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People and Communities: Taking forward our National Conversation


2 Current Arrangements

Chapter Summary

  • Most aspects of housing, health, policy relating to children, law and order and transport are already devolved.
  • Since devolution much has been achieved in these areas, such as Curriculum for Excellence - the biggest reform of the education system for a generation, and the introduction of the Air Discount Scheme to promote inclusion in some of Scotland's most remote areas. In addition, Scottish approaches to health have seen the development of a mutual NHS, the ban on smoking in public places and free personal care.
  • However, successive administrations have been constrained in policy-making through not having full responsibility for all policy implemented in Scotland, such as maximising the contribution of services to improve the lives of our children and young people.


2.1. The Treaty of Union preserved Scotland's separate legal system within the United Kingdom. Scottish education has also developed a distinctive tradition, built on the foundations laid before the Union, and taken forward through measures such as the Education (Scotland) Act 1872, making education compulsory for those between 5 and 13 . Since 1999 the Scottish Parliament has had devolved responsibility for most aspects of housing, health and transport. There are, however, significant exceptions to the Parliament's responsibilities. This chapter examines the achievements and limitations of the current devolution arrangements.

Housing and Regeneration

2.2. Scotland is able to take a distinctive approach to its housing and regeneration because large parts of policy-making are devolved, including funding, land-use planning, tenancy rights, housing quality, property law and regulation of landlords. Successive Scottish Parliaments and Governments have worked within their devolved responsibilities to improve Scottish housing and support regeneration. Significant progress has been made in the first decade of devolution, including internationally acclaimed homelessness legislation, a range of radical measures to improve the condition of housing stock in the social and private sectors, and introducing the first national mortgage support scheme for homeowners at risk from repossession.

2.3. The present Scottish Government has set out an ambitious framework to meet the housing needs of all of Scotland's people and communities and - crucially - to unlock sustainable economic growth. An adequate supply of housing is as essential for labour mobility as it is for quality of life. Investment in housing directly and indirectly contributes significantly to the Scottish economy - around £5 billion in 2006 or around 6% of GDP according to external sources 3.

2.4. Key achievements include:

  • a record £644 million invested to deliver more affordable housing this year;
  • £50 million provided to kick-start a new generation of council house building - the biggest programme in 30 years;
  • 14,430 free central heating systems installed in older people's homes in 2008/09, a record number, helping many of the poorest and most vulnerable in society;
  • the Home Insulation Scheme established, which will be underpinned by £15 million of Scottish Government money, complementing the new £60 million Energy Assistance Package;
  • a £11.2 million ePlanning initiative put in place that will make Scotland's planning system simpler, faster and more accessible, providing a consistent level of service throughout the country;
  • the implementation of the Home Report to bring better information on house condition and value into the Scottish housing market; and
  • a range of measures to support housing in the face of the global recession.

Box 1: Case Study: Addressing the recession

The Scottish Government has taken decisive action, as far as possible within its current responsibilities, to respond to the global economic downturn. Housing has been at the heart of that response. Action has included:

  • bringing forward £120 million of affordable housing investment from 2010-11 to support house-building in partnership with local authorities who provided £40 million. This has helped preserve production capacity in the building industry.
  • expanding Open Market Shared Equity with a £60 million budget in 2009-10 to help more families to buy at the lower end of the housing market.
  • an urgent review of the ways in which reserved or devolved legislation should be strengthened to protect people under threat of repossession and the launch of a new Home Owners Support Fund. Together with the Mortgage to Rent Scheme and a new Mortgage to Shared Equity Scheme, this is helping provide £35 million to protect home-owners facing repossession.

The Scottish Government is continuing to support six Urban Regeneration Companies ( URCs) across Scotland to deliver their ambitious plans for the transformation and regeneration of their areas. The URCs have adapted their plans to respond to the economic downturn and to create the right environment for development when markets recover . And, taking account of the contribution made by Scotland's town centres to the economic and social fabric of the nation, the Scottish Government created the £60m Town Centre Regeneration Fund to support the improvement of Scotland's town centres and local high streets. In turn this will support local economies through the economic downturn.

