Devolution: A Decade on - Justice Committee Contents

Conclusions and recommendations

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Introduction

1.  The way the United Kingdom is governed has changed and will continue to change because its component parts are now governed by different administrations and in ways which are not uniform. The system of government for England, which remains relatively centralised under the management of the United Kingdom Government and the legislative authority of the United Kingdom Parliament, is at least called into question, and, in the view of a significant proportion of our witnesses, in need of fundamental change. There is no consensus on what change should be made to the system of government for England, but every major political party has put forward or is considering change in this area, with hardly anyone arguing for no change at all. (Paragraph 3)

Devolution and the Centre

2.  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. (Paragraph 63)

3.  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. (Paragraph 64)

4.  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. (Paragraph 65)

5.  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. (Paragraph 66)

THE CIVIL SERVICE

6.  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. (Paragraph 75)

7.  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. (Paragraph 76)

8.  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. (Paragraph 85)

9.  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. (Paragraph 86)

10.  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. (Paragraph 87)

Inter-governmental Relations

11.  We welcome the fact that the Concordats between relevant Whitehall Departments and the Welsh Assembly Government are being revised in order to reflect the changes brought about by the Government of Wales Act 2006. (Paragraph 96)

12.  We recognise that the structures for the co-ordination of inter-governmental relations designed between 1997 and 1999 grew out of relationships between departments of the same government, rather than between different governments of different party political complexions. (Paragraph 104)

13.  The system of devolved government, including governments of different political complexions, requires a set of arrangements which provide opportunity for the expression of legitimate political and territorial differences, negotiation, dialogue and dispute resolution. These arrangements also need to facilitate the co-ordination of action in areas of joint interest, the promotion of common interests and good relations and an effective means of dealing with the consequential effects of decisions taken in the respective jurisdictions. The absence of such a structure is one of the weaknesses of the current devolution settlement. (Paragraph 105)

14.  Such arrangements would not in any way detract from the importance of ensuring that there is a need for a proper understanding of the devolution settlement(s) to permeate every aspect of the work of Whitehall departments and their agencies and an equivalent need for understanding and sensitivity within each of the devolved administrations and their agencies. (Paragraph 106)

JOINT MINISTERIAL COMMITTEE

15.  We welcome the re-convening of the Joint Ministerial Committee and note that its usefulness has been demonstrated in securing agreement between the territorial jurisdictions on the UK Marine and Coastal Access Bill. We recommend that the Joint Ministerial Committee continues to meet on a regular basis. (Paragraph 113)

16.  We welcome a more active and systematic role for the Joint Ministerial Committee as the central apparatus for inter-governmental relations within the United Kingdom. We welcome the new terms of reference, which emphasise its role in promoting dialogue and negotiation and also in dispute resolution. (Paragraph 118)

17.  We welcome the fact that the Joint Ministerial Committee has invited officials to review the Memorandum of Understanding. However, ten years on, we believe that a broad review is necessary: not only of the machinery for co-ordinating inter-governmental relations in the United Kingdom, but of the broader role of central Government in its strategic overview of the United Kingdom post-devolution. (Paragraph 119)

18.  We believe that a robust framework for inter-governmental relations, supported by a streamlined centre responsible for devolution policy and strategy across Whitehall, would equip the United Kingdom with a more efficient and effective system for territorial management in the UK post-devolution. (Paragraph 120)

INTER-PARLIAMENTARY RELATIONS

19.  One way of securing a greater interchange and understanding would be to develop a format similar to the British-Irish Parliamentary Assembly, bringing together Members of Parliament and of the devolved Parliaments and Assemblies, to hold to account the Joint Ministerial Committee and to share experience and best practice. There needs to be reasonable confidence in the value which could be added by such a body for the idea to be developed, but we consider that it deserves debate. (Paragraph 124)

The Legislative Process

SCOTLAND

20.  We welcome the procedures and mechanisms which have been put in place by the Scottish Parliament for the effective scrutiny of Legislative Consent Motions, and the effective system of communication with the Westminster Parliament, which appears to be working satisfactorily. (Paragraph 130)

21.  We recommend that the UK and Scottish Governments set out and publicise their agreed understanding of the principles which should govern the use of Legislative Consent Motions. (Paragraph 131)

WALES

22.  We recognise that the process of enhancing the legislative competence of the National Assembly for Wales with the consent of Whitehall and Westminster is seen by some commentators as complex. It is a new process, and there were some initial fears that it would be difficult to achieve an efficient and streamlined process of scrutinizing and enacting Legislative Competence Orders. (Paragraph 146)

