Smith Commission Submission

Well, I managed to scrape together my submission to the Smith Commission on further devolution for Scotland before the deadline (just!). Here’s what I wrote for posterity, although I’m not optimistic that it will change very much.

Introduction
I welcome the opportunity which the Smith Commission gives to allow the Scottish public to continue the debate on the future of the country which has so engaged it during the Referendum debate. Both sides of this debate have acknowledge that the Referendum has had a transformative effect on political engagement and has shown that there is a considerable degree of enthusiasm for re-imagining the future of the country. To make the types of changes that most Scots hope for will require that the greater powers are devolved to the Scottish Parliament. The need for such powers is acknowledged by all parties with representation in the Scottish Parliament and some Scottish parties with no current representation there. However there is a range of views on what such powers should be.

One thing which I think needs to be clear at the outset is that “The Vow” made by the leaders of the three main UK (in terms of numbers of Westminster seats held) parties was that more powers would be devolved to Scotland, and that this would not be dependent on an other initiatives to restructure the administrations and regions of the rest of the UK, however desirable some aspects of this might be. Consultations and Inquiries into e.g an English Parliament, further Assemblies for English Regions or further powers for the Welsh Assembly and Government and Northern Ireland Assembly must not be allowed to delay the promised progress towards further Scottish devolution. Any attempt to confound these issues will be seen as a betrayal of “The Vow” by the majority of the Scottish people.

Basic Premiss
Devolution has been a good thing for Scotland, enabling it to develop policies which are appropriate to its geography, language, culture and social mix. Although there were mixed feels about the Scottish Parliament at its inception, there are few Scots who would wish to see it removed, even many can see scope for improvement. Crucially it has brought democracy and politicians closer to the people. While it is rare encounter anyone who says that they want more politicians, Scots have become used to encountering “their” MSPs when going about their daily lives, and were generally positive about the immediacy of democracy in Scotland even before the huge upsurge in interest in politics triggered by the referendum. Because of the requirement to spend considerable periods of time outwith Scotland, even the most dedicated Westminster MP is rarely encountered by their constituents. Democracy is important, but to be effective the electorate must be able to engage with the representatives that they elect. Therefore subsidiarity is an integral part of democracy. It is this belief which drives my conviction that the time is now right to devolve as much power to Scotland as can be arranged.

The majority of Scots are said to favour a “Devo Max” option of devolution of all matters except Foreign Affairs and Defence, this was not included as an option in the Referendum. However as this is viewed as being the option favoured by Scots, and as we live in a democracy, I believe that this is the option which the Smith Commission should be seeking to facilitate as far as is possible. However, the interwoven nature of policy areas means that it is is not a straightforward matter to simply devolve full powers minus these two policy areas, as the both impinge on other areas in ways which are not obvious at first glance. Therefore the problem should be identifying what should be devolved under “Devo Max”, identifying potential barriers to devolving these powers, and assessing whether it is possible to overcome them.

Government and Constitution
Although not technically a devolution issue, the UK Government must rule that the right of Scots to have their own Parliament is inalienable and cannot be removed by the UK Government. Without such an undertaking, further devolution lacks firm foundations given that the Scottish Parliament itself could be abolished by the whim of Westminster (and this is indeed the stance of UKIP).

Scotland must have the a constitution. This is a feature of almost all mature democracies, and sets out clearly the terms of the agreement between their sovereign people and the legislature. The UK is unique in not having a constitution, and while rights are encoded in a complicated history of traditional and law which allows the rights and responsibilities for citizens to be altered over time. Scotland needs a constitution as a check on the powerful, and a protection for the vulnerable.

The Scottish Government should be given the power to organise the democratic structures within Scotland according to the wishes of the Scottish people.

There is a need to continue the process of relocalisation of democracy of which devolution is part by having the power to further devolve powers as to more local levels such as Local Authorities and communites. A recent report by COSLA highlights the failings of the current system, but is too large to be able to accommodate local views, which in turn breds disillusion and disenchantment with this system. Disillusion with democracy is dangerous, and is something which we should be addressing. Scotland currently has some of the least representative local democracy in the world, lacking effect the community level tier of government represented by District and Town Councils in England.

