Intergovernmental Relations in Scotland Before and After the SNP

This is a paper I gave to colleagues on the subject of IGR. I'll post a revision in September.


ESRC Seminar Series, Session 1 ‘Reforming Intergovernmental Relations in a Context of Party Political Incongruence?’ Exeter, 12-13 February 2009

Intergovernmental Relations in Scotland Before and After the SNP

Paul Cairney

Department of Politics and International Relations, University of Aberdeen, AB243QY
paul.cairney@abdn.ac.uk

The New Political Context
In Scotland, the election of the Scottish National Party (SNP) provided the potential for profound changes in IGR. From 1999-2003 and 2003-7, Scottish Labour and the Scottish Liberal Democrats formed a coalition (the Scottish Executive) which commanded the majority of MSPs in the Scottish Parliament.[1] In each parliamentary session (of four years) the parties produced a ‘partnership agreement’ setting out in detail their legislative and policy plans. While, in terms of their policy aims, the Liberal Democrats may have done disproportionately well out of the agreement, Labour was the senior partner in both sessions (McGarvey and Cairney, 2008: 121; Roddin, 2004). To a large extent, this allowed relations to develop between the UK and Scottish executives as if there was a shared party in government. The partnership agreement also allowed the UK, to a large extent, to see what was coming. This was consistent with the overall ‘no surprises’ approach between the UK and Scottish executives. Public disputes were rare and the mechanisms for IGR were largely informal and uncontroversial. In 2007, Labour was replaced by the SNP as the party with most seats in the Scottish Parliament. After a brief flirtation with the Liberal Democrats (and the two Scottish Green MSPs necessary to form a parliamentary majority), the SNP formed a minority administration and promptly changed its name to the Scottish Government. While for observers in Wales the shift to the term ‘government’ may seem innocuous (the term ‘Welsh Assembly Government’ was originally used to differentiate the National Assembly from its executive), in Scotland it marked a symbolic statement of intent for a new, nationalist party in government.

At the same time, developments in UK politics spilled over into the UK-Scottish relationship. The ascension of a Scot, Gordon Brown, from Chancellor of the Exchequer to Prime Minister (combined with the perception of a high number of Scottish senior Labour figures in government[2]) brought to the fore an agenda on Scottish ‘advantage’ (McGarvey and Cairney, 2008: 165). Although these issues have yet to reach a crisis point (at least in terms of a concentration of public attention), the election of the SNP combined with the rise of Brown in 2007 focused UK media and (particularly Conservative) party attention on issues such as the representation of Scotland at Westminster (the reduction from 2005 of Scottish MPs from 72 to 59 only remedied Scotland’s over-representation), the West Lothian question[3] and, most importantly, public expenditure (with the SNP leader Alex Salmond happy to reply that the solution to each problem was Scottish and English independence). Since a reform of territorial finance did not take place in tandem with devolution, the issue of a higher per capita rate of public expenditure in Scotland than in England (which was never solved by the ‘Barnett formula’)[4] has produced periodic bursts of media and public attention and therefore a growing perception within government that it should address the UK government’s treatment of Scotland. This perception is fuelled by Gordon Brown’s need to project the image of a British rather than Scottish Prime Minister (leading, for example, to the current unfortunate furore over ‘British jobs for British workers’). Such problems have been solved in the short term by creating the Commission on Scottish Devolution (led by Professor Kenneth Calman) and inviting it to consider the future of Scottish public expenditure as part of its remit. There has also been a shift of UK media and public attention towards bigger issues such as the economic crisis (albeit with the occasional comment by MPs representing English constituencies that Scotland is better placed to spend its way out of problems). However, there is a growing sense, at least among academic circles, that the dog will bark eventually (see for example, McLean 2008).

The Potential for Shifting Relationships
From 1999-2007 the IGR strategy in Scotland was clear: discussions were conducted informally and almost entirely through executives. Although other mechanisms for negotiation and dispute resolution existed, these were used rarely. The role of the courts was minimal. There were no references of Scottish bills to judicial review, since this was treated as a last resort and the Scottish Executive was more likely to ‘remove offending sections’ than face delay (Page, 2005). The role of Holyrood-Westminster relations was limited[5], and the Scottish Parliament was restricted to the passing of ‘Sewel’ motions giving consent for the Westminster Parliament (and in effect the UK Government) to pass legislation in devolved policy areas (Cairney, 2006; Cairney and Keating, 2004). There was a clear bias towards informality between executives. Although a Memorandum of Understanding was produced to guide the conduct of executives, and individual concordats to guide the cooperation between departments, the day-to-day business was conducted through civil servants in the executives without a religious reference to them (and they were updated rarely). As Horgan (2004: 122) suggests, there was an ‘informal flavour’ to formal concordats since - as in Canada and Australia - these are not legally binding. Rather, they represent a, ‘statement of political intent . . . binding in honour only’ (Cm 5240, 2001: 5). The Memorandum’s main function is to promote good communication between executives, particularly when one knows that forthcoming policies will affect the other. This emphasis is furthered in the individual concordats which devote most of their discussions to reiterating the need for communication, confidentiality and forward notice (or the ‘no surprises’ approach). For the civil servants that produced them they represented ‘commonsense’ with little need to refer to them (Sir Muir Russell, former Permanent Secretary, Scottish Office and Scottish Executive, in Commission on Scottish Devolution, 2008a: 2; see also Jack McConnell, former First Minister, Commission on Scottish Devolution, 2008b: 13).

