SCVO response: Smith Commission

Key Principles and Themes The purpose of devolution is to bring power to where it is most appropriate and to help:

• reduce inequality and celebrate diversity
• promote social justice
• create a more inclusive society
• enable and empower people
• promote environmental and economic sustainability

The third sector is strongly of the view that any devolution settlement must be underpinned by a robust set of principles and hopes to see commitments from the political parties on the following themes:

• Ensure people’s views are central to the decision-making process. We need to build on the enthusiasm for participation in democracy that emerged during the referendum.
• Take decisions as closely as possible to people. Scottish political parties should commit to decentralising new and existing devolved powers even further to people and communities wherever possible.
• Commit to an on-going review of Scottish devolution. Devolution is not a one-off event - it is an evolving process. Regular reviews will identify areas for opportunity and improvement.
• Understand the need for coherent policy making. We must create joined-up policies which recognise the links between issues. We need policies that complement each other and act together purposefully and effectively.
• Acknowledge the interrelated nature of powers. A focus on specific powers and responsibilities puts us at risk of a piecemeal devolution of powers which will inhibit our ability bring about real change.
• Enable Scotland to design its own services, not just deliver them. The devolution of powers cannot be merely administrative. Responsibility without the power to effect change is tokenistic, inhibiting and undermining.
• Government at all levels should be responsible for raising the money it spends. The devolution of any new powers to Scotland ought to be accompanied by appropriate fiscal powers to ensure accountability.
• Improve the relationship between UK and Scotland. There is a clear need for better working relations between the governments. UK Departments and Ministers must make more of an effort to appreciate the views and interests of the people of Scotland.

The Powers: What are we asking for? The specific powers we are calling to be devolved are:

• Welfare – excluding pensions
• Employability
• VAT relief schemes for charities
• Equality law
• The Crown Estate
• Consumer protection
• Energy
• Those aspects of employment law that directly affect devolved powers such as social care and childcare
• The operation of asylum support should be devolved to the Scottish Parliament
• Powers over the Misuse of Drugs Act
• Remaining powers over transport which are not currently devolved  
• Powers over Scottish elections and democracy
• Powers to bring about consistency with Scottish charity regulation
• A portfolio of taxes so not place a disproportionate burden on one tax and taxpayer base to generate income

Conclusion

In order to bring about the changes we hope to see in Scotland, to tackle problems such as poverty and inequality, we need a substantial package of devolved powers. These powers cannot merely be administrative. To create solutions that work for Scotland we must be able to design not just deliver. The devolution of further powers cannot be a token gesture, designed to appease. This has to be a genuine transfer of responsibility, which enables Holyrood to strive for, and achieve, the best outcomes for those living in Scotland. The piecemeal devolution of powers will not deliver the change we aspire to and may well hinder, rather than help. In many cases devolving a power in isolation will probably cause more problems than it will solve due to the interconnected nature of policies and political systems.  It could be considered futile to transfer the power over, for example, housing benefit as while it makes sense in regards to bringing a devolved power into alignment with its related benefit, its connection to other aspects of welfare would inhibit the ability of any government to use such a power to its full potential. Therefore acknowledging the connections between powers and the need for a coherent package is essential to achieving a mature devolution settlement. Regardless of what settlement is ultimately achieved as a result of the Commissions’ work, we need to foster better working relations between the UK Government and Scotland which recognises the differing circumstances and interests of the people of Scotland. Second, we ought to take this opportunity to reflect on how the powers already devolved have been used and consider how they could be used more effectively now and in the future. This Commission is just the beginning of the next chapter of Scottish devolution. The timetable for this current phase is short but the process of creating an enduring, settlement ought to be a marathon not a sprint. We should take the time, over the next year, next five years, ten years, to review and improve how devolution is working for the people of Scotland. Lastly, we must build on the participative culture which emerged during the referendum campaign. We cannot ignore the views and interests of Scotland’s people. It is imperative that any proposals for devolution are put to a people-led review before they are enacted.

