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Devolution and subsidiarity: relationships between central and next-lower levels of national govern

A Note by the Director (Ditchley 2000/03)
 
25-27 February 2000
We met over the weekend of 25-27 February to discuss the difficult question of the relationship between central government and the next lower levels of national government.  Inevitably our discussion ranged more widely and at times raised more questions than it provided answers.
Our first hurdle was definitional.  We discovered wide differences in the meaning of such key terms as devolution, subsidiarity and federalism.  In the US, devolution excluded any idea of passing sovereignty from the federal to a lower level in the Union, that question had been settled on the battlefield over a century ago.  Federalism, which in continental Europe means the securing of rights for sub-national units (but which is interpreted in the contrary sense in the UK) could mean the opposite in the USA or indeed, even more confusingly, be used to describe both centralising as well as de-centralising tendencies.  We did agree, however, that devolution was a top-down process, while Federalism, if it was to last, was a process built from the bottom-up.  Where the British had imposed Federalism on granting independence to some of their colonies, it had not, for the most part, proved durable.  There was also a majority view that Federalism required a written constitution, with a constitutional court separate from the Executive, to adjudicate disputes.  And, finally, it appeared that it was difficult to run a successful federal state if one of the partners was substantially bigger than the others.  After the second world war the British had abolished the state of Prussia for this reason.
The reasons for embarking on a process of devolution were considered.  It was argued that there should be a predisposition in favour of devolution since it helped to anchor democracy, it had a value in educating citizens about the nature of politics in a way which was relevant to their personal situation, and helped to counter tendencies towards concentration of political power in a few hands (“it prevented the capture of the state for autocracy”).  It might also be a reaction to the impersonal forces of globalisation, or a device for defusing tensions which were nationalist in origin.  It was, however, pointed out that devolution was a process which it was difficult to control.  (One participant described Scottish devolution as a motorway without exits and with an unknown destination.)  It was not always possible to guarantee non-secessionist devolution.  That presupposed a set of loyalties and a strong feeling of community.
One of the other themes to run through the conference was the complexity of the institutional and governmental framework in modern states.  Alongside the political hierarchy we identified a number of other factors, in particular revenue raising powers, which did not always fit easily with devolved levels of political responsibility.  Citizens in developed societies expected the delivery of a range of sophisticated services from health to social security.  They tended not to bother so much with the bureaucratic organisation as with the quality of the services they needed.  While devolution might be desirable in that it brought closer, and sometimes in a more co-ordinated way, services which were important to citizens, there were also considerations of accountability, efficiency, resource allocation and effectiveness to be taken into account.  Smaller communities frequently did not have the necessary resources.  The power to tax was considered to be a key factor in any assessment of the quality of devolution, with a consensus emerging at the end of our discussions that, without the power to raise at least some of its own revenues, a devolved body was unlikely to be taken seriously.
We examined devolution in three different settings:  in the EU;  in developed countries outside the EU;  and in developing countries, to see where similarities and significant differences could be identified.  Given the composition of the group, discussion frequently returned to devolution in the UK, with particular reference to Scotland.
In the EU discussion, one participant drew up a comprehensive list of issues to be dealt with at at least four levels, from the EU itself, through national governments, regional bodies and finally at local level.  This was commended for its ingenuity, but even its proponent acknowledged that it belonged to a more rational world than the one which actually existed in Europe.  The necessity of “muddling through” would probably be with us for some time yet.  The problem of institutional unclarity for the citizens of Europe had, interestingly, provoked a strong debate in Germany about the necessity of a European constitution outlining the division of powers between the various European bodies.  One participant observed that while the European treaties had gone some way towards defining the relationship between the EU and Member State Governments, they had been silent on the relationship between national Governments and the next administrative levels down.  It was also felt that, without a greater degree of accountability, there would be resistance to any further transfer of competences to the European Commission or Parliament.
We discussed whether it was true that minorities, seeking greater autonomy, found life easier within a larger framework like the EU.  The general conclusion was that, while there were a range of advantages for minorities within the EU, the assumption that an ethnic or other minority had a simple escape through membership of the EU from what it might consider an oppressive majority, was wide of the mark.  It would probably be necessary for both the majority community in a nation state, and the minority, to agree on separation and also on the desirability of membership of the EU, for the application to have a good chance of success.
Looking at the way in which devolution operated outside the countries of the EU, we noted that, while it was often a response to political discontent in the EU, in the USA with its multi-ethnic population, devolution had not resulted in fissiparious nationalism.  We speculated that one of the reasons for this was because in the USA ethnic minorities had access at a local level to a substantially devolved political system, where many decisions of direct importance to the new immigrants were decided in their local communities, thus enabling them to feel that the political system was indeed responding to their needs.
Although we were inclined to agree that the factors affecting a decision on whether to devolve certain powers in a developing country were not much different from those in a developed country, the circumstances and risks were substantially different.  To embark on devolution at a time when the institutions of the new country and the feeling of belonging together – membership of an “imagined community” – might not have struck deep roots, was inherently more risky.  The costs of a federal or a devolved structure, together with a possible scarcity of bureaucratic or political talent, needed also to be taken into consideration.  Against that it was argued that, for example, Nigeria had, in the past, failed because it had refused to implement devolution.  The dangers of not responding to pressures in the system could be just as great as those in responding at too early a stage.  This brought us to the view that while it might be possible to identify a range of factors which would be common to a decision to devolve powers, each case would have to be decided on its own merits since the circumstances would differ from case to case.  Indonesia was a country where just such a critical process was currently in train.
In a final return to a theme which had run throughout the conference we considered the situation in the UK.  Outside observers commented that they had been surprised at the strength of feeling expressed in discussion whenever the subject had been raised.  To which a British participant commented that it was not surprising.  The UK was embarking on an open ended experiment.  At present devolution was proceeding on an asymmetrical basis with different powers devolved to differing units within the country.  This could in the long term prove unstable.  It appeared that devolution was being driven by the need to head off nationalism.  Others argued that overall the UK would benefit.  The process could throw up useful lessons on how to provide to local communities co-ordinated services and policies more effectively than was now the case.  These lessons could be replicated elsewhere in the country.  A final comment was that if devolution was to succeed it would probably require a change of political culture.  The British would have to unlearn the habits of adversarial politics.
At the end of our discussions, the conference was challenged by a participant who claimed that the EU remained unappreciated by many of its citizens because it had been unable to express its essential purpose as succinctly as Lord Ismay’s famous aphorism on NATO.  The Director offers the following in reply:  The EU’s purpose is to keep democracy in, nationalism out and barriers down.
This report reflects the Director’s personal impressions of the conference.  No participant is in any way committed to its content or expression.
PARTICIPANTS
Chairman   :  Lord Butler of Brockwell GCB CVO
Master, University College, Oxford
CANADA
Mr James C Baillie