Although the Joint Ministerial Committee (JMC) was designed to allow the UK government to call a meeting with the devolved governments to discuss issues of working arrangements, the impact of devolved policy on reserved areas and vice versa, share experience and consider disputes, it met infrequently (Trench, 2004).[6] The JMC is a consultative rather than an executive body, with issues to be referred to it on the rare occasions that discussions between executives break down. Such was the bias against taking issues to the JMC that its members found little to discuss (Jack McConnell, Commission on Scottish Devolution, 2008b: 12; Jim Wallace, former Deputy First Minister, Commission on Scottish Devolution, 2008c: 9). Instead, bilateral working relationships were encouraged between government departments, while matters of high concern were discussed through political parties (and Scottish and UK Labour ministers in particular). The existence of coalition in government in Scotland complicated matters to some extent, and the most high profile instance in which an issue ‘broke free’ from the quiet world of IGR related to a policy (free personal care for older people) related closely to Liberal Democrat aims. Yet, there was no systematic pattern of disputes and little demand for high profile resolution.

The election of the SNP provided the potential for profound changes in IGR. Before its election success in 2007, the SNP made very clear in public that it would not continue with the existing arrangements (McGarvey and Cairney, 2008). There would be far less scope for informal discussions between ministers, particularly since SNP leader Alex Salmond was openly critical of then Prime Minister Tony Blair (while Blair did not congratulate Salmond on his election as First Minister).[7] The SNP would push for an independent civil service (along the lines of Northern Ireland) enjoying a more formal relationship with Whitehall departments. There would be little encouragement for the UK Government to propose Sewel motions when the Scottish Parliament could legislate itself. There would be calls for a reinstatement of regular meetings of the JMC, as a way to establish relations between the administrations and to signal that Scotland was an equal partner. The Scottish Government would also (perhaps) challenge and push the existing devolution settlement to its limits, with some issues (such as nuclear power) signalled as ‘lines in the sand’. Certainly, it would not take the same attitude to high profile disputes, since a key long-term electoral aim is to demonstrate that the SNP is ‘sticking up for Scotland’s interests’ (by, for example, pushing for the return of ‘Scotland’s money’ for free personal care). Yet, as if to thwart the hopes by the Sun newspaper, this potential for an explosive new era of IGR has not yet been realised. [8] There has also been little movement towards formalisation, with the (plenary) JMC meeting only once since 2007 (Trench, 2008a; 2009).

The aim of following sections is to explore these issues by asking two questions: why were formal mechanisms used so rarely from 1999-2007, and what factors have produced muted rather than problematic IGR since 2007? To answer the former, members of the former Scottish Executive may link the smooth running of IGR to the successful pursuit of personal relationships, informality and bi-lateral discussions (suggesting perhaps that the intergovernmental framework is not in need of fundamental reform). However, we also have more ‘negative’ reasons which are also worth exploring: the Scottish Executive did its best to avoid conflict by limiting its aims and anticipating the reactions in Whitehall (particularly under the premiership of Jack McConnell); in most high profile cases, the Scottish Executive knew that it would not succeed through formal IGR mechanisms, or it knew that it would benefit more by not pursuing the issues; and, the Scottish Executive benefited (when subject to minimal interference) or suffered (when trying to influence, for example, UK policy in the EU) from Whitehall neglect, or the ‘disengagement from devolution’ of its ministers and civil servants. In each case, the explanation comes from an analysis of power relations rather than the adequacy of IGR mechanisms.

Although it is too early to produce a long-term picture to answer the latter, initial impressions suggest three main factors. First, the logic to informality and humdrum day-to-day relationships is strong. Indeed, the logic of the ‘British Policy Style’ may be as relevant as lessons from other political systems. Second, while there have been high profile disputes, these often appear to revolve around IPR (inter-party relations) rather than IGR. As such, the complication of minority government is that many potential intergovernmental issues are played out within Scotland. Although there may be more motivation, there is less room to create policy space through boundary-pushing legislation because the relevant bills do not command parliamentary support. This may skew instances of IGR towards matters in which the SNP Government seeks to obstruct rather than innovate (although, again, we may be talking about high profile exceptions, such as nuclear power plant planning permission, rather than a general picture). Finally, no major decision on constitutional change has been taken since 2007. Although the Scottish and UK governments have begun separate consultations, and there have been whispers about the UK government calling for a referendum on independence to ‘call the SNP’s bluff’, it is unlikely that matter will come to a head before 2010. Therefore, the big constitutional debates have yet to take place between governments.

Why were formal mechanisms so rarely used from 1999-2007? Was this appropriate?
McGarvey and Cairney (2008: 167) characterise the reasons for a lack of formal IGR as ‘positive’ and ‘negative’. Positive in this sense refers to explanations which suit both parties, such as when the civil service acts a useful conduit between government departments, there is a close relationship between a shared party of government, and when the use of the Barnett formula minimises the likelihood of public disagreement (Keating, 2005: 122–123). Yet, clearly, the reasons may be more positive for the executives involved rather than those they represent and are accountable to.