The Scottish Parliament should also be able to decide the franchise for elections. 16 and 17 year olds who where given votes in the Referendum used them with maturity and responsibility. It is an anomaly that these people can be taxed, marry and die for their country, but not vote on what their taxes should be spent on or whether or not they country should participate in a conflict.

The House of Lords is an undemocratic and outdated institution. Scottish Lords should be abolished and replaced with representatives elected by the people of Scotland.

As devolution progresses, the West Lothian Question becomes more and more pertinent. It seems perfectly obvious that MPs should not vote on matters which do not affect their constituencies. Therefore there is a strong case that Scottish MPs should not vote on matters which only affect England (it is assumed that matters which only affect Wales or Northern Ireland will be dealt with by their devolved adminstrations, and not by Westminster). However, there is one caveat to this which is the impact that votes on “purely English” matters which involve spending decisions could affect funding for Scotland through the Barnett formula, thus if English MPs vote to cut spending on public services in England these cuts would be passed on as cuts to Scottish’s budget from the UK. This complicates matters. Therefore it follows that if Scottish MPs are not to vote on English matters (which seems only fair and reasonable), Scotland must be freed from the Barnett formula, and if Scotland is freed from the Barnett formula, it must be given full tax raising powers. The next section expands on this theme.

Taxation and Revenues
If Scotland is to take responsibility for more areas of its own governance, it needs to have the finance to do this. As I have explained above, I do not think that the Barnett Formula is a good way to address this, and a rethink on how Scotland is financed is needed. I would favour a solution where Scotland raises its own revenue and then pays a proportion to the UK for shared services, rather than the current system whereby Scotland is dependent on the largesse of the UK and the revenue paid is linked to public spending and therefore to policy decisions outwith Scotlam.


I would favour devolving Income Tax, Corporation Tax and Inheritance Tax to Scotland. Devolution of Income Tax (or part of it) alone is not sufficient as the wealthiest people and organisations do not earn income in ways which attract Income Tax. On its own the power to vary Income Tax would only affect working and middle income earners, while not generating enough income to improve the lot of the least well of, and not address the very skewed distribution of wealth in Scotland where a very few individuals control a vastly disproportional share of the country’s wealth, often as a result of an accident of birth and inheritance.

Scotland should have control of all forms of taxation on income and wealth generated within its territory, including income and wealth from offshore assets in its territorial waters.

Given the chronic health problems and poor life expectancy in much of Scotland Excise Duty should also be devolved to give the Scottish Government an additional lever to control alcohol and tobacco pricing. Reduction in Excise Duty are generally spun as benefitting the upmarket end of the whisky industry, but they also benefit the life-destroying alco-pops and cheap cider industry. In fact much of the malt whisky industry’s profits are made outwith the UK and are therefore unaffected by Excise Duty.

Scotland has world leading targets to reduce greenhouse gas emission, but need to do more to meet those targets. Therefore there is need for Scotland to have control of taxation on activities which generate these emission, particularly Road Tax and Fuel Duty.

At least a share of National Insurance contribution should be devolved to enable Scotland to fund changes to its welfare system. Ideally all of NI and all of the welfare system should be devolved.

VAT is a regressive tax which falls disproportionately on the least well off. The ability to vary VAT would give Scottish Government a lever to boost the retail economy at the same time as reducing taxation on the least able to pay. Ideally VAT should be devolved, however EU rulings against “regional” variation of VAT within a country may make this difficult. However there may be scope for some powers to design a system to allow Scotland to vary VAT on key economic sectors such as tourism.

As a result of gaining further powers of its own revenue streams, Scotland will need to have representation within UK financially institutions such as the Bank of England, Treasury and HMRC.


Scotland should be allowed to set up a Sovereign Wealth Fund in times of plenty using revenues collected on Scottish assets. This should be ring fenced to be invested for the common good of the people of Scotland.

While borrowing to cover revenue spend is not desirable in any nation, Scotland should be given the power to borrow to raise money for infrastructure investment which will increase competitiveness, and could boost the economy during their construction.