Counsel, Torys, Toronto
Ms Devon E A Curtis
Department of International Relations, London School of Economics and Political Science
M André Juneau
Deputy Secretary, Intergovernmental Operations, Privy Council Office, Ottawa
Mr Ralph J Lysyshyn
President, Committee for a Forum of Federations
The Hon Roy MacLaren PC
Canadian High Commissioner to the Court of St James’s
FRANCE
M Christian de Boisdeffre
Sous-Préfet, Paris region
GERMANY
Ms Jutta Hergenhan

Staff Researcher, Notre Europe
Herr Marc-Oliver Pahl
Researcher, Walter Hallstein Institute for European Constitutional Law, Humboldt-University, Berlin
INDIA/UK
Dr Gautam Sen

Lecturer in the Politics of the World Economy, London School of Economics and Political Science
INDONESIA
HE Mr Nana S Sutresna

Ambassador of the Republic of Indonesia to the Court of St James’s
NIGERIA
Dr Cyril I Obi

Visiting African Studies Scholar, St Antony’s College, Oxford
UNITED KINGDOM
Professor Vernon Bogdanor CBE FBA

Professor of Government, Oxford University
Mr David Brighty CMG CVO
Lately Ambassador to Spain
Mr Robert Cooper CMG MVO
Head, Defence and Overseas Secretariat, Cabinet Office
Mr Tam Dalyell MP
Member of Parliament (Labour), Linlithgow
Mr Robert Gordon
Head, Executive Secretariat, Scottish Executive
Mr Edward Gretton
Principal Consultant, Civil Service College
Mr Will Haire
Head, Economic Policy Unit, Office of First Minister and Deputy First Minister, Northern Ireland Executive
Professor Robert Hazell
Constitution Unit, School of Public Policy, University College London
Professor Peter Hennessy
Professor of Contemporary History, Queen Mary and Westfield College, University of London
Professor Charlie Jeffery
Institute for German Studies, University of Birmingham
Sir Richard Mottram KCB
Permanent Secretary, Department of the Environment, Transport and the Regions
Mr Martin O’Neill MP
Member of Parliament (Labour), Ochil
Mr John Osmond
Director, Institute of Welsh Affairs
Mr Joseph G Pilling CB
Permanent Under-Secretary of State, Northern Ireland Office
Sir Michael Quinlan GCB
Lately Director, The Ditchley Foundation
The Lord Sewel of Gilcomstoun
Life Peer (Labour), Vice-Principal, University of Aberdeen
Dr Mark Taylor
Head of Devolution, Constitution Secretariat, Cabinet Office
Sir Quentin Thomas CB
Former Head, Constitution Secretariat, Cabinet Office
Mr Robin Wilson
Director, Democratic Dialogue, Northern Ireland
The Rt Hon Sir George Young Bt MP
Member of Parliament (Conservative), North West Hampshire
UNITED STATES OF AMERICA
Mr Neil Elliot Bomberg
Associate Legislative Director, National Association of Counties
Professor A E Dick Howard
White Burkett Miller Professor of Law and Public Affairs, University of Virginia School of Law
The Honorable Elliott H Levitas
Kilpatrick & Stockton, Atlanta
Mr David R Riemer
Director of Administration, City of Milwaukee
Justice Frank Sullivan Jr
Justice, Supreme Court of Indiana