordinate legislation on approval schemes for
  electronic signatures for business, the
  introduction of new regulatory bodies for health
  professionals, extending prescribing rights to
  professions such as pharmacists and
  physiotherapists, implementing the EUs landfill
  directive, and the employment rights of local
  authority employees.

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Page and Batey (2002)

• Why such a strong pull towards uniformity? If
  Scottish position does not seem distinctive, UK
  departments will offer policy to Scottish
  ministers. But why would they accept?

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Why would ministers accept?

• Electoral expectations and lagging behind e.g.
  Payne/ Kilshaw (the exceptions?)
• A reliance on UK bodies to ensure regulatory
  uniformity
• To prevent regulatory arbitrage and close
  loopholes in the law
• To comply with EU/ international obligations such
  as the ECHR (although this can be done in
  Scotland)
• The importance of party links and Labour
  ministers natural inclination to seek or
  accept uniformity

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However, such uniformity can be achieved in
Scotland. So why rely on UK?

• Blurred boundaries
• Scottish legislation open to challenge
• Expediency
• To avoid disrupting legislative timetable
• Administrative convenience (although NB change)
• Political cowardice age of consent for gay sex?
  Civil partnerships?

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Sewel Motions Issues and Debates

• (1) It was originally envisaged that this
  procedure would be exceptional
• (2) There are about as many Sewel motions as Acts
  of Parliament.
• (3) The levels of (particularly SNP) opposition
  to Sewel motions principle versus substance.
• (4) The motions considered are small and
  innocuous?
• (5) The lack of scrutiny undermines new politics?
  

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Issues and Debates

• (6) The significance of reverse-Sewel motions
• (7) That the process should link parliament to
  parliament, not executive to government.
• (8) Scrutiny reserve?
• (9) What is the effect of Sewel Motions do they
  hand back power to Westminster or retain some
  level of Scottish control?
• (10) What ought to happen if a Westminster bill
  is amended in such a way that it goes beyond the
  consent that was originally given in the Sewel
  motion?
• (11) Who initiates the motions?
• (12) The timing of the Sewel motion

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Other issues for discussion

• (e.g. Tobacco advertising Outworking fraud) The
  Sewel motion does not guarantee that Westminster
  will actually legislate
• Do Sewel motions give unlimited time?
• A Sewel motion does not preclude Scottish action
  e.g. adoption review, anti-terrorism opt-outs.
• Dissatisfaction of Scottish groups with moving
  the process

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What are the options for change?

• The introduction of a committee to deal with
  Sewel motions?
• A greater use of restrictions on the wording of
  the motions?
• An improved role for and further resources
  devoted to - the Subordinate Legislation
  Committee?
• Any suggestions?