Britology Watch: Deconstructing \’British Values\’

16 June 2009

The Calman Report: Consolidating asymmetrical devolution

It would be easy to undertake a nit-picking, petulant reading of the long-awaited Final Report of the Commission on Scottish Devolution chaired by Professor Sir Kenneth Calman, which was finally published yesterday. The report does not review the Scottish devolution settlement in the round, either in relation to its effects on the UK-wide tier of governance that provides government for England, nor on devolution in Wales and Northern Ireland. This was explicitly not the remit of the Commission; therefore, it cannot be reproached for not making explicit recommendations about devolution for or within England, or for how Scottish devolution can be made more compatible with the interests of England alongside ‘serving Scotland better’: the actual title of the report.

However, it is legitimate, I think, to criticise the Commission on grounds of inconsistency. The essence of its approach to devolution is to arrive at improvements to the way the reserved and devolved powers, governments and parliaments interact and complement each other in practice. Consequently, to be consistent, the Commission should have considered the effects of Scottish devolution on the workings and legitimacy of national-UK governance just as much as it reviews in depth the way the Scottish Parliament and Executive work and interact with the UK government, and how their accountability to the people of Scotland can be enhanced.

In its omission of any review of the broader consequences of devolution for the UK as a whole, and particularly for its largest constituent part (England), the Commission perpetuates and entrenches the asymmetrical approach that has been taken towards Scottish devolution from the Scottish Constitutional Convention of 1989 onwards: considering only what is in the best interests of Scotland-within-the-Union, not a more equitable and accountable constitutional settlement and system of governance for the whole of the UK.

Indeed, the issue of asymmetry is integral to Calman’s conception of the Union itself, and the concept is frequently referred to in the report. The way Calman seeks to circumvent the criticism that devolution for Scotland, Wales and Northern Ireland has brought about an egregious asymmetry in the governance of the UK – with England being the only UK nation that is denied any political expression of its national identity – is to suggest that this asymmetry has always been a fundamental characteristic of the Union: “The territorial constitution of the United Kingdom is therefore radically asymmetrical. This reflects the history and geography of these islands, and like many other aspects of the UK constitution has grown and developed rather than being designed”.

But elsewhere, the report makes it clear that the present-day asymmetry of the UK constitution has very much been brought about – or, at the very least greatly extended – by the deliberate design of the devolution settlement: “The creation of the Scottish Parliament was part of a larger policy of devolution instituted by the Labour Government after its election victory in 1997. This was applied in different ways to Scotland, Wales and Northern Ireland . . . . The result is that the United Kingdom now has a quite distinctive form of partial and asymmetric devolution – partial in that there has so far been no devolution to the largest component nation of the UK, England (other than to London); and asymmetric in that devolution differs in nature and extent in each of the nations and territories to which it has been applied.”

Notice the subtle but significant semantic shift here: according to the report, the fact that there has been no national-level devolution for England is not what makes the present devolution settlement asymmetric, but rather this asymmetry is in relation to the differing nature and extent of devolution in each of the nations to which it has been applied. As if the fact that it has not been applied at all to England is not the epitome of the asymmetry and the difference described! But no, this just makes devolution ‘partial’.

On the contrary, it is the partial nature of devolution, in both senses (biased and unfinished), that makes devolution asymmetrical. And the raison d’être for the Calman Commission is to examine ways in which devolution can be extended and enhanced – but for Scotland only, making it by definition more partial (limited to one part of the UK only, and hence one-sided in both senses) and asymmetrical. The work of the Commission is therefore directly and deliberately engaged in making the political Union that is the UK itself more asymmetrical in its structures of governance.

The report deploys a classic rhetorical trick to suggest that this intolerable asymmetry is not just ‘organic’ to the Union (having evolved in some sense naturally over the course of history, rather than having been deliberately engineered at a particular point in history, such as the passing of the 1998 Scotland Act) but that it reflects the distinct needs and aspirations of the different nations of the UK, including England:

“Although the Government’s programme of devolution marked a substantial change from the earlier Westminster-based status quo, it can also be seen within a longstanding tradition in the UK of making constitutional change organically in response to particular pressures, rather than by sweeping reforms. It is a means for the UK to provide varying degrees of regional autonomy to match the differing needs and circumstances of its component parts, without the more fundamental restructuring of the constitution that a move to a fully federal structure would entail.”

