Calman Commission on Scottish Devolution
The UNISON Scotland submission to
The Commission on Scottish Devolution
Chaired by Sir Kenneth Calman
The Calman Commission on Scottish Devolution has called
for evidence from a wide range of bodies across Scotland by 3 September
The Commission's remit is as follows:
"To review the provisions of the Scotland Act
1998 in the light of experience and to recommend any changes
to the present constitutional arrangements that would enable
the Scottish Parliament to serve the people of Scotland better,
improve the financial accountability of the Scottish Parliament,
and continue to secure the position of Scotland within the United
As Scotland's largest public sector trade union representing
over 160,000 members delivering public services, UNISON Scotland
welcomes the opportunity to submit detailed evidence which develops
the themes identified in our preliminary response on 23 June 2008.
This response follows the 9 question format set out
by the Calman Commission.
Recall Constitutional Convention to build on success
UNISON Scotland believes that devolution has been
proved a success in the ten years since the historic Scotland Act
1998. Devolution is a dynamic process and not just an event. The
time is now right for a review of the powers of the Scottish Parliament
to meet the developing aspirations of the Scottish people. We support
the recall of a Scottish Constitutional Convention to represent
all of the people of Scotland with the aim of achieving the greatest
possible consensus among political parties and civic society on
the way forward.
Principles underlying devolution
UNISON Scotland remains committed to the principle
of devolution. We campaigned for and support a Scottish Parliament
where policies for health, education, transport, environment and
key aspects of economic development are formulated where they should
be - in Scotland, by representatives elected in Scotland. We do
not support federalism or independence. We believe Scotland is better
off and stronger in Britain, worse off and weaker apart.
UNISON Scotland supports the Claim of Right adopted
in March 1989 that acknowledges the sovereign right of the Scottish
people to determine the form of government best suited to their
The general principle at the time of devolution was
that reserved matters should be limited to those matters necessary
to maintain the integrity of the UK. Whilst this remains a factor
it should not be only test. The key principle should be subsidiarity,
the idea that matters should be handled by the smallest (or, the
lowest) competent authority. This principle also applies to the
Scottish Parliament in its dealings with local government because
decisions should be taken as closely as possible to the citizen.
Powers should only be reserved to Westminster when:
- Necessary because actions of the Scottish Parliament alone
will not achieve the objectives of the action or;
- The action brings added value over and above what could be
achieved by the Scottish Parliament alone.
Success of devolution
1. In general, how successful have the new
structures created by devolution been - both in terms of delivering
effective government in devolved areas, and in providing effective
parliamentary scrutiny and oversight?
UNISON Scotland believes that Scottish devolution
has been a success within the terms of the settlement as enacted
in 1998. It has delivered effective government and parliamentary
scrutiny. Indeed its success has led to demand for further devolution
and more powers for the Scottish Parliament.
2. Can you give examples of where devolution
has produced results that better serve the people of Scotland than
would have been likely or possible under pre-devolution arrangements?
- Parliament itself - a more open, accessible, inclusive, responsive
and democratically representative institution than Westminster
- An invigorated political culture which has stimulated debate,
discussion and action on Scottish issues, whether devolved or
- Distinctive Scottish policies, including: abolition of health
trusts and development of a partnership model in NHS Scotland;
free personal care for elderly; smoking ban; a more positive
approach to migration and asylum, including the innovative Fresh
Suggestions for change
3. Are there any particular features of the
1998 Act that you think should be changed or reconsidered, on the
basis of experience since 1999? [See Note A below].
UNISON Scotland supports increased fiscal autonomy
for the Scottish Parliament with extra powers over taxation; and
also the transfer of a number of reserved powers from Westminster
to Holyrood. See notes A and B under Detailed issues below.
4. Do you believe the people of Scotland
would be better served if any matters currently reserved to Westminster
were now devolved to the Scottish Parliament? [See Note B below].
UNISON Scotland supports the transfer of a number
of reserved powers from Westminster to Holyrood. See note B under
Detailed issues below
5. Do you believe the people of Scotland
would be better served if any matters currently devolved to the
Scottish Parliament were now reserved to Westminster?