Welfare
To tackle deep seated social problems prevalent in some parts of Scotland, Scotland needs to be able to tailor its welfare system to its needs. The “bedroom tax” was deeply unpopular in Scotland because it was a badly designed UK wide solution being applied to solve a problem which was mainly an issue in SE England, and did not take account of the state of Scotland’s housing stock, and the lack in many places of single room rented accommodation. Similarly the blanket UK-wide pension age does not offer a fair deal to Scottish pensioners who sadly have lower life expectancy than the UK average.


To be able to administer welfare Scotland needs control of the income side of the system as well as expenditure, and therefore National Insurance should be devolved. If pensions are devolved the whole of NI should be devolved, otherwise a proportional arrangement will be required.


Industry and Employment
It is crucial to Scotland’s economy that it can influence investment investment in its industries, whether this be attracting overseas investment or more preferrably encouraging domestic investment. As discussed above there are currently multiple barrier to this including inability to borrow to fund infrastructure projects and the lack of a direct voice in international trade.

Workers need to be protected from exploitation and kept safe in their workplaces. The pressures and threats to them will vary depending in the industries they are involved in. The key industries in Scotland are different to key industries elsewhere in the UK, and Unions needs to be able to adequately represent their workers in Scotland and ensure that they are protected from hazards experienced here. Therefore legislation relating to health and safety and to Trade Unions should be devolved.

Immigration

The patterns of population growth and decline vary considerably across the UK. While the population of England has grown steadily over the last 200 years (except for tragic episodes such as the First World War), Scotland has suffered population decline for most of that period, mainly as a result of net outward migration to England and beyond. This has given Scotland a demographic problem, with a relatively large elderly population compared to the working age population. To redress this Scotland must have control of its immigration policy to enable it to attract skilled and dynamic young workers. Not only does inward migration help to tackle the problem of an ageing population, it adds to cultural diversity, and increases understanding of the world.

Energy
Energy in various forms is a key Scottish resource. However, the resources available and the demands on energy in Scotland are very different to those in the rest of the UK. Scotland has relatively small population and energy demand, but large reserves of fossil fuels and renewable energy. In contrast, England has a relatively population and energy demand and more limited reserves of fossil fuels and renewable potential, therefore different solutions to meeting energy demands are needed across the UK. Scotland needs to have control of energy policy as the current “one size fits all” energy policy emanating from London stifles the development of Scotland’s renewables as it incentivises the solutions which are needed in SE England which currently seem to be nuclear power and unconventional gas.


As offshore oil and gas are currently a major part of the Scottish economy, Scotland should be able to control how these are exploited. In the long term as these reserves dwindle other forms of energy will come to the fore. If we are to meet or greenhouse gas targets, and prevent uncontrollable climate change we must reduce reliance on fossil fuels and therefore “fracking” and other unconventional gas technologies cannot be developed. There is increasing evidence that exploitation of fossil fuels will become increasingly unattractive as clean alternatives and Scotland needs to be able to manage the transition from being a fossil fuel based economy to a renewable based economy.

Renewables also offer greater flexibilty in ownership model including commercial, state, community and individual ownership of installation at various scales. While housing is currently a devolved issue, control of micro-renewables on houses and other buildings is not which seems to be an anomaly.

Finally to exploit its renewables generations sites needs to be able to connect to the grid. At present the grid is heavily under invested, and is the sort of infrastructure which Scotland needs to be able to borrow to enhance. The current system of charging of access to the grid penalises Scottish generators, particularly those in more remote areas which needs the income and jobs which renewables can provide. It is ironic that rural fuel poverty is often prevalent in the exact areas where there is considerable scope for renewable generation. This makes it essential that regulation of the grid, grid pricing and energy pricing more widely is devolved.

Defence
Nuclear weapons such as Trident are morally abhorent, play no logical role in the defence of the UK and are hugely expensive. Their presence in Scotland makes our main city into an international target, and necessitates the regular transport of warheads on our roads. Had Scotland voted for Independence we would have been in a position to remove them from our soil. However sadly I see no mechanism by which the UK would be prepared to devolve even UK based aspects of defence such as decisions on the siting of nuclear weapons on Scottish land or transport of munitions although these are things which I would strongly support.