Governance & Democracy

Ahead of discussion about particular powers and policy areas, SCVO considers it key that Scottish democracy and the governance of our country - regardless of what new powers may come it Holyrood in time – is underpinned by the following:

• The entrenchment of the powers of the Scottish Parliament is a necessary development for devolution which can provide added confidence in the parliament’s work and its future.
• Devolution is not a singular event; rather it is an evolving process. Consequently, we believe there ought to be a periodic review of the Scottish devolution settlement to make sure that it is optimally designed for the governance of Scotland.
• Power ought to be held at the most appropriate level, be this at UK level, Scottish Government, local government, by communities or by the individual. SCVO would like to see a commitment from the Scottish parties to review how more powers can be decentralised to where they are best suited and examine in particular how power can be transferred to people and communities of both place and interest.
• It is necessary that people are at the centre of the constitutional debate. The enthusiasm and engagement of people in the referendum was extraordinary and it is vital to build upon this. We must ensure, therefore, that the opportunity people had during the referendum debate to discuss the nature of the Scottish constitutional settlement and the kind of Scotland they want to live in, is also offered to them once the Heads of Agreement has been made. Having been able to exercise their voices on the issue of independence it would be a mistake to exclude them from having their say on devolution. We propose a people-led process of review before any legislation is proposed. Nothing should be ruled out beforehand.
• With the extension of the franchise in order to allow 16 and 17 year olds to vote in the referendum, Scotland’s young people demonstrated their maturity, ability and enthusiasm. It is important for the health of our democracy that the power to extend the franchise for all election is rested in the Scottish Parliament. This point is expanded upon later in this document.
• Finally, the importance of transparency of and responsibility for decision making, including spending, at all levels of government is paramount. This must be considered when devolving powers to ensure relevant institutions can be held accountable.

Our ambition ought to include the creation of a thriving democracy with high levels of citizen participation, not just in elections but in governance more generally.

Welfare

Key Points:

• SCVO seeks the full devolution of welfare – excluding pensions. We consider that the interrelated nature of welfare with employability and other public services such as care means that should only be devolved in its entirety.  

The devolution of powers and associated budgets that affect welfare support, either wholly or in part, has been the most widely discussed area for devolution by the third sector. Many third sector organisations provide a range of services which interact with the benefits system and wider welfare policies, as well as working closely with people who claim in and out of work benefits. In 2013, over 70% of third sector organisations had experienced a significant increase in demand for support as a result of benefits changes and cuts. Within the third sector there is support for the full devolution of welfare to the Scottish Parliament from a wide range of organisations who work with people affected by social welfare policy, such as Enable, Chest Heart & Stroke Scotland (CHSS), Scottish Youth Parliament and the Edinburgh Tenants’ Association. It is important to note that many organisations would still prefer pensions to be retained at the UK level. Many third sector organisations would like Scotland to be able to adopt a more coordinated approach to linking welfare to such interdependent areas as health and social care, housing, and childcare. Therefore, organisations for which there is a particular benefit, i.e. housing, that could be devolved in order to align itself with a devolved policy have discussed the possible transfer of power over these. A significant area of discussion has been around harmonising welfare and the powers Scotland has over employability and skills. The devolution of employability powers and related benefits is discussed in detail later in our submission. Yet, if Scotland is to have the coherent, harmonised welfare system to which many in the third sector aspire we need to appreciate the interrelated nature of our benefit system. For example, Carers Allowance interacts with a number of benefits including Personal Independence Payment and Disability Living Allowance. Consequently, devolving a particular benefit in isolation may, instead of bringing clarity create more alignment difficulties than we have at present. This is especially important to consider with the introduction of Universal Credit. Whilst recognising that there may be gains from aligning welfare benefits with devolved powers, there were concerns raised by some members including Inclusion Scotland, regarding the unforeseen consequences of detaching welfare powers from fiscal powers. If powers over elements of taxation such as income tax were to be devolved in order to help cover demand-led benefits then further borrowing powers or  other ways to smooth out uneven income and expenditure profiles need to be considered. Oxfam Scotland and the Scottish Disability Equality Forum (SDEF) both called for wellbeing to be the objective for the welfare system. They pointed out how an integrated health, welfare and housing system that is supported by initiatives like the Humankind Index can help achieve wellbeing.