The report tries to make out that the fact that there is no distinct national layer of governance for England – that the UK government is also the de facto English government – has evolved organically and historically in this way out of the separate relationships England has had with the other UK nations, and that the present situation is somehow adequate to the needs and wishes of the English people. Indeed, the report goes so far as to suggest that:

“This unique asymmetry is not a problem [my emphasis]. If anything, it is something to be proud of – Scotland’s constitutional arrangements have grown or evolved in response to need, like many other aspects of the constitution of the UK. Their asymmetry reflects the underlying reality: Scotland is a small nation sharing islands, and a Union, with a much larger neighbour. The UK’s territorial constitution reflects the radical asymmetry of its geography and demography. Not only do the smaller nations in the UK each have different levels of decentralised power; but there is no equivalent of devolved institutions for England. The UK Parliament at Westminster is also England’s parliament, and the UK Government is England’s government too.”

There you have it: the ‘UK-is-England-is-the-UK’ moment. Historic, organic, set in stone: the UK parliament is England’s parliament, and the UK government is England’s government; the one perfectly adequate to the other. No difference, no disconnect. A ‘territorial constitution’ that makes the territory of England, in political terms, none other than the (vestigial) unitary UK, while devolution for the ‘nations’ is defined in terms of the degree of political difference and divergence that they, and only they, enjoy from the central power, i.e. effectively from England. No asymmetry of devolution, then, from England’s perspective, because England is one and the same as the UK: the founding symmetry that counterbalances the asymmetry; the centre of the system that assures its continuing unity and coherence even within a framework of increasing divergence from that centre on the part of the periphery. In short, England’s non-differentiation from the UK is what assures the continuing existence and identity (sameness, continuance) of the UK across difference and across history; and it is what prevents the presence of radical asymmetry – the absence of any constituent part and nation of the UK that actually is the UK in any fundamental sense.

No wonder, then, that it is at this point in the report (sections 2.12 to 2.15, to be precise) that it touches upon the only sort of devolution for England that it is prepared to countenance: “It is not for us to discuss where or how power might be decentralised or devolved in England – whether, as has been proposed in the past, to regional level, or by giving more power to local institutions”. Well, by very virtue of describing devolution for England in these terms, the report is prescribing the form it should take: not national but regional or local, as there can by definition not be any devolution and divergence of England as a nation from the UK if the basis for the UK’s supposed unity as analysed above (England’s non-differentiation from the UK) is to be preserved.

Having said this, and to its credit, the report does acknowledge that England is a nation, and that the governance of the UK (and of England as the cornerstone of the UK) cannot remain unchanged in the context of devolution:

“Devolution to Scotland (and Wales and Northern Ireland) created political institutions that exercise many of the powers of central Government for a significant proportion of the UK. That inevitably has meant that the governance of the rest of the UK cannot continue unchanged.

“It is not sufficient for Scots (or indeed Welsh or Northern Ireland citizens) to dismiss this as simply a problem for the English: the internal arrangements of the Union are a matter for all of us. The UK now has a territorial constitution, and it needs, in our view, to be more fully and clearly set out.”

This idea of making a new constitutional statement regarding the basis for the union between the different nations of the UK in the context of devolution has its fullest expression in the Calman Report in the idea of the UK as a ‘social Union’. In particular, this pertains to shared ‘social rights’:

“The most important of these [social rights] are that access to health care and education should be, as now, essentially free and provided at the point of need. And when taxes are shared across the UK they should take account of that need. Our first recommendation is therefore that the Scottish and UK Parliaments should confirm their common understanding of what those rights are, and the responsibilities that go with them.”

This statement, which is indeed the first recommendation the report makes, is implicitly a criticism of the failure of the UK to put these principles into practice, in particular through the inequitable distribution of the UK’s tax revenues via the Barnett Formula that has meant that the other nations have been able to deliver these ‘social rights’ (e.g. free access to expensive life-prolonging drugs, no tuition fees in higher education, free social care for the elderly, etc.) far more comprehensively than has the UK government acting supposedly in the interests of England. The Report notably does not recommend that the Barnett Formula should be scrapped until a fair determination of a more needs-based system for distributing tax revenues in pursuit of these social rights can be made. But in principle, the report recognises that the Barnett Formula does not adequately reflect real social needs across the UK.