2.5. There are, however, significant limitations on the ability of the Scottish Government and Parliament to take action to deliver the housing which Scotland needs. To take just one example, their ability to respond to the recession has been severely limited by the inflexibility of the funding arrangements under the Barnett formula. More generally, crucial policy levers such as inheritance tax, stamp duty and the social security system are reserved to Westminster.

2.6. The distinctive features of the Scottish housing landscape mean that an approach which may be appropriate in other parts of the UK will not necessarily deliver for Scotland.

2.7. As well as having different legal arrangements in areas such as property law, housing in Scotland has traditionally been more affordable than the UK average and the housing market has, in general, been less volatile. Scotland has less private housing and a higher proportion of households have tended to meet their housing needs through the social rented sector. Though the proportion of households socially renting in Scotland has been falling in recent years to a level closer to that in England, this difference remains.

2.8. In terms of house type, Scotland has more than twice as many flatted properties as England, with 36% of all homes being flats compared to only 17% in England. The way in which Scottish homes are built differs from that elsewhere in the UK. For example, Scotland has a significantly higher proportion of solid wall or timber construction homes than England and these are not suitable for cavity wall insulation. And Scotland's climate, which also affects approaches to energy efficiency and fuel poverty, is, on average, colder than the rest of the UK.

2.9. These differences mean that current arrangements, whereby the UK Government retains key responsibilities - the tax and benefits systems, the regulation of lending, consumer protection and businesses offering housing services, and borrowing - can, and in practice often do, thwart the revitalisation of housing in Scotland. Differences in housing law can mean that the fit of UK regulation with Scottish circumstances can be compromised. Differences in tenure pattern is a crucial factor on the design emphases of housing policy while the differences in the type of Scottish homes and the way in which they are built means that approaches to improving housing conditions and energy efficiency need to be tailored to suit Scottish circumstances. The greater degree of rurality and generally colder climate in Scotland mean that a one size approach across the UK will not always be to Scotland's advantage. These issues are discussed in detail in the following chapters.


2.10. Since the formation of the National Health Service in 1948 a fundamental principle has been the provision of healthcare services delivered free for those who need them. This Scottish Government is wholeheartedly committed to publicly funded healthcare services for the people of Scotland.

2.11. There are 14 territorial (geographically based) NHS Boards in Scotland. The Boards differ in size, population served and the services capable of being provided locally. The Scottish Government provides each Board with an annual funding allocation to support the delivery of services. In addition, there are 7 Special Health Boards, supported by the Common Services Agency, that provide support services for the whole of the NHS in Scotland. For example, NHS Education Scotland provides postgraduate education services for healthcare professions and related advice and support.

2.12. The NHS in Scotland is distinct from that south of the border. Instead of a competitive "internal market", Scotland has a long-standing and robust integrated healthcare system that sees Government and NHS Boards working collectively and in collaboration towards common goals. What this means for the people of Scotland is that if an individual needs specialist advice and/or treatment then their General Practitioner will refer them to a hospital or treatment centre either within their own Board area or elsewhere if their local Board does not provide the relevant service(s).

2.13. The devolved health budget is currently £11,030 million, which makes up over a third of the overall Scottish Government Budget of £32,900 million in 2009-10. The equivalent figures for 2008-09 were £10,644 million and £31,317 million respectively. The level of the total Scottish Government Budget is informed by the Barnett formula, which determines changes to the assigned budgets of the devolved administrations. However, the increases applied to individual portfolios are determined by the Scottish Government.

2.14. The achievements of the NHS under devolution demonstrate how Scotland has been able to take a different approach from the rest of the UK to ensure the best possible health services for the people of Scotland. Key achievements include:

  • continuous and sustainable improvements in access to NHS services. Waiting times have been reduced from a pre-devolution high of 12 months for in-patient and day-case treatment to the current 12 weeks target for out-patient consultation and for in-patient and day-case treatments. Such tremendous progress has been made by bringing in new and more efficient ways of working as well as more investment in capacity. The skills of nurses and allied health professionals have been utilised to enable them to take on more roles and give patients more choice. Better workforce planning has ensured that the right staff with the right skills are available in the right place to treat patients. New diagnostic and other equipment has been introduced along with more strategic and effective use of IT such as the development of the single patient record; and
  • In recent years, Scotland has received international recognition for its world-leading approaches to healthcare quality improvement, through groundbreaking initiatives such as the Scottish Patient Safety Programme which is being implemented in every NHS Board and is designed to improve the safety of care by:
  • reducing healthcare associated infection;
  • reducing adverse surgical incidents;
  • reducing adverse drug events;
  • improving critical care outcomes; and
  • improving the organisational and leadership culture on safety

Box 2: Case Study - Free personal care

Free Personal and Nursing Care has been one of the most high-profile and defining policies under devolution. It currently improves the lives of over 50,000 vulnerable older people in Scotland. Around 42,000 people now receive personal care services at home at no charge allowing them to remain in their own homes and live independently for longer.