Employability

Key Points:

• All powers over employability, and their accompanying benefits, ought to be devolved to the Scottish Parliament in order to enable the development of a coherent, integrated, approach to employment.

The third sector in Scotland delivers a range of support and employability services to help people in Scotland find and remain in work. Consequently, there is significant interest in the devolution of powers relating to employment and this has been reflected in the responses received by SCVO. Moreover, given the sector’s plentiful experience in this area, it is well placed understand the complexities and interrelated nature of employment with other issues, such welfare and equality which are currently reserved but also in devolved areas such as housing and health and social care. Both governments have responsibility for skills so the landscape is confused. Specific current employability programmes have been referenced by the sector as possible areas for devolution, most notably the Work Programme, mandatory activity. Work Choice and the Access to Work scheme have also been highlighted a possible schemes to be devolved with third sector organisations such as Scottish Association of Mental Health (SAMH), noting that it would be inappropriate to devolve the Work Programme alone. The reasoning behind the devolution of job support has primarily been around creating integrated employability services and the opportunity for developing and delivering more personalised and locally responsive support. The disconnect between UK and Scottish Government approaches in the area of employment has been recognised for some time. Due to the compromising effect the current split between reserved and devolved employability powers has ‘the full devolution of competence for job search and support to the Scottish Parliament to achieve the integration of service provision in the area of employability was recommended by the Christie Commission back in 2011. It ought to be noted that reference has also been made to the current operation and failings of UK Programmes and how by devolving these powers to the Scottish Parliament this could see the end to, for example, the sanctions regime. Furthermore the devolution of employability services would allow the Scottish Government to develop policies linking employability to areas such as housing, where an individual’s ability to find and sustain employment is key. Importantly, it has often been emphasised that the devolution of powers cannot be merely administrative. In order to create the integrated, coherent, whole government approach we desire to help people into work, Scotland must have the power to both design and deliver employability services. Administrative power over the Work Programme would not support this ambition. Following quite naturally from discussions about the devolution of employability has been the proposed devolution of Jobcentre offices and services and of those benefits currently paid to those seeking work or unable to work, such as Job Seekers Allowance (JSA) and Employment and Support Allowance (ESA). It has been considered inappropriate for Westminster to retain powers over job related benefits if the conditionality of their payment resides with schemes operated by the Scottish Parliament. The rational way forward is, we believe, to fully devolve adult benefits, Job Centres, the Work Programme and all associated programmes.

Fiscal Accountability & Taxation

Key Points:

• Government at all levels must be fiscally accountable. Any potential devolution of taxation must be across the portfolio of taxes and not place a disproportionate burden on one tax and taxpayer base to generate income.

The principle that any level of government ought to raise the money it spends, ensuring its fiscal accountability, is broadly supported by the third sector. Consequently, in many discussions about the devolution of further powers reference has been made to the ability for Holyrood to raise the related funds. However, to date the third sector has not explored what any financial settlement may look at, hence, many in the sector have expressed their feeling that they lack the expertise to assess the full impact that, for example, whole or partial devolution of income tax – which has been proposed by some of the parties - may have on the ability to finance policy in their area of interest. Nevertheless, some have noted that the devolution of income tax alone would place a disproportionate burden on a certain tax base. If the Scottish Government could only raise funds through income tax, it would in fact inhibit the ability of the government to generate income because a percentage of tax payers would be disadvantaged. It is considered that the devolution of a nominated percentage across a basket of different taxes would ensure an appropriate balance. This would allow any future government to pursue the more progressive, redistributive tax system to which the sector aspires, should the political will exist.

Charity Tax & Regulation

Key Points:

• SCVO supports the devolution of VAT relief schemes for charities.
• SCVO favours consistency with Scottish charity regulation and considers Scotland requires the relevant powers devolved in order to achieve this.