Up until now, devolution may well be said in practice to have undermined this social Union that the Report describes as an integral characteristic and purpose for the political Union that is the UK itself. By recommending a stronger commitment to implementing the social Union across the UK, the Report is seeking to strengthen and reaffirm that political Union. However, it is far from self-evident that the Report’s principal recommendations – much greater fiscal autonomy for Scotland; in particular, a substantial reduction in Scotland’s block grant from the UK Treasury linked to an enhanced ability to vary the level of income tax in Scotland – will advance these goals without reform of the Barnett Formula, and without political reform for England.

In essence, Scotland will have even greater freedom to pursue these social objectives, which will still be inequitably cross-subsidised by the English taxpayer. The block grant and the Barnett Formula that underpins it are not being abolished. If the Scottish Government decides not to change the level of income tax that Scots are currently paying, Scotland will get absolutely the same deal as now: about 25% higher per-capita public expenditure. In fact, the Scottish government could, if it chose, now cut its income tax – procuring a significant competitive economic advantage over the rest of the UK – and only have to reduce its public expenditure to the same level as England, thanks to the Barnett consequentials. More likely, the Scottish government will only tinker with tax rates: why rock the boat when it’s worked so well to Scotland’s advantage up till now?

The primary avowed purpose of Calman’s recommendation of greater fiscal autonomy for Scotland is to improve the accountability of the Scottish Parliament for the revenue it raises and spends on the country’s behalf. Fair enough. But what is fundamentally unfair and inequitable – over and above the unequal distribution of public expenditure – is the fact that there is no such accountability on tax and expenditure in England. Decisions on expenditure in departments that now deal with England only (in devolved areas such as education, health and transport) are made by the whole UK parliament and government, including MPs not elected in England. Here we have the asymmetry of devolution that really aggravates people and undermines the standing of the Union in England: if Calman’s recommendations are implemented, Scotland will be able to make its own decisions not just on how to spend the public finances but how to raise them, free from the participation of English MPs; but England has no such freedom, and Scottish MPs support and vote through measures that result in the relative under-funding of England to the deliberate benefit of Scotland.

Yes, as the report says: devolution has indeed succeeded for Scotland and is ‘serving Scotland better’. Further enhancement of Scottish self-government may well result in an even stronger Scotland. But if this is done by continuing to serve England so ill, then it will not result in a stronger Union. England will not for ever sustain asymmetrical devolution by accepting to be governed as the UK and for the UK. But devolution as presently constituted relies on this asymmetry and inequality: allowing Scotland to both have its own cake and eat England’s.

But what happens to a ‘United’ Kingdom built on such uneven foundations when the people of England demand their own slice of the cake and a form of government best suited to their needs?

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7 Comments »

  1. David:
    “The primary avowed purpose of Calman’s recommendation of greater fiscal autonomy for Scotland is to improve the accountability of the Scottish Parliament for the revenue it raises and spends on the country’s behalf.”

    To be honest after a quick skim through the recommendations I can’t see how the Scottish Parliament is any more accountable than it was before and when you say, “Scotland will get absolutely the same deal as now”, you are entirely correct.

    The worked example on page 113 of the Calman Report gives the basics of how the new funding works. Scotland will get a portion of the tax revenues raised in Scotland and they will be toppped up to the Barnett Formula level with a block grant.

    (Reduced Block Grant) + (Proportion of Scottish Tax Revenues) = (Current Scottish Barnett Funding).

    To do this the UK Government will have to estimate the probable tax take in Scotland in the current year from the Scottish tax take in the previous year or series of years in order to work out the current block grant component of the funding to ensure it comes up to the Barnett levels.

    What this means is that it is pointless for any Scottish Government to try and increase its spending power by a natural increase in tax revenues through higher incomes or a better economy. Any natural increase in tax revenues due to a well managed economy will be clawed back in a reduced grant at the next review of the block grant component of the Scottish Parliament funding. It also means that any fall in tax revenues will also be compensated by an increase in the block grant at the next review for any Scottish government which doesn’t have an economic clue. A nice safety net for the Lib-Labs but “Financial Accountability” it ain’t.

    Any Scottish Government can increase its spending power by upping the tax rates in Scotland but that would be electoral suicide unless the extra tax take was specifically earmarked for some very, very special voter approved project. Deliberately reducing the tax take would mean either reduced services or very good efficiency savings but as Scottish costs are usually higher due to the low population density in some areas it is unlikely that it could be more efficient than services in England and it therefore would mean a reduction in services. Again electoral suicide.

