Devolution: A Decade on - Justice Committee Contents


2  Devolution and the Centre

28. The creation of new devolved administrations in Scotland, Wales and Northern Ireland transformed the governance of those parts of the United Kingdom. However, the changes also had a significant impact on the UK Government in Whitehall. Whitehall's response to devolution has two dimensions:

  • Changes in existing Whitehall departments in terms of the re-alignment of policy functions;
  • Changes at the very centre of government in terms of the territorial management of the United Kingdom.

29. Immediately after 1999, the machinery of government in Whitehall remained largely the same, and overall responsibility for devolution strategy, and for the co-ordination of business relating to it, initially rested with the Cabinet Office.[39] However, on 12 June 2003 the then Prime Minister announced a number of machinery of government changes. These included the merger of the Scotland Office, together with the Lord Chancellor's Department and the Wales Office, into a new Department for Constitutional Affairs. Following the creation of the new department, the resources and other assets of the Scotland Office and Wales Office formally transferred to the new department, although accountability is still to the territorial Secretary of State. The Scotland and Wales Offices enjoy a high degree of autonomy despite coming under the Ministry of Justice for "pay and rations".[40] Responsibility for devolution strategy (which had, in 2002 been moved to the Office of the Deputy Prime Minister) was also transferred.[41] Dr Jim Gallagher was appointed as Director General for devolution in September 2007.

30. Rt Hon Des Browne MP, then Secretary of State for Scotland, told the Committee that "the MOJ has overall responsibility for constitutional matters and constitutional reform and that is just a logical place for devolved administrations to be".[42] However, Alan Trench, Honorary Senior Research Fellow, the Constitution Unit, University College London, said that while this arrangement was "working well," the machinery of government changes of 2003 were "a missed opportunity for ensuring better overall co-ordination within the UK Government".[43]

31. Across central government as a whole, responsibility for different aspects of what could be considered as devolution issues is currently located in five separate government departments: the Ministry of Justice, the Scotland and Wales Offices, the Cabinet Office and the Department for Communities and Local Government.[44] The Ministry of Justice explained: "responsibility for devolution strategy now sits in the Ministry of Justice, which works closely with the Scotland, Wales and Northern Ireland Offices and the Cabinet Office, which has a co-ordinating role".[45] While Sir Gus O'Donnell, Cabinet Secretary and Head of the Home Civil Service, described a "strengthening of capacity in parts of Whitehall dealing with devolution",[46] several academics believe that this distribution of responsibility for different aspects of devolution policy has resulted in a "missing centre"[47] or a "hollow centre" at the heart of government when it comes to strategic aspects of devolution.[48]

32. Immediately after devolution in 1999, most Government departments had made arrangements for the management of devolution matters, including setting up devolution or constitution desks or teams. These sought to co-ordinate the department's actions in matters involving devolved administrations, help prepare bilateral or departmental concordats, and generally to provide internal advice.[49] These teams were generally dismantled after 2001 (they survive in the Foreign and Commonwealth Office and Ministry of Defence). While a network of departmental devolution contacts remains, the initial focus on devolution matters no longer exists in Whitehall. In principle, devolution is considered to have been mainstreamed across departments,[50] but it is highly questionable whether that has happened in practice.

33. The response to devolution, both from within government departments and from the centre of government has therefore been described as "limited and low key".[51] In this chapter we examine the arrangements at the centre of government for the territorial management of the UK post-devolution. We also consider Whitehall's response to devolution.

Devolution in Whitehall

34. Dr Gallagher, Director General of Devolution, Ministry of Justice, indicated that there were three aspects to the work of central government in relation to devolution and to the devolved administrations:

THE MINISTRY OF JUSTICE

35. Dr Gallagher described the UK Government's first area of responsibility for devolution as "the strategy in relation to devolution which is pretty closely linked into the Government's approach to the Constitution as a whole". The Secretary of State for Justice and Lord Chancellor is responsible for constitutional policy and devolution strategy.[53] Rt Hon Jack Straw MP, Secretary of State for Justice and Lord Chancellor, told the Committee that he was involved in "issues about overall policy in respect of devolution".[54] He has also chaired the over arching Joint Ministerial Committee, and added that while he had "a lot to do day by day with the territorial Secretaries of State" he did not "look for work in this area" any more than he looked "for work in other areas".[55]

36. Beyond the above description, the precise role of the Ministry of Justice in developing "strategy in relation to devolution" remains unclear. For example, on 3 July 2007 the Government published a Green Paper entitled The Governance of Britain.[56] In his statement to the House of Commons on the same day, the Prime Minister, Rt Hon Gordon Brown MP, introduced these proposals as addressing the need for a "new constitutional settlement that entrusts more power to Parliament and the British people".[57] However, this major statement outlining the Government's new constitutional settlement made no mention of a strategic direction in relation to devolution. Professor Robert Hazell has argued that "it has been difficult for it (the Ministry of Justice) to carve out a meaningful role, alongside the territorial departments with their operational responsibilities".[58]

37. There has also been criticism of the Ministry of Justice for not ensuring that its own legislative team and agencies fully understand the devolution arrangements. This led to Wales being omitted from a provision in England and Wales legislation as a result of a failure to fully consult the Wales Office and the Secretary of State for Wales. The Government had to introduce a last-minute amendment at a late stage in the House of Lords after the issue was raised by members of both Houses.[59] The Welsh Affairs Select Committee published a report criticising the Legal Services Commission's failures in a similar regard. Lord Bach, Parliamentary under Secretary of State, Ministry of Justice, acknowledged the failings in the process and required the Commission to re-visit the issues.[60] These examples illustrate the fact that a full understanding of the devolution settlement has not yet become part of the DNA of the Department that has overall responsibility for devolution policy, let alone Departments that have less contact with the issues.

