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Memorandum of Evidence
Welsh Affairs Committee Inquiry on the Provision of Cross-Border Public
Services for Wales
Professor Charlie Jeffery, University of Edinburgh
Introduction
1. This memorandum draws on findings from research supported by the
Economic and Social Research Council under its research programme on
Devolution and Constitutional Change, which ran from 2000-6 under my
direction. In particular it draws on work done in collaboration with the
Institute for Public Policy Research as reported in books on Devolution in
Practice. Public Policy Variations in the UK in 2002 and 2005.
2. It is an inherent feature of devolved systems of government that the packages
of public policies experienced by citizens vary from place to place. Devolution
in the UK, as elsewhere, is intended, inter alia, to bring greater proximity of
decision-making and in that way to reflect better different territorial
preferences and identities in public policy in different jurisdictions.
3. It is no surprise, therefore, that devolution here, as elsewhere, has produced
greater divergence of public policy. Indeed, post-1999 divergences have built
on long-standing practices of territorially differentiation of public policy that
are in part rooted in the different terms of union among the different nations of
the UK, and the administrative practices developed before 1999 by the Wales,
Scotland and Northern Ireland Offices. The UK has long experience of
territorial policy variation.
The Structure of Devolution
4. But the UK also has a structure of devolution that is very, and in comparative
terms, unusually open to far-reaching policy variation and lacks the
mechanisms employed elsewhere to balance divergent territorial preferences
with overarching state-wide concerns.
5. There are three features of that structure that promote variation. The first is the
relatively tidy division of powers between those reserved to Westminster and
those variously devolved in Wales, Scotland and Northern Ireland. The
division is neatest in the Scottish and Northern Irish cases, though Wales after
the 2006 Government of Wales Act is moving in a similar direction, all the
more so if a referendum is held and won on full legislative powers. The
tendency is to establish four discrete jurisdictions in a range of important
policy fields, including health, education, local government, planning and so
on.
6. The second feature promoting variation is the UK’s system of financing
devolution through block grants transferred to devolved administrations by
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central government. These grants are transferred unconditionally; the devolved
administrations in principle have complete discretion in how they spend those
grants.
7. The third feature promoting variation are the different terms of political
competition in Wales, Scotland and Northern Ireland as compared to
Westminster. Westminster is dominated by a classic left-right contest between
Labour and the Conservatives. The Conservatives are very weak in Wales and
Scotland, and left-leaning Nationalist parties pull party competition there to
the left (while also introducing constitutional questions into party competition
that are generally marginal at Westminster). The terms of political debate in
Wales and Scotland therefore diverge significantly from those at Westminster,
as they do in Northern Ireland, where there is an entirely distinctive party
system and constitutional debate.
8. Discrete policy responsibilities, full discretion on spending, and different
terms of party political competition have already fostered – and are likely to
do so all the more over time – notable territorial policy variations in Wales,
Scotland and to a lesser extent Northern Ireland. These extend some way
beyond those variations inherited from pre-devolution arrangements. There are
few institutional counterbalances to that dynamic of variation. In particular the
UK lacks those forms of systematic intergovernmental coordination that exist
in most other decentralised states to identify and pursue common objectives
across jurisdictional boundaries and to build understandings of the legitimate
scope of cross-jurisdictional policy variations and the implications for crossborder relationships that arise.
Cross-Border Policy Variation
9. There is a growing number of examples of policy variation. Some of the
innovations of the devolved administrations – for example in children’s policy
in Wales and on smoking in Scotland – have prompted UK-wide changes.
Other devolved innovations – on free personal care, prescription charging, the
licensing of NHS treatments, or tuition fees – have not been generally
emulated. As significant a source of variation has been Westminster in its role
as legislature for England. Its changing approach to the structure and
performance management of public services has not been emulated and in
many cases has been rejected by the devolved administrations. England also is
a force for divergence.
10. A patchwork of different territorial packages of public services has resulted.
This – it bears repeating – is entirely consistent with the purposes of
devolution. But without an institutional framework for a discussion of the
cross-border and UK-wide coordination issues and other implications of crossjurisdictional policy variation, the UK’s policy patchwork is and will remain
ad hoc, inconsistent and confusing for the citizen.
11. Some have pointed to the potential for territorial policy variation to corrode
the UK’s ‘social citizenship’, the postwar commitment to a welfare statehood
that treated all citizens equally irrespective of income or place of residence.
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Public attitudes surveys suggest that citizens in all parts of the UK share
broadly the same values on the role and scope of the state and the obligations
of citizens to one another. They also suggest (without the same depth of
evidence) that citizens in their majority disapprove of the idea of territorial
policy variation (even while endorsing devolved, and therefore potentially
divergent decision-making in clear majorities outside England).
12. In these circumstances an under-coordinated structure of devolution runs the
risk of producing perceptions of inequity that might lend themselves to
political mobilisation. One example of this on a small scale was the recently
reported (and, no doubt, methodologically suspect) commercial opinion poll in
Berwick-on-Tweed which suggested that the majority of Berwick’s population
would prefer re-unification with Scotland to enjoy what are perceived to be
better public services there. Equivalent pollster-led skirmishes are conceivable
on the Anglo-Welsh border, where in particular different prescription charging
policies have been contentious.