For example, there has been considerable criticism of the maintenance of the Barnett formula to determine changes to devolved public expenditure. 4 Much debate revolves around what the Barnett formula was designed to do (see McGarvey and Cairney, 2008: 180-8; Keating, 2005). One suggestion is based on incrementalism: the formula represented an interim measure devised in the run up to political devolution in 1979 (on the basis of previous measures associated with the Goschen formula). The plan was then to negotiate a new system, based on a needs assessment study commissioned by the Treasury, with the new Scottish Assembly. When devolution did not materialise, this plan was dropped and Barnett remained. A further suggestion is that the formula was devised to satisfy two camps – the initial maintenance of Scotland’s higher settlement would satisfy the Scottish Office (a UK government department), while the formula to calculate marginal changes to expenditure on the basis of Scotland’s proportion of the UK population rather than its proportion of UK funding would satisfy calls to reduce Scotland’s advantage in the long run. There is disagreement on the latter point. While a strict and accurate application of the formula suggests that it would reduce per capita spending levels in Scotland to a level similar to England, Midwinter (2004a; 2004b) argues that this was never the stated aim (and it did not happen). A more likely aim was to prevent any further advantage to Scotland and then bring Scotland’s per capita spending closer to the figure identified in the Treasury’s needs assessment. Yet, the latter (Barnett ‘squeeze’) does not appear to have happened either (Schmueker and Adams, 2005; although there is some evidence of a convergence of spending in some policy areas - Keating, 2005: 145).

For our purposes, the most relevant reason to maintain Barnett is that it represented for the Treasury a way to avoid spending a disproportionate amount of time on protracted annual budget negotiations for sums that were small when compared to its overall commitments. A key tenet of the policy communities literature is that policy issues are portrayed as dull affairs to limit public interest and participation. If an issue can be successfully presented as a ‘technical’ issue for experts (for a problem which has largely been solved), power can be exercised behind the scenes by a small number of participants (Baumgartner and Jones, 1993; Jordan and Maloney, 1997). In this sense the Barnett formula represents a successful attempt by decision-makers in Scotland and the UK to keep the big and potentially most contentious questions of funding off the political agenda. Barnett ‘solved’ the problem of Scottish advantage without provoking the type of reaction that would fuel calls for constitutional change (this was certainly a requirement in the run-up to the 1979 referendum). The annual budget rounds then became almost automatic, with the only scope for negotiation around the ‘technical’ issue of Barnett consequentials.[9] As a result, each side has tended to avoid reforms since a very clear sense of winning and losing would result from any deviation from the status quo. This was helped considerably during the 1999-2007 period by significant rises in UK and Scottish public expenditure. The types of disagreements on the adequacy of the funding settlement that we are now witnessing between the UK and Scottish Governments did not arise. These factors help explain why fundamental issues of territorial finance only tended to arise when linked – in the eyes of actors and venues which are not normally involved - to other events such as the election of a nationalist party just before the rise of a Scottish Prime Minister.

The extensive use of Sewel motions was also criticised, particularly during the 2003-7 session of the Scottish Parliament.[10] The procedure was created in anticipation of a small number of instances in which the UK government would legislate in devolved areas. The Memorandum of Understanding makes clear that Westminster retains the authority to legislate across the UK, but the Government will follow the convention to, ‘not normally legislate with regard to devolved matters except with the agreement of the devolved legislature’ (UK Government et al., 2001: 8). The Sewel motion is therefore passed in the Scottish Parliament to formally express this agreement. For the UK and Scottish executives the Sewel motion became a convenient process in which to minimise the need for lengthy negotiations to coordinate separate legislation when the boundaries between reserved and devolved responsibilities were unclear and/ or when a UK approach was necessary to maintain consistency of standards (and when the issues formed a small part of a much larger bill). Instead, the UK government legislated on Scotland’s behalf and, when appropriate, devolved the day-to-day responsibility for policy to Scottish ministers (executive devolution is the power to implement and shape public policy which has been routinely given to Scottish ministers by the UK government before and after 1999; it does not represent a transfer of powers to the Scottish Parliament). In many cases, the issues were innocuous (referring, for example, to the pension arrangements for international emergency service workers) and/ or commanded cross-party support (the Compensation Bill to make compensation claims for asbestosis was passed for expediency). Yet, there were also instances of political cowardice (with the Scottish Executive apparently keen to remove issues such as civil partnerships to another venue), reinforcing opposition party claims that Westminster was taking back the powers granted following devolution, that Scottish ministers were dodging their responsibilities, that the Scottish Parliament was marginalised from issues of IGR and that, therefore, formal contact on Westminster legislation affecting Scotland should involve a relationship between legislatures as well as executives (Winetrobe, 2005; Page and Batey, 2002).

The overall lack of formality in IGR was also criticised by the House of Lords Select Committee on the Constitution (2002). Since most contact between ministers and parties was by email, telephone or ‘quick words when people meet socially’ it was not recorded in the same way as formal minuted meetings. The report suggests that such informality depends on the ‘fundamental goodwill of each administration toward the others’. However, if the importance of the JMC was not made clear from the start, this may store up problems when Scotland and the UK do not share the same party of government (or at least, as Jack McConnell discusses, when those in key posts no longer know each other – Commission on Scottish Devolution, 2008b: 14). Giving the example of the foot-and-mouth disease crisis in 2001, it argues that formal IGR mechanisms have not worked well when called upon so far and that informal means cannot be relied upon in the future: ‘Devolved administrations may be more conscious of their distinct interests in future, or less willing to help the UK Government resolve its own problems . . . we wish to ensure that good and effective relations between governments can continue even if the present level of goodwill should decline’.

