Constitutional experts have raised concerns over the division of responsibilities between the UK and Scottish Governments, following the publication of draft legislation on greater devolution to Scotland. Academics have suggested that the draft legislation raises more questions than it answers in several areas.
The most evident of these areas of confusion is the concept of ‘no detriment’, the notion that the actions of one government should not harm another.
Professor Michael Keating, Director of the CCC, explains that:
“’Detriment’ could be read more widely to cover tax competition. So if Scotland were to abolish Air Passenger Duty and divert traffic from Newcastle to Edinburgh airport, England might complain about the lost revenue. Wealthy residents could be lured across the border by different taxes on high incomes.
“Determining what should count as ‘detriment’ will remain politically contentious and technically complex.”
This lack of clarity on the issue of taxation policy is also problematic, explains CCC Fellow Professor Paul Cairney:
“The rhetoric has been about greater financial responsibility and accountability but, in fact, what they have produced is a confusing system providing a complex interplay between reserved and devolved taxes. The result is great confusion about what tax-and-spending decisions we can meaningfully describe as being made by the Scottish Government.”
In the area of welfare the draft legislation increases the powers of the Scottish Government but also its dependence on UK policymaking, says Professor Nicola McEwen:
“The draft clauses reveal the complexity of the new arrangements. At the same time as increasing powers, it also increases the Scottish parliament’s dependence on UK policy and decision-making.
“In the area of welfare, the draft clauses specifically create concurrent powers, where new powers given to Scottish ministers to affect the delivery of Universal Credit will be shared with the UK Secretary of State, and subject to his agreement. Similar provisions are established in relation to energy efficiency, where the Scottish government will be given the power to ‘make schemes’, through regulation, for the purposes of reducing fuel poverty, subject to the agreement of the UK Secretary of State.”
Across a range of policy areas there will be a greater need for new approaches to intergovernmental relations and greater clarity and communication based on mutual respect and cooperation. Professor McEwen continues:
“These and other complexities point towards a need for much closer and ongoing intergovernmental collaboration between the Scottish and UK governments, way beyond the Joint Ministerial Committee. Unless such joint working can be conducted on the basis of equality of status and mutual respect, the complexities and interdependencies are likely to create new sources of tension and dissatisfaction, and lead to growing pressure for a further revision of the devolution settlement. The Prime Minister’s hope that today’s announcement will lead to ‘an enduring settlement’ may seem forlorn.”