Week 6 2 lectures NB Catherine Dishington 11

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Week 6 (2 lectures)NB Catherine Dishington _at_11

• Scottish Executive, Scottish Government and
  Devolved Policy

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Links to other seminars

• New politics v executive at centre
• Executive- legislative relations
• Scottish Political System is there one now?
• The scope for convergence/ divergence
• finance arrangements
• interest groups where do they lobby?

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Plan for 2 lectures

• Discussion of Scottish Executive ministers and
  Scottish Executive civil service
• Outline of devolved responsibilities
• Blurred reserved/ devolved boundaries and MLG
• Case study of consultation documents
• Where do groups lobby?
• How do the executives address these issues?
• UK power by default or Scottish autonomy?

4
Ministers in the Scottish Executive

• Comparison of Scottish and UK executives
• Cabinet system, but smaller size and scope in
  Scotland
• Terms of office similar
• FM needs Scottish Parliament approval in theory
• Biggest constraint is pool of recruitment
• Free reign of FM to intervene in policy,
  qualified by strength of centre and type of FM
• Cabinet government more likely in Scotland?
• Undermined by lack of enforcement
• Fewer Cabinet Committees
• Appointment from Lords

5
Coalition government

• Coalition reflects strength of parties
• LDs select and veto their own members
• Relative LD success in 1999 now reinforced in
  2003?
• Most Lab and LD policies coincide?
• LD successes watered down and at expense of
  selling Labour policy?
• LDs more prepared for coalition key was formal
  partnership agreement

6
Ministers without ministries

• Fosters joined-up government or muddle?
• Divisions base on historical legacy
• Minister for everything undermines argument
  that the system is there for joined up policy
  rather than political patronage
• Example of Enterprise and LLL. Still strong
  functional basis for activity and UK vertical
  links.
• Example of SQA

7
The Civil Service - summary

• Stumbling block to change?
• Neglected area of SCC study
• Legacy of attitude to and functions of Scottish
  Office
• Civil service ill equipped for new role
  information overload and low policy capacity
• UK influence?

8
The civil service constrains divergence?

• maintenance of the unified Home Civil Service
  .. was one of the checks and balances of the
  devolution settlement, designed to prevent any
  drift towards conflict and isolation
  Intergovernmental relations with officials have
  rested not on legal status but on a mutual trust
  and a recognition of a common approach that of
  a professional, non-partisan service engaging
  with the political priorities of their ministers.

9
Role of civil service

• Tempting to see its role as
• as a break on innovation and an obstacle to
  reform pretty untouched by the change in
  constitutional arrangements and political style
  ushered in by the advent of a democratically
  elected Scottish Parliament
• This view has been openly articulated by former
  Ministers ... and echoed by academic and
  independent commentators.

10
Basis for viewing the civil service in this
light (1) The UK caricature

• (a) there is a general tendency to see the civil
  service in a certain light based on UK
  experience and
• (b) this informs a sort of face value assessment
  of Scottish civil service inertia

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However

• Since 1979 the UK literature has stressed a
  challenge to this role - including attempts to
  reduce CS numbers under Thatcher and Blair, the
  personalisation of promotion, efficiency
  scrutinies, Financial Management Initiative, Next
  Steps, delayering, and the greater use of
  advisers

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Alternative picture just as likely

• (a) senior civil servants more engaged with
  managerial rather than policy work (b)
  delayering which allows ministerial contact with
  relatively low grades of civil servants engaged
  in specialist policy work and (c) an increased
  role for outside policy advice.
• In other words, it is difficult to paint this
  picture in Scotland on the old UK basis

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(2) New politics ignorance of the executive left
much civil service discretion and a continued
Whitehall/ centralising influence.

• Pyper outlines lack of e.g. CSG attention to the
  civil service
• This left detailed design to the civil service
  itself (organisational rather than policy)
• The result was an inherited civil service facing
  a new, dynamic Scottish Parliament and devolved
  Scottish Executive

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This point highlights theme of inherited v
dynamic elements

• Senior civil service appointments
• Discretion over public sector pay
• Limits on size/ role of special advisors
• Inheritance through neglect led to Westminster
  style of accountability?
• Scottish Parliament frustration down to
  misunderstanding of civil service role

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(3) The legacy of the Scottish Office

• Siege mentality in Conservative years an
  exaggeration?
• Different ways of working
• Rise of parliamentary scrutiny (point scoring?)
• Support for larger ministerial team
• Information overload
• Need for policy capacity
• This required a change of style and pace which
  the civil service appeared unable to deliver in
  the first 2 years.