In such scenarios, the civil service may be seen as a saving grace; as a way to ensure that longer term relationships are maintained. Yet, the evidence for this is less impressive over time. To some extent a faith in the central role of the civil service was based on issues not related directly to IGR. For example, the need for mobility between Edinburgh and London was ‘a decisive argument in the decision to keep a unified civil service (Keating and Cairney, 2006: 53). Not only was this mobility exaggerated (70% of senior civil servants in Scotland have not enjoyed a spell working in a Whitehall department – 2006: 55), but also its effect on the socialisation of civil servants going back to Scotland is unclear. Perhaps some evidence can be found in the idea of a Whitehall club in which civil servants in Scotland appreciated being invited to meetings or feared being excluded from them: ‘the Permanent Secretary and other staff made a point of travelling to London to occupy visibly the place that was left on offer at meetings of their Whitehall counterparts’ (Parry and Jones, 2000: 63).[11] Yet, this desire to contribute to UK policy and maintain (or, more likely over time, build) personal networks has been undermined by significant Whitehall ignorance of political differences in Scotland[12] and a decreasing willingness among civil servants to trade-off time spent in the UK for time lost developing policy in Scotland. This is particularly the case in departments such as health and education where policy divergence suggests that the UK and Scottish agendas are unlikely to converge. The evidence from the Scottish Government’s Permanent
Secretary John Elvidge suggests that the informal contacts between civil servants in Scotland and England had already diminished before the SNP took office. Although the SNP’s handling of a high profile disagreement on foot-and-mouth compensation in 2007 was said to have undermined the UK government’s willingness to engage informally through the civil service network, this would be, ‘breaking quite a slender thread’ (see McGarvey and Cairney, 2008: 131).

Such issues of secrecy, marginalisation and agenda-setting to be found in the ‘positive’ reasons for informal IGR combine with problems associated with ‘negative’ reasons based on an asymmetry of power. The UK is asymmetrical in two senses - first because devolution was extended to a relatively small share of the population, with Scotland (8.6%), Wales (4.9%) and Northern Ireland (2.9%) accounting for 16.4%; and, second, because the balance of power is tipped towards UK policy departments dealing predominantly with the English population. As Keating (2005: 120) suggests, the centre is faced with a small set of devolved governments which do not match the powers of federated or devolved authorities in other countries such as Germany, Spain, Belgium or Canada. Scotland, Wales and Northern Ireland are not part of a collection of powerful regions and the UK does not have a ‘supreme constitution’ guaranteeing a level of autonomy for devolved governments (Watts, 2007).

This has two main effects. First, the devolved governments do not have a mechanism with which to oblige the UK government to engage and consult and there has been a tendency for UK ministers to disengage from the IGR process. The lack of JMC meetings during a Labour-led Government was: ‘a clear indicator that devolution is no longer a prime concern of the Prime Minister and other politicians’ (Trench, 2004: 515–6). Moreover, civil servants in Whitehall often forget about Scotland and neglect to consult, then make statements on UK policy without a Scottish qualification or opt-out (Keating, 2005: 125; McGarvey and Cairney, 2008: 167). These issues were discussed briefly in the public domain following a leaked report from the Scottish Executive’s EU office (Aron, 2006; SNP, 2006). The main finding is that, although the best way for the Scottish Executive to influence Europe is through Whitehall, its success varies. Any success depends on a disproportionate amount of work by Scottish officials, since Whitehall departments often ignore or forget to consult their Scottish counterparts. In some cases, Whitehall departments have deliberately excluded their Scottish counterparts from the process, while in most cases the problem is that the Executive is not consulted at a stage early enough to influence the direction of policy. Direct Scottish Executive contact with EU institutions (the Commission, Parliament and Council of Ministers) is also limited and often discouraged by Whitehall departments. There is also a feeling that, since devolution, ministers have lost some of their clout and there is now no equivalent to the single Scottish Secretary being the figurehead for Scotland and banging the drum in Cabinet.

Second, when the two executives do interact, Scottish actors are reluctant to challenge the authority of the UK. For example, Page and Batey (2002: 513) suggest that the UK government drove the agenda for policy coordination. Most Sewel motions came from UK departments after the legislative slot had been secured, with Scottish ministers ‘effectively forced to agree to Westminster legislation in the devolved areas’ given the uncertainty over devolved government powers and the prospect of the UK government referring the issue to the Judicial Committee of the Privy Council (Page, 2002). Further, in high profile issues of disputes – such as free personal care for older people and Hepatitis C compensation - the Scottish Executive has been reluctant to ‘rock the boat’ and instead accepted UK ‘victories’ to maintain its good relationship with Whitehall (Trench, 2004).

The one-sided effect of asymmetry may be overplayed in the literature because: the imbalance of the Sewel relationship may be exaggerated (since the process conferred significant benefits on the Scottish Executive); a focus on a very small number of disputes exaggerates their overall importance; the Scottish Executive benefited in other ways (particularly financial) by not pursuing the free personal care issue; and, UK neglect allows considerable Scottish ministerial discretion and the ability to ‘create policy space’ by reframing policy issues as a way to ‘shift venues’ and justify legislating in reserved areas (although this was used rarely) (Cairney, 2006; 2007; McGarvey and Cairney, 2008). Yet, even if we could demonstrate that the Scottish Executive ‘punched above its weight’, it is more difficult to argue that this justifies a type of IGR in which the executives involved have more to gain from the relationship than those they represent and are accountable to.