No. Suggestions were made earlier this year that certain
powers which it is argued relate to UK national security could be
returned to Westminster. These were meant to include counter terrorism,
contingency planning and also control of infectious diseases amongst
animals like foot and mouth. However the Glasgow airport attack
in June 2007 showed that counter terrorism and emergency planning
worked well under the current setup. There is no evidence to suggest
that there is any need to return such powers to Westminster.
6. Irrespective of which particular matters
are reserved and which others are therefore devolved, do you support
the reserved/devolved distinction as the best way to define the
respective responsibilities of the UK Parliament and the Scottish
Parliament? Would there be merit in an intermediate category, involving
some form of shared or concurrent competence, with suitable checks
and balances to avoid conflict?
In practice, sharing of competences involving negotiation
and co-operation will happen anyway as there are many areas which
overlap or interface in terms of responsibilities even where the
legal distinction is very clear. A further category may only serve
7. Do you support the current financial arrangements
for devolution, where the Scottish Parliament receives a block grant
(based on the Barnett formula) to spend on devolved services as
it chooses, but (apart from the power to vary the basic rate of
income tax by up to 3p in the pound, and devolved control over local
taxation) has no responsibility for raising revenue from Scottish
taxpayers to pay for those devolved services?
UNISON Scotland supported and campaigned for the devolution
settlement, including the continuation of the block grant system
and the establishment of the power to vary the rate of income tax
by 3p up or down.
UNISON Scotland would favour a move to partial fiscal
autonomy through the provision of borrowing powers and tax raising
powers outside those covered by the UK tax regime.
We believe that a vibrant, dynamic and democratically
controlled public sector is vital to Scotland's economic and social
wellbeing, guaranteeing accountability, generating and redistributing
wealth and reducing inequalities. UNISON Scotland will not support
changes to the tax system the consequences of which are intentionally
or otherwise to restrict, destabilise or cut public spending in
The Barnett Formula
Any change to the block grant system would necessitate
a review of the Barnett Formula. The formula has worked reasonably
well and should not be replaced in haste without a better alternative
for managing the financial relationship between Scotland and the
The Barnett Formula was in place at the time of devolution
and continuing with it has contributed to the stability and therefore
success of devolution in its first decade. However, Barnett does
not cover all UK public expenditure and it does not operate at regional
level in England. To some extent it therefore masks differences
in UK regional expenditure and this has given rise to some misapprehensions,
particularly in England and amongst the tabloid media, about the
level of public funding in Scotland.
Some useful work has been done in clarifying where
funding comes from and goes to (see ‘Scotching the Myth' articles
in the Herald, November 2007 for a journalistic account). UNISON
Scotland does not accept the Scotland has received unfair advantage
in public funding when all factors are taken into account, and rejects
the view that there is a ‘subsidy junkie' attitude in Scotland.
Also, Barnett is not a needs-based but a population-based
model of allocation. In fact the "Barnett squeeze" tends
to equalise spending per capita over the long term. This would ultimately
penalise allocations to the Scottish Parliament to the benefit of
rich regions of England and would neither help to "better serve
the people of Scotland" nor "secure the position of Scotland
within the UK". UNISON supports a progressive, redistributive
tax and spend policy for Scotland and for the UK as a whole.
A needs-based assessment for allocation of resources
between Scotland and the UK would be consistent in principle with
this long expressed UNISON policy. Such an assessment would have
to take account not just of GDP and poverty indicators but also
Scotland's geography, comparatively sparse population and infrastructure
Powers of borrowing
UNISON Scotland believes it is vital that the Scottish
Parliament has borrowing powers. Indeed it is illogical that local
government in Scotland can have such powers (established by an act
of the Scottish Parliament in 2003) but that the Parliament itself
does not. Borrowing powers would mean that the Scottish Parliament
would have much greater scope in planning and funding efficient
investment in Scottish public services such as health and education
without having to rely on the discredited PFI methods which have
been extensively and expensively used in the past.
The current block grant system provides the devolved
administration with flexibility over how to spend the money it receives.
