Week 9.2 and 10.1 Convergence and Divergence

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

2. 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?

3. 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? • Scotland’s administrative devolution means that policy is already different and so identified difference may not mean divergence

4. 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

5. 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.

6. Convergence and Divergence Following Devolution in Scotland: Analysing Legislation

7. 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?

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

9. (1) Holyrood legislation with no Westminster counterpart • 38 Acts of the Scottish Parliament 1999-2003 • 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)

10. 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

11. (2) Westminster Acts with no Holyrood Counterpart • 144 Acts 1999-2003 • Most deal with reserved matters. • Divergence by policy opt-out?

12. (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 1st 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

13. (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?

14. (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).

15. 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”.

16. 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

17. 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”.

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

19. 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

20. Convergence and Divergence - Implementation and local government

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

22. 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

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

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

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

26. 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

27. 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

28. 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.

29. Teething problems • Delayed implementation • IT procedures • Staff training • Predictions • Budget pressure • Explanations of “free” to public

30. 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

31. 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:

32. (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

33. Source: Bell, 2003

34. (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

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

36. Source: Audit Scotland, 2004

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

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

39. The Bottom up approach • Too much focus on “failure” rather than policy influences • Shouldn’t 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

40. 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 Scotland’s 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.

41. 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: 211-12)

42. 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”

43. 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

44. 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

45. 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.

46. 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 Executive’s openness

47. 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?

48. 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”

49. 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”