Charity Tax

The issue of charity tax is one where the third sector is able to speak with confidence. We consider that supporting charitable activity through the tax system is an important principle for any modern democratic society. Significantly, any tax reliefs for charity must go hand in hand with the powers over the taxes they are connected to. Charity tax relief is currently reserved to the UK level and deployed by the UK HMRC department. Some charity utility reliefs such as water rates, non-domestic rates and property transaction fees are already devolved. If income tax were to be devolved, as it proposed by some political parties, then powers over income tax reliefs for charitable donations which follow personal taxation must also be devolved to ensure consistency. This includes Gift Aid, Social Investment and Inheritance Tax reliefs. These reliefs would need to be devolved in full, giving Scotland the power to redesign the schemes and not just deliver the existing UK systems. In discussion with the UK Charity Tax Group, of which SCVO is a management committee member, there was recognition that Scotland should have the power to design a different, perhaps better scheme of charitable tax reliefs if it wishes. This could perhaps then inspire improvement and therefore better use of the schemes in other parts of the UK. The only parameter would be that as part of the European Union, any devolved personal tax relief scheme would also need to recognise and provide relief for donations from Scottish tax payers to charities in other EU member states as well as to the rest of the UK. VAT, including partial and zero-rates on certain products is subject to EU rules and therefore there is limited opportunity to devolve reliefs from the UK. However, many activities undertaken by charities are regarded as non-business and therefore, unlike most private businesses, the associated VAT costs must be absorbed by the charity. At present VAT rebate schemes are the only mechanism to offer relief and a number of charity relief schemes supporting academy schools, national museums and galleries and to a lesser extent air ambulances and mountain rescue are in operation at UK level. We believe that the devolution VAT relief schemes offers a real opportunity to better reflect Scotland's unique geography, demography, public service mix and national ambitions. Importantly, this approach would be consistent under EU rules so long as the Scottish schemes reflected State Aid rules.

Charity Regulation

If any organisation wants to be a charity in Scotland or to undertake substantial charitable activities in Scotland, they need to follow register with the Office of the Scottish Charity Regulator (OSCR) and Scottish charity law and regulation. This has been devolved since 1999, was codified in 2005 and in its implementation has followed a different trajectory to the rules governing charity law and regulation in England and Wales. This means it is possible, albeit unusual, for a charity in England and Wales to fail the charity test in Scotland, and therefore be prevented from carrying out charitable operations in Scotland. Many third sector organisations were involved directly in informing the scope and nature of the Scottish charity laws and regulations. It is evident that we need to give primacy to Scottish legislation when it comes to ensuring public trust in the charity brand in Scotland. One complication is that the HMRC maintains its own rules on who it recognises for charitable purposes independently of any of the charity regulators including OSCR. However, the HMRC has, in practice aligned its approach with the laws and regulations that are maintained by the England and Wales Charity Commission. The clear implication is that if substantial income taxes are devolved to Scotland, then the third sector in Scotland would want to see the rules around charity recognition for tax purposes to be fully devolved to Holyrood. This would this maintain the alignment between tax and charity, but would also further support alignment with charity status under Scottish law. Regulation of fundraising is one area where there is debate within our sector. Some aspects of fundraising are devolved, for example, the regulations around street collections. However, fundraising standards are currently self-regulated through the UK Fundraising Standards Board. If fundraising standards were to be taken back for direct regulation by UK Government, then this would raise questions around the devolved competencies. Potentially, the HMRC would take an interest with respect to tax avoidance and its rules around 'fit and proper' persons running charity finances. In addition, the charity regulators, including in Scotland, would take an interest with respect to charity brand protection. Therefore, we favour consistency with Scottish charity regulation and consider we need the relevant powers devolved in order to achieve this. However, it must be recognised that some charities have an interest in maintaining UK-wide consistency for fundraising rules, in some cases to support cross-border fundraising.

Equality

Key Points:

• SCVO calls for the full devolution of equality law to better align equality with devolved policy areas such as housing, health, education, employment & justice, to account for the different demographics in Scotland and to build on the strong relationships which exist between equality organisations and the Scottish Parliament.