However it has limitations. The Scottish Parliament is responsible
for spending the money but is not transparently or directly accountable
to the tax payers who fund it. Also, overall increases (or decreases)
are dependent on spending decisions in England, and not Scotland.
Fiscal autonomy means that tax revenues would be levied
in Scotland by the devolved administration, and then services provided
by the UK government under reserved powers - defence, social security,
etc - would be paid for out of that revenue. This would address
the issues of transparency, accountability and dependence on English
It is possible to have a mixture of these systems.
Indeed, full fiscal autonomy is not currently practiced anywhere
(it exists in principle for the Basque region of Spain).
In a mixed system, a proportion of Scottish revenue
would be generated from taxation collected by (or possibly assigned
to - see below) the Holyrood administration; and a further proportion
would be paid via a block grant according to either a need-based
assessment or a per capita based variant of the Barnett mechanism.
The options therefore appear to be:
- continue with block grant system, with possible reforms to
- fiscal autonomy - Scotland raises revenues and "buys
back" services from Westminster
- mixed system with proportion of revenue raised in Scotland
and proportion allocated through block grant
As indicated above, UNISON Scotland doubts that fiscal
autonomy (other than borrowing powers) would bring any practical
benefits to Scotland. Even if a proportion of revenues are raised
in Scotland it would still require a Barnett style formula and the
consequent disputes. Full fiscal autonomy would require a ‘reverse'
Barnett formula. With the taxation constraints set out below the
ability to use tax raising powers are in any case limited.
8. Do you believe that the Scottish Parliament
should be responsible for raising a greater proportion of its income
by having increased taxation powers? If so, which taxes should be
devolved (e.g. VAT, Income Tax, Corporation Tax, Excise Duties etc)
and should there be corresponding changes to the existing funding
arrangements from the UK Government?
Devolution of VAT would be problematic, as it is subject
to regulation by the EU. It would be possible to assign part of
the UK's VAT revenue on the basis of a Scottish share but for the
reasons set out above we remain to be convinced that it is worth
The power to increase or decrease the income tax rate
by up to 3p already exists, though it has never been used, for good
reason - the revenue it would generate is relatively small, and
as it can only be applied to income earned at the basic rate, the
burden would be regressive and unfair.
UNISON Scotland supports fair, progressive taxation
and would support an enhancement in power to set the rate of income
tax at any level and on income at higher rates in addition to basic
rate; and also on unearned income.
UNISON Scotland would oppose reductions in the level
of Corporation Tax in Scotland on the basis that it would cause
problems for the tax take and reduction in public spending.
It also appears that the EU will make it difficult
if not impossible to implement differing rates of corporation tax
in the UK in light of the Azores judgement, which indicates this
would be in breach of competition regulations. It would run counter
to the EU's aim to harmonise Corporation tax across member states.
Excise duties are subject to EU controls in a similar
way to VAT.
It would be possible for the Scottish Parliament to
take responsibility for collection of devolved taxes and then pay
an amount for services to the UK; or for collection of taxes to
be done at UK level and an appropriate allocation made to Scotland
- assigned revenues. But as set out above we remain unconvinced
that the effort is worthwhile.
Council Tax benefit and Housing Benefit
The responsibility for both local government finance
and for housing policy lies with the Scottish Parliament. However
the funding and administration of Council Tax Benefit and Housing
Benefit are currently reserved, as part of the UK Social Security
Council Tax Benefit is vital in ensuring that there
is a relationship between household income and the amount of Council
Tax payable. UNISON Scotland supports the transfer of the Council
Tax benefit function.
Housing Benefit is equally vital to the objective
of ensuring that secure, affordable accommodation is available to
all. All other aspects of housing policy and administration are
already devolved. UNISON Scotland supports the transfer of responsibility
for the Housing Benefit function.
9. How effective do you believe inter-governmental
relations have been since 1998, including in the context of the
respective roles of UK and Scottish Ministers in their dealings
with the European Union?
The UK Parliament continues to legislate on devolved
issues with the agreement of the Scottish Parliament through Legislative
Consent Motions established under the Sewel Convention.
This co-operation has led to significant new areas
of devolution since the Scotland Act, most notably aspects of rail
and energy policy. These are in effect voluntarily devolved by UK
Ministers and have not involved any amendment to the Scotland Act.
