Scottish devolution and the new democratic deficit

Yes, that’s a whopping 111 National Public Bodies (quangos) for Scotland’s 5.4m people. 

Sceptical Scot’s guiding editorial principle is rejection of the prevalent binary approach to Scottish politics – as if being pro or anti indy is all that matters. In line with that policy, we favour articles such as those by James Mitchell, John McLaren and Walter Humes who critically re-examine socio-economic policy outcomes and central/Scottish government performance in delivering the promises of devolution over the past 20 years. From recent record views it seems our readers are eager for such scrutiny. Now, for the first time we add a missing link: the view from local authorities. And not before time. As Scotland prepares for local elections in May an Opinium poll for Our Scottish Future shows that 75% of Scots do not know who leads their local council.

The Mercat Group of five former Council CEOs  (Bill Howat Comhairle nan Eilaen Siar; David Hume Scottish Borders; George Thorley South Ayrshire; Gavin Whitefield North Lanarkshire and Keith Yates Stirling) is dedicated to untangling the difficulties and challenges confronting Scottish local government in the face of over-mighty central power.   Here, in the first of a short series, George Thorley lays bare how the Scottish Government has disempowered local government and supplanted one form of democratic deficit with another.

Is history repeating itself?

The case to establish a devolved parliament for Scotland was rooted largely in a belief that London based governments failed to properly reflect the interests, priorities and needs of the Scottish people and businesses.

The argument was that a powerful law making and resource allocating devolved parliament located in Edinburgh would erase this democratic deficit, once and for all.

This article describes the enormous constitutional changes made to the governance of Scotland since the late 1990s, and examines the long term democratic implications of the ongoing and extensive use of Scotland’s 111 non-elected National Public Bodies (quangos) receiving over £22 billion funding in 2021/22.

Three significant issues of concern are identified. The first, and most important, relates to the lack of direct accountability between these organisations and the Scottish public. The second issue is what it means for Scottish Ministers and senior civil servants who are the only effective conduit open to the public for challenging these organisations.  The third relates to the question of whether a devolved government is a fit and proper organisation to actually run such a vast range of services and activities when a democratically accountable system in the form of our local government exists that could more accountably run many of these activities in a more synchronised and effective way.

These issues raise serious questions about the operation of Scotland’s new democratic system.  In developing a new polity in which anonymous, quasi-public bodies spend very significant amounts of public money, the Scottish Government has supplanted one form of democratic deficit with another. 

Constitutional change – at the speed of light

There exists in Scotland a long history of distinctly and uniquely Scottish institutions in banking, law, religion and education creating the framework for Scottish society and economy. It was a reasonable expectation that a new Scottish Parliament would both better understand these traditions and crucially be closer to the Scottish people in understanding them and their communities needs and aspirations.

 The new Labour Government elected in May 1997 embraced the concept and by 1998 the Scotland Act established a devolved Scottish Parliament.

The Scottish Parliament was established in May 1999 with legislative powers and financial control over a wide range of public policy areas including health, local government, town and country planning, education, housing, transport, policing, justice, fire, agriculture, forestry and fisheries, arts and sport.  In its first full year, 2000/01 its budget was in excess of £16.7bn.

Embodied within the new Parliament was the hope that this new democratically accountable institution would oversee the planning and the integration of public services and that it would be able to innovate and experiment in meeting Scotland’s needs. Most fundamental of all however, was the belief that the new Parliament would spend and legislate in the best interest of the country.

Onward devolution?

In the twenty two years since then and with two further Scotland Acts (2012 and 2016), the Scottish Parliament has accrued more responsibilities, resources and powers across a wide range of public services. The Scottish Parliament can now levy a range of taxes including income tax, borrow and spend on capital infrastructure and administer a range of social security benefits.

Currently the Scottish Parliament therefore has legislative control over a large part of the public realm including most of the public services used by the Scottish people on a daily basis. Its 2021/22 budget is over £55bn.  

The advocates for a devolved Scottish Parliament would surely find its current legislative freedom, range of responsibilities and scale of financial resources impressive.

What the original advocates might not understand, however, is why the underlying principle of devolution – subsidiarity – where power and responsibility is allocated to the lowest appropriate level of accountability – has remained so undeveloped by successive Scottish Governments. Despite loudly arguing for more and more powers, funds and responsibilities to be devolved from Westminster to Holyrood, the Scottish Government has, with two exceptions, City Region Deals and Integrated Joint Boards, failed to further devolve any of its responsibilities to the other level of democratically accountable government in Scotland: local authorities and their partnerships.  In that sense, the devolution project remains unfinished.  

The Quango Effect 1 – Excessive Central Control

The Scottish Government has chosen to maintain direct executive control of over 75% of its spending through its Departments and its retinue of 43 Executive non Departmental Bodies, 7 Advisory non Departmental Bodies, 3 Tribunals, 4 Public Corporations, 23 Health Bodies, 10 Executive Agencies, 8 Non Ministerial Offices and 13 Other Significant National Bodies.

Yes, that’s a whopping 111 National Public Bodies (quangos) for 5.4m people.