THE CABINET OFFICE

38. The second area of responsibility was described as "the co-ordination of government business and indeed the co-ordination of business in relation to each of the devolved administrations and all of them together and that is what the Cabinet Office does; it both co-ordinates inter-departmental work inside the Government and it is also responsible for servicing the joint ministerial committees with the devolved administrations".[61]

39. The Cabinet Office lost its role in relation to devolution when its Constitution Secretariat was formally wound up in 2001. Some of the officials involved in the Constitution Secretariat continued to provide overall co-ordination (and acted as secretariat for the Joint Ministerial Committee), first within the Office of the Deputy Prime Minister and later within the Department for Constitutional Affairs, but that role has shrunk so that it now takes relatively little time and gets relatively little official or ministerial attention. (In May 2006, the Ministerial Committee on Devolution Policy was wound up, and its functions subsumed within the broader Constitutional Affairs Committee.)[62] However, in more recent months, the role of the Cabinet Office has changed again.

CREATING THE 'MISSING' CENTRE?

40. Professor Robert Hazell described the arrangements for the co-ordination of government business relating to devolution and for devolution policy and strategy at the centre of government as being "not yet ideal".[63] Professor Michael Keating, Head of Department of Political and Social Science, European University Institute Florence and Professor of Scottish Politics, University of Aberdeen, explained that "at both ministerial level and in terms of bureaucratic organisation ... no-one is able to take a view of the territorial make-up of the UK as a whole and of the constitutional and policy issues that affect it. Instead, territorial issues are approached in a fragmented way that focuses on bilateral concerns and issues (Scotland-UK, Wales-UK, Northern Ireland-UK), not UK-wide matters. This fits with a more general approach to devolution as a set of ad hoc pragmatic responses, lacking any broader focus on territorial management".[64] Rt Hon Jack McConnell MSP, former First Minister (2001-2007), Scottish Government, identified "the most serious issue for the UK ... is the response of wider UK institutions ... including government and the civil service ... to the way in which the UK has changed. The UK has changed dramatically and that change has not been reflected in the way in which UK institutions carry out their duties".[65]

41. In order to provide this broader focus, the House of Lords Constitution Committee, in its 2003 Report Devolution: Inter-Institutional Relations, recommended the creation of a "department of the nations and regions" to embrace relations with Scotland and Wales, the English regional agenda, and perhaps eventually Northern Ireland matters too".[66] Alan Trench wrote that this recommendation appeared to "confer significant advantages, and will provide the capacity for greater co-ordination".[67]

The Secretaries of State

42. Professor Robert Hazell, has also suggested that responsibility for devolution should rest within a single department.[68] This department would also include a "merger of the three territorial departments," which, in his view, "would create stronger capacity to look ahead, to understand the dynamics of devolution, the read-across from one devolution settlement to the rest, and the implications of devolution for the rest of the constitutional reform programme".[69] He told the Committee:

"I would like there no longer to be three separate territorial Secretaries of State. They are part of the pre-devolution structure and post-devolution I do not think Scotland, Wales or Northern Ireland need any longer to have a privileged position in Cabinet through having designated Secretaries of State to represent their voice and interests because that voice and interests is now strongly represented through the devolved institutions. So over time I would like to see the merger of those Secretaries of State ... To the extent that these interests do need to be represented, I think they should be represented in the Cabinet Office as a part of the central secretariat supporting the inter-governmental machinery".[70]

43. Rt Hon Lord Steel of Aikwood, former Presiding Officer of the Scottish Parliament, said that he thought it would have been a "tidy arrangement" to have a Cabinet minister for the UK with a junior minister under him for each of: Scotland, Wales and Northern Ireland.[71] He described this as the "logical consequences of creating devolution all round".[72] Rt Hon Jack McConnell MSP said that before May 2007 he had thought that "such an arrangement was inevitable".[73] However, given that the change had not been made he thought that it made sense to "continue the discussions that have begun about how best to get the right level of co-ordination between the administrations before anybody makes dramatic changes to the Cabinet structure".[74] While machinery of government changes involving the Cabinet Office and the Ministry of Justice in relation to devolution policy and the co-ordination of business in relation to devolution would be relatively uncontroversial, any proposed merger of the Secretaries of State raises broader political and functional issues.

44. Central to these proposals for reform to the machinery of government are the suggestion that the separate territorial Secretaries of State should be merged or abolished. The third area of central Government responsibilities in relation to devolution is to carry out functions in relation to the individual devolved administrations. This role is undertaken by the Secretaries of State for Scotland, Wales and Northern Ireland, each of whom has other UK Ministerial responsibilities and is therefore "part-time". While some commentators see this as a sign that the positions are no longer significant, others see considerable benefits in retaining a dedicated Cabinet-level champion for each nation, a role which they can exercise in addition to their other responsibilities.

SCOTLAND

45. The Scotland Office is the Department which manages the UK Government's role in the Scottish Devolution Settlement and undertakes a number of statutory and other functions under that settlement.
Scotland Office: Aims and Objectives 2007/08
  • to ensure that Scotland's interests in relation to reserved areas are known and represented within the UK Government.
  • to fulfil all requirements in relation to UK Government and Parliament activities concerning Scotland and in relation to constitutional functions under the Scotland Act.
  • to handle all financial matters timeously and with propriety - including payments to the Scottish Consolidated Fund.