    It is in simple terms a dog’s breakfast. The only good part of the report is that it recommends that the Scottish Parliament should have the ability to borrow money which uprates it to the powers of a Scottish local authority.

    The rest of the report is all about how the Scottish and UK Parliaments should work together as happy bunnies or how the Scottish Parliament should work internally and the transfer of some minor powers to Scotland such as control of airguns.

    If anything it is even more of a mess than the Steel Commission report but as both were concerned with trying to impose federal funding schemes on a provincial system of government while trying to work out a funding scheme which gave no hint of advantage to the SNP it’s not surprising.

    The fact that Brown likes it give it the seal of Jonah.

    P.S I’ve made up an easily readable single list of all the recommendations and I can post it up here if you want.

    Comment by DougtheDug — 16 June 2009 @ 8.35 am | Reply

    • Thanks, Dougthedug; yes, please go ahead and post the list. I didn’t go into the details, as my main point was to discuss the way Calman relies on maintaining and consolidating the present asymmetries that work against England. Ta.

      Comment by David — 16 June 2009 @ 9.23 am | Reply

  2. Here’s the list of Calman Recommendations extracted from the report. It’s a bit long but I hope it’s useful. The recommendations are numbered to match the parts in the report.

    Part 2: Understanding Scotland’s place in the United Kingdom
    Part 3: Strengthening accountability in finance
    Part 4: Strengthening cooperation
    Part 5: Strengthening the devolution settlement
    Part 6: Strengthening the Scottish Parliament

    RECOMMENDATION 2.1: The Scottish Parliament and UK Parliament should confirm that each agrees to the elements of the common social rights that make up the social Union and also the responsibilities that go with them.

    RECOMMENDATION 3.1: Part of the Budget of the Scottish Parliament should now be found from devolved taxation under its control rather than from grant from the UK Parliament. The main means of achieving this should be by the UK and Scottish Parliaments sharing the yield of income tax.
    a. Therefore the Scottish Variable Rate of income tax should be replaced by a new Scottish rate of income tax, collected by HMRC, which should apply to the basic and higher rates of income tax.
    b. To make this possible, the basic and higher rates of income tax levied by the UK Government in Scotland should be reduced by 10 pence in the pound and the block grant from the UK to the Scottish Parliament should be reduced accordingly.
    c. Income tax on savings and distributions should not be devolved to the Scottish Parliament, but half of the yield should be assigned to the Scottish Parliament’s Budget, with a corresponding reduction in block grant.
    d. The structure of the income tax system, including the bands, allowances and thresholds should remain entirely the responsibility of the UK Parliament.

    RECOMMENDATION 3.2: Stamp Duty Land Tax, Aggregates Levy, Landfill Tax and Air Passenger Duty should be devolved to the Scottish Parliament, again with a corresponding reduction in the block grant.

    RECOMMENDATION 3.3: The Scottish Parliament should be given a power to legislate with the agreement of the UK Parliament to introduce specified new taxes that apply across Scotland. The new procedure we are recommending in Part 4 of our Report for the Scottish Parliament to legislate on reserved issues with the agreement of the UK Parliament could be used for this.

    RECOMMENDATION 3.4: The block grant, as the means of financing most associated with equity, should continue to make up the remainder of the Scottish Parliament’s Budget but it should be justified by need. Until such times as a proper assessment of relative spending need across the UK is carried out, the Barnett formula, should continue to be used as the basis for calculating the proportionately reduced block grant.

    RECOMMENDATION 3.5: This system will require a strengthening of the intergovernmental arrangements to deal with finance.
    a. The present Finance Minsters Quadrilateral Meeting should become a Joint Ministerial Committee on Finance (JMC(F)), and should meet regularly on a transparent basis to discuss not just spending but taxation and macro-economic policy issues.
    b. HMRC should advise Scottish Ministers in relation to those devolved taxes it is tasked with collecting and their responsibilities in relation to income tax and should account to them for the operation of these Scottish taxes. Scottish Ministers should be consulted on the appointment of the Commissioners of HMRC.
    c. All the relevant spending or grant calculations done by HMRC and HM Treasury should be audited by the National Audit Office which should publish an annual report on the operation of the funding arrangements, including reporting to the new JMC(F) and to the Scottish Parliament.

