Scotland: Devolution

Baroness O'Neill of Bengarve Excerpts

Wednesday 29th October 2014 Lords Chamber

[Baroness O'Neill of Bengarve (CB)]

My Lords, I begin with two declarations of interest, one of the heart and one of the head. Both are relevant to this debate. From the heart, I have four grandparents, one Irish, one Scots, one Welsh and one English. That means I have a stake in many parts of this debate. I spent a lot of the six months leading up to the referendum with sleepless nights, worrying, not just about what would happen to Scotland, but about the results for Northern Ireland had there been a yes vote. The noble Lord, Lord Empey, has already hinted at these and I suspect the noble Lord, Lord Bew, will tell us more. Thank goodness we will never know what those results would have been, but those people in both Belfast and Dublin who knew the situation best thought that they could well be catastrophic. It is a fragile settlement.

From the head, because I chair the Equality and Human Rights Commission, I have had occasion to look at some aspects of our ragged devolution settlements. They are quite different, but it is worth noting that both the Scottish and Northern Irish settlements refer directly to the Human Rights Act, yet we have suggestions from some quarters that that legislation might be repealed. If it were, we do not know whether that means unpicking the Scottish and Northern Irish devolution settlements. I hope not—I think it may just have been overlooked—but that was the implication of what has been proposed.

Some noble Lords may think it has now gone away, but I have another worry, which is about the notion of devo-max. It played a very large part in discussions, over the last couple of years, about what would happen in the event of a no vote, which is what we actually got. It is a very unclear slogan and I suppose it was meant to indicate an aspiration. However, it seems to me that it was well chosen to indicate an illusory and ill defined aspiration. Devolution is the sort of thing that anybody would be pretty ill advised to try to maximise. To me, maximising means that you have got some clear unit and you get as much as possible. What is devo-max and what was it meant to be? As we think forward about devolution we should surely aspire, not to maximise something but to get something coherent and workable in which powers are not devolved without the responsibility to exercise them or without the resources or tax-raising competence to do so or without accountability for how it is done. The overall aim must be to secure devo-coherence for each part of the United Kingdom, not devo-max. My slogan is, therefore, the not very enlightening one: devo-coherent.

I will say a little bit about devolution and delegation. Mere delegation of powers, responsibilities and resources does not constitute a feasible scheme of devolution. Devolution is not the same as delegation for many different reasons, but I will emphasise one which is often overlooked. Powers have often been delegated on the assumption that, at the other end, there are bodies that are delivery agencies of centrally prescribed aims. There is little gain for anybody in devolving powers and then prescribing exactly how they have to be discharged. The supposed gain in democratic accountability that might be achieved by a coherent scheme of devolution would be entirely lost if it was accompanied by a centrally prescribed set of boxes to be ticked, performance indicators to be met and measures that effectively remove all discretion in the use of the supposedly devolved powers. This has corollaries that may not always be welcome. If devolution is about permitting variation and decision-making at a lower level and if variation is allowed then complaints about postcode lotteries when various decisions are made are simply out of bounds. This does not mean that accountability for devolved decisions is out of bounds; on the contrary, it becomes more essential. However, it does mean that the forms of accountability adopted must fit the case and in smaller jurisdictions where, as we say, everybody knows everybody, thinking how to make forms of accountability effective can be quite divisive.

Devolution, variability and parity are aims we should all have. I return to our ragged set of devolution settlements. There is no need for uniformity. Inevitably, the settlements for Scotland, with its ancient legal system, and Northern Ireland with its partly necessary—if considerably dysfunctional—consociational constitutional settlement, will need to be varied to take account of realities. However, it is also essential to take account of and respect the unitary status of citizenship in the United Kingdom and to ensure that fundamental rights and protections are there for all, and that advantages and disadvantages are traceable to accountable, devolved decisions and not to asymmetries in the way the overall devolution settlements treat those living in the various jurisdictions. We need to think very hard about the rights of citizens and the sorts of redress for breaches of rights that must be available to all. Like the noble and learned Lord, Lord Hope of Craighead, I believe that common citizenship requires devolved structures that respect the same underlying standards and provide rights of appeal to the Supreme Court for all in every jurisdiction.

We have to accept that Scotland will get ahead in devolution. The promises, the vow, guaranteed that. We probably have to accept that for a time Scotland continues to enjoy more favourable financial terms than the rest of us. Again, we had better swallow that. But we do not have to accept that the status quo is the future. I believe that it will take a constitutional convention and genuine leadership if we are to have a wider and coherent form of devolution.