46. The function of the Scotland Office is not set out in the Scotland Act or the Memorandum of Understanding, but is explained in the Devolution Guidance Note 3, The Role of the Secretary of State for Scotland:

"The Scotland Office … advises on all reserved matters of home, social, industrial and economic policy for its actual or potential impact on Scotland. It is also responsible for the executive role exercised by the Secretary of State on elections to the Scottish Parliament and the operation of the Boundary Commission for Scotland in its work on reviewing Parliamentary constituency boundaries. The interests of parliamentary and constitutional division include the operation of the devolution settlement, the UK legislative programme, relations with committees of the UK Parliament and the Office's interest in civil contingency planning. The office also has a finance and administration division. The Scotland Office works closely with the office of the Solicitor to the Advocate General, which provides legal services relating to Scotland to the Government".[75]

Dr Gallagher noted that, in addition, the Scotland Office has a task to do in the management of the settlement itself. He explained "they have orders to make and they have constitutional machinery to maintain".[76]

47. Rt Hon Des Browne MP, the then Secretary of State for Scotland, reiterated that the role of the Secretary of State "is fundamentally to promote the devolution settlement and act as the guardian of it here in Westminster".[77] However, Nicola Sturgeon MSP, Deputy First Minister (SNP), Scottish Government, argued that "almost ten years on, I think it is time to look again at the role of the Scotland Office and the Secretary of State. A critical examination would probably lead everybody to the view that its time has been and gone".[78] She continued, "I think the Secretary of State for Scotland and, indeed, the Scotland Office is of a past era. Perhaps in 1999 the role was more obvious and more necessary. I do not think there is a case for retaining the Scotland Office and the Secretary of State for Scotland as separate entities".[79]

48. A number of witnesses outlined the changing, and in many ways, declining role of the Secretary of State for Scotland during the past ten years. This was particularly noted in the context of the development and maturing bilateral relationships between the Scottish and UK governments. In oral evidence to the Scottish Affairs Committee on 4 July 2006, the then Secretary of State for Scotland, Rt Hon Douglas Alexander MP, stated that "increasingly, under my predecessor as well, there is very effective co-ordination bilaterally between Whitehall departments and the Scottish Executive …"[80] Similarly, in oral evidence to the Scottish Affairs Committee on 17 July 2007, the then Secretary of State for Scotland, Rt Hon Des Browne MP, said that communication between Scottish Government ministers and UK ministers had "grown up over the eight years that we have had devolution" and that "bilateral and multilateral communication was regular".[81] Rt Hon Jack McConnell MSP, former First Minister of the Scottish Government, described those bilateral relationships as "far more important" and "far more productive" than they would have been if we they had to "deal with everything simply through a Secretary of State for Scotland".[82] We agree that the quality of bilateral relationships is crucial but were unable to judge whether the quality of such relationships would be as positive without the 'back-stop' of the Secretary of State.

49. Nicola Sturgeon MSP, said that this maturing bilateral communication was also having an impact on policy issues. She argued that Scotland's voice would be best served by the Scottish Government working directly in devolved areas and reserved areas.[83] Furthermore, in terms of legislation, Bruce Crawford MSP, Minister for Parliamentary Business, (SNP), Scottish Government, argued that the UK Cabinet's Legislation Committee would be a more appropriate place "for me to be engaged and a lot more effectively in terms of discharging business … It would remove a bit of the communication line that exists and allow a lot more discussion directly to the heart of Government".[84]

50. Sir John Elvidge KCB, Permanent Secretary, Scottish Government, indicated that "as the strength of bilateral contacts has grown, and … as I have been able to re-establish the strength and frequency of contact at permanent secretary level, gradually the role of the Scotland Office has moved to different territory. I do not think of them as the key interlocutors in making contact work". However, he added that "they do play a part … in helping avoid that problem of oversight by Whitehall colleagues".[85] Bruce Crawford MSP, concluded that this strengthening of bilateral relations at both the political and official level meant that "the need for the Scotland Office is fast disappearing over the horizon".[86]

51. Rt Hon Des Browne MP disagreed. He stated that "this is part of the way in which this settlement which has led the United Kingdom is preserved, it is part of its history and I am very much in favour of it. Our exclusive province is not to represent Westminster policy to the Scottish Executive or to the people of Scotland … Scotland is still part of the United Kingdom and the United Kingdom and the United Kingdom's ministers' powers still run in Scotland in the reserved areas unencumbered and in some of the devolved areas there is shared responsibility".[87]

WALES

52. From 1 July 1999 most of the functions of the Secretary of State for Wales transferred to the National Assembly for Wales. The Secretary of State for Wales retained responsibility to act "as guardian of the devolution settlement in Wales; ensure that the interests of Wales are fully taken into account by the UK Government in making decisions which will have effect in Wales; represents the UK Government in Wales; and (to) oversee the progress through Parliament of primary legislation making separate provision for Wales".[88] Given the different nature of the devolution settlements, the role of the three Secretaries of State is also different. In particular, the Secretary of State for Wales has specific functions, outlined in the Government of Wales Act 2006, in relation to Welsh legislation.[89]
Wales Office: Aims and Objectives

Aim

To support the Secretary of State in representing Wales in the UK Government, representing the UK Government in Wales, and ensuring that the new constitutional settlement for Wales operates smoothly and effectively.