    RECOMMENDATION 3.6: These changes should be introduced in a phased way, step by step, to manage the risks of instability in public finances and of windfall gains or adverse shocks to the Scottish Budget.

    RECOMMENDATION 3.7: The Scottish Ministers should be given additional borrowing powers:
    a. The existing power for Scottish Ministers to borrow for short term purposes should be used to manage cash flow when devolved taxes are used. Consideration should be given to using the power in the Scotland Act to increase the limit on it if need be.
    b. Scottish Ministers should be given an additional power to borrow to increase capital investment in any one year. There should be an overall limit to such borrowing, similar to the Prudential regime for local authorities. The amount allowed should take account of capacity to repay debt based on future tax and other receipts. Borrowing should be from the National Loans Fund or Public Works Loans Board.

    RECOMMENDATION 4.1: In all circumstances there should be mutual respect between the Parliaments and the Governments, and this should be the guiding principle in their relations

    RECOMMENDATION 4.2: As a demonstration of respect for the legislative competence of the Scottish Parliament, the UK Parliament should strengthen the Sewel Convention by entrenching it in the standing orders of each House.

    RECOMMENDATION 4.3: The UK Parliament and Scottish Parliament should have mechanisms to communicate with each other:
    a. There should be detailed communication about legislative consent motions (LCMs), and in particular if a Bill subject to an LCM is amended such that it is outside the scope of the LCM.
    b. A mechanism should exist for each Parliament to submit views to the other, perhaps by passing a motion where appropriate

    RECOMMENDATION 4.4: The UK Parliament should end its self-denying ordinance of not debating devolved matters as they affect Scotland, and the House of Commons should establish a regular “state of Scotland” debate.

    RECOMMENDATION 4.5: A standing joint liaison committee of the UK Parliament and Scottish Parliament should be established to oversee relations and to consider the establishment of subject-specific ad hoc joint committees.

    RECOMMENDATION 4.6: Committees of the UK and Scottish Parliaments should be able to work together and any barriers to this should be removed:
    a. Any barriers to the invitation of members of committees of one Parliament joining a meeting of a committee of the other Parliament in a non-voting capacity in specified circumstances should be removed.
    b. Any barriers to committees in either Parliament being able to share information, or hold joint evidence sessions, on areas of mutual interest, should be removed.
    c. Mechanisms should be developed for committees of each Parliament to share between them evidence submitted to related inquiries.

    RECOMMENDATION 4.7: To champion and recognise the importance of interaction between the Parliaments and Governments:
    a. UK and Scottish Government Ministers should commit to respond positively to requests to appear before committees of the others’ Parliament.
    b. The UK Government Cabinet Minister with responsibility for Scotland (currently the Secretary of State for Scotland) should be invited to appear annually before a Scottish Parliament committee comprised of all committee conveners, and the First Minister should be invited to appear annually before the House of Commons Scottish Affairs Committee.

    RECOMMENDATION 4.8: Shortly after the Queen’s Speech the Secretary of State for Scotland (or appropriate UK Government Cabinet Minister) should be invited to appear before the Scottish Parliament to discuss the legislative programme and respond to questions in a subsequent debate. Similarly, after the Scottish Government’s legislative programme is announced the First Minister should be invited to appear before the Scottish Affairs Committee to outline how Scottish Government legislation interacts with reserved matters.

    RECOMMENDATION 4.9: Where legislation interacts with both reserved and devolved matters there should be continued cooperation:
    a. For any UK Parliament Bill which engages the Sewel Convention on a matter of substance, consideration should be given to including one or more Scottish MPs on the Public Bill Committee, who should then be invited, as appropriate, to meet the Scottish Parliament committee scrutinising the legislative consent memorandum
    b. A Scottish Minister should as appropriate be asked to give evidence to the UK Parliament committee examining Orders made under the Scotland Act.

    RECOMMENDATION 4.10: Either the Scottish Parliament or either House of the UK Parliament should be able, when it has considered an issue where its responsibilities interact with the other Parliament’s, to pass a motion seeking a response from the UK or Scottish Government. The relevant Government in each case should then be expected to respond as it would to a committee of its own Parliament.