A number of submissions identified the need to create greater coherence between the devolved policy areas that are connected to equality law such as housing, health, education, employment and justice. The Equality Network has suggested that Scotland’s demographics are different from England and Wales and therefore we have distinct characteristics that require different responses.  For example, Scotland includes rural local authority areas with small populations that have relatively small numbers of some groups sharing protected characteristics. It has also been noted by Engender and the Equality Network that Scotland has a strong equalities sector and therefore the ability to positively influence equality law would be improved by its devolution to the Scottish Parliament. Although the Equality and Human Rights Commission acts as the regulator for equalities in Scotland, and is responsible for all human rights issues related to reserved matters, it is not accountable to the Scottish Government or Parliament. A power should be established to create a Scotland-specific equalities regulator, akin to the Equality Commission in Northern Ireland. Currently the Scottish Government and Parliament have the power to set out in secondary legislation the “specific equality duties” required of Scottish devolved public bodies. This is a very useful power, but it is limited because it is detail applied to the framework of the “general equality duty” on public bodies, set out in the Equality Act. Scotland has no power to amend the overall general equality duty that applies to the devolved public sector bodies in Scotland. Careful consideration needs to be given to the unintended consequences of devolving equality law, particularly in relation to employment law.  Stonewall Scotland have stated in their submission that there is a risk of creating a two tier system if one is devolved without the other since this would only allow the Scottish Parliament to legislate on equality law only insofar as it did not relate to employment. On a practical level and as noted in our interim submission, the devolution of equalities would bring EHRC and SHRC into alignment and prevent the current confusion and disparity that arises from having two such organisations operating in parallel in Scotland reporting to different parliaments.

Human Rights

It has been noted that that there is now significant policy divergence between the Scottish and the UK Parliament’s on human rights as seen in the UK government proposals to replace the Human Rights Act 1998 with a UK Bill of Rights. In contrast the Scottish Parliament has consistently expressed its support for the Human Rights Act, the European Convention on Human Rights and Scotland’s National Action Plan for Human Rights (SNAP), a partnership that has cross-party support and extensive commitment and backing from across Scottish civil society. Were it to be devolved power over human rights legislation would allow Scotland to show greater cognisance of the level of support for human rights based approaches in Scotland.

Consumer Protection

• SCVO calls for the devolution of consumer protection to Holyrood.

The devolution of powers over Consumer Protection as set out under section C7 of Schedule 5 of the Scotland Act 1998 has been raised by some within the sector. Discussions here have revolved around alignment and the power to promote citizens’ rights meaningfully. The devolution of the regulation of the sale and supply of goods and services to consumers, and guarantees in relation to such goods and services, would give Scotland the opportunity to simplify the current consumer protection framework, possibly by integrating some of the existing consumer institutions in Scotland. It would also give greater assurance to the right of redress.

Employment Law

Key points:

• SCVO calls for all aspects of employment law that directly affect devolved powers such as social care and childcare to be devolved.
• If Equality Law is devolved the appropriate employment laws would also have to be devolved in order to ensure there is no disparity.

Reference has been made to the devolution of employment law in its entirety, although in some instances the use of the term employment law has not been defined. Therefore, this has been inferred as encompassing all of those employment related acts currently reserved under section H1 of Schedule Five of the Scotland Act 1998. Specific references have been made to the devolution of the minimum wage, as highlighted by Nourish Scotland which suggested bringing this power into alignment with the Scottish Parliament’s authority over agricultural wages.  The main argument behind the devolution of the power to set the minimum wage has been the potential for any Scottish Government to use the minimum wage as a means of tackling poverty (the Edinburgh Tenants Association made particular reference to using the Minimum Wage to tackle fuel poverty) and creating a more socially just society. If employment law were to be devolved it could be considered inconsistent to reserve the National Minimum Wage Act. Another area discussed under the scope of employment law has been the devolution of powers concerning maternity/paternity pay and parental/carer leave. Children in Scotland framed its argument for the devolution of these powers as part of creating an integrated and coherent approach to childcare, which while a devolved issue, interacts with reserved areas such as employment rights. Engender also raised the point that the power to determine the fees for accessing the Employment Tribunal Service in Scotland is reserved to Westminster and cited that introduction of fees to access the employment tribunal service in Scotland has resulted in a 75 per cent drop in sex discrimination cases. In order to ensure access to justice and to protect the rights of employees we would like to see the devolution of employment tribunals, including any powers to set any fees to be applied. As noted in the Equality Network response, some examples of changes to equality law that the Scottish Parliament might choose to make, if equality law were devolved, include: gender quotas for boards and political gender quotas, and other positive action measures, for example to address severe under-representation of minority ethnic people; recasting equal pay law, including for example allowing hypothetical comparators in equal pay cases and setting pay audit requirements; provision to deal with dual discrimination (for example, on grounds of race and gender together), with an appropriate comparator.