Objectives

  • to maintain and improve the devolution settlement.
  • to maintain effective working relationships with the National Assembly for Wales and Welsh Assembly Government.
  • to represent Welsh interests in the wider world.
  • to secure, develop and manage effectively and efficiently the resources needed to deliver previous objectives.[90]

53. Devolution Guidance Note 4, The Role of the Secretary of State for Wales, states that:

"This does not mean that the Secretary of State is a sole channel of communication between the UK Government and the Assembly. Normally Departments should deal with the Assembly direct, on the advice of the Secretary of State. The Secretary of State and his Department will: give advice on the handling of business in the light of devolution; act as honest broker should there be any dispute between the Assembly and Whitehall or Westminster; explain the nature and consequences of devolution to the Assembly on behalf of the UK Government".[91]

54. Rt Hon Paul Murphy MP, Secretary of State for Wales, described his office as part of the package of devolution measures approved by the people of Wales in the 1997 referendum. He described it as an "integral part of the devolution settlement … which included the position of the Secretary of State for Wales, enshrined as it, as few others are, in legislation by name".[92] He continued: "I am convinced that the job is part of the settlement and is an important part of it".[93]

55. Mr Murphy MP defined this role as "a personal one, it is about relationships … as smooth as it possibly could be between Cardiff and London". He continued "it is representing Welsh interests within the Cabinet of the United Kingdom, it is representing Wales and its interests throughout all the Whitehall departments, but it is also representing the United Kingdom Government in Wales too".[94] He particularly emphasised his role in relation to legislating for Wales, which had changed as a result of the Government of Wales Act 2006.[95]

56. Rt Hon Rhodri Morgan AM, First Minister, Welsh Assembly Government, agreed that the Secretary of State clearly has "got a function on the legislative side … he has a clear function on the funding side as well … there is a constitutional duty on the Secretary of State for Wales to get involved in the funding process as well as the legislative process".[96] However, he said that the role was "much more open when it involves the bilateral contact on, say, Welfare to Work … where you might want the assistance of the Prime Minister where you would not go through the Secretary of State for Wales".[97]

57. While some of the functions of the Secretary of State for Wales have been criticised, the continuation of the role of the Secretary of State for Wales has not been questioned to the same extent as that of his Scottish counterpart.[98] However it is clear that the role of the Wales Office and the role of the Secretary of State for Wales - as well as the work of the Welsh Assembly Government and the Members, committees and officials of the Assembly - need to be better understood at every level within every Department of Government and its agencies. Making sure that happens is primarily a responsibility of each Permanent Secretary and of the Agency Chief Executives.

The merger of the Secretaries of State?

58. Rt Hon Des Browne MP told the Committee that the Secretaries of State had a wider function than acting as a point of communication and administering the respective devolution settlements. He said, "I think it is being seen to be important for the people of Scotland, Wales and Northern Ireland and that they are represented at the UK level by a Secretary of State".[99] Professor Charlie Jeffery, Director, ESRC Devolution and Constitutional Change Programme 2001-06, agreed that "there may be a sense of loss of voice for Wales or Scotland or Northern Ireland through the loss of a Secretary of State".[100]

59. However, he continued that this reform could be considered as a broader package of changes: "if we move to a more systematic pattern of inter-governmental relations, including meetings of the Joint Ministerial Committee at Prime Minister/First Minister level, there is going to be a different route, and arguably a route more fitting for the current circumstances, for representing Welsh, Scottish and Northern Irish interests at the centre. I think one goes with the other. It is a balancing effect".[101] Bruce Crawford MSP agreed that there was no doubt that Scotland "needs a voice at the centre of government in terms of the way it discharges business," but also agreed that said this was an issue that needed to be looked at "in the whole" as to whether there were other mechanisms by which Scotland could be better represented at the heart of Government.[102]

60. Rt Hon Paul Murphy MP concluded that there was a very important need to "monitor issues around the machinery of government in relation to the way in which devolution policy and strategy, the administration of business and the functions of the Secretaries of State are dealt with within central Government".[103] While Rt Hon Jack Straw MP, Secretary of State for Justice and Lord Chancellor, emphasised that machinery of government changes are for the Prime Minister, he added that "there have been suggestions around that [the merger of the Secretaries of State] could happen and it may or may not be the case that such an arrangement will be decided on in the future".[104]

61. Professor Michael Keating, however, warned that any machinery of Government changes to improve co-ordination within Whitehall could result in a move to build or strengthen the missing centre, which would most likely result in some form of re-centralisation and the imposition of limits on policy divergence. He said:

"This does not, however, imply stronger mechanisms for policy co-ordination. Nor does it imply building up the missing centre or imposing limits to divergence. Given the disparity in size, power and resources between Whitehall and the devolved territories, any such effort could only mean re-centralisation and Whitehall dominance. The 'centre' would in fact be formed by English departments and policy co-ordination would be on their terms. Devolution is about allowing policy divergence and a healthy competition among governments to innovate and respond to challenges. Experience from other countries shows that co-ordination mechanisms or framework laws defining the limits of divergence are used as a mechanism for re-centralisation. Devolved systems of policy making are still in their infancy and need room to develop freely. Incorporating them back into UK-wide policy systems would undermine the dynamic of devolution. Other federal and devolved systems have recently tended to reform by disentangling responsibilities and encouraging policy autonomy".[105]

