Why it matters who makes the decisions
Following the 1997 devolution referendum, the creation of the Scottish Parliament and the transfer of devolved powers from Westminster to Holyrood extended and deepened democracy in Scotland. It established democratically accountable national self-government – allowing Scottish decision-making on key issues in line with the choices of people in Scotland. It also introduced a fairer voting system for devolved elections.
In his opening speech in 1999, the then First Minister of Scotland, Donald Dewar MP MSP, called the establishment of the Scottish Parliament "a turning point, the day when democracy was renewed in Scotland". Scottish Parliament elections, where the electorate comprise the people of Scotland, give Scotland the opportunity to express itself distinctly as a nation: what Donald Dewar described as a "new voice in the land, the voice of a democratic Parliament".
Scotland's democratic voice is embodied in our democratic institutions. Scotland's institutions have the power to make many – though far from all – choices for the people of Scotland in a way that may not be reflected in the decisions of governments at Westminster. Scotland's institutions can reflect on and respond to the different conditions in Scotland, encouraging innovation in policy-making in Scotland. This, for example, has allowed Scotland under different governments to deliver free personal care, the UK's first indoor smoking ban, minimum unit pricing for alcohol, world-leading climate ambitions, pass laws that protect breastfeeding women, provide free period products, protect tuition-free university education, establish the Scottish Child Payment and double state-funded childcare.
Devolution is also about democratic accountability. It has brought decision-making about devolved matters closer to the people affected. The Scottish Government can be held to account by the Scottish Parliament and by the Scottish electorate.
Devolution has been good for Scotland. Scottish Parliaments and Scottish Governments since 1999 have taken steps that have improved the lives of the people of Scotland in meaningful ways.
Devolution has provided the opportunity for Scotland to make different and distinct choices:
- Reinvigorating our democracy, through the introduction of proportional representation in local authority elections, making the franchise wider and fairer in Scottish Parliament and local authority elections, by reducing the voting age to 16, and expanding the electoral franchise in devolved elections to all people legally settled in Scotland
- Implementing innovative public health measures, such as the UK's first smoking ban, laws which protect breastfeeding women, and minimum unit pricing for alcohol
- Modernising land ownership and making better use of our land, including the abolition of outdated Feudal Tenure, the introduction of the right to responsible access, the establishment of two National Parks, a community right to buy and land reform on an ongoing basis
- Improving health and wellbeing, including the introduction of free personal care, the end of prescription charges and dental charges, the introduction of the Baby Box, the integration of health and social care, and protection of the NHS from privatisation
- Keeping education available for everyone, through free university tuition, expanded free early learning and childcare, and expansion of universal provision of free school meals
- Enabling a fairer and more progressive system of income tax and the establishment of our own tax authority, Revenue Scotland
- Establishing Social Security Scotland, now delivering 12 benefits, seven of which are new, with an approach founded on the principles of dignity, fairness and respect set out in a statutory Charter
- Taking strategic action to tackle child poverty – setting stretching statutory targets and increasing family incomes by interventions such as the Scottish Child Payment
- Tackling the climate crisis, through world-leading climate change targets, reducing emissions, building resilience, creating more woodlands, and introducing free bus travel for those under 22 and over 60. Scotland was the first country in the UK to declare a 'climate emergency' and has legislated for some of the most ambitious legislative emissions reductions targets in the world (75% reduction by 2030 and net zero by 2045 – 5 years ahead of the UK). Scotland's emissions are down more than half of the way to net zero and we continue to outperform the UK as a whole in delivering long term reductions. We have also been able to harness, through the devolved management of the Scottish Crown Estate, our abundant marine resources to unlock the renewable energy which will help power Scotland to achievement of our net zero targets
- Protecting our natural environment by setting ambitious targets to reduce waste, investing in peatland restoration, creating protected areas in our land and seas, and being the first country in the UK to ban a range of harmful single-use plastic items
- Making our communities safer – Scotland has also become a much safer society since devolution. Recorded crime has fallen to one of the lowest levels since the 1970s. Over this time the excellent work of the Violence Reduction Unit has contributed to a substantial fall in the proportion of people experiencing violent crime, down 39% since 2008-09. The Unit, which was established over a decade ago with cross-party support, is now being replicated across the UK
Trust in Scottish institutions
The benefits of devolution have been reflected in the trust of the people of Scotland in Scotland's democratic institutions. Since 1999, the Scottish Social Attitudes survey has found that, by a margin of 30 percentage points or more, adults in Scotland have been significantly more likely to say that they trust the Scottish Government to act in Scotland's best interests 'most of the time' or 'just about always', than to say that they trust the UK Government to do so (see Figure 3).