Asylum

Key Points:

• Asylum and the right to remain should remain reserved but the operation of asylum support should be devolved to the Scottish Parliament

The overall sense is that the determination of asylum and the right to remain is likely to remain reserved; however, the operation of asylum support should be devolved. Under this system, as stated by the Scottish Refugee Council, the UK government would in effect ‘contract’ the Scottish Government to deliver accommodation, advocacy & advice and welfare to those asylum seekers located in Scotland. The latter is predicated upon the devolution of welfare to Scotland. The Scottish Refugee Council has also argued for the devolution of all reserved tribunals operating in Scotland including the Immigration and Asylum Tribunal. Its paper ‘Improving the Lives of Refugees in Scotland after the Referendum’ discussed the devolution of powers relating to the ability to execute ‘return and removal’ measures for people refused asylum and other aspects of immigration control such as the granting of temporary or permanent residence permits. British Red Cross pointed out the importance of an integrated welfare and support system for those fleeing persecution. They highlighted the experiences of refugees who face delays when moving from asylum seekers support to the mainstream benefits system. In the event of the devolution of welfare to the Scottish Parliament they call for this issue to be an immediate priority.

International development

Key Points:

• There needs to be a formalisation of the Scottish Government’s ability to operate an international aid programme

The devolution of international development assistance and co-operation powers has been discussed by international aid organisations in Scotland not least because of particular international relationships that have been established since devolution, for example, with Malawi. A number of international development groups have long campaigned for 0.7% of gross national income to be spent on international development.  This has now been achieved.  Whether power for international development rests at Scottish or UK level we hope this continues in the same vein. The Scottish Government has the flexibility to introduce International Development and Climate Justice Funds.  This has had very positive benefits and is additional to UK Government international development spending.   As noted in Oxfam's response, consideration should be given to formalising the Scottish Government’s ability to operate an international development programme. The use of any further powers devolved must take account of the potential impacts beyond Scotland, including climate change, to ensure a coherent approach to international development.  For example, if tax powers are devolved every effort must be made to ensure tax avoidance and evasion does not disadvantage developing countries. NIDOS asked in their pre-referendum paper ‘Scotland’s Place in Building a Just World’ that the Scottish Government considers the impact on international development in all of its policies, regardless of the outcome of the referendum. Again the ability to create joined-up approaches is important, but we would also commend the idea that DFID could and should do more to engage with the people of Scotland on policies and priorities for their work.

Legislative Competence

Key Points:

• SCVO calls for the powers over Scottish elections to be devolved to allow the franchise to be extended to 16 and 17 years olds
• The sovereignty of the Scottish Parliament should be enshrined by removing the requirement for final assent on devolved laws by UK Parliament.

There is strong support from the third sector for the power over elections to be devolved to the Scottish Parliament. This would allow the franchise to be extended to 16 and 17 year olds - something which has been supported for a long time by the Scottish Youth Parliament, Young Scot, the ‘Votes at 16’ coalition members, and SCVO. Moreover, gaining control over the management of Scottish elections would also allow a more supportive approach to the campaigning activity undertaken by third sector organisations in the run up to elections than that currently enforced by the Electoral Commission through the Lobbying Act. More generally, there is also support for entrenching the existence of the Scottish Parliament and the powers which are agreed. However, in the absence of a written constitution there a many questions over how this might be achieved. In their response Environment LINK has suggested that Scottish Ministers participating as part of UK delegations to the European Union and other international bodies and conventions should be properly defined in legislation, in order to ensure that Scottish interests are properly represented.