13. On a larger scale there have been repeated contributions in some sections of
the London-based media, in parts of the Conservative Party, but also parts of
the Labour Party in London and in northern England (and more mischievously
the Scottish National Party in Scotland) that the arrangements for devolution
outside of England are unfair to people in England. A particular focus has
been on the seeming connection between the higher level of per capita public
spending in Wales, (especially) Scotland and Northern Ireland as compared to
England, and the perceived generosity (in some views, profligacy) of public
services outside England.
14. These contributions have largely been misguided. They tend to misunderstand
both the system used to allocate funding to the devolved administrations, and
the pattern and sources of post-devolution policy variation, much of which has
been driven by Westminster in England, and in many cases might be said to
produce there ‘better’ or ‘more generous’ public services than those available
outside England. However misguided, these contributions point to a potential
for the political mobilisation of territorial difference.
Mechanisms of Cross-Border Coordination
15. To summarise: the post-devolution political system
 Has a lack of institutional counterbalances to a structure that promotes
territorial policy variation
 And runs the danger – in part through widespread misunderstanding of the
reasons for policy variation – of causing conflict over perceived inequities
between the component parts of the UK
16. Other political systems provide examples of how more robust institutional
balances and more rounded understandings of cross-jurisdictional equity and
coordination can be achieved. Among the institutional techniques used
elsewhere, but absent in the UK, are:
 Statewide policy-making by intergovernmental agreement between central
and devolved governments
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Statewide framework legislation leaving a wide scope for detailed
regulation and implementation at the devolved level
Joint central-devolved funding of agreed common policy objectives
Specific-purpose transfers of central funding to devolved administrations
to achieve statewide objectives
Systems of fiscal equalisation to ensure all jurisdictions have sufficient
resources to deliver equivalent levels of services
17. Typically, such institutional techniques are underpinned by codified,
routinised and systematic processes of intergovernmental coordination. These
processes provide forums for identifying common purposes, resolving any
disputes that may arise, managing the interfaces between jurisdictions, and
pursuing joint decision-making. They also, through their codes and routines,
generate enduring common understandings about the purposes, benefits and
limits of territorial policy variation as balanced against statewide objectives.
18. The UK’s system of post-devolution intergovernmental relations is
extraordinarily underdeveloped. It would be difficult to assess it as fit for
purpose. The UK does have codified arrangements – for example Joint
Ministerial Committees – but these in most cases are not used.
Intergovernmental relations instead work typically through ad hoc, case-bycase interactions among different and changing groups of officials. There is an
absence of routine and as a result a failure to embed understandings of the
‘rules of the game’ in balancing UK-wide and devolved interests. Without
clear, enduring common understandings of balance the devolution
arrangements remain vulnerable to their own inconsistencies and the
consequent danger of partisan mobilisation of territorial conflict.
Choices
19. This is an unsatisfactory situation. Its uncertainties are reflected in formal
debates about constitutional relationships in Wales and Scotland, and at the
UK level in the constitutional ‘review’ or ‘commission’ under discussion by
the three main unionist parties. A number of options might be considered in
this context:
20. The status quo. The discussion above suggests that the ill-coordinated adhockery of current arrangements is not the optimal route forward. Two
alternative trajectories appear possible.
21. Renewal of union. Some mixture of the types of technique listed under
paragraph 16. are introduced, and underpinned by a more systematic approach
to intergovernmental relations. This option would involve the identification of,
and measures to achieve, UK-wide objectives across jurisdictional borders. In
doing so, it may require some restrictions on the current scope of devolved
responsibilities; it is not clear that the devolved administrations would be
willing to accept this. A more systematic approach to joint decision-making
would also require a conception in Westminster and Whitehall of powersharing with the devolved administration in the identification and pursuit of
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common objectives; it is not clear that Westminster and Whitehall would be
willing to accept this.
22. A state of the autonomies. This option would not involve the pursuit of a wide
range of shared objectives, but rather the acceptance of growing territorial
policy variation by the devolved administrations and by Westminster acting
for England. In effect England would be governed as a unitary sub-state of the
UK by Westminster, while Scotland, Wales and Northern Ireland would
pursue autonomous objectives, no doubt on the basis of a fuller devolution of
powers than at present, including extensive fiscal autonomy. The effect would
be to harden the UK’s internal borders and limit the scope of citizenship rights
enjoyed uniformly across the UK. It is not clear that this option would receive
public support, for reasons stated above in paragraph 11.
23. These alternatives are presented here in bald terms. Presented baldly they each
appear to present difficult problems. No doubt there are elements in them that
are reconcilable (for example the Liberal Democrats’ Steel Commission in
Scotland proposed devolution arrangements with greater autonomy alongside
measures to strengthen the UK union). Yet put baldly they raise issues of
principle whose resolution would appear a precondition for sustainable reform:
do we want a more consciously integrated union than at present, with limits on
the scope of cross-border variations; or are we happy to see far-reaching
differentiation in what the UK state does for its citizens from one part of the
UK to the next?