3 The Commission on Scottish Devolution's Recommendations
- The Commission on Scottish Devolution made 63 recommendations in total. Those which are relevant to this paper include those on Stamp Duty Land Tax, children of asylum seekers, airguns and speed limits.
- While the Scottish Government has welcomed these proposals, they do not go far enough in enabling the Scottish Government to pursue policy best suited to Scotland.
- Examples highlighted include the limited proposals for further devolution in relation to firearms and drink-driving limits.
3.1. The Commission on Scottish Devolution was established in April 2008 further to a debate in the Scottish Parliament and with the support of the UK Government.
3.2. Its remit was:
'to review the provisions of the Scotland Act 1998 in the light of experience and recommend any changes to the present constitutional arrangements that would enable the Scottish Parliament to serve the people of Scotland better, improve the financial accountability of the Scottish Parliament, and continue to secure the position of Scotland within the United Kingdom'.
3.3. The Commission published its final report on 15 June this year, making 63 recommendations. The Scottish Government published its detailed response to these recommendations on 9 November 2009. 6
The Commission's recommendations
3.4. Of these recommendations, a number relate specifically to housing, law and order, children, health and social aspects of transport. A number would relate more generally by affecting Scotland's borrowing and taxation responsibilities and the way in which the block grant from the UK Parliament is calculated.
3.5. Recommendations relating to housing include the following:
- that Stamp Duty Land Tax should be devolved to the Scottish Parliament, with a corresponding reduction in the block grant. (Recommendation 3.2)
- that there should be scope for Scottish Ministers, with the agreement of the Scottish Parliament, to propose changes to the Housing Benefit and Council Tax Benefit systems (as they apply in Scotland) when these are connected to devolved policy changes, and for the UK Government - if it agrees - to make those changes by suitable regulation. (Recommendation 5.19).
Box 6: Case Study - Stamp Duty
Responsibility for Stamp Duty Land Tax would be an additional useful policy lever for the Scottish Government housing and economic policy. There are numerous ways that Stamp Duty Land Tax could be used to achieve wider objectives such as setting rates at a level to incentivise energy efficiency. This is in addition to the potential for duty holidays to relieve stressed markets.
However, this recommendation cannot be seen in isolation from the overall tax and benefits system in which they sit and the overall financial framework for funding the Scottish Budget. Whilst the Scottish Government is keen to secure further responsibilities for Scotland, the recommendations do not go far enough, and would still result in the majority of Scottish tax revenue being determined by the UK Government.
In addition, devolving responsibility for only a limited subset of taxes, as the Commission recommends, means that should the base of those taxes fluctuate (as has been fairly clearly demonstrated in terms of Stamp Duty in recent times), then it is not possible for the Scottish Government to compensate for cyclical falls in tax receipts. This could introduce greater uncertainty and volatility into Scotland's finances and hence public services.
Box 7: Case Study - Housing Benefit
The wide array of social security benefits and tax credits available in the UK are interdependent. Changes to any one element of Housing Benefit are likely to have a knock on effects to other areas of the benefit system and consequently impact on both the coherence and the cost of the overall benefits system. It is likely therefore that any meaningful improvement would be impractical to deliver.
Rather, full responsibility over the benefits system, accompanied by full fiscal autonomy, would be the minimum required to deliver a benefits system tailored to Scotland's needs. Therefore the degree of autonomy afforded to Scotland by the Commission's recommendation on Housing Benefit may be more apparent than real.
3.6. Recommendations relating to law, order and transport safety include the following:
- The regulation of airguns should be devolved to the Scottish Parliament (Recommendation 5.14)
- Regulation-making powers relating to drink-driving limits should be transferred to Scottish Ministers (Recommendation 5.15)
- The power to determine the level of the national speed limit in Scotland should be devolved. (Recommendation 5.16).
Box 8: Case Study - Firearms
The Commission recommended that the regulation of airguns should be devolved to the Scottish Parliament but that the regulation of firearms generally should remain at the UK level. Its report argued that parallel regulatory systems within the UK would be excessively complex and confusing. It also argued that wider devolution of firearm regulation would inconvenience those who wish to shoot on both sides of the border, and would interfere with attempts to produce a 'coordinated approach' to the misuse of firearms.