Energy

Key Points:

• The full devolution of energy to the Scottish Parliament would help align energy policy with devolved areas such as housing, energy efficiency and planning and address the current conflicting mix of devolved and reserved powers relating to energy

The devolution of powers over energy has been referred to in a number of different contexts such as tackling fuel poverty, the ability to meet climate change targets, and promotion of community energy/benefit. In relation to fuel poverty, respondents have commented on the opportunities to better align energy polices which are to a large extent reserved with measures which are currently in full or partly devolved. For example, winter fuel payment, cold weather payment and aspects of consumer protection law are currently reserved but energy efficiency initiatives are devolved. This leads to a lack of coherence or misalignment in the strategies adopted. There is a recognition of the economies of scale which apply with respect to energy generation and supply including renewables, however there may also be scope for greater devolution of the retail side of the energy market in order to better dovetail with Scottish Government programmes such as the energy assistance package, energy efficiency initiatives or planning policy. Environment LINK raised in their submission the possibility of devolving reserved areas such as energy licensing, generation and transmission and grid connectivity to create better policy alignment with planning which is currently devolved. Changeworks have advocated for devolution of energy policy to tackle climate change and fuel poverty and provide the renewable industry with greater confidence. They have identified the following weaknesses with the current approach:

• the Energy Company Obligation the methodology for calculating the carbon and cost savings are based on average English housing stock and climatic conditions
• there is no appropriate feed-in-tariff  for hydro which is a real opportunity in Scotland but of limited viability in England and so is not supported.
• the simplification in tariff structure greatly limiting the options for householders with electric heating especially heat pumps.

Concerns have also been raised, especially by Friends of the Earth Scotland, about fracking and the UK Government’s position on removal of rights to object to fracking underneath homes. Planning consents for fracking ought to be entirely devolved.

Transport

Key Points:

• Devolving the remainder of transport to the Scottish Parliament would allow for the creation of more coherent policy making over transport issues

Although transport is ostensibly already a devolved matter certain powers such as control of the rail network remain reserved. The charity Living Streets (which campaigns for better consideration of the needs of pedestrians) has highlighted that the current settlement can cause confusion and inhibit the ability of the Scottish Government to create coherent transport policies. For example, despite Scotland’s independent justice system and the devolution of transport, road traffic offences remain a reserved issue. This has caused some uncertainty over which body is responsible for legislating on matters such as pavement parking. The devolution of all powers related to transport could resolve issues such as this. Another particular concern expressed by organisations which represent and work with disabled people, such as Inclusion Scotland, relates to the reserved nature of public transport vehicles. The power to define access standards for buses, trains, taxis etc. remains reserved to Westminster, thereby limiting the ability of the Scottish Parliament to introduce initiatives to increase the accessibility of public transportation for disabled people. Given that transport is a devolved matter the retention of powers such as the above appears incongruous. Moreover, the full devolution all of transport powers would allow for the creation of more coherent policy making over transport issues. This, it has been argued by organisations such as Stop Climate Chaos Scotland (SCCS), could contribute to the development policies that would help Scotland achieve its climate change targets.

Justice

Key Points:

• Giving Scotland powers over the control of illegal drugs would allow Scotland to adopt a different approach to our particular substance abuse problems

There are concerns in the sector that the reservation of powers regarding illegal drugs prevent Scotland from creating a coherent response to its particular problems with the misuse of drugs. Addaction Scotland have called for legislation for illegal drugs to be wholly under the control of the Scottish Government as this could allow Scotland to move from the current criminal justice focus to adopt a health, social care and community approach.

The Crown Estate

Key Points:

• SCVO calls for the devolution of the Crown Estate to the Scottish Parliament to make it accountable to a democratic institution

The prospect of devolution of the Crown Estate has long been on the agenda in Scotland. Indeed, the devolution of the Crown Estate was recommended by the House of Commons Scottish Affairs Committee in its 2012 report on ‘The Crown Estate in Scotland’. The Committee stated that the devolution of the Crown Estate to Holyrood:

‘should be conditional upon an agreement between the Secretary of State for Scotland and the Scottish Government on how such a scheme of subsidiarity to local authority and local community levels should be implemented.’