62. Instead, he identified a need for two things: first, a system to highlight when decisions taken in one jurisdiction impinge on the responsibilities of another. Examples might be decisions on tuition fees, or the consequences for attendance allowances of the decision on free personal care for the elderly in Scotland. In these cases, a forum should exist for resolving the resulting conflicts. Second, a system for diffusing ideas about innovation from one territory to another. This does not need to be formalized and could operate at various levels: the political, the administrative and the academic.[106]

63. During the ten years experience of devolved government, departmental responsibility for overseeing the working of the system has been divided and unsettled. It has involved the Cabinet Office, 10 Downing Street, the Ministry of Justice, the former Department for Constitutional Affairs, the former Office of the Deputy Prime Minister, and the Scotland, Wales and Northern Ireland Offices, the first two of which are nominally attached to the Ministry of Justice. It is a normal feature of devolution that it will be the individual functional departments which have relationships with their counterpart departments in devolved administrations. What is lacking is any one department which is clearly charged with taking a holistic view of the infrastructure of government across the United Kingdom and the constitutional and policy issues involved. This role basically belongs to the department with lead responsibility for the constitution, which is the Ministry of Justice, and we recommend that the lead responsibility should be clearly recognised and developed.

64. The object of clarifying where responsibility for the system of devolution lies is to maintain the coherence of the system as a whole and deal with the constitutional issues which arise, not to inhibit or replace bilateral relationships between Whitehall departments and devolved administrations, and not to recentralise UK Government in contravention of the purpose of devolution.

65. Many have questioned whether it is justified for those parts of the United Kingdom which have devolved government, and only those parts, to have individual Secretaries of State in the Cabinet. As relationships between the administrations mature, the role of the Secretary of State for Scotland has clearly decreased, and the question of the continued separate existence of that office must be raised. However, the Government of Wales Act 2006 gave the Secretary of State for Wales a role in legislating for Wales. This process is still relatively new and bedding down, and any proposals for fundamental change to the role of the Secretary of State would have to take this into consideration.

66. Nevertheless, the fact that the Scottish and Welsh Secretaries are now "part time", combining the post with UK departmental responsibilities, illustrates that the reality of change has been accepted, and it is significant that many of the arguments in favour of retaining the positions are essentially political, focusing on either perceived advantages in a territory of having a "champion" in the Cabinet, or the potential political disadvantages of abolishing the position. It is clear that the role of the territorial Secretaries of State has changed beyond recognition and that it is not likely to remain central to the functioning of devolved government or to seem consistent with the logic of devolution. The direction of travel may well be towards a single Constitutional Minister with lead responsibility for the functioning of the system of devolved government, building on the work currently exercised by the Secretary of State for Wales who chairs the revived Joint Ministerial Committee on devolution.

67. A belief in the importance of having a 'ministerial champion' had led the Government to create a system of part-time regional ministers to act as champions of each English region within the UK Government. This shows that there are alternative ways which can be considered for incorporating a role of "champion" for areas of the country within the UK government structures. Unlike the territorial Secretaries of State, the regional ministers are not all in the Cabinet, although Rt Hon Nick Brown MP is currently the Government Chief Whip and the Regional Minister for the North East of England. It is too early to judge the effectiveness or otherwise of these arrangements. If this innovation is continued it is one which may provide a replacement model for the champion role of the territorial Secretaries of State.

The Civil Service

WHITEHALL

68. The response to devolution within Whitehall departments was mixed. Rt Hon Paul Murphy MP, Secretary of State for Wales, told us that "in the late 1990s Whitehall was not really ready for devolution in the way that it should have been and there was sometimes a constant battle with Whitehall departments to get them to understand the significance of what was happening in Cardiff and Edinburgh … to understand and appreciate that sometimes, even in the same party, that they might be going down different roads".[107] Mike German AM, then Leader of the Liberal Democrats in the National Assembly for Wales, agreed and questioned "the preparedness of the Whitehall civil service to accept the role that government has to play here in Wales and the role that the Assembly plays … there are questions to be asked about the way in which the civil service recognised what devolution has provided here in Wales for us".[108]

69. Professor Jeffery identified "waves of sensitivity" in both the awareness and handling of devolution within different Whitehall departments.[109] Professor Hazell said that in the early days of devolution "different Whitehall departments were more sensitised to devolution in different ways … there were some that were notoriously insensitive … the DTI was one and the DETR, as was, was another. Those were both pretty hostile to devolution in Whitehall …"[110] John Osmond, Director of the Institute of Welsh Affairs, echoed this sentiment, and suggested that there were still issues to be addressed in terms of Whitehall's handling of devolution: "The experience so far is that different Whitehall Ministries have met the need to deal with Wales related matters in variable ways, to some extent dependent on whether their functions are capable of being devolved to Wales or not. So for example, the Department of Education has been relatively relaxed about the transfer of framework powers to the Assembly. On the other hand, the Home Office, before its division, tended not to involve the Assembly readily in Welsh matters that arose in non-devolved fields".[111]

70. Professor Hazell argued that this situation was made possible because "there was no strong centre that could tell the Whitehall departments how to come to terms with devolution".[112] Professor Jeffery argued that the problem lies at the civil service training level, in a failure to "mainstream devolution sensitivities right from the outset for all civil servants".[113] While we have concluded that there is a need for a single strategic lead department we are equally convinced that devolution cannot be separated off into a single silo of government or into a simple set of 'devolution issues'. Understanding of devolution is vital in the work of every Whitehall Department to a greater or lesser extent.[114]