Arguments around the burden of regulation do indeed have to be weighed in any debate about the costs and benefits of 'subsidiarity' in controlling potentially harmful activity. However, the Scottish police currently experience frustration in enforcing existing firearms legislation because of the disparate and incoherent nature of the regulations.
The Commission stressed the danger in having 'different, uncoordinated policies' across Great Britain in relation to firearms, but conceded that 'if there is appetite to deal with air weapons differently in Scotland than south of the border then the advantages of enabling the Scottish Parliament to do so outweigh the disadvantages'. The position of the current administration is that devolution is fundamentally about recognising the need and scope to do the right thing for Scottish circumstances whilst at the same time building sensible partnerships with our nearest neighbours. As the Commission said: 'it is not inconceivable that some sort of mutual recognition arrangement could be reached that would allow firearms certificates in one jurisdiction to be accepted in another'. In practice, devolution has already provided strong evidence that different regulatory regimes can work satisfactorily together whilst maintaining distinctions that are important in different countries.The Commission presented the Scottish position on airguns as a matter of regulatory 'appetite'. Airgun crime threatens some of our most deprived communities; the use of air weapons, particularly by young people, is a part of a culture that no government in Scotland can allow to develop. The position of the current administration is that there are good arguments not only for equipping the Scottish Parliament to regulate airguns, but for taking similar competence across the whole field of firearms. This would allow for a coherent policy to be developed which takes account of the specific views and needs of Scotland's communities.
Box 9: Case Study - Drink Driving Limits
Drink driving hinders efforts here in Scotland to make our roads and communities safer. Figures for 2006, the latest available, indicate that there were a total of 980 casualties in Scotland as a result of accidents involving illegal alcohol levels. Of those casualties, an estimated 30 people were killed and 160 seriously injured. This suggests that around 1 in 9 road deaths in Scotland occur in alcohol related incidents.
There have been widespread and repeated calls for a reduction in the drink drive limit in Scotland from 80mg per 100ml of blood, to 50mg. Research by University College London in 2005 suggested that six lives could be saved in Scotland every year if this reduction were to take place. In addition, a reduction in the drink drive limit would send a strong message that Scotland must and will change its relationship with alcohol and work to develop socially responsible attitudes to it. However, the matter is reserved and the ability to bring forward a reduction currently lies with the UK and not the Scottish Government. Devolution of this responsibility would allow the Scottish Government to act quickly to meet Scottish demands for a lower limit.
The Commission recommended that the Scottish Parliament should be able to set a single drink driving limit by regulation. The devolution of this responsibility to Scottish Ministers would allow Scotland to make progress and would be consistent with Scottish responsibility for the overall criminal justice system. Nonetheless, even with the benefit of the additional discretion proposed by the Commission, there will still be gaps in the responsibilities of Scottish Ministers. For example, they would not have the ability to set differential limits for certain groups of drivers such as young or commercial drivers should they decide to do so. Under the Commission's recommendation that responsibility would remain with the UK Government and Scottish Ministers would still lack the full range of levers necessary to make key policy decisions about drink driving limits in Scotland. Further devolution of competence would be necessary to address this gap.
Box 10: Case Study - Speed Limits
National speed limits are currently set by the UK Government. Scottish road authorities already have responsibility for setting local speed limits which means they have the ability to set lower speed limits on local roads in their areas, while, the Scottish Government can set lower speed limits on specific parts of the trunk road network.
The Commission has recommended that responsibility for setting national speed limits should be devolved to the Scottish Government. This would enable the Scottish Government to decide on our own national speed limits, taking into account relevant Scottish issues such as the rural economy and climate change targets, rather than be so constrained by decision making at UK level, which may not fully take account of particular Scottish circumstances.
3.7. Recommendations relating to health include the following:
- Regulation of all health professions, not just those specified by the Scotland Act, should be reserved (Recommendation 5.12).