    RECOMMENDATION 4.11: There should be a greater degree of practical recognition between the Parliaments, acknowledging that it is a proper function of members of either Parliament to visit and attend meetings of relevance at the other; and their administrative arrangements should reflect this.

    RECOMMENDATION 4.12: The JMC machinery should be enhanced in the following ways:
    a. The primary focus should be on championing and ensuring close working and cooperation rather than dispute resolution (though it will be a forum to consider the latter as well).
    b. There should be an expanded range of areas for discussion to provide greater opportunities for cooperation and the development of joint interests.
    c. There should be scope to allow issues to be discussed at the appropriate level, including the resolution of areas of disagreement at the lowest possible level.

    RECOMMENDATION 4.13: The JMC should remain the top level, and meet in plenary at least annually, but most importantly to a longstanding timetable. In addition:
    a. JMC(D) and JMC(E) should continue in much the same form, but with more regular meetings and to a longstanding timetable. There should be an additional JMC(Finance) which subsumes the role of the Finance Quadrilateral.
    b. Sitting below the JMC(D), JMC(E) and JMC(F) meetings should be a senior officials level meeting, JMC(O).

    RECOMMENDATION 4.14: Where inter-governmental ministerial meetings are held to discuss the overall UK position in relation to devolved policy areas, the relevant Secretary of State should generally chair these meetings on behalf of the overall UK interest, with another relevant UK Minister representing the policy interests of the UK Government in relation to those parts of the UK where the policy is not devolved.

    RECOMMENDATION 4.15: A new legislative procedure should be established to allow the Scottish Parliament to seek the consent of the UK Parliament to legislate in reserved areas where there is an interaction with the exercise of devolved powers.

    RECOMMENDATION 4.16: In relation to the development of the UK Government policy position in relation to the EU:
    a. Early and proactive engagement by the relevant UK Government department with its Scottish Government counterpart should be a matter of course.
    b. In addition Scottish Ministers and the relevant Scottish Parliament committee should become more proactive in identifying EU issues of interest to Scotland at an early stage, and taking the initiative accordingly.
    c. The JMC(E) should continue to be used to determine the UK Government position on EU matters.

    RECOMMENDATION 4.17: To ensure Scottish Ministers are visibly engaged with EU business affecting their interests:
    a. When a request is received there should be a presumption that Scottish Ministers are accepted as part of the UK delegation where EU matters which cover devolved areas are for discussion.
    b. When Scottish Ministers request to speak in support of the agreed UK Government line there should be a presumption that this is granted wherever practicable.
    RECOMMENDATION 4.18: Closer involvement between Scottish MEPs and the Scottish Parliament is needed, and Scottish MEPs should be invited to attend, and should attend, the Scottish Parliament European and External Relations Committee regularly on a non-voting basis. The Committee should schedule its meetings so far as practicable to facilitate their regular attendance.

    RECOMMENDATION 4.19: The JMC process should be subject to greater Parliamentary scrutiny, and have greater public transparency:
    a. Agendas and timelines should be published in advance of each JMC, JMC(E), JMC(D) or JMC(F) meeting, and a communiqué from each should be issued.
    b. After each full JMC meeting the First Minster should make a statement to the Scottish Parliament, and the Prime Minister, or UK Government Cabinet Minister with responsibility for Scotland, should make a statement to the UK Parliament.
    c. An annual report of the JMC should be prepared, and laid by each Government before its Parliament, and it should be scrutinised by the new standing joint liaison committee of the UK Parliament and the Scottish Parliament.

    RECOMMENDATION 4.20: Scottish MPs should actively demonstrate appropriate oversight and stewardship of the constitution by way of regular scrutiny of the shape and operation of the devolution settlement.

    RECOMMENDATION 4.21: The responsibility for appointing, or approving appointments of, senior civil servants to senior posts in the Scottish Government should be delegated by the Prime Minister to the Head of the Home Civil Service, acting on the advice of the UK Civil Service Commissioners.

    RECOMMENDATION 4.22: The Commission has heard of a lack of understanding of devolution within some UK Government departments, and this should be addressed by reinvigorated training and awareness raising programmes.

    RECOMMENDATION 4.23: The Civil Service Codes should be amended to recognise the importance of cooperation and mutual respect.

    RECOMMENDATION 5.1: The powers of the Secretary of State for Scotland relating to the administration of elections to the Scottish Parliament should be devolved.

