Scotland needs a devolution watchdog
A regulatory body could hold the SNP to account and expose devolution's flaws.
Of the ferries scandal, this much we know: no one will be held to account.
Specifically, no one politically powerful enough to avoid accountability will have to face it. The Scottish Government awarded two ferry contracts worth £97m to a shipyard owned by a billionaire Scottish Government economic adviser. That billionaire had bought the historic yard out of administration the year before, at the behest of the First Minister of the day, and just over a week before polls opened in the independence referendum.
The Scottish Government’s own ferry body warned against the deal. The Scottish Government went ahead anyway. The shipyard admitted just one month into the agreement that it couldn’t meet its contractual obligations. The Scottish Government went ahead anyway. This meant there would be no refund guarantee for taxpayers if the project went under. The Scottish Government went ahead anyway.
Seven years on, neither ferry has been completed and another delay has been announced. The cost to the taxpayer now stands at a quarter of a billion pounds. An opposition call for a public inquiry was voted down by the SNP-Green coalition.
What I have just narrated, were it to happen at Westminster, would result in a public inquiry — clamoured for as much by Tory backbenchers as by the Labour Party — and would bring about the resignation of a Secretary of State, at the very least. In Scotland, we have to make do with an Audit Scotland report that freely admits it can’t get to the bottom of the original deal, why ministers agreed to it or who signed off on it.
The reasons for this have been a running theme of this column. Devolution, as designed, does not work. The executive is too strong and the legislature too weak. Legislation is poorly drafted some of the time and poorly scrutinised most of the time. The panoply of powers devolved is unmatched by requisite talent at parliamentarian, ministerial and civil servant level. A parliament, set up so that ‘the Union will be strengthened and the threat of separatism removed’, has become the battering ram of separatism against the Union.
Devolution has institutionalised the cliquish, socially monolithic, educationally identikit, ideological closed shop that is the Scottish political and civic establishment. The democratic deficit in 2022 is the gap between the vast infrastructure of devolution and the puny scale of substantive democracy and popular input into the running of the country. Westminster may be remote but it has the excuse of being 400 miles away. Holyrood is right on our doorstep and at least as distant as London.
None of this is helped by the SNP’s current incarnation as a block vote, with backbenchers a faint echo of ministerial talking points. Nor by civil society organisations and interest groups dependent on government funding and enjoying privileged access to ministers and the policymaking process. Nor by a broadcasting landscape of conscientious journalists let down by timid and cautious management.
The systemic flaws in Scotland’s political culture will take many years to correct, if ever, but the structural faults of devolution could be repaired to make the settlement less dysfunctional. That is why I argue for devolution reform. Not only would it prevent the misuse of the devolved institutions to dismantle devolution — for that is what independence would represent — but it would create an opportunity to recalibrate Holyrood as a more robust, politically advanced, democratically enhanced parliament.
Sadly, there is little sign that the UK Government has any appetite for this and, under Michael Gove, the priority has been 'love-bombing' not only Scotland but the SNP government. It's the kind of strategy that sounds terribly clever and draws approving notices from commentators inside the bubble but I remain to be convinced. Future Unionists may look back bitterly on a time when a Tory government had an 80-seat majority and ample evidence that unreformed devolution was undermining the Union — and squandered its opportunity.
Even so, there's not much to be gained wallowing in gloom and cursing Westminster. We should keep pushing at that Overton window but we should also try to work within the constraints of current constitutional thinking. While the Tory government has not embraced devolution reform, it has brought us the United Kingdom Internal Market Act (Ukima), a piece of legislation that enhances the commercial coherence of the UK while reasserting Whitehall's role in regulating goods, services, market access and economic development. This represents what the commentator Henry Hill calls 'Ukima Unionism', an approach that leaves the devolution settlement as is but builds new layers on top that fill the constitutional void left by Westminster's semi-withdrawal from Scotland in 1999.
The ferries outrage — and the inability of Holyrood to hold the Scottish Government to account for it — presents an opportunity for some more Ukima-style regulatory Unionism. The UK Government operates any number of watchdog bodies, regulating everything from education (Ofsted) and qualifications (Ofqual) to broadcasting (Ofcom) and utilities (Ofgem). What it does not have is a statutory body tasked with regulating the biggest and most underscrutinised constitutional policy in generations: devolution.
Ministers should consider the merits of establishing Ofdev, the Office of Devolution, a non-ministerial government department, independent of Whitehall, charged with regulating the activities of the UK’s devolved administrations. In practical terms, this might mean monitoring procurement, public contracts and expenditure. It could include investigating allegations of impropriety, waste, mismanagement and failure to achieve value for money in the spending of public resources.
Ofdev could be put in charge of investigating breaches of the various ministerial codes of the devolved administrations as well as other allegations of misconduct, abuse of power, or compromising the impartiality of civil servants. Another function that might be handed to Ofdev is measuring and publishing data on taxpayers’ money spent versus policy outcomes achieved and rating devolved governments on their levels of openness and transparency.
The difficulty comes with the question of sanctions, for what is a watchdog without teeth? At the same time, though, the idea of a statutory regulator sanctioning an elected government will sit ill-at-ease with some. One way around this might be to adopt a light-touch regulatory approach, the Office for Statistics Regulation being a good example, and using reviews, reports, public awareness and engagement with the relevant devolved bodies to encourage better governance, as set out in a code of practice or similar guidelines. Where it is still not satisfied, Ofdev could order the establishment of a public inquiry into a given matter.
Some might object that there are already public bodies in Scotland (as in Wales and Northern Ireland) that fulfil some of these functions, such as Audit Scotland, but in this very case of the ferry contracts Audit Scotland itself admitted the limits of its ability to acquire answers. A well-resourced, sufficiently-staffed regulator, headquartered in London but with offices in Edinburgh, Cardiff and Belfast, could monitor, investigate and hold the devolved administrations to account much more robustly.
Others will complain that only devolved governments, and not the UK Government, would be regulated. The object is not to regulate all government at every level in the UK but to monitor the effectiveness, efficiency and proper administration of the policy of devolution, be that at the parliamentary/assembly level, metro mayors or police and crime commissioners. Devolved institutions are not peers of the UK Government or Parliament, they are subordinate bodies created by legislation and it is in the UK Government's interest and the public interest to see that they are run properly.
Whether it's ferry contracts, constantly broken 'legal rights' on waiting times, or the withholding and improper disclosure of information seen around the Salmond inquiry, the Scottish Government has nothing to fear because there is no body big enough, strong enough or well-resourced enough to hold it to account. A regulator like Ofdev would shift the balance of power decisively in favour of openness, transparency and accountability. At last, the Scottish Government would no longer be marking its own homework.
Originally published in the Scottish Daily Mail on April 4, 2022.
In the list you forgot "Offred".
Anyway, what you say is all very well, but what hope is there with the SNP going for another record showing at the next elections in May? Elections are one of the few free things left here, but we don't give it another thought and keep on voting to keep out state of bondage going. Who said that turkeys don't vote for Christmas?