Week 9.2 and 10.1 Convergence and Divergence Reasons for and against, legislation, implementation (2 lectures)

Or: Does devolution make a policy difference? Takes us back to pre-devolution claims for devolution: Scottish policy for Scottish problems No time in Westminster, so there will be a change when there is the opportunity Not the only measure – e.g. policy change may be more important than divergence Is divergence desirable?

Initial points to consider: Issues of measurement – legislation (primary/ secondary), implementation, service delivery The significant departures – how divergent are they in practice? The rush to policy - what will happen when things calm down? Scotlands administrative devolution means that policy is already different and so identified difference may not mean divergence

Reasons for divergence (In no particular order) Social attitudes? Larger role for public sector professionals Those professions more inclined to universalist forms of provision Politicians making their mark Concessions and coalition politics Different party competition – right in England, left in Scotland? Labour and the middle classes in England/ tackling the threat of opt-out Scottish policy style/ lack of direct control in England Differences in economic structure Different policy conditions. Existing differences The role of respective parliaments

Reasons for convergence/ limited divergence Finance and the role of the Treasury EU commitments UK single market UK welfare state/ welfare immigrant problem Reserved/ devolved issues (see Sewel) Issues may cross departmental/ policy boundaries Party and ministerial links Civil service uniformity Policy learning UK professions The role of ideology across jurisdictions Problems that defy solutions? And finally … similar policy conditions.

Convergence and Divergence Following Devolution in Scotland: Analysing Legislation

Initial points: This indicator is hard to track and some legislation undermines original conclusions. Is temporal divergence important? (e.g. fox hunting, smoking) Regulatory policy the most likely?

Primary Legislation as a Test of Divergence 5 categories of primary legislation:

(1) Holyrood legislation with no Westminster counterpart 38 Acts of the Scottish Parliament Acts do not necessarily cause divergence. Some abolish Scottish practices – title conditions, feudal tenure, poindings – while others catch up – e.g. National parks. Signals shift within Scotland? E.g. parks and land reform had been successfully opposed by land owners. Some Acts innocuous, some have uncertain significance (e.g. Land reform has no need for a counterpart; some sections similar to right-to- roam in England)

Small number of these Acts cause divergence: Mental Health (progressive) Education (comprehensive schools, local authority control) Fox hunting? Temporal divergence Higher Education? We now have a comparable Act in the UK Classification of HE difficult – (a) top-up fees = divergence; (b) fee deferral (and income tax threshold), financial support, foundation degrees to ensure greater participation through FE = convergence

(2) Westminster Acts with no Holyrood Counterpart 144 Acts Most deal with reserved matters. Divergence by policy opt-out?

(3) Legislation that deals with the same issue but with a different policy Category with most potential for divergence. Free personal care issue is the clearest example of divergence in 1 st session. NHS internal market (abolition in Scotland; foundation hospitals in E&W) and Local elections in 2nd Most other differences are subtle and command a small part of the Act: Sex education – less focus on marriage in Scotland Water – convergence and divergence? Transport – public-private dimension; different priorities, different problems

(4) Legislation that deals with the same issue and with the same policy, but with scope for differences in application More subtle changes. Many differences existed before devolution. Examples: Freedom of information – e.g. disclosure exceptions Regulation of public services – Scottish ombudsman, English targetry Fuel poverty – Westminster legislation, Scottish targets (NB limited control in Scotland) Education – school boards, Scottish way with targets, difference but convergence in pre-school? Beer and fags?

(5) Legislation that is essentially the same but passed separately Similar to Sewel discussion – closing gaps or loopholes in crime: Regulation of Investigatory Powers Act and the International Criminal Court Act. Harmonisation of census (EOC request) Fur farming (loopholes).

Does Devolution Make a Difference? Some examples of clear divergence – FPC, higher education (NHS reform, PR) Other examples of subtle differences Many differences existed before devolution Lack of divergence does not mean lack of policy change: (a) many areas remove Scottish practices; (b) the policies may have a greater effect in Scotland e.g. housing stock transfer – Scottish local authority ownership 24%, English 13.6%; Transfer has particular significance in Glasgow. Note that Mitchell point that this only possible given legitimacy of the Scottish Parliament. So devolution still makes a difference.