The devolution of the Crown Estate to the Scottish Parliament was advocated by SCVO in its 2011 response the Scottish Affairs Committee inquiry. Community Land Scotland in its submission highlighted the need to align the strategy of the Scottish Parliament with that of the Crown Estate activity and improve the accountability of its management. Environment LINK also supports the devolution of the Crown Estate to enable greater protection of Scotland’s marine environment and to ensure sustainable development. The devolution of the Crown Estate is very much seen by the third sector as an interim measure until further devolution can take place to communities.  Given the recommendation of the Committee but the lack of progress on this since 2012 the issue is still very much current.

Additional points for consideration

The following points have been made throughout discussions with the sector and we hope there is scope for their consideration in Lord Smith’s response.

• Powers need to be devolved further to communities. Decisions about people’s lives ought to be made by them or as near to them as possible. This has always been a strong message from our sector and it is in no way diminished by the prospect of more powers to Holyrood.
• Regardless of any further devolution there is a clear need for better working relations between the UK Government, the Scottish Government, and local government. For example, the Scottish Refugee Council has raised the point that the UK Government should formally recognise Scottish authorities such the Scottish Legal Aid Board who exercise competence in areas which are integral to the delivery of an effective asylum decision making process. Similarly, the differing needs of urban and rural Scotland need to be better understood by the various administrations.
• The importance of transparency and accountability, at all levels of government, has consistently been raised by the sector.
• It has been raised several times that an alternative approach would be for the Smith Commission to go back to the original devolution principle and to re-examine Schedule 5 of the Scotland Act to determine those powers that Westminster should retain, with all others being resolved to Holyrood. The Scottish Parliament is a mature institution and has generally improved the stewardship of funds and the accountability of public services within its responsibilities. Further powers, as set out above, which improve the coherence and effectiveness of its functions would be a positive step forward for Scotland.

SCVO engagement activity

Despite the tight timescale SCVO has facilitated a number of discussions with third sector which have contributed to this response. A full list of attendees can be found in Annex B They include:

• SCVO Policy Committee with observers from the Scottish Government and the Scotland Office, 25 people - 24 September 2014
• Dinner with 100 third sector Chief Executives, directors and senior staff - 24 September 2014
• Joint event hosted with Scottish Government Third sector Division, 12 people - 1 October 2014
• SCVO Roundtable on Smith, 17 people - 1 October 2014
• Policy Officers Network, 16 people - 21 October 2014
• Third sector employability forum, 80 people - 8 October 2014
• Lord Smith discussion event, 40 people -26 October 2014

SCVO representatives also attended third sector Smith Commission focussed events in Stirling and Inverness.

Submissions Received

 

Constitution Roundtable - 1 October 2014

Fiona Collie, Carers Scotland Sara Cowan, Oxfam Lily Greenan, Scottish Womens Aid Gillian Wilson, NIDOS Bill Scott, Inclusion Scotland Angus Hardie, Scottish Community Alliance Patrick Grady, SCIAF Gary Christie, Scottish Refugee Council Rev. Dr. Graham Blount, Church and Society Council Elliot Stark, Strive Craig Sanderson, Link Group Jacqueline Lamb, Children in Scotland Marion Davis, One Parent Families Scotland Alex Cole-Hamilton, Aberlour Siobhan Reardon, Amnesty International

Lord Smith discussion event - 24 October 2014

Policy Officers Network - 21 October 2014

Alexa Morrison, RSPB Beth Reid, Crisis David McColgan, British Heart Foundation Derek Young, Age Scotland Duncan Thorp, Social Enterprise Scotland Emma Dore, Shelter Gareth Brown, Scottish Youth Parliament Heather Noller, Carers Janine Mckenna, Scottish Churches Parliamentary Office Martin Docherty, Volunteer Scotland Mike Andrews, ASH Scotland Pauline Nolan, Inclusion Philippa Faulkner, HIV Scotland Rob Gowans, CAS Rosalind Greig, Inclusion Scotland

Dinner with Chief Executives – 24 September 2014