    RECOMMENDATION 5.2: There should be a single definition of each of the expressions “charity” and “charitable purpose(s)”, applicable for all purposes throughout the United Kingdom. This should be enacted by the UK Parliament with the consent of the Scottish Parliament.

    RECOMMENDATION 5.3: A charity duly registered in one part of the United Kingdom should be able to conduct its charitable activities in another part of the UK without being required to register separately in the latter part and without being subject to the reporting and accounting requirements of the regulator in that part.

    RECOMMENDATION 5.4: The responsibility for the appointment of the Scottish member of the BBC Trust should be exercised by Scottish Ministers, subject to the normal public appointments process.

    RECOMMENDATION 5.5: In recognition of the close interaction of the HSE’s
    reserved functions with areas of devolved policy, a closer relationship between the HSE in Scotland and the Scottish Parliament should be developed.

    RECOMMENDATION 5.6: Whilst retaining the current reservation of immigration, active consideration (supported by inter-governmental machinery) should be given to agreeing sustainable local variations to reflect the particular skills and demographic needs of Scotland.

    RECOMMENDATION 5.7: 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 5.8: The Secretary of State for Scotland should, in consultation with Scottish Ministers, more actively exercise his powers of direction under the Crown Estate Act 1961 and, having consulted Scottish Ministers, should give consideration to whether such direction is required immediately.

    RECOMMENDATION 5.9: The appointment of a Scottish Crown Estate Commissioner should be made following formal consultation with Scottish Ministers.

    RECOMMENDATION 5.10: Funding for policy relating to animal health should be devolved whilst responsibility for funding exotic disease outbreaks should be retained at a UK level.

    RECOMMENDATION 5.11: 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 5.12: The regulation of all health professions, not just those specified by the Scotland Act, should be reserved.

    RECOMMENDATION 5.13: The regulation of airguns should be devolved to the Scottish Parliament.

    RECOMMENDATION 5.14: Responsibility for those aspects of the licensing and control of controlled substances that relate to their use in the treatment of addiction should be transferred to Scottish Ministers.

    RECOMMENDATION 5.15: Regulation-making powers relating to drink-driving limits should be transferred to Scottish Ministers.

    RECOMMENDATION 5.16: The power to determine the level of the national speed limit in Scotland should be devolved.

    RECOMMENDATION 5.17: The effectiveness of the agreement reached by the UK and Scottish Governments should be kept under review by the inter-governmental machinery, and nature conservation should be devolved to the Scottish Parliament at the earliest appropriate opportunity, taking into account the experience and evidence to be gained from the operation of the regime set out in the respective Marine Bills.

    RECOMMENDATION 5.18: Research Councils UK should re-examine its approach to funding so that Scottish institutions delivering a comparable function to institutions elsewhere in the UK have access to the same sources of research funding, with the aim of ensuring that the effective framework for research that has been established across the UK is not jeopardised.

    RECOMMENDATION 5.19: 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 5.20: A formal consultation role should be built into DWP’s commissioning process for those welfare to work programmes that are based in, or extend to, Scotland so that the views of the Scottish Government on particular skills or other needs that require to be addressed in Scotland are properly taken into account.

    RECOMMENDATION 5.21: The Deprived Areas Fund should be devolved to the Scottish Parliament given the geographic nature of the help it is designed to provide and the fit with the Scottish Government’s wider responsibilities.

    RECOMMENDATION 5.22: As part of its considerations as to future reform of the Social Fund, the UK Government should explore devolving the discretionary elements of the Fund to the Scottish Parliament.

    RECOMMENDATION 5.23: The UK Insolvency Service, with appropriate input from the relevant department(s) of the Scottish Government, should be made responsible for laying down the rules to be applied by insolvency practitioners on both sides of the border. This should be achieved by UK legislation.

    RECOMMENDATION 5.24: The interpretation provision in relation to “social security purposes” in the Scotland Act should be amended to make it clear that the reservation refers to social security purposes related to the type of provision provided by the UK Department for Work and Pensions.

    RECOMMENDATION 6.1: In relation to the Parliament’s committee system:
    a. The structure of dual-purpose committees established both to carry out investigative inquiries and to undertake the detailed scrutiny of legislation, should be maintained.
    b. The level of turnover of committee memberships during a session should be minimised, in order to enable committee members to build expertise.
    c. Committees should have the facility to establish sub-committees to address temporary problems of legislative overload, without this requiring the prior approval of the Parliament as a whole.