71. Sir Gus O'Donnell, Cabinet Secretary and Head of the Home Civil Service, outlined continuing efforts to raise awareness of devolution issues throughout Whitehall:

  • First, there had been a strengthening of capacity in parts of Whitehall dealing with devolution, the Scotland and Wales Office, the part of the Ministry of Justice dealing with devolution and the Cabinet Office, as outlined previously.
  • Second, a new emphasis had also been given to the efforts that have continued over the years to remind the civil service of the implications of devolution for their work, and the sensitivities associated with it. For example, there had been a road show touring departments to increase awareness and capability.
  • Third, had been a renewed emphasis on the dissemination of key messages to civil servants to maintain the fullest contact and cooperation. Sir Gus O'Donnell acknowledged that "ensuring that happens sensitively and promptly will be a key challenge for the Cabinet Office and all in central government".[115]

72. However, while Rt Hon Des Browne MP, identified a "heightened awareness across Government … they have to take into account the possibility that the fact that some powers are devolved to Scotland may be of relevance to the development of that policy",[116] Sir John Elvidge KCB, Permanent Secretary to the Scottish Government, identified that there was a "risk that Scotland, Wales and Northern Ireland will be overlooked" by officials in Whitehall when developing policy. He continued "I am frequently the boy at the back of the class putting up his hand and saying "please sir, there is another dimension to this".[117] Law Reform agreed "there may be some issues about maintaining the Scottish profile in some Whitehall departments".[118] MPs have reflected similar experiences with Whitehall departments.

73. This problem has been highlighted by the Welsh Affairs Select Committee[119] and several organizations noted similar concerns. The Welsh Consumer Council cited "evidence of Whitehall departments failing to appreciate the realities of devolution and the continued need to consult with organizations in Wales over policies that had UK-wide implications".[120] While acknowledging that "the situation had improved" it claimed that there were "parts of Whitehall who still regularly forget".[121] Public Affairs Cymru cited the example of the Government White Paper Trust, Assurance and Safety: The Regulation of Health Professionals in the 21st Century.. They explained that the paper "applies to regulation in all parts of the UK but was written by the Chief Medical Officer for England and it is widely accepted that the way the suggestions for future regulation could be applied in Wales, Northern Ireland and Scotland were very much an afterthought".[122] The Wales Council for Voluntary Action went further and suggested that in some cases it is apparent that officials in Whitehall departments "simply do not know whether their policies apply to devolved areas or not".[123]

74. Public Affairs Cymru argued that there needs to be "closer working between departments with partially devolved / shared remits in order to ensure that the voices of the Welsh public are heard ... this would also help ensure that policy development, developed in Whitehall, applicable to the whole UK is fit for purpose in the three devolved administrations".[124] The Wales Council for Voluntary Action suggested that each Whitehall department with non-devolved functions should establish a statutory committee for Wales in order to "keep the interface with devolved policy arrangements under review".[125] Tom Jones, former member of the Richard Commission, suggested that "there has to be a form on Wales proofing similar to the rural proofing that new government policies are expected to undertake".[126]

75. While it is clear that the awareness of devolution in Whitehall has improved since the onset of devolution in 1999, there is no doubt that there is still a considerable way to go in achieving consistent and effective practices in dealing with devolution issues across all Whitehall departments. This should not only involve a full and comprehensive understanding of the policy areas that have been devolved to Scotland and Wales, but also full appreciation and consultation so that Welsh and Scottish interests are taken into account in policy making in reserved or non-devolved areas which will have an impact on the UK as a whole.

76. We agree that best practice should be mainstreamed across Whitehall, and devolution awareness should form a core part of the training for all senior civil servants. While this is crucially important in relation to senior civil servants it is also important that a good understanding of the constitutional settlement(s) should reach the front line of every department and agency of government. It is an issue for those engaged in delivery as well as those concerned with policy. We acknowledge the improvements that have been made in this area, but recognise that the performance remains patchy and that both good and bad practice remain.

THE FUTURE OF THE HOME CIVIL SERVICE

77. On 25 March 2008 the Government published a White Paper entitled The Governance of Britain-Constitutional Renewal.[127] It included recommendations to put the Civil Service Commission on a statutory footing.[128] Paragraphs 179 and 181 outlined the arrangements for consultation and communication with the First Ministers in Scotland and Wales, who would be expected to lay copies of the Civil Service Commission Annual Report before the Scottish Parliament and National Assembly for Wales respectively. Most notably, the accompanying draft Constitutional Renewal Bill requires the Minister for the Civil Service to publish separate codes of conduct for civil servants who serve the Scottish Government or the Welsh Assembly Government.[129]

78. Dr Hugh Rawlings, Director, Constitutional Affairs, Equality and Communication, Welsh Assembly Government, explained that the Bill "set out in statutory form that which is already provided for under prerogative powers." He continued "we already have a separate Welsh code under prerogative powers ... it reminds [civil servants] that their accountability in the first instance is to Ministers of the Welsh Assembly Government and not to the UK Government. In terms of the substance … civil service values and that sort of thing…they are exactly the same".[130] Dr Gallagher concurred: "the Code is single and the same in content at present … the suggestion was that there might be the capacity to make different Codes which made it explicit that their loyalties were owed to different ministers, but that the content of these codes would be uniform".[131] Rt Hon Jack Straw MP, was relaxed about the existence of the separate codes and asked whether changing the number of Codes to one would be "worth a candle, particularly where you would not produce any substantive change and it might arouse sensitivities".[132]