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Similar Keating discussion

• The civil service role went from filtering up to
  Whitehall and managing implementation, to policy
  initiation which requires different skills. This
  involves, a whole new game of dealing with
  interest groups, now better organised, more vocal
  and with an outlet in the Parliament.

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Policy capacity and style

• A lack of policy capacity meant reliance on
  groups and local authorities. This fosters the
  Scottish Political System relationship (i.e.
  close, coordinated consultation)
• Old Westminster style in interests of ministers?

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(4) The Scottish Executive civil service is still
part of a UK-wide unified system

• 4 aspects
• culture,
• background,
• reserved issues
• attitude

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Culture

• Rhodes et al (2003)
• No matter how differentiated the UK civil service
  has been, the power of the centre has been
  sustained by transfers. Devolution did not
  change anything there is a commitment in the
  concordat between the Cabinet Office and the
  Scottish administration to promote
  interadministration mobility. A cursory
  examination of the employment history of the
  senior management of the Scottish Executive
  reveals both local knowledge and the pull of
  Whitehall.

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However

• Mobility never high and spells in Whitehall were
  short
• Scottish Office dominated by Scots
• Interchanges less desirable more access to
  policy work in Scotland secondment to private
  sector better for portfolio?
• Mixed evidence 4/10 in Rhodes table had
  Whitehall experience, but included 2 Perm Secs
• In 2004, only 22, but 34 if extend to heads of
  group
• High external appointment rate in health
  countered by vertical/ professional links?
• 60 Scottish but 33 English, half of which moved
  from Whitehall

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Shared background? Ruling class?

• 65 of heads of group and 44 of senior
  management were educated in Scottish
  universities. However, there is also still a
  significant amount of Oxbridge education
  one-third of senior management and one-quarter of
  heads of group.
• 3/9 (33) of senior management and 21 of heads
  of group were educated privately.
• 8/9 of senior management and 80 of heads of
  group were men.

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Reserved matters

• Civil service is a reserved area, as is equal
  opportunites
• The civil service in Scotland may also have a
  practical loyalty towards their respective
  ministers, but an ultimate loyalty to the
  Crown/ Whitehall.

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Scottish attitude to Whitehall

• a need felt by senior civil servants in Scotland
  to continue to contribute to a UK policy process
• Fears of being excluded from the Whitehall club
  of policy formation were a dominant theme in
  office thinking, and indeed the Permanent
  Secretary and other staff made a point of
  travelling to London to occupy visibly the place
  that was left on offer at meetings of their
  Whitehall counterparts.
• Vehicle for Sewel motions?

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Devolved Responsibilities and Multi-level
Governance

• The approach of the Scotland Act 1998 was to
  specify which matters were reserved rather than
  granted.
• Reserved includes
• International relations, defence, fiscal/
  monetary policy, immigration, drugs and firearms,
  elections company law, employment, most energy,
  rail and air, social security, professions,
  broadcasting, nuclear safety, abortions .

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Devolved includes

• Health
• Education and training
• Local government, social work, housing and
  planning
• Economic development and transport the
  administration of the European Structural Funds
• The law and home affairs including most civil and
  criminal law and the criminal justice and
  prosecution system police and prisons
• The environment
• Agriculture, fisheries and forestry
• Sport and the arts
• Research and statistics in relation to devolved
  matters

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Initial uncertainty over boundaries

• Angus Mackay on Register of Sex Offenders
• Industry and the Scotland Office
• 9/11 response

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Uncertainty reflects blurred boundaries

• Health
• Smoking
• Environment/ agriculture
• Economic
• Higher Education
• Social Work
• Law and order
• Housing
• Care for the elderly
• Cross-cutting issues
• Fuel poverty
• NB foreign affairs i.e. not all one-way
• Common to most federal systems

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Intergovernmental relations and the use of
Consultation