The people of Scotland have also been clear on who ought to have most influence on how Scotland is run – the Scottish Government. In 2019, the most recent year for which data are available, almost three-quarters (73%) felt that the Scottish Government ought to have the most influence over how Scotland is run, with only 15% believing the UK Government ought to have the most influence. This pattern has been consistent throughout the life of the Scottish Parliament (see Figure 4).
The people of Scotland have shown that they value the democratic institutions that devolution has delivered and that they trust those institutions to work for them.
The challenge to devolution and Scottish self-government within the UK
Devolution was intended to address concerns about Scotland's democratic deficit, which became increasingly obvious and acute through the 1980s and 1990s. National democratic self-government, for at least some domestic issues, would allow the people of Scotland to choose political representatives and leadership that reflected our views and priorities. Previously Ministers governing Scotland (in the old Scottish Office) were drawn from the party that had a majority across the UK as a whole, whatever its support in Scotland.
Devolution in 1999 therefore established the Scottish Parliament and the Scottish Government (at that time called the "Scottish Executive"). Except for a defined set of "reserved matters" (such as foreign affairs, defence, economic policy and social security) the Scottish Parliament could make laws about anything else – so called "devolved matters" (for example, education, health, policing, justice and the environment). Ministerial powers – for example to make regulations, fund public services, appoint public authorities – were transferred from UK Ministers for all devolved matters and in relation to a number of reserved areas too. The UK Parliament at Westminster retained its power to legislate about anything, but in line with the Sewel Convention, agreed that it would not normally pass laws about matters within the powers of the Scottish Parliament or change the powers or responsibilities of the Scottish Parliament or Government without the consent of the Scottish Parliament.
Those arrangements worked as intended for the first seventeen years of devolution. The Sewel Convention was respected and on several occasions devolved powers were increased, responding to public opinion in Scotland as demonstrated in elections and the 2014 referendum campaign. For example – after extensive negotiation and agreement between the two governments and parliaments, political parties and wider society in Scotland – the Scottish Parliament took on new powers for tax, social security and other matters in 2012 and again in 2016. The then UK Government also recognised the mandate given by the Scottish Parliament election in 2011 for an independence referendum and negotiated and agreed the arrangements in the Edinburgh Agreement for it to take place in 2014.
Brexit and devolution
Since 2016 decisions taken by the UK Government have highlighted the inherent vulnerability of devolved institutions within the UK's constitutional system.
The referendum on EU membership delivered a result in Scotland, in favour of Remain, that contrasted with the results in England and Wales. The four governments in the UK initially agreed a process that committed them to work together in EU negotiations, to discuss each government's requirements of the future relationship with the EU and to seek to agree a UK approach to the negotiations on Brexit. This could have provided an opportunity for the views of the Scottish electorate to be taken into account and for consideration of a compromise proposal by the Scottish Government for mitigating the risks of leaving the EU. In practice, however, there was little discussion between the governments, and no meaningful opportunity for the Scottish Government to influence the UK negotiating position. The form of Brexit – with the UK leaving the European Single Market and Customs Union as well as the European Union – was very different from this compromise proposal and reflected solely the views of the UK Government.
Brexit was also the context for several pieces of Westminster legislation that placed new constraints on the powers of the Scottish Parliament and Government and passed by Westminster despite the refusal of consent by the Scottish Parliament under the Sewel Convention. Of these, the United Kingdom Internal Market Act 2020 has the most significant adverse effect on devolution, by requiring Scotland effectively to accept standards for goods and services set elsewhere in the UK and severely limiting the ability of the Scottish Parliament to set standards in large areas of devolved policy such as environmental protection and animal welfare.
The UK Government also took on new powers for UK Ministers to spend money in devolved areas that had been removed from them in 1999. The UK Government has used these powers to by-pass and divert funding from the Scottish Parliament, which has the primary responsibility for devolved policy matters in Scotland, risking incoherent and wasteful public expenditure, and removing clear accountability for public spending decisions on devolved areas in Scotland. Independent analysis suggests that decisions made by UK Ministers to spend Levelling Up funds in Scotland resulted in "local authorities with the highest homelessness rates receiving less Levelling Up funding than the areas with the lowest" and Scotland "only receiving 3.5% of all Levelling Up funding we analysed, despite having 8.2% of the population".
Recent developments and future trends
The UK Government has continued to impose legislation about devolved matters when it cannot reach agreement with the devolved governments and secure consent from the devolved parliaments. For example, it has recently taken powers to decide unilaterally how to implement certain devolved elements of trade agreements, rejecting the view of both the Scottish Parliament and Welsh Senedd that agreement should be required when our devolved responsibilities are affected. The UK Government's approach was particularly concerning as international trade negotiations will become more prominent following Brexit and these agreements can affect a wide range of devolved interests. The UK Government's justification for ignoring the clearly expressed views of the Scottish Parliament was essentially that it disagreed, and wanted to have powers to make decisions unhindered by the need for agreement by the Scottish Government or Parliament – and thus deny democratic accountability for a matter within devolved responsibilities.