79. Northern Ireland is unique among the devolved administrations in having a separate civil service. Sir John Elvidge explained that the current Scottish Government's policy is that there should be "the development of a separate and distinct Scottish Civil Service".[133] Rt Hon Des Browne MP disagreed with this policy and argued that "we have a unified civil service that goes all the way into Scotland and that is an enormous advantage because officials talk to each other all the time".[134] Sir John explained that whether or not there was a unified or separate civil service in Scotland, there would continue to be "strong channels of mutual learning between the different administrations".[135] In practice, it is not at all clear that being part of the unified civil service has led to greater interchange between civil servants in the Scottish administration and Whitehall departments.

SECONDMENTS AND SHARED LEARNING

80. Sir John Elvidge argued in favour of "strong links"[136] between the three administrations. While he identified a "step change in the use of secondments since devolution",[137] most of these were with local authorities, organizations like the NHS and third sector organizations within Scotland. He could not "off the top of his head" think of secondments with the UK Government or with the other two devolved administrations, and identified a "practical reason for that"—for example, geographical distance.[138] Rt Hon Jack McConnell MSP identified "less of that interchange taking place" over the past eight years.[139] Sir John was keen to emphasise that this did not imply that there was not "cross-fertilization,"[140] but acknowledged that the civil service had not been very good at getting "shared learning working between the devolved administrations and the UK Government." He suggested that he, Sir Gus and other permanent secretary colleagues were "committed in principle to making that happen".[141]

81. As a practical means of delivering this, Rt Hon Jack McConnell MSP suggested that "young, ambitious, able civil servants should get experience of Whitehall departments, if they want to work in Scotland at a high level...young, ambitious, able civil servants in Whitehall should be made to go to work for one of the devolved administrations for a short time to understand the complexity of the modern United Kingdom".[142]

CIVIL SERVICE CAPACITY IN WALES

82. Cymru Yfory (Tomorrow's Wales) identified a disparity between Whitehall and Cathays Park. They explained:

"Wales's civil service remains very small and is often unable to pick up the level of policy development on a complex issue. This is particularly true of late, with examples of research on an issue and stakeholder engagement primarily focusing on England and the legislation simply having enabling clauses for Wales. There is no capacity in Wales for the detailed research or discussion that has taken place for England and the timetables for implementation are increasingly behind in Wales. It is anticipated that the situation will likely deteriorate due to the parallel and increased devolution of powers via Acts of Parliament and an increasingly heavy legislative programme at Cardiff Bay".

They concluded that this "resource deficit leads to legislative deficit". They continued:

"If Acts appear in Westminster with Welsh enabling clauses yet the capacity does not exist within the Welsh civil service to exercise these devolved powers previous Acts are repealed without provision already having been made in Wales. Often this leaves Wales in the unsatisfactory position of providing delayed and hasty legislation at best, or at worst, providing nothing at all".[143]

83. Rt Hon Rhodri Morgan AM, First Minister, Welsh Assembly Government, said that since 1999, there had been "a huge increase in the policy-development capability and the preparation of legislation … If there were such a thing as a University Challenge or an Olympics in capacity of the civil service to serve the needs of ministers in terms of legislation, I would be quite happy to put our team in, relative to the size of Whitehall because you have to make the adjustment that way".[144]

84. However, Mike German AM, shared some of the concerns expressed around the capacity of the civil service in Wales: "in terms of skills, that is an area that I worry about greatly. I think the idea of having a greater form of exchange between civil servants from both other forms of parts of the public service here in Wales and other parts of the public service in London, is one that should be promoted and extended".[145] Nick Bourne AM, Leader of the Opposition, Conservative Party, National Assembly for Wales, agreed and identified that a "proper exchange and secondments between the civil service in Wales…and Whitehall", would help to develop a "first class civil service in Wales".[146]

85. Whether there remains a unitary civil service or not within Great Britain, there is an overwhelming case for a more systematic programme of secondments between Whitehall, Cardiff and Edinburgh. This would have several benefits: not only helping to raise awareness of devolution in Whitehall, but also in promoting best practice and shared learning and experiences across all three administrations. Furthermore, it would help to address some of the capacity issues identified in relation to the civil service in Wales.

86. We recommend that the Government institute a programme of secondments throughout the United Kingdom, and that fast stream entrants to the civil service should be given the opportunity to spend time working both in Whitehall, and in one or more of the devolved administrations, early in their careers.

87. In essence, the same civil service code applies in all jurisdictions with differing specific references to accountability. While there need to be provisions reflecting accountability to different administrations and the need for sensitivity in Whitehall to the different settlements, we believe that it is right that a common Civil Service code should be accepted and observed by all the administrations of Great Britain. The code should be one of the means by which the details and implications of the devolution settlements are experienced and promulgated, together with the fundamental principles of public service which are a shared inheritance of the whole of the United Kingdom.