9,600 self-funders in care homes receive a weekly payment of £153 towards their personal care and around 6,100 of them are also receiving £69 per week towards their nursing care costs. Recent statistics show that as more people benefit from free personal care in their own homes, there are fewer free personal care clients in care homes. This is firmly in line with the Scottish Government's policy of shifting the balance of care from residential care, and supporting more people to remain in their own homes for as long as possible.

The introduction of Free Personal Care in Scotland did however raise issues surrounding the existing Attendance Allowance benefits administered by the UK Government, which are explored further in Chapter 4.

2.15. Under devolution Scotland has also seen major progress, and achieved international recognition, for its innovative and aspirational approach to public health. Scotland led the way in the UK with legislation to ban smoking in public places. Other achievements range from a programme to tackle Hepatitis C to far-reaching proposals to address alcohol misuse.

2.16. The NHS in Scotland also contributes directly to growth in the Scottish economy not only by improving the health and wellbeing of the working age population but also through the significant investment in world-class research and development in medical/life sciences technology and innovation, and by pursuing continuous improvement in the quality of the healthcare services it provides.

Box 3: Case Study - Smoking Ban

On 26 March 2006, Scotland became the first part of the UK to ban smoking in enclosed public places. The legislation has been hailed not only as the most important piece of public health legislation since the introduction of the NHS but as a defining moment in devolution. It is widely acknowledged that, in the absence of the leadership shown by the Scottish Parliament, smoking bans would not have subsequently been introduced elsewhere in the UK.

However a number of areas relating to tobacco in which the Scottish Government does not have the ability to legislate remain and which therefore restrict the Scottish Government's efforts at reducing the harmful effects of smoking. These include pack size and plain packaging.

The Smoking Prevention Working Group, a panel of experts set up to advise Ministers on reducing smoking rates in Scotland, highlighted concerns around packets of 10 cigarettes. Recent research suggests that the majority of under-age smokers purchase packets of 10 cigarettes. A number of countries, including France, Australia, New Zealand, Canada and 14 states in the US have banned the sale of packets of 10 cigarettes as part of wider youth prevention strategies. Following more detailed research in this area, Ministers in Scotland were minded to take powers in the Tobacco and Primary Medical Services (Scotland) Bill to ban packs of 10.

However, this was not possible as the Scottish Government and Scottish Parliament do not currently have the legislative ability to do this. At a UK level, the opportunity to take the power to ban packets of 10 cigarettes in the Health Bill was not explored.

Law and Order

2.17. Scots law and the Scottish legal system have a long history, dating back to the medieval era. For example, the Faculty of Advocates can trace its roots back to before the College of Justice was established by an Act of the Scottish Parliament in 1532. The integrity and independence of the law and legal system were acknowledged in the 1707 Act of Union.

2.18. Law and order issues in Scotland today are largely devolved. Scotland has its own criminal justice legislation; its own police forces (with operational independence and clear accountability); an independent prosecution service, headed by the Lord Advocate; its own court and prisons services; and distinctive arrangements for the delivery of offender management through local authority criminal justice social work services. Consequently, in many areas of law and order Scotland can and does develop distinct policies.

2.19. Devolution has given successive Scottish Governments the authority to make large-scale and radical reforms to the criminal justice system, recognising the serious challenges faced in our communities. Over the past 10 years, aspects of the criminal justice system have been significantly overhauled - institutions, policies for protecting communities and addressing reoffending, the prisons system, and the criminal justice investment programme. Devolution, with its enhanced Parliamentary scrutiny and accountability, has sharpened the focus on measures to deal with the root causes of offending and to address Scotland's destructive relationship with drugs and alcohol.