Are these conclusions supported in the literature? The bigger picture is limited divergence, but does the literature point to specific policy areas in which divergence is most likely? Not really One exception is Greer on health

Health Greer (2003) argues that In the short time since devolution there has been surprising policy divergence. There are in most issues two poles: Scotland and England, with the former running a health service for patients and the latter running one for consumers. England is by far the most radical.. Scotland is the most traditionalist, rediscovering the virtues of the pre-Thatcher NHS … Where England has in spirit and in policy opted for a market based set of solutions, Scotland is opting for dominance by the professionals who work in the system.

Differences English extension of internal market; Scottish abolition with emphasis on planning Public health Less private provision experimentation in Scotland?

Divergence based on: Unified nature of systems – makes them easier to change Governments free to do what they like – i.e. they have party control of the legislature and there are no points of veto (unlike US/ Germany) System of finance and regulation is not restrictive (unlike Spain, Canada, Germany) Note: Divergence often without legislation

Convergence and Divergence - Implementation and local government

Small proportion of legislation marks divergence This point reinforced if we examine implementation

Top-down conditions That there is an understanding of, and agreement on, clear and consistent objectives That a valid/ adequate causal theory exists, in which the relationship between cause and effect is direct (i.e. that the policy will work as intended when implemented) That subsequent tasks are fully specified and communicated (in correct sequence) to a team of skilful and compliant officials That the required time and resources are available, and fully committed, to the relevant programme That dependency relationships are minimal and support from interest groups is maintained That external, or socioeconomic, conditions do not significantly constrain, or undermine, the process

Fewer problems in Scotland? Fewer problems of compliance More group support Access v influence?

Mental Health General satisfaction with consultations on health huge ownership Lack of legislative time in Westminster Consultation on principles, detail, implementation Formulation of 3 rd Act influenced by monitoring of implementation of 2nd

Homelessness Best in Europe? Initial satisfaction Legislation based on task force report Housing groups well represented Shift from social justice in 1 st term to punitive/ populist in 2 nd ? Lack of political weight Absence of funding commitment undermines divergence

Protection of Wild Mammals More compliance problems in England? Issues of police resources and rural areas common to both Lack of bill clarity in Scotland Loophole on flushing out More foxes killed than before Hunts continue in different form

Higher Education Convergence (focus on FE; deferred fees) and divergence Lack of clarity over bursaries Implementation issues constrained policy formulation Reliance on Inland Revenue undermined prospect of separate collection system External effects

Background to Community Care and Health Act: Sutherland Report – Scotland accepted recommendations Free provision of certain types of care Hotel costs still exist Capital Threshold/ means-test abolished for assessment of care but not for hotel costs Issue of top-up payments to be made easier Deferred payments (as in England). Fees taken from estate.

Teething problems Delayed implementation IT procedures Staff training Predictions Budget pressure Explanations of free to public

The definition of free Many already qualified for free care (personal and hotel costs) if they had savings/ capital below £18, 500 Free personal care defined at £145 per person per week Extra £65 per person per week if qualified for nursing care Previous Attendance Allowance between £38 and £56 (not means- tested) Therefore free is actually extra entitlement (FPC – AA) Convergence could occur without policy statement in England, without calling it free Some evidence of this convergence? – nursing care payments have risen to a maximum of £120 per person per week

The role of local authorities Individuals claim but local authorities reimbursed The money is not ring-fenced and the Scottish Executive does not fully control it 2 aspects of local authority influence:

(1) Unintended consequences with private care homes Scottish Executive/ local authority negotiations of general funding Local authority/ care home provider negotiations for fee per patient Church of Scotland closures Open secret of self-funders paying for others So the £145 is offset by the extra cost

Source: Bell, 2003

(2) FPC at home Success of policy in reduction of hidden need Difficult to identify In the past many local authorities did not charge the full rate So the fee for self-funders has not gone from £145 to zero For some local authority subsidised care funded by AA replaced by local authority care funded by Scottish Executive

Other factors No real evidence of fee deferment External factors – demographic change Labour market and reserved choices

Source: Audit Scotland, 2004

Other unintended consequences? AA confusion Discretion and English classifications Conclusion: Less difference than free personal care suggests NB importance of implementation in England

Summary – Analysis of Legislation shows evolutionary change Analysis of implementation suggests divergence less visible than policy suggests Bottom-up approach apparent?