39   Ev 146 Back

40   The costs of both Offices as well as the provision for the expenditure for the devolved authorities in Scotland and Wales form a separate, ring fenced, element of the MoJ estimate. Policy responsibility for payment of the grant to the Scottish and Welsh administrations remains with the Secretary of State for Scotland and Secretary of State for Wales respectively. A range of corporate services, for example staffing, finance and office services are provided as part of the Ministry of Justice. This change does not affect the separate accountability of the Offices to their respective Ministers. The Head of the Scotland Office and the Head of the Wales Office were appointed in 2003 by HM Treasury as Additional Accounting Officers. Details of the role and responsibilities as Additional Accounting Officer have been set out in a Memorandum of Understanding agreed with the Principal Accounting Officer for the Ministry of Justice.  Back

41   Ev 147; Following further machinery of government changes, the DCA became the Ministry of Justice on 9 May 2007.  Back

42   Q 55 Back

43   Ev 181; The arrangements for the co-ordination of inter-governmental relations, and the machinery of inter-governmental relations remained the responsibility of the Cabinet Office.  Back

44   If regional policy in England is included.  Back

45   Ev 226 Back

46   Ev 148 Back

47   Ev 220 Back

48   Ev 182 Back

49   Ev 180 Back

50   Ev 180 Back

51   Ev 180 Back

52   Q 648. The first two areas of responsibility are discussed immediately below, while the roles of the Secretaries of State are outlined in paras 42-67. Back

53   Q 648 Back

54   Q 650 Back

55   Q 650 Back

56   Ministry of Justice, Governance of Britain, Cm 7170, July 2007 Back

57   HC Deb, 3 July 2007, col 815 Back

58   Robert Hazell, Towards a New Constitutional Settlement: An Agenda for Gordon Brown's First 100 Days and Beyond (Constitution Unit: UCL) Back

59   The Criminal Justice and Immigration Bill 2008 contained provisions designed to protect NHS staff and Ministry officials appear to have become confused. While the management of the NHS is devolved, criminal justice issues are not, and so provision for Wales had to be made within the Bill.  Back

60   Welsh Affairs Select Committee, Seventh Report of Session 2008-09, Legal Services Commission's Cardiff Office, HC 374  Back

61   Q 648 and Ev 148  Back

62   Ev 181 Back

63   Q 31 Back

64   Ev 182 Back

65   Q 504 Back

66   House of Lords Select Committee on the Constitution, Second Report of Session 2002-03, Devolution: Inter Institutional Relations in United Kingdom, HL 28, para. 67 Back

67   Ev 182 Back

68   Robert Hazell, Towards a New Constitutional Settlement: An Agenda for Gordon Brown's First 100 Days and Beyond (Constitution Unit: UCL), p.27 Back

69   Robert Hazell, Towards a New constitutional Settlement: An Agenda for Gordon Brown's First 100 Days and Beyond (Constitution Unit: UCL), p.19 Back

70   Q32 and Q33 Back

71   Q 458 Back

72   Q 458 Back

73   Q 509 Back

74   Q 508 Back

75   www.justice.gov.uk/guidance/devolutionguidancenotes.htm Back

76   Q 652 Back

77   Q 47 Back

78   Q 288 Back

79   Q 288 Back

80   Oral evidence taken before the Scottish Affairs Committee on 4 July 2006, HC (2005-06) 1440-i, Q 55 [Rt Hon Douglas Alexander MP]  Back

81   Oral evidence taken before the Scottish Affairs Committee on 17 July 2007, HC (2006-07) 943-i, Q 3 [Rt Hon Des Browne MP] Back

82   Q 505 Back

83   Q 289 Back

84   Q 232 Back

85   Q 226 Back

86   Q 240 Back

87   Q 59 Back

88   Wales Office Annual Report 2007, Cm 7110, 10 May 2007 Back

89   See also para 54 and para 143  Back

90   Wales Office Annual Report 2007, Cm 7110, 10 May 2007, pp 26-27 Back

91   Devolution Guidance Note 4. Updated November 2005, www.justice.gov.uk/guidance/devolutionguidancenotes.htm Back

92   Q 86 Back

93   Q 86 Back

94   Q 86 Back

95   Q 87 See also para 54  Back

96   Q 633 Back

97   Q 633 Back

98   See para 47 Back

99   Q 62 Back

100   Q 36 Back

101   Q 36  Back

102   Q 238 Back

103   Q 99 Back

104   Q 651 Back

105   Ev 220 Back

106   Ev 220 Back

107   Q 99 Back

108   Q 614 Back

109   Q 37 Back

110   Q 37 Back

111   Ev 200 Back

112   Q 37 Back

113   Q 37 Back

114   This has been highlighted by the Welsh Affairs Select Committee's reports on the provision of cross-border services for Wales. For full list see reference number 4. Back

115   Ev 148 Back

116   Q 57 Back

117   Q 255 Back

118   Ev 201 Back

119   For example see para 37 Back

120   Ev 244 Back

121   Ev 244 Back

122   Ev 229 Back

123   Ev 243, see also para 37 Back

124   Ev 229 Back

125   Ev 243-244 Back

126   Ev 238 Back

127   Ministry of Justice, The Governance of Britain-Constitutional Renewal, Cm 7342-I, March 2008 Back

128   Ibid, Para 175 Back

129   Ibid, Para 187 Back

130   Q 640 Back

131   Q 654 Back

132   Q 655 Back

133   Q 220 Back

134   Q 57 Back

135   Q 220 Back

136   Q 220 Back

137   Q 206 Back

138   Q 216 Back

139   Q 511 Back

140   Qq 216-217 Back

141   Q 220 Back

142   Q 511 Back

143   Ev 185 Back

144   Q 643 Back

145   Q 618 Back

146   Q 601 Back


 
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