• Huge consultation the Scottish policy style
  (CSG)?
• NB
• Numbers misleading
• UK comparison
• EU influence

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Types of Consultation

• OPEN
• (1) Call for ideas - "issue paper"
• (2) Green paper or equivalent - i.e. framework/
  agenda with specific questions (based on
  preliminary consultation with groups)
• (3) Re-consultation based on previous responses
  or consultation taken after a formal evaluation
  of an existing service annual review (NB
  categories 4-7 will also be based on previous
  consultations)
• (4) Based on White Paper or equivalent (e.g.
  Partnership Agreement if there is agreement on a
  firm proposal) with firmer statement of intent
  before final formulation stage
• (5) Consultation on the implementation of policy
  (including broad proposal to revise guidance
  i.e. a revision of policy without legislation or
  particularly formal scrutiny)
• (6) Draft guidance/ regulations arising from
  Acts (or draft bills for final comments)
• CLOSED

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Scottish Executive Consultation Types 1999-2004
32

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How Do Interest Groups deal with Multi-Level
Governance ?

• Seeking access in Scotland dependent on ability
  of Scottish Executive to influence?
• Most groups address MLG by lobbying indirectly
  through the Scottish Executive, maintaining links
  with UK organisations and European networks or
  (in fewer cases) making direct representations
• Some have a dual focus
• Others have peripheral interests in Scotland

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Examples

• Business rates v other taxation devolved
  business groups heavily involved, big banks less
  so, whisky almost not at all, FTA exceptional
• Agriculture Europeanised but influence mainly
  through Scottish Executive with e.g. some NFU/
  NFUS links. Different fishing strategies
• BASW moves with issue

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Other examples

• Health BMA and RCN big Scottish delivery/ NHS
  focus. Royal colleges UK focus. All see or
  negotiate effects of WTD.
• Housing/ homelessness big Scottish focus, with
  awareness of reserved areas
• Trades Unions slow to devolve because of
  employment law? Unison an exception. STUC has
  concordat on economic development, public
  services but negotiates on discussions of HS

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How do executives deal with these issues?

• MLG or blurred/ shifting boundaries common to
  states devolving some responsibilities but
  maintaining central control in others
• The difference is in how they are dealt with
• The UK arrangements are informal and between
  executives
• Barnett, civil service and party/ government
  links help relations
• 2 narratives on the arrangements

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Top-down narrative

• Lack of contact on these issues reflects UK
  ministerial neglect/ disentanglement
• Scotland unwilling to risk insider position
• When disputes rise to surface Scotland loses out
• E.g. AA and FPC
• Dominance reflected in default use of Sewel
  motions to address legislative problems

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The Significance of Sewel Motions

• Live issue see 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)

43
(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.

44
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

46
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

49
The bottom up narrative

• MLG is also an opportunity for informal influence
• Finance arrangements are conducive to autonomy
• Importance of UK power exaggerated by focussing
  on a few conflicts
• FPC money given up, but much more received for
  housing

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continued

• Reverse Sewel continues the old Scottish Office
  process of executive devolution
• Many other Sewel motions are innocuous
• MLG is as much an opportunity as a constraint
• Eg the exec can exert informal influence in
  Europe directly and through the UK

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Europe Mixed picture

• Strong bargaining position, own office in
  Brussels
• Involvement still decided by centre and examples
  of success limited
• Irony of formal participation
• Informal process (MLG)

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Bottom-up narrative continued

• Remember the Scottish Political System argument
• Policy decisions can be framed or reframed as
  humdrum or experiments (before devolution) or as
  devolved areas
• Clearest example is smoking
• Now the Scottish Executive is considering
  corporate manslaughter

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Combining narratives

• Sewel motions serve both executives
• Ability of Scottish Executive to go its own way
  constrained by need for approval or acquiescence
  (as with health safety)
• Contingent nature of power / autonomy means case
  study approach
• Nuclear power use of devolution or executive
  devolution?
• Asylum and airguns informal influence?
• Malawi UK context?

54
Central-local relations

• More in week 7 and 8
• Smaller scale, more personal relations
• Relations with the Scottish Office and local
  authorities did not deteriorate as much as in
  England despite poll tax, rate capping, CCT, etc.
• Why is the relationship under strain now?