2007: what factors produced muted rather than problematic IGR?
The irony may be that one of the reasons the SNP did not spark off a new explosive era of IGR is that the Scottish Government frequently has almost as much to gain from the same kinds of relationships fostered by the Scottish Executive (keen, in Alex Salmond’s words, not to be seen arguing with its big brother – see McGarvey and Cairney, 2008: 162). In many cases the ‘logic’ of informal IGR has direct parallels to the ‘logic of consultation’ between interest groups and government. As Jordan and Maloney (1997) argue, the policy community-like relationships between groups and government are pervasive as a ‘consequence of policy making requirements’. Governments and groups trade access and influence for information and advice; this ‘logic of policymaking … acts as a drive towards … stable, regulated predictable relations’. The logic of ‘bureaucratic accommodation’ refers to the benefits of reaching a consensus (or at least practical understanding) with interest groups rather than imposing decisions. Although a ‘majoritarian’ system associated with ‘top-down’ policymaking, the UK shares a common style with a range of political systems, based on the need of civil servants to gather information from interest groups and legitimise decisions through consultation. This need is strong since it encourages group ownership of policy and maximises governmental knowledge of possible problems. Further, the size of the state and scope for ‘overload’ necessitates breaking policy down into more manageable sectors and sub-sectors that are less subject to top-down control (see Cairney, 2008a). Even during periods of political conflict, this logic ‘tends to reassert itself and policy community-type features can emerge in the context of the conflict. On many occasions the resolution of high profile controversies requires disaggregation into a series of less contentious manageable facets that are processable within policy community arrangements’ (Jordan and Maloney, 1997).

The lesson to be drawn from such relationships is that few governments are willing or able to bear the cost of continuous top-down policymaking, even if their political structures appear to give them a particular advantage in this regard. Therefore, first, a top-down approach to IGR is no more likely than a top-down approach to consultation. Second, although there may be instances of high profile disagreements, there is a tendency for this charged atmosphere to give way to a more humdrum, day-to-day relationship as different actors work through the details. In this context, our research question refers to the extent to which the SNP Government would accept the relationship in the same way as its predecessor. Again, we can draw parallels with the decisions by interest groups to engage in insider or outsider strategies. Treated as a radical group, the SNP leadership’s motives may revolve, ‘around one central point: how many recruits will this bring into the organization?’ (Alinsky, 1971: 113, cited by Jordan in correspondence). Specifically, ministers may be driven by the pay-offs associated with standing up for Scotland’s interests and engaging in (and publicising) disputes even if there is no hope of winning them. Indeed, the link between actions and recruitment may be stronger for parties.

Yet, the experience to date suggests that the SNP has been willing to adopt an insider strategy which tends to include an acceptance of the ‘rules of the game’, or a willingness to engage in self-regulating activities (the value of which the party rank-and-file may not appreciate) in the short term to allow it to benefit in the long-term. The best example to date may be the SNP’s attitude to negotiations with the UK over EU policy formulation. As Johnston (2007) argues, Scottish ministers have not only pushed for the extended use of the JMC Europe (still the only JMC to meet on a regular basis), but have also agreed to uphold a principle that they criticised in opposition: ‘the devolved administrations are involved in the formulation of the United Kingdom line but on the basis that they may not disclose to anyone – including their own legislature or assembly – what disagreements they have had with the UK Government over the formulation of that line.’ This has led to the rather shameless defence of the process by Linda Fabiani as (until February 2009) Minister for Europe, External Affairs and Culture, when in her former guise as convenor of the Scottish Parliament’s European and External Relations committee she was one of its harshest critics.[13] Further, Scottish Justice Minister Kenny MacAskill is now keen to promote the idea of piloting an airgun licensing scheme in Scotland as part of an overall UK strategy (and members of the Scottish Government’s political and civil service staff are engaged in UK discussions on a fairly pragmatic basis). This is a far cry from the SNP stance in opposition, critical of Jack McConnell’s attempts to influence the UK informally and promising to lobby for Scottish control of the issue (Cairney, 2008b; McGarvey and Cairney, 2008: 163). These examples supplement the more ad hoc and pragmatic links between executives during crises (such as the terrorist attack on Glasgow airport, the moves to address a fuel crisis caused by strikes at the BP Grangemouth oil refinery and coordination of responses to tackle the foot-and-mouth outbreak in England – Trench, 2007).

Similarly, the early experience of Sewel motions suggests that there is a logic to the expediency and convenience that the process offers for fairly innocuous policy issues, or for a legislative process which results in more executive devolution. Since May 2007, the SNP Government has approved proportionally fewer (10 in 22 months) and has sought, when possible, to promote Scottish parliamentary measures instead. However, we have not witnessed the type of sea change we might have expected from a party which, in opposition, presented principled stances against the process. Indeed, Labour MSP George Foulkes could not resist highlighting the SNP’s use of Sewel motions as a result: ‘It is an interesting paradox that there have been more bills at Westminster affecting Scotland in the current session than there are bills here’ (Scottish Parliament Official Report, 20.2.08 c.6129). Similarly, Johann Lamont (Labour) was keen to remind Parliament about the SNP’s opposition to the use of Sewel motions when in opposition: ‘On numerous occasions in the past, SNP members voted against entirely rational and logical LCMs on the basis that it was a point of principle for them to do so’ (Scottish Parliament Official Report 20.2.08 c. 7140). Similar party-political points about the SNP handing powers back to Westminster (a classic argument used by the SNP when in opposition) prompted Communities and Sport Minister Stewart Maxwell to make a remark which could have been said by any Labour/Liberal Democrat minister from 1999-2007:

It is suggested that the LCM impacts on the Scottish Parliament's legislative competence or is tantamount to our handing back powers to Westminster. Let me be clear: only through changes to the reservations in the Scotland Act 1998 can powers be handed back to Westminster or the legislative competence of our Parliament altered. Individual motions, such as the one that we are discussing, represent no more than a one-off agreement by the Scottish Parliament for Westminster to legislate on our behalf on a specific aspect of a devolved matter (Scottish Parliament Official Report 19.3.08 c.7106-7).