23.  We agree that there is a legitimate role for Westminster in scrutinizing draft Legislative Consent Orders to check whether they are in order, what their scope is, whether the drafting is clear and precise and whether the legislative competence can or should be devolved under the terms of the Act. (Paragraph 147)

24.  However, the process in Whitehall is less clear and we are also concerned about the lack of transparency of the role of the Secretary of State in determining whether or not he would lay a draft Order before both Houses of Parliament. We recommend that the Secretary of State produce a protocol outlining the principles that would inform such a decision, and the maximum timescales within which a decision should be made. (Paragraph 148)

25.  We recognise that accessibility of the law relating to Wales is important for the development of healthy democracy. We encourage the Government to facilitate the work of the Welsh Assembly Government in seeking to achieve this objective. (Paragraph 152)

The English Question

26.  Over four-fifths of the population of the United Kingdom live in England, but while fundamental change has been taking place in the governance of Scotland, Wales and Northern Ireland, with consequent effect on the governance of the United Kingdom as a whole, no such change has taken place in the way England is governed. There have been some developments with mixed results: a form of devolution in London, endorsed in a referendum in 1998, the creation of various unelected regional structures in the rest of England, and a move in some areas towards having a single tier of local government. Legislation was put in place to allow any region to have an elected Assembly, subject to a local referendum. The first—and only— attempt to make use of these provisions was defeated in a referendum in the North East in 2004. (Paragraph 153)

27.  Government in England remains centralised under the authority and management of the United Kingdom Parliament and the United Kingdom Government. There is controversy arising from the fact that England is governed directly by the United Kingdom Government and Parliament and is therefore subject to Ministers and MPs who do not represent England and whose own constituents come under devolved governments. The governance of England is seen by many as the "unfinished business" of devolution, but this perception is not accompanied by any widespread agreement on what should be done. (Paragraph 154)

SOLUTIONS

28.  Different types of solutions can be suggested for the many different questions which fall under the broad heading of the English question. First, there are those solutions which seek to address the constitutional imbalance seemingly brought about by devolution, for example, through the creation of an English Parliament. Second, there are those solutions which seek to amend the role, practice and status of Westminster as a means of addressing the West Lothian Question, for example, schemes of English votes for English laws. However, others consider that the West Lothian Question could be best addressed by a change in the party political balance at Westminster, for example, through reform of the electoral system or a reduction in the number of MPs from Scotland and Wales. These approaches could be described as all-England solutions. The final category of solutions are those which attempt to tackle the centralised nature and relative size of England through decentralisation or devolution within England. What is clear is that different solutions address different aspects of the question. (Paragraph 163)

AN ENGLISH PARLIAMENT

29.  While an English Parliament could address one aspect of the English question in terms of giving England a similar constitutional status to Scotland within the United Kingdom, it presents issues of balance because of the sheer size of the English population and because it would require a Government and First Minister for England in addition to the United Kingdom Government and Prime Minister. We do not think that there is a need to consider so far-reaching a solution as an English Parliament, although it may become necessary to do so if the English questions are seen as increasingly significant and other solutions are rejected or fail. (Paragraph 173)

ENGLISH VOTES FOR ENGLISH LAWS

30.  The question of whether England-only legislation can be more clearly demarcated from other legislation has to be resolved if any scheme of English votes for English laws is to work. While technical difficulties in relation to Legislative Consent (Sewel) Motions could be overcome by changes in drafting practice and by resorting to additional separate Bills, demarcating English and Welsh legislation is more complex. (Paragraph 191)

31.  Even if legislation could be more clearly distinguished, the current system of territorial financing in the UK post-devolution means that the levels of public finance decided for England determine levels of resource allocation to Scotland and Wales. While we agree that the system could be changed in order to remove this effect, such a change would be a necessary pre-requisite to any system of English votes for English laws. (Paragraph 194)

32.  While some proposals for English votes for English laws can be presented as limited procedural change, any thorough application of the principle would have broader implications for Parliament and for the position of the UK Government. (Paragraph 198)

33.  Proposals for English votes for English laws seek to make procedural adjustments to Westminster in order to remove the anomaly of Scottish MPs voting on matters in England which are devolved matters in Scotland. At present, such a scheme would be difficult to apply other than in limited form given both the current procedures for legislating for the UK and its constituent parts following devolution, and the current system of territorial finance. (Paragraph 199)

34.  While these obstacles could be overcome, some fear that the full application of English votes for English laws could result in a Parliament within a Parliament, which could be unworkable and might pose as great a threat to the Union as the resentment it seeks to address. (Paragraph 200)