As planning is already a devolved matter Scottish Government should be allowed to require planning permission for MOD sites within Scotland.

While accepting that without Independence Defence will remain a reserved area, if Scots are to be asked to put themselves in harms way in the interests of the UK they should have some say in whether they should take part in wars. A right of veto of new military intervention involving Scottish regiments or personnel based in Scotland should therefore be devolved to the Scottish Parliament.

Foreign Affairs and International Relations
While accepting that there may be some economies of scale in a pooled approach to international affairs, for example sharing embassies, there are some key areas where the lack of international representation holds Scotland back.

Many aspects of devolved policy relating to key areas of Scotland’s economy such as Agriculture and Fisheries are affected by policy and decisions emanating from the EU. However as a UK “region” Scotland has no say in the EU’s approach to these matters. While in theory the UK Government should represent Scotland in EU negotiations, there are a significant number of instances where agreements which had significant implications for Scotland were signed with no consultation with the Scottish Government, for example Scotland had no voice in the most recent round of CAP negotiations, and regional uplift payments allocated by the EU to the UK specifically to increase the very low rate of agricultural payments in Scotland were appropriated by the UK, with little that either Scotland or the EU could do about it. Similarly fishery quotas affecting are frequently set without the agreement of Scottish Government, and the Carbon Capture and Storage Directive which had significant implications for energy generation and environmental regulation in Scotland was agreed with no consultaion with those involved in these fields in Scotland. Perhaps this would not be a problem if Whitehall had a good understanding of Scottish interests, but increasingly it doesn’t as these are seen as being Victoria Quay’s problem. I have had recent personal experience of having to explain to a Whitehall department working on land management what such exotic species as “heather” and “grouse” are. This hardly inspires confidence! Scottish Government needs to be guaranteed input to UK policy making on EU policies affecting devolved matters. It is simply not good enough to be told what has been decided after deals have been done. The forthcoming TTIP agreement could crucial change the ability of countries to legislate on their own affairs without threat of legal action from corporations. It is essential that Scotland has a say on such agreements, and the ability to selected nationally important areas of public services which should be opted out market control,

In addition to the EU, the UK is supposed to represent Scotland’s interests on various bodies which relate to devolved matters. Again, Scottish Government should have the right to be included the UK’s involvement with such bodies.

International trade is another are where Scotland could benefit from greater representation. UK support for promoting Scottish business and trade internationally is currently patchy can could be improved by guaranteeing Scottish involvement in internation trade initiatives or by devolving international trade responsibility to Scotland entirely. However the latter approach may be more expensive, and result in thinner coverage than at present.

Relations with rUK
Many of the current problems in the relation between Scotland and the UK arise because the UK is not a fully federal nation. While devolution has allowed more localisation in the countries to which power has been devolved, the position of England remains ambiguous. It is strange the despite having obvious attractions the idea of a fully federal UK as not been widely discussed until the last few weeks of the Referendum debate. While in the long term, a fully federal UK seems the obvious alternative to dissolution of the Union, it should not be used as an excuse for failing to honour The Vow and devolve more powers to Scotland by the end of the current UK Parliament.

Another constitutional issue is the role of Whitehall in the government of the UK. At present Whitehall purportedly acts as the UK administration. However, because of the lack of an English Parliament and secretariat it also finds itself taking on a dual role as the administration for England. At times these two roles blur, and it is not clear whether Whitehall is acting for the UK or for England. At times Whitehall itself seems confused by these distinctions, frequently referring to the UK and the Devolved Administrations when in fact it means the UK, the Devolved Adminstrations (DAs) and England where England’s status seems to be somewhere between being an imperial power and completely ignored. This is unsatisfactory for the UK, England and the Devolved Administrations. There needs to be a clear separation in policy and development between English and UK interests in reserved areas of UK policy.

There should be Scottish representation as a right on all UK-wide government bodies and arms length organisations.

Scotland should be consulted about all UK national infrastructure projects projects to which its citizen’s contribute funding, whether or not they are located in Scotland. It should be able to veto Scottish funding for projects which it believes are of no benefit to Scotland. While arguable this should be a function carried out by Scottish MPs, in practice most MPs have little interest in representing their constituents on matters which do not directly affect their own constituencies, and constituents are more likely to make their views known on matters local to them than on the infrastructure which may be buried underground several hundred miles away.