The Bottom up approach Too much focus on failure rather than policy influences Shouldnt assume central government is the most influential actor Hierarchical influence/ legislation may be only one of a number of influences when decisions are made at lower levels of government They contend with lower level institutions and a consideration of local demands While this lower level autonomy may be exaggerated, the bottom-up focus may help explain why the Scottish Executive may lose control of policy after it devolves the detail and finance

The role of Local Government FPC shows local government importance, but what is general significance? Local government support crucial to devolution movement Spending accounts for 33-40% of Scottish Executive expenditure 10-15% of total Scottish workforce; 45% public workforce – Glasgow is Scotlands biggest emplloyer Central to much Scottish Executive activity - education, roads, social inclusion/ justice – and involved in joint working with health authorities over community care Local government resources - it employs all local service staff, it has local expertise, it controls policy implementation, it has some independent tax raising powers, and it has a local electoral mandate.

Why does the Scottish Executive need local authorities? –Deliver local services in accordance with national political and financial priorities –Tailor services to local needs and circumstances as efficiently as possible –Conduct themselves in a manner which is compatible with the financial, political and social parameters set by the centre –Espouse values of local democracy in order to legitimise the democratic nature of Scottish society within which the Scottish Executive operates (McConnel, 2004: )

Why do local authorities need the Scottish Executive? Provide the legal and policy basis for councils to undertake their activities Provide significant financial resources (a live issue) Engage in policy consultation in order to ensure the practicality of policies Give councils as much legal, financial and political autonomy as possible in order to represent local communities

Factors incompatible? Levels of autonomy the sticking point? E.g. income generation - business rates affect profitability; domestic rates influence the housing market; both influence government popularity Expenditure - local pay agreements may undermine a national approach, capital expenditure plans affect macro-economic policy

Problems addressed with central control Legislation (primary/ secondary) Circulars Best Value (and threat of CCT) Finance Charge of excessive imposition is the least risky option? Change since Thatcher but on understanding that not abused E.g. LG Act 2003 – gives general local authority powers or freedoms (and makes Scottish Executive look good) but these are restricted in practice

Developments since devolution Scottish Executive closer and more open More legislation necessary for local governance (e.g. Education and Training; Housing 2001) and a greater local authority role in pre-legislative consultation processes (NB policy capacity). COSLA the most consulted by the Scottish Executive since devolution Local authorities as a training ground for MSPs – in other words, many MSPs still have a local authority background.

However, mixed picture: Creature of Parliament but with degree of autonomy Extension of subsidiarity envisaged (NB Scottish Office parallel), but the greater the central-local contact the more central control? Good informal relations, but still formal mistrust across tiers (old politics?) Variable contact by policy area, relations by issue Opposition parties less likely to laud the Scottish Executives openness

And factors which undermine SLG: Councillors believe Scottish Executive has reduced role of SLG Mistrust of civil service and command model Politician and civil service mistrust of SLG abilities to deliver Lack of shared objectives? Reduced policy capacity after reorganisation COSLA crisis Centralisation not relaxed after devolution – finance (grant dependency, ring fencing, property taxation inflexible, capping) and use of quangos/ agencies to deliver from the centre Imposition of PPP? NB Westminster/ Whitehall (e.g. housing benefit) So we should not get too carried away with SLG autonomy partnerships aspirational/ good PR?

However, however … Scottish central local relations better than UK? Closer working relationship also apparent now (e.g. in Community Planning) Pre-devolution: problems with CCT, poll tax, rate- capping, reorganisations But: greater ability to maintain personal contacts Now less enforcement of Best Value; less CCT and other tendering Central-local relations higher on Scottish Executive agenda More of a light touch in auditing Some ability of SLG to obstruct modernisation and Best Value In other words, the argument may be if you think things are bad in Scotland, have a look at the rest of the UK

However, however, however … Similarities remain, given the influence of inheritance and MLG: powers of well-being, Best Value, retention of business rates at the centre, ring- fencing of grants in accordance with central priorities, support for citizen participation and encouragement of various means to boost electoral turnout