Scotland is stuck. This week has only confirmed it. SNP leader Humza Yousaf used his party conference in Aberdeen to announce a council tax freeze. It quickly emerged that he had done so without telling councils and without telling even his own cabinet. As his deputy admitted in an interview, the decision to freeze was agreed between 24 and 48 hours before the speech. Council tax was reportedly chosen because there wasn’t enough time to get expert advice on the impact of freezing other taxes.
Councils are furious. Not only weren’t they consulted, but they are already making £300 million in cuts amid a two-year budget shortfall of £1.1 billion. The blame, councils say, lies squarely with the SNP-run Scottish Government, which has spent much of its 16 years in power hacking away at local government funding allocations. They will almost certainly have to find even more efficiencies on top of those that have hollowed out local services in recent years.
Councils may be furious but exactly no one is surprised. This is just how the government of Scotland functions under devolution. The executive decides, parliament complies and everyone else has to suck it up. Mistakes are made — mistakes are expected — and process is a nicety to be honoured where necessary but disregarded when it hinders the ministerial will.
This is how things work in Scotland for two reasons. First, the devolution settlement was poorly designed. Second, Scottish politics continues to be anchored — some would say sunk — by nationalism, and the SNP’s position as the main pro-independence party probably explains why it is only dwindling rather than plummeting in the polls. So strong is the SNP’s brand image that, in the very week in which Scots were supposed to be voting in Nicola Sturgeon’s unilateral secession referendum, the party leadership got conference to agree yet another watering down of independence policy with relative ease.
Bad institutions and nationalist sentiment have conspired in a decade-long petrification of Scottish politics. In that time, ministers have failed to close the attainment gap in education; meet their own NHS waiting times targets on A&E, mental health and cancer; and deliver key infrastructure projects. Devolution, sold to the voters as a near panacea for Scotland’s political, social and economic problems, now appears to have been another god that failed.
Can anything be done about this? For a number of years now, I and others have been arguing for devolution reform to make the Scottish Parliament more effective while reducing its potential for disrupting the constitutional order. The Conservatives have had 13 years in which to undertake such reform and are unlikely to make much progress in what will likely be their last year in government for some time. There is, however, one remaining option open to the UK Government: set up a Royal Commission on devolution.
The timing could not be better. Devolution turns 25 next year, more than enough time to review the experiment, its successes and failures. Labour also faces the prospect of returning to government with a generation of ministers who have never had to deal with devolved administrations. What they have seen, however, is just how ruthlessly their political opponents can exploit not just the legislative powers of the Scottish Parliament but the national platform that is the Scottish Government to challenge UK ministers and attempt to frustrate their policy agenda.
Viewed from opposition, Labour wasn’t too bothered about Sturgeon travelling European capitals after the EU referendum, meeting representatives of foreign governments, and even denouncing Brexit in the French parliament. It wasn’t too bothered about the Scottish government calling for an arms embargo on Israel in 2014. It wasn’t too bothered about SNP ministers pressing ahead with legislation on independence and gender in the face of Whitehall opposition. Labour’s perspective will look a lot different when it is back on the Treasury benches and the SNP government in Edinburgh is finding ways to manufacture conflict and grievance with Westminster.
It is therefore in Labour’s interests to embrace a Royal Commission and use it to arrive at a consensus in the House of Commons over devolution reform. There are those in Labour, and not just its Scottish offshoot, who would see a Royal Commission as an opportunity to tear away at what remains of UK political unity in the name of further devolution. These are the federalists and others who have, through a thought process mysterious to the rest of us, concluded that Gordon Brown is some kind of constitutional authority.
Going down the Brown path would be entirely the wrong direction of travel. More concessions will only embolden and empower the Nationalists further and guarantee that future Holyrood governments, of whatever political stripe, are able to cause problems for Westminster. What any Royal Commission should consider are reforms to devolution that make Holyrood work and that reassert Westminster sovereignty.
Options worth exploring under the first column include meaningful elections for committee convenors and increased resources for opposition parties. There are sometimes calls for a second chamber for Holyrood but a Royal Commission could take evidence on whether this could be achieved under the current unicameral arrangements, perhaps by dividing legislative revising duties between constituency and regional MSPs. This would also be an opportune moment to consider whether it is compatible with separation of powers to have the head of Scotland’s prosecution service sit as a minister in the Scottish Government.
The second column is where differences of opinion are likely to be sharpest. However, there are a number of measures that Labour and the Tories should be able to agree upon. Among these are amending the Scotland Act to explicitly forbid the expending of Scottish Government or Scottish Parliament resources on reserved areas such as foreign policy and independence and enjoining civil servants from undertaking any duties in relation to non-devolved matters. Glasgow University law professor Adam Tomkins has proposed a legal duty on devolved administrations to ‘facilitate the achievement of the United Kingdom’s tasks and refrain from any measure which could jeopardise the attainment of the United Kingdom’s objectives’. The language is taken almost word-for-word from the treaties of the European Union, whose praises the SNP are fond of singing. A similar provision can be found in the South African constitution. A Tomkins clause deserves serious consideration.
A Royal Commission would allow the Tories and Labour to set aside their constitutional differences and agree on a package of devolution reforms that strengthen the functionality of the Scottish Parliament. The SNP would scream bloody murder but it does that already. Establishing a reform-minded Royal Commission would get Westminster and the main parties screamed at just as much, but this time they would get in exchange substantive improvements to how Scotland is governed while fortifying the UK against those who wish to dismantle it from within.
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