The third aspect of muted IGR results from minority government: many potential intergovernmental issues are played out within Scotland without necessarily reaching a decision-making point at the UK level. For example, although the SNP Government may relish a debate with the UK government over its plans for a local income tax to replace the council tax (as with the issue of free personal care, the policy change will trigger a loss of UK social security benefits to Scottish residents without the prospect of a sympathetic response from the UK government), it does not have enough MSPs or opposition party support to pass the legislation in its current form. Similarly, although the Scottish Government was highly critical of its budget settlement in 2007, the Treasury’s response was rather muted (merely suggesting, in response, that a prudent government could work with a settlement representing more than double the amount given to the first Scottish Executive). Much of this debate was played out in the Scottish Parliament as Scottish ministers attempted to deflect opposition criticism and justify the incomplete delivery of manifesto commitments (such as the abolition of student debt). Although it may be a cliché to refer to Putnam’s (1988) model of two-level games, there is a clear sense in which the Scottish Government has at least one eye on its domestic audience when reacting to decisions made in the UK (or in which the UK government can use its position to help Scottish Labour[14]).

The lack of a Scottish Government ability to innovate (with legislation) has the potential to cause an imbalance of conflict towards instances in which the Scottish Government can obstruct UK policies. The main example for the future is likely to be nuclear power. While the issue of energy is a reserved matter, the Scottish Government has final responsibility for planning decisions and has signalled a willingness to refuse planning permission for any new nuclear power plant. Yet, the boundaries between devolved and reserved in this area have never been tested, and the Scottish Government’s power has never been established. Indeed, the line by the previous Scottish Executive was that it could make decisions on nuclear power under the executive devolution granted by the UK government (Cairney, 2006: 441). In either case it is likely that, if the governments come to blows, the ‘purpose test’ will be applied by the UK government to establish the primary aim of policy. The test suggests that the UK government has the responsibility. Yet, it is still possible to envisage two rather different but realistic scenarios, each based on the willingness of the UK government to assert its authority. The first is that it will amend the Scotland Act 1998 to clarify its responsibilities (perhaps as a response to a Calman Commission recommendation), rather than engage in a more uncertain court-based process which takes the matter out of its own hands. The second is that the matter becomes a commercial rather than governmental decision, with companies such as EDF deciding to pursue new nuclear plant production only in England (at least until the next Scottish election). Following the UK government’s apparent decision (in its White Paper) to accept the Scottish veto, the latter currently seems the most likely (Trench, 2008b).

Finally, IGR has been rather muted because the fundamental bone of contention between the SNP and Labour governments – constitutional change – has not yet come to a head. Instead, the SNP has initiated a ‘national conversation’ with the Scottish population, in part as a means to keep the issue on the national agenda but put off a decision until the SNP’s preferred 2010 referendum. Further, again, most debates about the referendum process itself are likely to be played out in the Scottish Parliament, with the SNP needing the support of at least two other parties to pass a referendum bill. Although the process took on a Scottish-UK dimension when Gordon Brown failed to support former Scottish Labour leader Wendy Alexander’s attempt to ‘call the SNP’s bluff’ and push for an early referendum on independence, this became primarily an internal party, rather than intergovernmental, matter. Meanwhile, the UK government is supporting the Commission on Scottish Devolution led by Professor Kenneth Calman. The Calman Commission is a curious body ostensibly serving the interests of two clients: the Labour, Conservative and Liberal Democrat parties in Scotland[15] (who passed a motion in the Scottish Parliament supporting its set-up) and the UK government. While its membership is from the great and good in Scotland, it is serviced by UK government departments (see Jeffery, 2009).

Until fairly recently both processes have given the impression of a need to kill time without any particular interaction with each other. The Calman Commission has no remit to discuss independence. Further, although in its first (interim) report it raises the issue of nuclear power, there are no firm conclusions (perhaps in part because Scottish Labour MPs and MSPs do not yet agree on the issue), while most of the other issues are discussed in terms of the prospect of further devolution (which, if the transfer of the Scottish rail network is a guide, would have a fairly technical IGR dimension). There may be some change to the SNP’s attitude to Calman following its deal with the Liberal Democrats to pass the annual budget (Scottish Liberal Democrats, 2009). Yet, a submission by the Scottish Government calling for greater borrowing powers to an ad hoc body serviced by the UK government is a far cry from a serious intergovernmental relationship.

