Governance of the Union (Constitution Committee Report)

Motion to Take Note

Moved by

That the Grand Committee takes note of the Report from the Constitution Committee The Governance of the Union: Consultation, Co-operation and Legislative Consent (1st Report, HL Paper 13).

My Lords, the Constitution Committee has published a number of insightful reports on the governance of the union. Among the most significant was the 2022 publication Respect and Co-operation: Building a Stronger Union for the 21st Century. This report meticulously highlighted the worrying deterioration in relations between the UK Government and the devolved Administrations. It traced the erosion of trust and the growing sense of division that was largely attributed to a perceived lack of co-operation and respect in intergovernmental relations. Moreover, it pointed to insufficient commitment to the process of consultation and engagement between the Governments of the United Kingdom.

Continuing concerns about the state of relations between the UK Government and the devolved Administrations prompted the committee to conduct a follow-up inquiry, which brings us to the subject of today’s report, The Governance of the Union. This new report acknowledges that the union faced serious strains. It is undeniable that events such as Brexit, the challenges of Covid, the growing aspirations for independence in Scotland and the suspension of institutions in Northern Ireland presented major challenges, but these challenges, while very significant, do not entirely account for the difficulties in governance. These strains have in fact exposed deeper systemic deficiencies in the structures and processes of intergovernmental relations.

In an earlier report, the committee perceptively recommended the greater use of formal intergovernmental mechanisms, which are likely to become increasingly important when Governments of different political persuasions have to deal with each other and tensions inevitably arise. In 2018, Ministers agreed to review the existing intergovernmental structures and, in January 2022, the UK and devolved Governments jointly agreed to implement a new intergovernmental relations structure. The committee sought to determine whether the distinct pressures of recent years—Brexit, the pandemic, political tensions—remained present and whether the new structures are robust enough to weather future stresses. In doing so, it focused on: whether the intergovernmental relations structures introduced in 2022 are functioning effectively and whether they could be improved; observance of the Sewel convention; and the increasing use of primary legislation by the Government to empower UK Ministers to make secondary legislation and use Henry VIII powers in areas of devolved competence. Whatever the merits of a particular participant’s views, the evidence revealed a pervasive sense of lack of trust, respect and confidence in the system of intergovernmental relations.

The new intergovernmental structures introduced in 2022 represent a welcome initiative. They have the potential to address long-standing criticisms of the intergovernmental framework. Specifically, they aim to create a more regular, transparent and formal system of intergovernmental working and greater transparency, accountability and scrutiny from each Government’s respective legislatures. To realise these benefits, however, it is essential that the Government fully integrate these mechanisms into the day-to-day workings of government. The commitment to enhanced reporting made by all four Governments is a step in the right direction, but to fulfil this commitment all four must ensure that the reporting is timely, detailed and conducive to meaningful scrutiny by their respective legislators.

My name is on the list, but I have withdrawn from the debate because I am moving an amendment in the Chamber—but I am very interested in the issue. That is why I am here.

My Lords, it seems to be my turn. I was a member of the Constitution Committee under our excellent chair, the noble Baroness, Lady Drake. I thank her for the way in which she chaired this report, which I fully supported.

I was particularly concerned at the increasing disregard of the Sewel convention, beginning with Boris Johnson’s Government. Among the many strains caused by Brexit, to which the noble Baroness, Lady Drake, just referred, tensions with the devolved Administrations and Parliaments featured highly. Legislative consent was frequently sought at short notice and refusals by the devolved Parliaments to pass legislative consent Motions were ignored.

I have a quasi-proprietorial attachment to the Sewel convention, because I was present when it was announced by Lord Sewel on a late warm July evening in 1998. My great friend, Lord Mackay of Drumadoon, then Conservative spokesman on Scottish and constitutional affairs, introduced into the Scotland Bill what he described as “a small drafting amendment”, stating to the effect that, in any legislative conflict between the Westminster and the Scottish Parliaments, Westminster would prevail. He said that he was not looking to vote on it. My colleague and close friend Lord Mackie of Benshie intervened to say that the amendment went to the whole root of devolution. Lord Sewel then said, seemingly off the cuff:

“However, as happened in Northern Ireland earlier in the century, we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”.

He continued:

“I cannot believe that it is beyond our wit to develop such a convention. That is much more suitable than through the business of legislative ping-pong or tennis … There should be mature political dialogue to resolve a difference, which is better than legislative tennis”.—[Official Report, 21/7/1998; col. 791.]

I have never been a member of the Constitution Committee; I have asked regularly to become a member and have regularly been rejected. It is my youth and exuberance, I think, that are not there; I am working on both.