Devolution has also enabled Scotland to make a more
direct contribution in Europe, which is beneficial as the European
Union has a major influence on our daily lives.
Detailed issues identified by the Calman Commission
In its invitation to submit responses, the Commission
set out some detailed issues for comment with this advice:
"In answering Questions 3 and 4 above, you
may wish to be aware in particular of the topics in the following
lists, which have been compiled from the suggestions made by
individuals and organisations who responded to the Chairman's
letter of 22 May. The Commission itself has not yet taken a
view on any or all of the items in these lists but includes
them to acknowledge the suggestions made. But views are also
welcome on any other matters which are currently reserved by
Schedule 5 to the 1998 Act."
UNISON Scotland's views on such issues are presented
A: General aspects of the Scotland Act 1998:
UNISON Scotland believes that the number of MSPs and
the electoral system remains appropriate. In particular we believe
that a reduction in the size of the Scottish Parliament would fundamentally
alter the principles on which the Scottish Parliament was established
by the Constitutional Convention and on which it still operates.
The system which the Convention has devised is the
outcome of long and detailed discussions, and is underpinned by
fundamental principles including proportionality and the opportunity
for equal representation. It should not be easily challenged or
changed without careful and democratic scrutiny.
Although the Scottish Parliament is unicameral, unlike
Westminster, it does not suffer from the "lack of a second
chamber". The Parliament is able to carry out its functions
effectively and competently, with the proper checks and balances,
largely through the accessible and effective committee structure.
The Committees are the democratic backbone of the
Parliament. Scottish Parliament Committees combine the role of the
Select and Standing Committees of the House of Commons. They have
much stronger pre-legislative functions than Westminster Committees:
they carry out investigations, call on outside opinion and expertise
at every stage of a Bill's passage, and have scrutiny and amending
functions. The Committees also monitor, scrutinise and report on
the Government's activities.
UNISON supports an extension to this power. (See response
on financial arrangements Qs 7 & 8 above).
The Lord Advocate is the senior legal officer in Scotland
and advises the Scottish government. The Solicitor General is the
chief prosecuting officer in Scotland. They are appointed by the
Scottish Parliament and have rights to attend and speak at Parliament
ex officio. The incoming SNP administration in 2007 ended the practice
of the Lord Advocate attending cabinet meetings.
The Advocate General for Scotland is appointed by
and advises the UK Parliament on Scottish legal issues.
Given that the necessary separation of powers is clear,
UNISON Scotland sees no need for further change in these offices.
UNISON supports prudential borrowing powers for the
Scottish Parliament and its Ministers. (See response on financial
arrangements Qs 7 & 8 above).
UNISON Scotland supports the calling of a Scottish
Constitutional Convention including representatives of civic Scotland
such as local authorities, trade unions, churches and voluntary
organisations as well as political parties in order to develop a
constitutional settlement which will "serve of the people of
Scotland" - all of them.
B: Matters which are currently reserved (references
to the relevant entries in Schedule 5 to the 1998 Act are indicated
UNISON Scotland supports the Claim of Right adopted
in March 1989 that acknowledges the sovereign right of the Scottish
people to determine the form of government best suited to their
needs. This would be consistent with support for the ability of
the Scottish Parliament to hold a referendum and to act in accordance
with the views expressed by the people.
No fixed position. (See Elections to the Scottish
While foreign affairs would remain a reserved issue,
UNISON Scotland has a keen interest in international solidarity
and development. We would welcome a formally established right for
the Scottish Government to represent the Scottish people on devolved
issues within the European Union and in wider international forums;
and to take responsibility for its share of international development
assistance; and to intervene over issues such as access to clean
An effective, properly remunerated and motivated civil
service is essential to continue to successfully deliver devolved
administration. Devolution is a work in progress, and the structure
of the civil service will need to be reviewed as changes are agreed
and implemented, subject to the principles outlined above of subsidiarity
and also with the objective of protecting and improving jobs, pay,
pensions and transferability within the UK.
Defence would remain reserved, (but see below on specific
issue of "control of weapons of mass destruction").