Broadcasting
Although in the age of social media and the internet mainstream broadcasting does not have the overwhelming influence which it once did, it still plays a significant role in forming public opinion. As Scotland shares a common language with the rest of the UK, UK based media plays a significant role in Scotland. Because the make up of the UK political scene is very different to the Scottish political scene this leads to bias even if Scottish media attempts to provide a better reflection on Scotland.

As an example in the 2014 EU elections UK coverage of UKIP reflected the regional strength of their support in England as reflected in numbers of councillors. Prior to May 2014 UKIP had absolutely no elected members in Scotland at any level. The wall to wall coverage of UKIP on UK media available in Scotland was, I believe, a major factor in UKIP narrowly getting an MEP in Scotland. In this case the UK media, both state owned and private, did not accurately reflect the political landscape of Scotland it created it. It is therefore perverse that the SNP are told that as a “regional” party they are not entitled to take part in the party leaders’ debates for the 2015 UK General Election despite having had Westminster MPs for decades, and currently having six MPs; being the majority party in Scotland and being one of the largest parties in the UK in terms of membership, while UKIP the “regional” English party who had had an MP for all of four days at the time of the announcement have been allowed to take part.

To counter the tendency of English media to act as UK media, it is essential that Scotland has a strong domestic media both in print and on TV, radio etc. Furthermore, a vibrant Scottish media with the resources to probe and question the workings of the Parliament is an essential element in assuring that any new devolved powers are welded in a responsible manner. Thirty minutes of “The News where You Are” is not sufficient to do this.

Outwith political reporting, Scottish current affairs more generally; culture; history and geography are under represented on Scottish screens. For example, coverage of live music on BBC Scotland is generally restricted to traditional music. Wonderful though this is it does not reflect the full breadth of music produced in Scotland from opera to rave.

Broadband and other telecommunication provision is also reserved. There is no obvious reason why this should be the case. With its large rural areas, Scotland’s broadband issues are very different from those in England. If it is to develop the rural economy, the Scottish Parliament needs to be able to control and incentivise rural broadband. Absence of broadband and mobile phone signal from rural Scotland is stiffling rural growth and isolating communities but does not seem to be an issue which Westminster sees as a priorty. As the EU has now banned differential roaming charges there is no reason why Scotland could administer the licencing and regulation of its own broadband network.

Crown Estate
The Crown Estate is an archaic institution which acts in an opaque way. Its decisions, particularly relating to marine activities such as fish farms, harbours and off-shore renewables have often not heeded local views, and have at times damaged the economy. It would therefore seem sensible that the role of the Crown Estate Commissioners is devolved so as to make it more accountable.

Conclusion
Overall I think it is likely to be extremely difficult to unpick a coherent bundle of extra powers for Scotland which is large enough to go some way towards meeting the aspiration of the Scottish people, while reserving some powers to Westminster. This is why these powers have not been devolved before now and why the option of “Devo Max” was not included on the Referendum ballot paper. If it has not been possible to develop a package of extra powers for Scotland in the last several years, I am not optimistic that it will be possible to do this within the life of the current UK Parliament, even if there really was the political will to do so. However I wish you well with your task, and await the recommendations of your Commission with considerable interest, if not a great degree of expectation.

 

What Scottish Government could do about fracking even without Independence.

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The UK Government have recently opened up new areas of Scotland where companies can bid for licences for fracking and other unconventional gas extraction. Some of these licences have already been sold e.g to Ineos, owners of the Grangemouth plant. Because Energy Policy is not devolved at present the UK Government was able to do this without getting permission from the Scottish Government.

However, just because the licences have been issued doesn’t mean that there aren’t steps which Scottish Government could take to make unconventional gas extraction in Scotland very unattractive using the powers which it currently has on planning and environmental regulation. These could be used to put in place a really strong regulatory framework which could effectively stop this unconventional gas extraction. Scottish Government have used a similar approach to prevent the development of any new nuclear power stations in Scotland, and there is no reason why they could not do the same for unconventional gas. Their stance so far has been rather hesitant and if they are serious about meeting their much vaunted climate change targets they need to do much more about reducing our reliance on fossil fuels. Opening the floodgates to unconventional gas extraction won’t do this.