2.20. Over the past decade the Scottish Parliament has passed a series of ground-breaking measures to enable better outcomes in criminal justice. Alongside these changes in the law we have seen major changes in the operational systems of the main law enforcement agencies, a new focus on smarter measures to deal with anti-social behaviour and low-level crime, enhanced support for victims and witnesses, and a raft of interventions to combat violence including knife crime.

2.21. Key achievements in this period include:

  • Renewal of criminal justice institutions: The overhaul of both the High Court and the summary courts, and reforms to the work of the police, prosecution and courts, to tackle the delays experienced by many who come into contact with the criminal justice system, to improve speed and efficiency, and to provide robust alternatives to prosecution for crimes that do not need to come to court;
  • Innovative programmes: The current Scottish Government has set out the first national drugs strategy in a decade and has introduced new and more effective arrangements for local action on drugs. Sweeping new initiatives on alcohol have been announced to bring about a long-term change in Scotland's relationship with drink and to reduce drink-related crime. New programmes have been introduced to educate young people about knives and violence and to tackle teenage gang violence;
  • Addressing offending and reoffending: record investment in the police has given Scotland its highest ever police numbers and the lowest levels of recorded crime in nearly thirty years . Additional resources are going into community penalties to make them more immediate, speedy and robust. A new strategy for offender management aimed at reducing reoffending is being progressively rolled out through local authorities, the prisons service, and third sector partners.
  • Supporting communities: new laws are in place to enable the police and others to deal effectively with anti-social behaviour. The Scottish Parliament is now considering proposals to break the cycle of reoffending and to enable offenders to pay back to the communities they have offended against. The Commission on English Prisons has described these proposals as Scotland taking "a courageous lead in the UK". CashBack for Communities is another distinctively Scottish approach, reinvesting the proceeds of crime to intervene early in the cycle of crime At least £13 million is committed through to 2011, and the initiative has already engaged over 100,000 young people. In addition services for victims and witnesses have been overhauled and strengthened and additional protection has been built into our legal framework for children and victims of hate crime.

2.22. Scottish Governments have taken ambitious and far-reaching measures to help build safer and stronger communities. Progress since devolution shows how much can be achieved when all the relevant levers for improvement - law, regulation, services, systems, investment - come together to work for better outcomes and when there is strong cooperation between national and local government.

2.23. However, there remain several important areas which remain reserved to the UK Government. These include firearms and drink driving limits, which are discussed in Chapter 3.


2.24. The Scottish Government's aim is to create a successful Scotland with a well connected, safe and reliable transport system, which helps deliver higher levels of sustainable economic growth. The Government has invested to provide good quality public transport that is integrated, accessible and affordable, and which supports all communities including those in more remote areas of Scotland. It also supports and encourages the use of more sustainable and active travel modes to contribute to a greener, healthier Scotland.

2.25. While many transport functions in Scotland are already devolved, a number, such as aviation, remain reserved to the UK Government. However, in recognition that high fares to and from Scotland's peripheral communities could act as a barrier to social inclusion, the Air Discount Scheme was introduced in May 2006, under the European Commission's 'Aid of a Social Character' mechanism.

Box 4: Case Study - Air Discount Scheme

The Air Discount Scheme ( ADS) was introduced as a means of facilitating a better level of social inclusion in Orkney, Shetland, the Western Isles, Islay, Jura, Caithness and North West Sutherland. Residents benefit from a 40% reduction on the core fare for air travel within these areas and to and from Aberdeen, Edinburgh, Glasgow International and Inverness Airports.

The Scheme has proved popular with residents since it was introduced, with around 83% of the population in membership and over 500,000 discounted tickets purchased. As well as reducing the cost of air travel, the Scheme improves connectivity and reduces journey times in the Highland and Islands.

In February 2008, the European Commission agreed that the Scheme could continue for a further 3 years through to 31 March 2011. A full socio-economic impact assessment of the Scheme will be conducted during 2010 to ascertain whether it should continue, with or without enhancements.

2.26. The success of the Air Discount Scheme provides an excellent example of a scheme which only applies in Scotland, introduced and working successfully to provide a unique solution to suit particular Scottish circumstances and geography.