See response on financial arrangements Qs 7 &
Control of medicines and misuse of drugs are reserved
whilst other health and criminal provisions are devolved. This appears
to be inconsistent and we would favour these powers being devolved.
The Scottish Information Commissioner, appointed on
the recommendation of the Scottish Parliament, deals with freedom
of information issues in devolved public service areas. The Information
Commissioner is a separate UK-wide authority appointed by Westminster
and responsible for reserved areas of public service, including
in Scotland, and also issues which relate only to England, Wales
and Northern Ireland. The UK Information Commissioner is responsible
for dealing with Data Protection issues across the UK. The two authorities
currently co-operate on the basis of a Memorandum of Understanding.
UNISON Scotland believes that Freedom of Information
and Data Protection are closely linked. We can therefore see merit
in devolving Data Protection.
elections to the Scottish Parliament, and
the franchise at local government elections, including voting
age (Part II, section B3)
The Scottish Parliament in January welcomed the Gould
report on problems in running the 2007 Scottish and local elections,
and called for "the further devolution of executive and legislative
powers to the Scottish Government and the Parliament for the administration
of its own elections and the decoupling of future elections to this
Parliament and Scotland's councils." UNISON Scotland supports
UNISON Scotland supports the right of the Scottish
Parliament to determine voting age and recommends that it be set
at 16 years.
Recent criminal cases have resulted in calls for stronger
regulation of firearms in Scotland than appears to have support
in England. Criminal law is devolved and we can see no reason for
reserving firearms to Westminster.
The ‘Fresh Talent' initiative has been constrained
by UK immigration policy that arguably is driven by the needs of
SE England. Whilst UK borders remain, we would argue for consideration
of some separate immigration controls including the use of Scottish
residence requirements. This would enable Scotland's economic requirements
(already a devolved issue) to be given greater focus. In addition
there is also a case for considering elements of asylum powers as
the exercise in practice of these powers have not always reflected
Scottish public opinion in recent years. Asylum also has significant
implications for devolved responsibilities particularly social work
No fixed position.
No fixed position.
UNISON Scotland supports the devolution of competition
policy in respect of provision of public services. In our response
to the Scottish Executive Consultation on Proposed Provisions for
the Water Services (Scotland) Bill in January 2004, UNISON Scotland
rejected the view that competition in essential utilities brings
benefits to consumers, arguing that the approach of the then Scottish
Executive to the Competition Act "should be based on the general
exclusions as set out in Schedule 3 of that statute.… the introduction
of limited competition is a further step on the road to the full
privatisation of Scotland's water."
No fixed position.
Consumer protection is largely enforced by local government
in Scotland. Devolution could make consumer protection more responsive
to local conditions, and there are no reasons to keep this matter
No fixed position. (But see also broadcasting below,
which is also governed by telecoms regulator Ofcom, a possible candidate
No fixed position.
As higher and further education funding is devolved
it would be consistent to devolve these powers as well.
• Energy (Part II, Head D), including oil and
This is a shared area of responsibility at present.
Generation and nuclear regulation are reserved. Planning, aspects
of energy efficiency and renewable energy are devolved. This can
lead to some confusion over roles.
There is a UK market for energy and European Directives
which would require common approaches. However, Scotland's energy
industry is structured differently to the rest of the UK and we
have concerns over discriminatory arrangements by UK regulators.
A Scottish Energy Strategy, that we believe is necessary, may be
easier to achieve if energy was devolved.
No fixed position. (NB - this includes air and road
This is a complex area and we would recommend a review
in terms of the principle of subsidiarity.
UNISON Scotland supports transfer of responsibility
for housing benefit and council tax benefit to the Scottish
Parliament (see ‘Council tax benefit and housing benefit' above
under Financial Arrangements - Q7)
No fixed position on pensions or child support.
Regulation of most professions is reserved on the
same UK labour market basis as employment (see below). However,
events have moved on in recent years with the growth of new areas
of professional regulation, some of which are devolved. Regulatory
bodies - for example the Nursing and Midwifery Council - are in
the process of addressing their own structures. Therefore there
is evidence of a need to review the overall position in relation
to the subsidiarity principle.
