Addressing power gaps in devolution must be the priority – not slogans

Because as you and I know fine well, nicking people’s labradoodles is already a crime. But as criminal law falls squarely within Holyrood’s legislative competence, this kind of neat and tidy proposal can look not only harmless but positively attractive to politicians looking for ways to pander to interest groups while spending as little money as possible – which explains why this kind of performative legislation isn’t unique to Scotland.

The UK Government has recently smiled on similar pet abduction proposals south of the Border. Given the cash-strapped state of the UK public sector caught in the grip of stagflation in a now receding economy, recriminalising conduct which is already a crime has the wonderful advantage of ­being cheap, symbolic, gets you briefly on the right side of public opinion and is ­therefore infinitely more politically satisfying.

The pro-pet abduction lobby in the UK is not a force to be reckoned with after all. Who wants to advocate for Cruella de Vil? And as every politician worth their salt knows, getting your picture taken with fluffy animals has the real potential to ­humanise even the most stilted media ­performer – so long as you escape your ­photo opportunity safely unbitten.

But increasingly, the limits of ­devolution seem to be channelling proposals like this through parliament – not ­necessarily ­because they reflect real priorities and ­economic injustices, but because they happen to fall within legislative competence.

Take another recent example, by way of illustration. Last week, the British ­Retail Consortium reported that the number of ­incidents of abuse, harassment – racial and sexual – as well as threats and menaces with weapons and physical assaults of staff increased by 50% last year. This is grim.

But thefts, they say, have also more than doubled, increasing from eight to 16.7 million incidents a year. This finding looks like much more of a commentary on the cruel pinch the cost of living crisis is having rather than reflecting a rise in the British public’s instincts for grand larceny.

Elements of the press dutifully trotted out Scotland as a flattering parallel to the indifference of the Westminster government, pointing out that Holyrood passed special legislation criminalising threatening, abusing or assaulting retail workers in the course of their shifts in 2021. And this is true enough – MSPs did find time to create this crime during Covid, with cross-party acclaim.

Media scribes dutifully reported that ­“retail crimes now carry tougher ­sentences”, neatly ignoring the fact this isn’t true and that Holyrood’s bespoke legislation actually introduced lower ­maximum penalties for assault and threats against retail workers than the ­existing framework of common law crimes.

But by passing this kind of law, every retail worker in Scotland received a small symbol of politicians’ interest in their plight – even if the main sources of ­social difficulty and anxiety experienced by these workers are precarity, poor pay, pervasive casualisation, and ­non-existent terms and conditions. But thanks to the limits of devolution, MSPs can’t do ­anything about any of that, so a new crime is the only gift they can give. If Holyrood had the whole gamut of legal powers, it is unthinkable that this would be the priority reform.

In his conference speech in Glasgow last week, Scottish Labour leader Anas Sarwar riffed on a not-dissimilar theme. “As we mark the 25th anniversary of ­devolution,” he said. “It is also time to ­reflect on what our Scottish Parliament has achieved and where it has fallen short.”

Anas has ideas. “Holyrood has ­overseen sweeping social change, from the smoking ban to same-sex marriage to free personal care,” but, he contends, “we have been very much a social-policy ­parliament, ­rather than an economic-policy ­parliament. That has let down ­Scottish ­employers and Scottish ­workers.”

But who, precisely, is responsible for this? Sarwar used the passive voice in his speech – as if any disappointment ­happened by unhappy accident. It’s a now-familiar Scottish Labour move – first to block attempts to give the Scottish Parliament more economic powers and then blame Holyrood for not exercising them.

But readers with longer memories will recall that it was the Labour Party who established Scottish devolution along these lines in 1998, jealously ­guarding the Treasury’s control over the taxing side of Scotland’s public finances, ­creating a ­parliament in Edinburgh which spent money but largely lived within the ­envelope of funds passed back to ­Scotland by Gordon Brown, constrained in its ­borrowing for investment, empowered to adopt very constrained differences on ­income tax in theory, but basically yoked to UK fiscal framework.

After 2010, with austerity in vogue at UK level, devolution became in great part a mechanism for the local ­administration of UK economic policy, with scope for Scottish politicians to decide how to cut the limited cloth they were being given by central government but affording them limited scope for divergence. Significant changes came in 2016 but talk to ­anyone involved in the Smith Commission – which gave rise to them – and they’ll tell you that the Labour representatives were ­often hardest to persuade that Holyrood should be invested with any but the most tokenistic new responsibilities.

They were against the wholesale ­devolution of income tax, against ­inheritance tax and national insurance contribution being devolved, rejected devolved capital gains tax and devolved control over air passenger duties. Corporation tax and VAT were out too, as were excise duties, wealth taxes, business rates – and of course, they insisted the whole corpus of employment law and workers’ rights should remain outside Holyrood’s control. Tory mismanagement of labour relations was preferable to any divergence across the UK.

The idea of divergence on social ­security also prompted paranoia that ­devolving powers would unravel ­“Britain’s social safety net” – a description of the ­benefits system which is now in many cases a ­cruel joke – while ideas for potential ­divergence on immigration rules ­continue to cause conniptions for a party, frit of being ­monstered by the ­British tabloids for ­being objectively pro-foreigner and opening a back door in Scotland for the ­outlanders to get in – even if economic good sense suggests these kinds of measures would boost the Scottish economy.

These are all questions of economic policy – just like the decisions after 2016 to diverge on income tax rates and to invest money in the new Scottish child payment to begin to address the scandal of children growing up in a rich country with empty stomachs and cold homes.

But I’ll give Sarwar this. One thing which has often troubled me about the limits of devolution is that MSPs can have comparatively little incentive to know about, understand, or have specific policy thoughts about issues falling outside legislative competence. And although the Scotland Act sets out sweeping powers for Holyrood in many areas, through the history of devolution, there have been significant gaps in the policy areas Scottish politicians have had to seriously contend with. Instead of challenging them to develop their own governmentality and ideas on what to prioritise – slogans did the job.

“Tory austerity bad” will get you through a press interview on universal credit cuts. It might even make for an impassioned House of Commons speech. But in the absence of any actual responsibility over what to prioritise in terms of welfare spending – there’s a significant risk that slogans are all there is, and you become essentially reactive, battling everyone else’s policy changes rather than having any concrete ideas of your own.

Such is the lot of a powerless opposition or a powerless parliament – but it isn’t good for our politics, which, in the end, ought to be about ideas for how the country is governed rather than a race to coin the niftiest slogan or ooze empathy or efficiency most effectively when Laura Kuenssberg hauls you in front of the telly.