There are several steps which they could take including:

1) Setting similar buffer zones between developments and settlements to that in Australia (2 km), where a settlement is any inhibited dwelling (not just large towns). There very few places in the central belt coal/shale are or the Canonbie area which are more than 2 km from a house. So far Scottish Government have only specified a discretionary buffer zone which is to be proposed by the extraction companies and reviewed by local planning authorities. This is not good enough – we know that local authorities have taken a very variable approach to defining settlements and setting buffer distances around other developments such as opencast sites.

2) Setting requirements for very hefty restoration/accident clean up bonds to ensure that any sites approved are properly restored and that any incidents of contamination are dealt with at the expense of the extraction companies, not the public purse. The restoration bonds which councils were fobbed off with for opencast coals sites were woefully inadequate and have left councils will huge bills for restoration in the wake of Scottish Coal’s bankruptcy.

3) Ensuring that sufficient funding is extracted from operators to allow SEPA to do effective monitoring of methane emissions, groundwater contamination and other pollution risks are any extraction sites. SEPA have had a series of large staff cuts in recent years and don’t have the capability to do this at present. I don’t think it is acceptable for operators to “self monitor” or appoint an “independent” monitor of their own choosing. It must be SEPA and it must be paid for by operators licence fees, not through SEPA’s grant from taxpayers.

4) Ensuring that detailed monitoring of background levels of contaminants in groundwater is carried out before any drilling starts. At present there is only very limited monitoring of groundwater in Scotland mainly because it is difficult to get at because there are not many boreholes. It is essential that the condition of groundwater is understood before drilling starts as otherwise operators will be able to claim that pollution pre-dated gas extraction activities.

5) Setting up a proper a regulatory framework for this activity – none exists at present. This must include binding guidance to local authorities on how to deal with unconventional gas applications.

6) Banning drilling under anyone’s property without their permission (this will stop sideways drilling from remote locations). UK Gov ran a consultation on this and reported back at the end of Sept recommending changes to the trespass laws to allow drilling under property without consent. These changes have not been implemented yet as they need changes to the law, so will have to go through Parliament which could mean that they do not get enacted before the 2015 general election. UK Gov say that their consultation applies to England, Scotland and Wales, but this seems to be based on energy policy not being devolved and ignores the fact that the trepass laws in Scotland devolved and are different to those in England and Wales. I am not sure which get the final say (although I can guess which UK Gov think do!). So we can still lobby MPs about this (suspect it could become an issue in the 2015 election) and try to get an opinion on whether UK Gov can, in fact, change the trepass laws in Scotland.

7) Requiring that all applications for unconventional gas extraction and related activity to be heard by the planning committee to avoid the Canonbie situation where DART Energy/Buccleuch Estates made separate applications for about 30 well heads and a compressor station each of which were dealt with as “minor developments” and so were approved by council officers without the planning committee being aware of them or realising their significance when put together.

8) Supplying sufficient funding to allow local authorities to recruit staff with sufficient specialist expertise to be able to properly assess applications.

9) Giving clear guidance on how the duties on public bodies relating to climate change set out in section 44.1.a of the Climate Change (Scotland) Act should be applied by planners. This section states that “A public body must, in exercising its functions, act in the way best calculated to contribute to the delivery of the [emissions reduction] targets”. To date this has not been used to challenge developments which could increase greenhouse gas emissions, but there is no reason why it could not be, and clearly unconventional gas extraction will increase greenhouse gas emissions both by leaks of methane from wells and by carbon dioxide emissions from burning the gas.

10) Requiring Health Impact Assessments as well as Environmental Impact Assessments for these developments.

However so far the SNP has sat on the fence about this rather more than I would like. I hope that this was just because they didn’t want to rock the boat with their friends in the fossil fuel industry in the run up to Indy Ref and that now they will have the courage to take some sensible action on this. Greens will certainly be pushing for it.