In part 1 of this amazing drama I restricted the discussion of ‘governance’ to Scotland. What happens when you expand it to include ‘multi-level governance’ in the UK and EU? It makes it even more difficult to talk about central government control and holding the Scottish Government to account, in a meaningful way, since it shares policymaking responsibility with UK and EU-level authorities.
The concept of MLG helps us understand the wider context of Scottish policymaking. In part 1 we discussed the idea of governance as ‘horizontal’ power diffusion by identifying, for example, the role of interest groups in territorial policy communities, and one aspect of ‘vertical’ diffusion by identifying the extent to which the Scottish Government shares power with local public bodies (see also the so-called ‘Scottish approach to policymaking’).
So, imagine MLG as the formation of policy networks that span more than one level of government, and the ‘emergence’ of policies and practices from multi-level activity. It is important to identify which actors are responsible for those outcomes in theory, to inform discussions of accountability, but difficult to know who to blame in practice when there are blurry boundaries between the actors who make or influence policy. This problem is exacerbated, not solved, by further constitutional change, which is built on a level of shared responsibility, between the UK and Scottish Government, not envisaged in the original devolution ‘settlement’.
Multi-level policymaking: the division of responsibilities
To get a flavour of these overlaps, let’s start with the original settlement, set out in the Scotland Act 1998, which stated which policy areas would remain reserved to the UK Government. Reserved areas are in the left hand column, which allows us to work out the main responsibilities of the Scottish Government. In the middle are some examples of UK/ Scotland overlaps, followed by examples of policy issues that are devolved and ‘Europeanised’.
If we simply compare the left/ right columns, the divisions seem fairly clear. Indeed, compared to many other systems – in which, for example, national and regional governments might share control over healthcare or education – they are.
The ‘Europeanisation’ of policy
Yet, many policy areas were becoming controlled or influenced increasingly by the European Union as they were being devolved. Further, the UK Government is the Member State, with three main implications:
- It is responsible for the implementation of EU directives across the UK, which gives it a monitoring role on Scottish policy in devolved areas.
- It tends to treat the EU as an extension of foreign affairs/ international relations – a reserved issue – rather than a collection of policy areas which can be reserved or devolved.
- It is difficult to consider constitutional change without taking into account key EU rules, in areas such as corporation tax and renewable energy obligations.
Outside of the obvious areas, such as EU rules on free trade and the free movement of people, the most Europeanised and devolved areas tend to be in:
- Agriculture and fishing. The Common Agricultural Policy and Common Fisheries Policy are negotiated and set at the EU level, often with minimal Scottish Government involvement but with some discretion during implementation.
- Environmental regulation. Similarly, Scotland’s environmental policies begin with the need to be consistent with EU rules in areas such as water quality and environmental protection.
Then, there is a miscellany of EU advice and regulations with the potential to have a major impact on otherwise devolved policies. For example, the ‘working time directive’ has an impact on doctors’ working conditions, while the habitat directive impacts on planning processes. This is on top of a more general sense that EU rules on trade and the free movement of people have a major impact on any policy area.
The blurry boundaries between reserved and devolved issues
There are many examples of areas in which at least two levels of government are involved. In some cases, this potential for multi-level involvement produced uncertainty about how to act:
- In the very early years, Scottish ministers expressed uncertainty about their role in issues such as industrial policy and a register of sex offenders.
- The ‘smoking ban’ raised interesting issues about the ‘purpose test’ to determine who is primarily responsible for key policies. It is part of a larger set of tobacco control policy instruments produced by Scottish, UK, and EU policymakers.
- Scottish Parliament legislation to introduce a minimum unit price for alcohol has been delayed by court action (it is currently being considered by the ECJ).
In some cases, there were tensions about the overlaps of responsibilities:
- The Scottish Government’s policy on ‘free personal care’ for older people reduced many people’s entitlement to UK government social security payments. It faced similar issues when proposing a local income tax.
- The UK’s Home Office policy on ‘dawn raids’ on unsuccessful asylum seekers was carried out in Scotland by a devolved police force.
In others, an overlap of responsibilities seems inevitable, since many policy areas are ‘cross-cutting’; they involve many policy instruments and government departments:
- Fuel and child poverty are addressed with a mix of taxes, benefits, and public services.
- Cross-cutting UK initiatives – such as the New Deal and Sure Start – require a degree of cooperation with devolved public services.
- The Scottish Government’s ‘Fresh Talent’ initiative required Home Office approval.
In other words, overlaps are inevitable when any government tries to combine devolved discretion with national control.
Although this has been a far more boring post, the issues of accountability strategies are a bit more interesting. The debate, in this case, relates to the extent to which:
- the SNP in government can blame the messy constitution settlement for its limited room for manoeuvre – an argument that it uses, but sparingly, because it also needs to maintain an image of governing competence (which is not supported well by the continuous claim of powerlessness)
- the opposition parties can criticise this focus, and make the ‘use the powers you have before you ask for more’ argument, but sparingly, because they must know that the Scottish system is a big mess.
This should at least make it more bearable to watch an election debate (perhaps behind a cushion) because very little of this comes up but you know it’s there. Imagine a warring family that only argues about who should take the bins out or pick up their socks when you know what’s really going on under the surface.