2.27. For many years Scotland has had its own curriculum framework and qualifications system, with different lengths of compulsory primary and secondary education and different school exam systems. With devolution in 1999, the Scottish Parliament gained legislative authority for the entire education system. Much has been achieved since devolution to make sure the system is fit for purpose in the 21 st century.

2.28. The Scottish Government and Parliament have responsibility for pre-school education, childcare provision, children's services, the children's hearings system, social work and youth work. However, financial support with the costs of childcare, provided through childcare vouchers and the childcare element of the working tax credit, are reserved matters.

2.29. The Scottish Government and its partners in local government are committed to maximising the opportunities for all children to get the best start in life and to improving the outcomes for children, young people and families at risk. Together these will provide a strong platform for the future success of Scotland. The Government and local authorities have also implemented an ambitious programme of improvement designed to ensure that every child in Scotland gets the help they need, when they need it. Getting it right for every child ( GIRFEC) is a transformational change programme which threads through child centred policies and will result in shared understanding and common language across all services working with children. It targets planning and action to address a child's needs and risks. It streamlines procedures and reduces overlap to reduce resources. Key elements of this are:

  • putting in place a long-term framework aimed at transforming early years services so that they move from crisis-management to prevention, early identification and early intervention, with service providers working together to meet the needs of individual children and their families;
  • reforming and modernising the Children's Hearing system, Scotland's distinctive system of care and justice for its children and young people and
  • improving the way in which Scotland's looked after children, including those in residential care, are cared for and supported.

Box 5: Case Study - Childcare

The Scottish Parliament is committed to ensuring every child in Scotland has a strong start in life. Not only is this key to children's future outcomes, it also brings improvement in human capital, supports greater equity of outcomes, and as a result, promotes sustainable economic growth.

During the current Parliamentary session:

  • The Early Years Framework ( EYF), published in December 2008, strengthened the Scottish Parliament's commitment to the importance of affordable, flexible and accessible childcare. It also states the long-term aim of ensuring access to integrated pre-school and childcare services in every community matched to an assessment of local needs and demand. Single outcome agreements and the community planning process will be the key local mechanisms for putting the EYF into practice and will allow local partners to ensure the needs of their local area are reflected in childcare.
  • The Scottish Government, in partnership with local government, has already extended the provision of pre-school entitlement from 412.5 to 475 hours per annum for 3 and 4 year olds, and is working to deliver the commitment to increase pre-school provision to 570 hours from August 2010.

Under the current constitutional settlement, financial support to parents for childcare is provided through the tax credit system and childcare vouchers, which are reserved to the UK Government, while childcare provision is devolved to the Scottish Government.

Many people 4 find the current UK Government arrangements for financial support through the tax and benefits system to be unduly bureaucratic and complex. The split in responsibilities for childcare funding between the UK and Scottish Government can be confusing, resulting in parents being unsure of which government is responsible for different parts of childcare funding. There are also concerns that the childcare element of the Working Tax Credit is not working as effectively as it could as parents find it difficult to negotiate. As a result, many parents are put off applying and those who do apply can experience miscalculations which can result in unnecessary pressure being put on families.

In view of these issues the Scottish Parliament has:

  • pressed the UK Government to introduce a simpler and more progressive scheme for supporting parents with the costs of childcare; and
  • promoted childcare vouchers among employers in Scotland. Between January and June 2009 the Scottish Government ran a project to promote greater use of childcare vouchers among Scottish employers in the public, private and voluntary sectors. 5 This has successfully raised the profile of childcare vouchers through individual contacts and working with the Scottish Trade Union Congress ( STUC).

2.30. Despite the progress made in childcare since devolution, the current constitutional settlement limits the Scottish Parliament's ability to maximise the contribution of services to improve the lives of our children and young people. The Scottish Government believes that benefits and tax credits systems must act to protect our children from poverty and support families as they bring up their children. However, the current UK-wide systems are not sufficiently responsive to Scotland's specific needs. Even when flexibilities are built into UK systems they are often too slow to respond to changing need. If the Scottish Government had responsibility for both supply and demand side funding it could address the real challenge of how we construct a progressive and non-stigmatising way of supporting the costs of childcare, which is simple and accessible for parents.


2.31. This section has shown what Scotland has achieved in relation to law and order, health, housing, social aspects of transport and children. The next section examines the Commission on Scottish Devolution recommendations relating to the above issues.