    RECOMMENDATION 6.2: The current three-stage Bill process should be changed to a four-stage process, with Stage 3 becoming limited to a second main amending stage, taken in the Chamber, while the final debate on whether to pass the Bill would become Stage 4.

    RECOMMENDATION 6.3: The Parliament should amend its rules so that any MSP has the right to propose, at the conclusions of the Stage 3 amendment proceedings, that parts of a Bill be referred back to committee for further Stage 2 consideration.

    RECOMMENDATION 6.4: The Presiding Officer should be able to identify in advance of Stage 3 amendments that (in his view) raise substantial issues not considered at earlier stages. If, at the end of the amendment proceedings, any such amendment has been agreed to, relevant provisions of the Bill should be referred back to committee for further Stage 2 consideration unless the Parliament decides otherwise (on a motion that may be moved only by the member in charge of the Bill).

    RECOMMENDATION 6.5: Section 31(1) of the Act should be amended to require any person introducing a Bill in the Parliament to make a statement that it is (in that person’s opinion) within the Parliament’s legislative competence.

    RECOMMENDATION 6.6: The Explanatory Notes published with a Bill should give a general account of the main considerations that informed the statement on legislative competence under section 31(1).

    RECOMMENDATION 6.7: Section 19(1) of the Scotland Act should be amended so as to loosen the requirement on the Parliament to appoint a Presiding Officer and deputies at the first meeting of a new session, and to enable additional deputies to be appointed if and when that becomes appropriate.

    RECOMMENDATION 6.8: There should be a review of all other provisions in the Act that constrain the Parliament in terms of its procedures or working arrangements to ensure they are proportionate, appropriate and effective.

    Comment by DougtheDug — 16 June 2009 @ 9.35 am | Reply

    • Phew! They’ve been busy! But, as you say, little of substance.

      Comment by David — 16 June 2009 @ 10.39 am | Reply

  3. All the recommendations under part 4 are an indictment of New Labour’s complete failure over a decade to form any sort of collegiate relationship with the devolved administrations.

    I see they’ve sat on the fence re one of my pet topics:

    “The statutory functions of the Scotland Act conferred upon the Secretary of State may be exercised by any Secretary of State. There is therefore no requirement for a Secretary of State for Scotland as such, though there must always be a Cabinet Minister with responsibility for Scotland. The Commission considers such arrangements are rightly a matter for the Prime Minister of the day and notes that there are differing views amongst political parties on this matter.”

    Annabel Goldie has been caught off-message (probably made the remarks some time ago):

    “One suggestion made was for a regular appearance by the UK Secretary of State for Scotland at the Scottish Parliament. The Welsh Secretary makes an annual address and takes questions on the Welsh impacts of the UK legislative programme following its announcement in the Queen’s Speech. Annabel Goldie MSP was concerned this might ‘muddy the waters’ in the two separately elected chambers, but acknowledged it could be done by invitation, citing an address by the previous Prime Minister, Tony Blair.”

    If this ‘muddies the waters’ how muddied would they be by having the UK Prime minister appearing before the devolved administrations? When Dai Toff tried inviting himself to the Welsh Assembly the Presiding Officer dubbed it an act of paternalist unionism. According to the BBC Dafydd Ellis Thomas is in discussion with the presiding officers of other devolved assemblies about the constitutional implications of Mr Cameron’s proposal.

    And while I think they should be better relationships between the administrations why would a Scottish First Minister want to trek down to London for a potential carpetting by a Scottish Select Committee?

    Comment by Hendre — 16 June 2009 @ 11.52 am | Reply

    • In answer to your last question, the Scottish First Minister might already be down in London with plenty of spare time on his / her hands as a largely redundant Westminster MP! But it’s a serious point: Calman seems to think everything can be just luvvy duvvy. Learning to work collaboratively with the devolved administrations is like learning to live with coalition government – not something New Labour ever expected it would be required to do!

      Comment by David — 16 June 2009 @ 3.00 pm | Reply

  4. Exactly. Isn’t Alex Salmond still waiting for that telephone call from Tony Blair to congratulate him on forming a government? But then Blair was always very busy fighting the good fight for democracy …

    Comment by Hendre — 16 June 2009 @ 3.28 pm | Reply


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