I can speak only of Scotland, but I think this is an excellent report. My experience is that what really matters—and the report says this—are not so much institutional frameworks but mutual respect. I was a unionist foot soldier in the 2014 army, and I was shocked that disdainful Achilles sulked in his No. 10 tent and played no part in the campaign. I was also shocked when his victory speech was about not reconciliation and binding up the wounds but English votes for English laws, rubbing salt in the wounds in Scotland.

Subsequently, I used to advise Mrs Sturgeon on EU issues and was astonished at how little she was told about referendum planning and Brexit negotiations. The 27 European Governments knew far more about the negotiations, because of Mr Barnier’s meticulous briefings, than our devolved Governments did. Of course, then came the open contempt and childish insults of the Johnson/Truss period. I am very glad that we seem to have turned that page and that the grown-ups seem to be back. The 2022 arrangements do not seem to have worked perfectly, but they are clearly a lot better than previous ostentatious ostracism.

Bringing intergovernmental relations back to the centre and to the Cabinet Office is a very wise move, but I repeat that what matters are not so much the frameworks as mutual respect. Of course, Scots are absolute experts at having grievances, but there is really no reason to give them a real one. We should seize the moment now, when the wind is not in the SNP’s sails, and reinforce the union by showing that the centre respects, listens to and takes account of the views of the devolved Governments. They are democratically elected, too.

My Lords, it is a real pleasure to follow the noble Lord, Lord Kerr of Kinlochard. I cannot understand why he has not been appointed to the Constitution Committee. I make my formal declaration: he will be nominated collectively by us as soon as possible. We need his forensic examination.

It is a pleasure to take part in this debate and to echo what has been said by the noble Lord, Lord Thomas of Gresford, about my noble friend Lady Drake’s chairmanship. She not only was forensic but made us realise that we have a unique responsibility in the Constitution Committee. Nobody else does that job, and we have to do it with scrupulous attention and vigilance.

That conviction was evident in the report as well, as well as the historical review of how relations between the devolved Administrations and Westminster had deteriorated. Goodness knows there was evidence from our committee and from the Common Frameworks Scrutiny Committee, which I had the privilege of chairing. It was particularly evident during the passage of the internal market Act and of the European retained law Act, and, of course, in the almost systematic disregard for the Sewel convention.

This report, with its emphasis on the union and how it could and should mean more and work better, is particularly timely given the change of Government. In the Government’s response, we see time and again the emphasis that they have reset relationships across the union and that there is more commitment to intergovernmental structures and more respect. We welcome that, and in particular the approach they are now taking to revising the Sewel convention. I will not repeat the magnificent description of it by the noble Lord, Lord Thomas of Gresford. I hope we can have some plain English for

“mutual baseline for engagement, and the importance of good policy outcomes”

as the policy objectives. However, I want to ask the Minister, in addition to translation, whether this is designed to replace or update the convention, or to reinforce the Government’s commitment to it in its present form. I look forward to an answer.

My Lords, I, too, welcome this report from the Constitution Committee and the fact that it is one of several produced by the committee on the working of our devolved system of government. It has done a commendable job in analysing the process of inter-institutional relations within the UK and setting it within a clear framework of the value of the union.

I chaired the committee when it produced its first report on devolution, Devolution: Inter-Institutional Relations in the United Kingdom, in 2002. Our focus was on ensuring that the relationships worked well and that mechanisms for resolving disputes remained in good working order. At the time, with the same party in control in Westminster, Holyrood and Cardiff Bay, a great deal was done through personal contact. We recognised that one had to plan for a time when different parties were in control. Our foresight was not acted on; had it been, the relationships between the different Administrations may have been stronger than they have been. Indeed, I believe that the union would be stronger had successive Governments paid more heed to recommendations from the Constitution Committee.

I have criticised successive Governments for being in reactive mode in dealing with the devolved Administrations. There has been a tendency to concede powers in the belief that this will persuade people in the different parts of the United Kingdom to support remaining in the union. The reactive mode has a pervasive impact, in that, in day-to-day administration, the needs of the different nations tend to be dealt with as an afterthought and relations conducted on a grace-and-favour basis. The Constitution Committee has pressed consistently for a more proactive approach, putting the case for the union and emphasising the benefits that it delivers to all in the United Kingdom. It has highlighted ways for the relationships between the different Administrations to be strengthened. This report deserves to be given much more visibility than it has been, and is being, accorded.

My Lords, I thank the noble Baroness, Lady Drake, the members of the Constitution Committee and the committee clerks for an excellent, comprehensive report, which I know will make essential reading for Ministers in this place and in the devolved legislatures. It will also be of particular interest to all of us who have to deal with, and sometimes grapple with, the Sewel convention.

This is a poignant occasion for those of us on these Benches. We know that our late noble friend Baroness Randerson would have relished the opportunity to contribute to this debate today. As a Welsh Office Minister in the coalition Government from 2012 to 2015, her dedication to devolution and her influence over its processes was immense. She was also a member of the Common Frameworks Scrutiny Committee, and I know how much pride she took in that role. She is sorely missed.