Conclusion: What does this tell us about the need to reform IGR?
The lessons from 1999-2007 are that informal IGR and the automatic continuation of the Barnett formula excludes most participants, while the Sewel process marginalises parliaments. There was an overall lack of transparency and accountability for what is already a fairly secret area of government. The civil service relationship was also not as strong as widely imagined. This suggests that the Scottish-UK relationship was ill equipped for a major crisis or a change of party in government. The arrangements may also have contributed to the effect of an asymmetry of power between UK and devolved executives, with the latter unable to fall back on (or unwilling to invoke) formal mechanisms when informal channels broke down. However, this is by no means clear and it prompts us to consider just how much we could reasonably expect the Scottish Executive to benefit from its relationship with the UK. From the standpoint of an equivalent English region, Scotland may seem like it is punching above its weight and benefiting from side deals even when it appears to lose disputes.

As is the case with most reactive or incremental (rather than anticipatory) governments, the system of IGR has not shown signs of change until a change of circumstances. Thus, the election of the SNP has forced the issue of IGR higher on the political agenda, raising the prospect of an independent civil service (or at least a civil service which is increasingly operating in relative isolation) and, by the very nature of the new relationship, necessitating a higher degree of formality and planning between elected representatives of governments. Yet, the effect has largely been piecemeal, with high profile SNP calls for the reinstatement (or merely ‘instatement’) of the value of the JMC meetings having, at best, an uncertain effect. The UK Labour party has largely maintained its links in Scotland through Scottish Labour and it clearly takes more than SNP criticism to change its attitude to formal mechanisms. Whitehall departments have also shown a continuing ability to forget to consult the Scottish Government (Trench, 2008b: 56). Therefore, informal, ad hoc and often unreliable relationships between ministers and civil servants in each executive are still the norm.

While the need for an overall review of IGR arrangements seems appropriate, the underlying assumption is often that we can separate the technical from the political (or, perhaps as academics, rise above the latter). Yet, it is difficult to gauge how possible and effective this would ever be. There are clear parallels with financial frameworks. For example, as the Calman Commission has so far suggested, any change to Scotland’s funding system will be a political rather than a technical decision because the value of each choice depends on the weights we place on a range of often conflicting requirements (such as the value of territorial fiscal autonomy versus the scope for redistribution). Similarly, the history of Barnett represents a classic example of the need to avoid an approach based on the assumption of ‘comprehensive rationality’. The Treasury needs assessment experience shows us that need is largely a political concept, with the measures and weights used unlikely to gather cross-party of cross-government support. While most may agree that Scotland enjoys and advantage over and above its ‘need’ for higher public expenditure, there has yet to be a process that will ensure satisfactory outcomes for all concerned.

With IGR, the lesson of incrementalism (in both a descriptive and prescriptive sense) is that with any change there will be winners and losers. As Keating suggests, moves to coordinate policy at the UK level may provoke a sense of British citizenship at the expense of Scottish, moves to address the spillover effects of one territory on another will restrict the autonomy of that territory, while the use of the JMC will lead to a potentially disproportionate power for the devolved territories or unilateral decision-making by the UK government. Further, even if formal intergovernmental mechanisms become more of a regular feature, we may still find that policymakers are reluctant to engage and, instead, find other arenas in which to resolve issues. Perhaps ironically, a more serious driver for engagement may come from the election of a Conservative government in the UK (on the back of English votes and minimal Scottish representation). The policy communities literature has long demonstrated that the need to appear legitimate in the eyes of those they govern is a strong driver for unelected decision makers. Recent remarks by David Cameron (2009) suggest that the advent of a new ‘democratic deficit’ may drive the UK government to engage more than a Labour government which still feels it has considerable legitimacy in Scotland.

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Annex 1. Examples of Issues over Reserved/ Devolved Boundaries 1999-2008
Issue and boundary
Details
Resolution
Ban on Smoking in Public Places – public health/ health and safety
The Scottish Executive legislation contradicted a concordat with the Health and Safety Executive, while regulations infringed on employment law
The measures were supported by the UK’s Department of Health, while the Scottish Executive presented public health during the ‘purpose test’
Hepatitis C – the NHS/ compensation for injury and illness
The Scottish Executive’s plans for a compensation scheme for NHS patients infected by blood transfusions infringed on
The Scottish decision was delayed until a UK-wide scheme was introduced
International Aid – reserved, but with potential for executive decvolution
Scottish Executive aid work in Malawi presented as an extension of UK policy aims
The UK government supported the Scottish initiatives
Asylum Seeking, Detention, Dawn Raids – asylum policy is reserved (with some doubt about the health and education of refugees detained in Scotland); devolved police forces implementing reserved policy
Civil society protests put pressure on the Scottish Executive to become involved in direct Home Office/ local authority relationships
Attempts by the Scottish Government to secure
a ‘protocol’ on minimum standards of welfare and police conduct during
this process had uncertain success. A UK decision to reform detention policy is imminent.
Free Personal Care – local authority provision of care/ social security benefits
Scottish Executive funding of personal care removes entitlement to UK Attendance Allowance benefit
A classic fudge. Scottish ministers dropped their claim, apparently in exchange for favourable interest charges on loans for council housing.
Student Fees – higher education/ revenue collection
The Cubie report recommended fee repayment of reduced fees only when a graduate reached a £25000 per annum wage, but the threshold for repayments of loans (administered by the Inland Revenue) is set by the UK government.
The Scottish Executive accepted the UK threshold, which was then raised from £10000 to £15000 when tuition fees were introduced in England. The Scottish Government has now abolished student fees in Scotland.
Nuclear Power – planning/ energy
The Scottish Government has threatened to refuse planning permission to new nuclear power stations in Scotland.
No resolution.
Gun Crime - reserved
Both Scottish Executive and Scottish Government have requested different measures in Scotland.
No resolution.
Trident - reserved
The Scottish Parliament passed a motion in 2007 to object to the stationing of Trident missile bases in Scotland.
No resolution.
Elections
Following the Scottish Parliament 2007 elections fiasco, the Scottish Government called for responsibility to be transferred to the Scottish Parliament.
This has so far been rejected by the UK government.