- The Scottish Parliament should not have the power to legislate on food content and labelling in so far as that legislation would cause a breach of the single market in the UK by placing a burden on the manufacturing, distribution and supply of foodstuffs to consumers, and Schedule 5 to the Scotland Act should be amended accordingly (Recommendation 5.11)
Box 11: Case Study - Regulation of Health Professionals
The Scotland Act 1998 reserves to Westminster the regulation of the health professions regulated at the time of devolution. Consequently, legislative and executive competence for regulation of any new health profession subsequent to the Scotland Act has been automatically devolved.
This has allowed Scotland real influence over which new professions need to be regulated and how. It has also led to the pursuit of robust and novel approaches through more equal partnership discussions with officials across the UK. There is increased dialogue with the Council for Healthcare Regulatory Excellence ( CHRE), which oversees the regulators and has one member appointed by Scottish Ministers. All of the professional regulators' Head Offices are in England, but since devolution the General Medical Council ( GMC), the General Dental Council and the Health Professions Council have developed a presence in Scotland too.
This is good news for Scotland, demonstrating a keen interest by professional regulatory bodies in Scottish devolved health policy and its impact on regulation. Importantly, the Scottish Government was able to ensure that the UK Government White Paper Trust, Assurance and Safety - The Regulation of Health Professionals in the 21 st Century, recognised that implementation of some of the practical aspects of its significant regulatory reforms would need to be slightly different for Scotland and the other devolved administrations, due to increasingly divergent (and devolved) NHS structures and systems. The Scottish Government was also able to ensure significant Scottish input to subsequent Department of Health ( DH) Working Groups impacting on devolved areas. For example, Scotland took forward a pilot on the regulation of healthcare support workers on behalf of all four UK countries.
If the Commission's recommendations were implemented, there would be no statutory imperative for DH to consult with and gain the agreement of the Scottish Government on legislation either to amend the regulatory regimes for those professions whose regulation is currently devolved, or to introduce the regulation of new professions. Any Orders under Section 60 of the Health Act 1999 with devolved elements currently have to be approved by resolution of the Scottish Parliament as well as Westminster. Due to different health structures and systems, Scotland takes a different approach from England in terms of operational practicalities and if the regulation of all professions was reserved there would be no guarantee that these nuances would be accounted for.
Real influence in all areas of healthcare professional regulation can only be guaranteed through complete devolution of regulation, or independence, which would ensure Scotland has an even greater influence over regulatory policy than at present. This need not rule out UK-wide regulatory systems, but would ensure real consensus. Where that could not be achieved, the Scottish Government could make its own legislation.
Box 12: Case Study - Food Content and Labelling
It is understood that the inclusion of the proposal to re-reserve food labelling in the Commission report was a result of direct lobbying by the alcohol industry. The Scottish Government is firmly of the view that there should be mandatory labelling of alcohol products. There is an argument - which was explicitly recognised in the Scottish Alcohol Framework 7 - for a single UK-wide regime given the potential for confusion amongst consumers and for increased costs to the industry from operating different systems and we are seeking to work with the other administrations to achieve this. However, in the event that the UK Government decides to continue on the basis of a voluntary regime, the existing devolution settlement would allow the Scottish Government to pursue a mandatory scheme on alcohol labelling in order to protect the health and wellbeing of the people of Scotland.
3.8. Recommendations relating to children include the following:
- In dealing with the children of asylum seekers, the relevant UK authorities must recognise the statutory responsibilities of Scottish authorities for the well-being of children in Scotland (Recommendation 5.7)
Box 13: Case Study - Children of Asylum Seekers
Scottish Ministers and officials already have regular discussions with Home Office Ministers and UK Border Agency ( UKBA) about the Children (Scotland) Act 1995 and the need to promote the well-being of children seeking asylum in Scotland. Since January 2009 all UKBA staff and contractors have been operating under a statutory Code of Practice to keep children safe from harm and have a new statutory duty to safeguard and promote the welfare of children.
3.10. While the Commission recommendations for additional devolution are to be welcomed, they represent minor improvements to the status quo. It is the Scottish Government's belief that other options in this paper better allow us to choose policies and delivery mechanisms which best reflect Scotland's interests.