Coronavirus and the Constitution

Is devolution problematic to crisis management? In this guest blog, Jim Gallagher provides an overview of the UK and devolved governments’ approach to COVID-19 and discusses how the pandemic is likely to impact upon devolution in the UK.

With the UK’s united approach to managing the coronavirus crisis apparently fraying at the edges, questions are being asked about whether devolution is problematic for crisis management, and even whether the Scottish government is “playing politics” in the midst of a pandemic. Some commentators appear surprised the UK government cannot simply instruct the devolved administrations; others claim the Scottish government is doing better than the UK government and has “attracted commendation from … both at home and abroad”.

Such claims mainly display the preconceptions of those making them. The constitutional allocation of powers cannot just be overridden. Scotland is, however, doing no better than the rest of the UK in controlling the virus. Excess deaths are typical of UK levels; the “reproduction number” is possibly slightly higher than the UK average, and the gap between virus testing in Scotland and England is apparently increasing. It is nevertheless worthwhile reflecting on how coronavirus and the territorial constitution affect one another.

Devolution and Emergencies

Devolution always assumed an integrated UK approach to emergency planning and management. Scottish Ministers became members of the UK Government’s Civil Contingencies Committee, like territorial Ministers before them, not from institutional inertia but because emergencies need operational responses more quickly than normal political processes allow for, potentially cutting across the business as usual boundaries of responsibility.

Like so much of the British constitution, these arrangements are based on administrative practice and have no specific legal, still less constitutional, underpinning.  They seem to have served well enough for the last 20 years, but are under unprecedented pressure from a pandemic which obviously requires swift action across the whole of the UK, coordinated across the constitutional allocation of powers.

Government actions were generally taken in lockstep for the first couple of months. Inevitably, the UK government brings more capacity to this work than the devolved administrations do (eg the technical expertise of Porton Down, or fiscal capacity to support furloughs), but critical parts of the response are in devolved control, not just legally, but in practical terms, eg the operation of the NHS, or responsibility for care homes. 

How successful this joint approach has been is open to question. UK excess deaths are among the world’s highest, and the emphasis on saving the NHS may have put the vulnerable in care homes more at risk. With the crisis far from over, judgements may be premature. Higher mortality might reflect the openness of the UK economy and society rather than government failures. But the UK government and the devolved administrations share responsibility for the decisions and outcomes.

Political Games?

The handbrake turn from politics as usual to crisis management is bound to create tensions: intergovernmental differences have been evident in Germany and the US.  Some divergences may be driven by different objective circumstances, such as the trajectory of the virus, but others perhaps by the different priorities of political leaders. The UK entered the crisis with mistrust between London and Edinburgh and, despite governments working closely together, relations have strained.

This was mostly about presentation rather than substance. Nicola Sturgeon was perceived to steal a march on the UK government by announcing schools policy before them, and Boris Johnson let the devolved governments find out about policy changes on television.

Maybe not surprising, under great pressure, institutions and people revert to their default behaviors. Whitehall still instinctively regards itself as a unitary UK government, even when it knows it is not (after all, 85% of the UK population is unaffected by devolution). Boris Johnson defaults to studiedly ambiguous communications.  

Nicola Sturgeon reverts to her defaults too. She finds it easy to present in a more orderly way than Johnson (their personae could hardly be more different). But it is also easy for SNP politicians to present Scotland as disempowered or disrespected in the management of the crisis (they would say the UK does that normally) and claim Scotland is doing much better, even though halting epidemic spread, protecting care homes or providing tests in Scotland is a Scottish, not a UK government, responsibility.

Differences have come to head over moving out of lockdown. At different times, each government has accused the other of being premature and sending mixed messages. At present the UK government is taking a slightly more forward stance. Governments explain their similar, but not identical, approaches in different terms. Objective differences justifying different approaches are hard to identify. They may reflect different views on the balance of risk or different pressures on governments. But earlier presentational divergence will have made policy divergence more likely.

The underlying problem

Rattiness between politicians under pressure is to be expected. But the resultant mixed messages are unhelpful in managing an almost insoluble policy problem. Emergency lockdown cannot be sustained indefinitely; public behaviour is changing by itself. No government in the UK has an easy to understand strategy that will command public confidence for returning to anything like normal economic activity while continuing to suppress virus transmission. Divergent approaches will worsen that, and create awkward mismatches between devolved and reserved aspects of policy. Just now, the most important gap is a shared one: having enough testing capacity to run an effective “test, track and isolate” approach, routinely testing those most at risk having and passing on the disease.

Filling that policy gap is critical. We need our political leaders to hammer out a credible joint approach, laying aside any mistrust and resisting the temptation to default to the tropes of normal politics, amidst a medical crisis. Those can come back along with rest of normal life.