She and I had a conversation about the Sewel convention in the final months of the previous Conservative Government, when the convention had, once again, been breached. I mentioned how lucky she was to have been in office when things were easier. Her reply was characteristically clear, forthright and kind. She said, “It certainly wasn’t any easier. We worked hard, for long hours, sometimes late into the night, to make sure the Sewel convention wasn’t breached”.

For me, that summed up the difference between pre-2019 and the post-2019 reality we were then living in. Before the 2019 election, there was an understanding in Governments—including Conservative ones—of how precious our devolution settlements are to those of us who live in the devolved nations, and there was firm support of the convention. However, post 2019, Sewel almost seemed to become dispensable, sacrificed on the altar of UK nationalism and the then Conservative Government’s concept of binding the nation together.

The committee’s report confirms that the convention was breached 19 times in the four years after 2020 but had been breached only four times before 2020. This difference in attitudes to the convention, and to devolution itself, is highlighted in the report, with the committee calling for good will on the part of all four Governments of the UK. It emphasises the role of the UK Government, as the most powerful body, in recognising the impacts that their decisions may have on the other nations. Attitude and good will are of course impossible to legislate for, but I commend the committee on its recommendations for improving and strengthening the convention.

Who knows what will happen in the future? They used to sell tickets for the Devolution Committee, which my noble and learned friend Lord Irvine chaired in 1998. They were wonderful affairs, setting up devolution right across the country—including, later, in Northern Ireland. The committee did a great job, but one thing it did not do very well was work out exactly how these devolved Administrations were going to work with each other or with the United Kingdom Government.

After nearly 26 years—I served as Welsh Secretary and as Northern Ireland Secretary in that period—I can say that it did not go very well. In fact, it went very badly at times. Relations were okay when it was the same political party, of course. For example, I could go to Cardiff on a Monday morning and talk to Rhodri Morgan to sort out the problems of the world—and I continued doing that—but it was not quite so easy in Scotland. When I later had to deal, in another capacity, with Alex Salmond, it was a very different picture altogether. As the noble Lord, Lord Norton, said, when there are different parties in Cardiff, Edinburgh and London—as well as in Belfast, of course—it presents a totally different picture.

Over the years, the attempts to bring people together were pretty awful. Prime Ministers did not want to go to the meetings and rarely did. Although we were trying to deal with best practice, it was often too bureaucratic. The meetings were too infrequent. Civil servants wanted to devolve and forget, and let the devolved Administrations get on with things, yet we could learn a great deal from each other—and, eventually, we did. However, there was no real structure for doing that; what there was was wholly inadequate. Any communiqué that came from an intergovernmental meeting was utterly and completely useless—waffle of the worst possible sort that meant absolutely nothing—so, over the years, things got worse and worse. I pay credit to the last Conservative Government because they successfully started to change the way in which the devolved Administrations and the United Kingdom Government worked. That was good, but there are a couple of things that we could look at; they have been partly highlighted by this excellent report from the noble Baroness, Lady Drake.

My Lords, I was amused to hear from the noble Lord, Lord Kerr, about the lack of activity of the noble Lord, Lord Cameron, during the referendum. Like the noble Lord, I was involved in that campaign; my job was to be sent along, by my Labour and Liberal Democrat comrades in Better Together, to tell the noble Lord, Lord Cameron, to do less in the referendum rather than more.

As other noble Lords have, I congratulate the noble Baroness, Lady Drake, and her committee on an excellent, thoughtful and clear-eyed assessment of the governance of the union. I will focus my remarks on a couple of salient points.

I found a breath of fresh air the acknowledgment in the report of how much the governance of the union requires a constructive attitude and culture from all parties. The chemistry is just as important as the physics of the processes and structures that are put in place. It is a great testament to the union that it has been sustained in what have been very choppy political waters. That demonstrates to me that many of the structures and joint working arrangements are actually working pretty well. As we have read in the report, many of them were set up in 2022 with the joint agreement of the UK Government and the devolved Administrations. Perhaps things were not quite as bad after 2019 as some of us may remember.

However, the greatest threat to the union will always be if it is seen to fail to operate. If the governance of the United Kingdom is seen to be broken, why should that union not be clearly questioned? Her late Majesty the Queen famously said that the monarchy needed to be seen to be believed. In my view, this is just as important for the functioning of the governance and joint working of the structures of the union. I therefore welcome the establishment and optical importance of the Council of the Nations and Regions of the UK. However—this will not come as a surprise to the Minister, as I have asked her about it in your Lordships’ House—I believe that body is less important than the Prime Minister and Heads of Devolved Governments Council.