35.  English votes for English laws seeks to deal with what is as much a political problem as a constitutional problem, represented by the traditional dominance of different parties in different nations and regions—an issue which, some suggest, could be addressed, in part, by reform of the electoral system which could reduce the risk of an English majority being overturned by Scottish and Welsh MPs. Others suggest that a further reduction in the number of Scottish seats at Westminster, and a possible reduction in Welsh seats following the devolution of greater powers, could also, to some extent reduce the same risk. Neither of these measures would, however, address the issue of principle about the voting rights of MPs representing nations with devolved governments and both of them give rise to controversy between parties because of the effect they have on party strengths at Westminster. (Paragraph 201)

DEVOLUTION WITHIN ENGLAND, LOCAL GOVERNMENT AND THE ENGLISH QUESTION

36.  We have not examined regional and local governance issues in depth during this inquiry but clearly, in developing a clear and coherent strategy for devolution, the Ministry of Justice, needs to take policy developments in both areas into account and establish cross-departmental working mechanisms with the Department for Communities and Local Government and the Department for Business, Enterprise and Regulatory Reform to do so. (Paragraph 226)

37.  However, it does not appear likely that the powers which future governments will be prepared to devolve to local government, will be sufficient to meet the concerns of those who want an English solution to the West Lothian question or those who believe that power will continue to be exercised at regional level and wish to see those powers made accountable and increased. (Paragraph 227)

THE ENGLISH QUESTION—CONCLUSION

38.  There is no consensus about solutions to the "English question", or the range of questions which arise under that heading. Each suggested answer has its own problems and limitations, and while some attempt to address issues around centralisation, others attempt to address the West Lothian question. Those which deal to any major extent with the West Lothian question, like an English Parliament and English votes for English laws, raise significant problems in a state where one of its constituent territories has 84% of the population. (Paragraph 228)

39.  The implications of having an English Government and First Minister as well as a United Kingdom Government and Prime Minister have not been the subject of much public discussion and are politically significant. Approaches which make the UK Parliament into a federal Parliament or treat English laws differently at Westminster raise questions about the nature and role of the Second Chamber which need to be considered as part of the discussion of Lords reform: clarification would be needed about whether, and if not why, the Second Chamber should consider "English" laws when it did not consider the laws of Scotland. (Paragraph 229)

40.  These are major political as well as constitutional questions which are for Parliament as a whole to consider. It is our belief that as devolved government in Scotland, Wales and Northern Ireland develops in profile and substance, Parliament will come under pressure to consider these questions. (Paragraph 230)

Finance and the Barnett Formula

41.  The Barnett Formula is overdue for reform and lacks any basis in equity or logic. It creates controversy in all of the constituent parts of the UK. There is controversy in England that the Barnett Formula allows for higher levels of public spending in Scotland from the UK Exchequer and does not deal with different needs in different parts of England. There is concern in Wales that allocation of funds through the Barnett Formula does not adequately meet the higher structural costs of the delivery of some public services. We are concerned that the lack of adequate understanding of the Formula and how it operates has the potential to create tension and fuel disputes. (Paragraph 253)

42.  We are also concerned at the lack of transparency in the process of decision making by the UK Government as to what spending is included in the calculations for the Barnett Formula and the rationale for those decisions. This lack of transparency has already caused political disputes between the UK Government and the devolved administrations. These difficulties are only likely to intensify in the current economic climate. (Paragraph 254)

43.  We therefore recommend a two stage approach. First, we recommend that the Government publish, as a matter of urgency, the long promised detailed factual paper about how the Formula works. This should include the criteria for the inclusion or exclusion of spending in the Statement of Funding (i.e. for inclusion in the Barnett Formula). This overdue document is essential to remove misunderstanding about the operation of the Formula and to introduce an element of transparency and oversight into the Government's spending decisions. (Paragraph 255)

44.  This, however, is only a first step. We welcome the reviews of the operation of the Barnett Formula currently taking place in both Scotland and Wales. However, there is an urgent need for the Government to undertake a UK wide review of the Barnett Formula, and to put forward an alternative system for the allocation of funding between the nations and the regions of the UK and a generally accepted mechanism for reviewing its operation and adjudicating disputes which arise. (Paragraph 256)

45.  Any new system should be robust and long term - enabling Departments and Agencies of Government to have dependable indicative figures on which to plan and budget at least three years ahead. Any new system should be introduced with care, with at least a two-year period of transition built into the system for its introduction. It should not be adjusted on an annual basis—a five-year review should be the minimum review period. (Paragraph 257)

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Prepared 22 May 2009