As the UK is a common market most commercial and employment
law was reserved. UNISON members generally treat the UK as a single
labour market. Therefore UNISON Scotland does not believe this requires
to be devolved.
There are some exceptions. For example, many functions
of job centres in promoting employment (e.g. job centre+) are closely
linked to economic development which is a devolved power.
See also Equal Opportunities (aka Equalities) below.
UNISON Scotland believes that devolution of powers
over health and safety could improve Scotland's poor record in health
and safety at work. Our Scottish Health and Safety Committee has
supported the staged devolution of health and safety regulation
and enforcement. In Northern Ireland, where health and safety is
devolved, the Health & Safety Executive employs more than twice
as many inspectors in enforcement per head of population than the
UK HSE does in Scotland.
UNISON Scotland believes in the right of women to
control their own bodies and fertility. We believe that access to
abortion services should be on a consistent and equal basis across
the UK. Devolution of policy on this issue could lead to inconsistency
and inequality. It may lead to the unacceptable possibility of women
having to travel to different parts of the UK to secure safe, regulated
abortion services within the law. We therefore we do not support
devolution of policy on this issue.
No fixed position on xenotransplantation or embryology.
The debate over Scottish TV news (The Scottish Six)
has highlighted this reserved power, but the issue is much wider
than that. Scotland has a distinctive culture that should be reflected
in broadcast media and therefore we would support devolving this
Further consideration needs to be given to this issue.
The broadcasting industry is regulated by Ofcom and there have been
suggestions that this function could be devolved (see also telecommunications
above, which Ofcom also regulates). There are also questions about
how the BBC could be devolved. The Broadcasting Commission set up
by the Scottish Government in late 2007 has completed its evidence
phase and is due to report in September 2008.
The substantive legislative provisions of the Equal
Pay Act, SDA, RRA and DDA are reserved. The Scottish Parliament's
powers are currently largely restricted to promoting equality.
We believe that Scotland's demographics are different
to England and that we have different equality concerns (e.g. sectarianism).
Therefore these provisions should be devolved. There are precedents
for this: Northern Ireland has had different equality legislation
from the rest of the UK, and Scotland already has its own Human
However, most of the equalities legislation is related
to employment law, which is otherwise generally not an area which
we believe should be devolved. (See Employment Law above).
UNISON Scotland opposes Trident and its proposed replacement.
We support the conclusion of judges of the International Court of
Justice in 1996, that the use of nuclear weapons was inadmissible
in any circumstances. In 2007 UNISON Scotland supported the majority
of Scottish MPs who voted against the replacement of Trident and
the majority of MSPs who voted to congratulate them.
Devolution of control over weapons of mass destruction
may therefore be desirable. However, we recognise it would be difficult
to separate from defence.
No fixed position.
Financial services, film classification, extradition,
insolvency are also all reserved and have been raised as potential
issues for devolution in recent years. UNISON Scotland does not
have a fixed position on these matters but we believe they should
be considered by the Commission in the light of the principles already
UNISON Scotland welcomes the wide ranging remit of
the Calman Commission. We believe the Commission should recommend
the widest further devolution of powers possible following the democratic
principles already established in the Claim of Right and by the
Constitutional Convention leading up to the historic Scotland Act
1998, and including the principle of subsidiarity. To this end we
believe that the Constitutional Convention should be reconvened
in order to ensure the greatest possible consensus among political
parties and civic society on the way forward.
Calman Commission - invitation to submit evidence,
23 June 2008 http://www.commissiononscottishdevolution.org.uk
Scotland Act 1998, Schedule 5 Reserved Matters
UK Statute law Database, Ministry of Justice
UNISON Scotland: Devolution - The Next Stage, December
UNISON Scotland: Commission on Scottish Devolution
- response to the Commission on Scottish Devolution's consultation
on changes to the current division between reserved and devolved
powers, June 2008
(response to initial Calman invitation for preliminary
views, 22 May 2008)
Scotching the myth by David Leask and Douglas Fraser
The Herald, Friday 2 November 2007 http://www.theherald.co.uk/search/
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