[1] 1999 result: Labour 56, SNP 35, Conservative 18, Liberal Democrat 17, Other 3
2003 result: Labour 50, SNP 27, Conservative 18, Liberal Democrat 17, Other 17
2007 result: SNP 47, Labour 46, Conservative 17, Liberal Democrat 16, Other 3 (Green 2, Margo MacDonald 1). The Conservatives were reduced to 16 when Alex Fergusson was appointed as Presiding Officer
[2] Including Alistair Darling as the new Chancellor. Part of the reason for Scottish seniority in the Parliamentary Labour Party ranks is that, when Labour suffered large electoral defeats in the 1980s their level of Scottish electoral success remained high.
[3] Scottish MPs can no longer vote on devolved issues such as health and education policy in Scotland. However, they can still vote on those same issues affecting England (i.e. out-with their own constituency and country), while English MPs cannot return the favour since these issues are devolved to the Scottish Parliament.
[4] Named after Joel Barnett MP, Chief Secretary to the Treasury from 1974–79 (i.e. around the time the formula was introduced). It covers most of the Scottish budget and approximately 60% of public expenditure in Scotland (the rest is spent directly by Whitehall departments). The system is based on an initial funding settlement supplemented by the Barnett formula which adjusts the Scottish settlement in line with changes to the English budget. While the former re-established Scotland’s higher per capita spending, the latter is based on Scotland’s share of the UK population rather than the UK budget.
[5] The profile of Scottish MPs has also been limited with, for example, fewer Labour MPs as willing as their Welsh counterparts to become involved publicly in debates over Scotland’s constitutional future.
[6] Although some related committees, particularly on Europe, met more frequently.
[7] Salmond’s stance began almost immediately following the SNP’s election, with Salmond criticising Blair for (allegedly) negotiating with Libya over the release of the Lockerbie bomber. Although Salmond has less criticism for Brown, the pair does not meet regularly. See H. MacDonell 6.2.08 ‘Crisis – but First Minister and Brown haven't met for a year’ The Scotsman http://news.scotsman.com/scotland/Crisis--but-First-Minister.4954040.jp
[8] In the summer of 2007 the Scottish edition of the Sun ran a feature outlining a range of potential disputes (including nuclear power, defence, the local income tax and free personal care) alongside Alex Salmond and an explosion in the background.
[9] Barnett consequentials are sums received (or lost) from the UK government when levels of spending in England change. The size of the consequentials are based on three estimates: Scotland’s share of the UK population; the change in levels of spending of Whitehall departments; and the level of comparability in specific programmes (if an issue such as health is fully devolved then it is 100% comparable). There is considerable room for negotiation on the level of devolution in some areas (such as transport, trade and industry) and hence the level of comparability.
[10] 79 motions passed from 1999–2007 (compared to 103 Executive bills). From 1999–2003, 20 of 41 (49%) were opposed by the SNP, rising to 25 of 38 (66%) from 2003–07 opposed by SNP, Green and/ or SSP MSPs.
[11] See also Sir Muir Russell (Commission on Scottish Devolution, 2008a: 7): “They [at the Permanent Secretary meetings in London] made us feel we were still part of a team, that colleagues in Whitehall departments had some responsibility for what we did. It was a network to raise issues. It meant that they cared and were interested. I always felt very much a part of it, not patronised and not eased out; taken seriously. It probably helped that I’d been doing that sort of thing for a long time anyway”.
[12] As Russell demonstrates with the example of Universities UK (Commission on Scottish Devolution, 2008a: 3), this sense of London-centric UK disengagement from devolution is also felt by devolved arms of UK groups (see also Keating, 2005).
[13] Bringing to mind an episode of Yes Minister in which Hacker attempts to reject a petition he began as an MP in opposition.
[14] Although with IGR we often have to rely on anecdotal evidence, such as the story that Secretary of State Jim Murphy encouraged foreign office minister Lord Malloch-Brown not to take Linda Fabiani’s call in relation to the Mumbai massacre, in part as a way to put pressure on the SNP in the Scottish Parliament - http://www2.jpscotland.co.uk/steamie/labels/Linda%20Fabiani.html
[15] Which enjoy different relationships with their respective parties. The leader of each Scottish party leads the Scottish parliamentary party. However, while the Liberal Democrat Party is federal and the Scottish leader controls (as far as is practical) the Scottish party, the Scottish branches of the Labour and Conservative parties enjoy less overall freedom. The UK Labour party (or at least its leadership) has also shown a willingness to become involved in the decisions and conduct of the Scottish leader. Recent practical examples in opposition include the apparent ban on Conservative MSPs from making a formal contribution to the Calman Commisison (for fear of embarrassing Conservative leader David Cameron, or tying his hands when elected Prime Minister) and the fall-out from Gordon Brown’s non-support of Wendy Alexander’s attempt to ‘call the SNP’s bluff’ and push for an early referendum on independence.