One could possibly understand why, in its initial settling-in phase, the Scottish Government wanted to retain direct executive control over the bulk of its responsibilities and then subsequently devolve funds, powers and responsibilities “down the line.” Such caution is understandable given that, like Wales and Northern Ireland, devolution has resulted in uni-cameral legislatures i.e. one without a second, revising chamber.  This means getting legislation right first time and in turn this has led to the much admired development of a sophisticated approach to public consultation on proposed Scottish legislation.

However, after over 20 years existence the surprise is that rather than extending the principle of devolution within Scotland, the Scottish Government has in fact retained all the transfers from Westminster and in addition has taken away functions from Local Government.

The most notable example of this was the creation in 2013 of Police Scotland where eight joint Police Boards, populated by local authority Councillors, were abolished to be replaced with a single non-elected Board. The same applies to the Board of the Fire and Rescue Service.  The consequence of both “centralisations” is a substantial loss of local democratic accountability in two key public service areas. With the exception of the two National Parks where directly elected Board members and Council nominees are in the majority, the same applies to all Scotland’s quangos.

The Quango Effect 2 – Micro Management at the Centre

With no local accountability for their actions; plans; activities and expenditures, the only recourse open to the public in formally expressing views on any aspect of Scotland’s 111 quangos, is to contact the quango, contact their MSP or one of the ten Cabinet Ministers. 

Depending on how many of these organisations are directly answerable to each Minister there will clearly be an impact on the amount of time each Minister will allocate to each individual quango given their requirement to account for the management, direction and performance of each quango. Ministerial accountability to the Scottish Parliament and its Committees and in responding to the media and the public will as a consequence focus Ministerial minds and that of their senior civil servants and advisers on the individual workings of each quango – pushing them more and more into a micro-management frame of mind.

Spread this behaviour across all ten Cabinet Ministers poses the question: “Is this what we want from a devolved Government?” There are only so many working hours in a day and, if a significant proportion of Ministerial time is spent in mining quango detail, who is looking to the horizon, detecting opportunities and anticipating upcoming issues and also pinching the best ideas from other nations? Who is taking advantage of the freedoms and innovative opportunities that devolved Government provides?

This is where we reach a classic bind in that if the answer to the above train of thought is, “Ministers don’t really spend that amount of time dealing with quangos,” it poses the response “Well who is accountable for the £22billion that quangos receive?” 

The Quango Effect 3 – Where’s the Coordination?

Preoccupation with detail and a focus on micro-management diverts Ministers from what they should actually be doing and that is working with their Ministerial colleagues on finding robust cross government solutions to the many wicked issues that have bedevilled our country for generations. If working collectively with your colleague ministers is challenging enough, coordinating the activities of over a hundred quangos each with their individual boards and management teams to ensure they focus on delivering  priorities and outcomes makes effective coordination of services and projects at the local level difficult to deliver.

Interestingly enough in an early initiative that looked very promising, in 2003 the Scottish Parliament placed a statutory duty on Councils to each prepare and deliver Community Plans that focused on local needs and opportunities.  This legal requirement reflected the understanding that the key strengths of Councils with their 1,200+ Councillors,  is their ability to understand their area, identify local needs and opportunities and coordinate their considerable range of services to deliver solutions.  All quangos were required to participate but unlike Councils they did not have a statutory duty placed on them to adhere to the policy and investment outcomes from the Community Planning process.  Being answerable to government Ministers meant their policy and performance focus was national and not local.  Primarily for that reason, Community Planning has still not delivered on its early promise of fully integrated local public services.

The new democratic deficit

It is not doubted that Scotland’s 111 National Public Bodies, their boards, management and the thousands of public servants work hard to deliver their organisation’s priorities. They have achieved improvements in the performance of services and delivered on national priorities. It is, however, a serious challenge to a devolved Parliament that seems to believe that channelling £billions per annum to organisations that have no local accountability is a satisfactory outcome after 22 years of devolution. 

The absence of local accountability and transparency can generate an alienation of the public from a large part of the delivery of public services. The Scottish Parliament is free to do what it wants in relation to the ongoing involvement of the Scottish people in determining what devolution means. It is surely time to reflect on a twenty two year journey that increasingly centralises services in organisations that have no local accountability and takes powers and responsibilities from Local Government.  A re-purposed local government that is embedded in our constitution, that is able to assess local needs and opportunities, to plan, co-ordinate and deliver all within a locally accountable system would better serve the Scottish people and businesses.

Three essential actions

If we are to avoid a situation where the democratic deficit simply moves from London to Edinburgh with all the negativity that that entails, we need to start with a commitment from the Scottish Government that it:

• Reaffirms the concept of subsidiarity in the workings of the Scottish Government.
• Agrees to the principle that decisions will be taken at the lowest possible, democratically accountable level.
• Embeds local government within a written constitution for the governance of Scotland

Stimulating a national conversation on these three proposals would hopefully result in an agreed basis for determining which public services and activities should properly be accountable and managed at the national level or at the local level and as a consequence strengthen our democratic structures.

Images: thumbnail, Mercat Cross, Edinburgh Royal Mile, photo courtesy Mercat Group.  Main, Scottish Parliament debating chamber, cut out shapes on west wall represent people to give chamber ‘human scale’, photo Fay Young. 

Further reading:  James Mitchell  Time for the SNP to get serious;  Walter Humes Seven Reasons why Scottish education is underperforming;  John McLaren Scotland’s flawed devolution experience