In the Scottish Government's view – a view shared by the Welsh Government – this approach is fundamentally at odds with the devolution settlement, and cannot reasonably be described as "not normal" (in the terms of the Sewel Convention) to justify overriding the views of the devolved parliaments. There is therefore every reason to believe that breaches of the Sewel Convention will become more frequent, if the UK Government continues to rely on such justifications to ignore the views of the Scottish Parliament.
As the Welsh First Minister said in his evidence to the Lords Constitution Committee:
"When it became inconvenient for the UK Government to observe Sewel, they just went ahead and rode roughshod through it."
"More recently, I am afraid, the Sewel convention has withered on the vine."
This encroachment into devolved responsibilities by the UK Government appears set to continue and increase. The UK Government's legislative programme announced in May 2022 includes Bills for a UK Infrastructure Bank with powers to spend directly in devolved areas, without ensuring these decisions respect the priorities of the Scottish Parliament in areas for which it is responsible. The UK Government's "Brexit Freedoms Bill" potentially threatens the ability of the Scottish Parliament to align with the high standards set in EU law in devolved areas. The "levelling up agenda" includes "levelling up missions" covering devolved matters – such as education, health and justice – developed without the agreement of the devolved governments or legislatures. The UK Government has indicated that it does not intend to seek the consent of the Scottish Parliament for its legislation on these "levelling up missions", despite the Parliament's democratic responsibility for these policy areas in Scotland.
The recent Review of Intergovernmental Relations promised:
"new structures and ways of working […] built on principles of mutual respect and trust, respecting the reserved powers of the UK Government and Parliament and the devolved competences of the Scottish Government, Welsh Government, Northern Ireland Executive and their legislatures."
However, changes to structures and ways of working alone cannot deliver effective relations and respect between the governments of the UK without a genuine change in attitude and behaviour from the UK Government. The recent events set out in this paper provide no evidence of the necessary shift from the UK Government.
Instead, the underlying approach of the UK Government towards devolution can be seen clearly from these trends: like the Westminster Parliament, it claims the power to intervene on all devolved matters and impose its views on Scotland, whatever the views of the devolved institutions.
This approach was set out by the then Prime Minister, Theresa May, shortly after the Brexit referendum:
"As the government serving the whole United Kingdom, formed in a Parliament drawn from the whole United Kingdom, the UK Government exercises a responsibility on behalf of the whole UK that transcends party politics and encompasses all aspects of our national life. While fully respecting, and indeed strengthening, the devolution settlements and the devolved administrations across the UK, we must unashamedly assert this fundamental responsibility on our part."
More recently, the UK Government's white paper "Levelling Up the United Kingdom" said:
"Devolution settlements in Scotland, Wales and Northern Ireland recognise that devolved governments are best placed to deliver certain services, like health and education. But outcomes are a shared interest for the whole of the UK….In practice, this means all layers of government need to come together with a common purpose."
The approach of the UK Government continues to be fundamentally at odds with the principle and purpose of devolution within the UK: a measure of national self-government for Scotland, providing democratic decision-making and accountability within Scotland for devolved matters.
The future of Scottish self-government within the UK is therefore clear: erosion of the autonomy of the Scottish Parliament, through constraints in UK legislation imposed without consent and in breach of the Sewel Convention; and policies increasingly imposed by the UK Government for Scotland, in devolved areas, whatever the views of the Scottish Parliament, or the people who live here.
In a nutshell
Devolution, which the people of Scotland supported in the 1997 referendum with an overwhelming 74% of votes, has delivered material benefits for the people of Scotland and is trusted by them to work in Scotland's best interests.
However, devolution has not protected Scotland from being taken out of the EU against the clear views of the majority (62%) of Scottish voters in the 2016 referendum, nor from the "hard" form of Brexit imposed by the UK Government.
Devolution has also been undermined by a series of actions by the UK Government and Parliament since 2016 that have the effect of limiting the ability of the Scottish Parliament to make decisions and laws for Scotland, and which encroach on devolved spending powers, without the agreement of the Scottish Parliament. This trend appears set to continue and increase, as will the UK Government imposing its views in devolved areas and against the wishes of the Scottish Parliament.
Under the UK's constitution there is no way to entrench or protect devolution. It will always be vulnerable to being overridden by the exercise of UK Parliamentary sovereignty and decisions of the UK Government.
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