Examination of Witnesses (Questions 60-79)
RT HON
DES BROWNE
MP AND DAVID
MIDDLETON
29 JANUARY 2008
Q60 Dr Whitehead: I get the sense
from our discussion that whilst there may be a number of bilateral
arrangements there does not appear to be so much of what one might
call the management of devolution in Whitehall. Is that a fair
comment or is there an active management across the three devolved
administrations of management of that process in Whitehall? If
there is a management process, do you have a strategic role in
that?
Des Browne: The phrase "management
process" is undefined and I am not asking you to define it.
There are flexible structures here in Whitehall and in the UK
Government that are designed to allow devolution to work in the
best interests of the people of Scotland principally but in the
best interests of the United Kingdom. The process is spelled out
in the provisions of the Scotland Act which has this inbuilt flexibility.
There are a number of provisions—I can go through them specifically
for you if you like but it would be tedious—of the Act which
allows Orders to be made here to manage that process and they
can be made for a number of reasons. They can be made in order
to reflect the effect of legislation that is passed in Scotland
where, in order for it to work properly, legislation down here
needs to be changed and we make Orders to do that, to revise devolved
legislation or to adjust it to make effective legislation in the
Scottish Parliament. There are provisions that allow us to devolve
either executively to the Executive of the Scottish Parliament
or legislatively to the Parliament powers to make Orders there
where we think that adjustment is appropriate. There are provisions,
for example, to allow UK ministers to exercise what would otherwise
be devolved powers if it is considered that that would be expedient
in terms of the management, and then there are provisions, which
we all know about, which used to be known as Sewel Motions but
are now known as Legislative Consent Motions, which allow effectively
the Scottish Parliament to decide for expediency purposes it would
be better if the legislation was carried through here at a UK
level although it would affect an otherwise reserved area. That
is part of the management process. There is a Cabinet committee—it
is now known as the CN Committee—which has existed in one
form or another to allow these issues to be administered at the
high level as a sub-committee of the Cabinet by ministers who
have responsibility and we meet regularly to discuss issues. Presently
we meet under the chairmanship of Jack Straw in the CN Committee,
but it used to be known as the Constitutional Affairs Committee
and before that it had a name which was about devolution to Scotland,
Wales and Northern Ireland. I cannot remember what it was called.
David Middleton: It was devolution
to Scotland, Wales and the English regions.
Des Browne: Then there are Memorandums
of Understanding and there are concordats. There are other bits
of this structure. I am maybe giving you too detailed an answer
here. There is plenty of structure there and, frankly, it works.
It is tested on occasions. It has the advantage that there has
never been an Executive in Scotland that has not had what you
might call an opposition party in it. The Liberal Democrats have
been part of it before. Presently it is an SNP-led minority government.
It has stood the test of the involvement of different parties
in Government here and it works. I know there is a kind of demand
for an infrastructure of committees which will meet whether there
is something to discuss or not. I am not sure that that would
help.
Q61 Dr Whitehead: Thank you for what
I might summarise as describing in detail the battleship and its
parts but not necessarily whether the battleship fired any guns
or not. Would you say the Cabinet committee that you have described
is the management device for devolution? A number of the structures
that you have described are things that could or could not be
operated or implemented or done anything with. On the other hand,
I imagine that the management of devolution is, or should be,
an act of process, particularly in terms of the description that
you have set out of part of your role being to ensure that the
devolutionary process works as well as it can as far as Scotland
is concerned.
Des Browne: I think what I am
balking at is the idea that somehow we can from here manage the
powers that we have devolved either to Wales or to Scotland or
to London or to Northern Ireland for that matter. They have been
devolved into a political system. They were devolved because as
a party fundamentally we trusted the people to make political
decisions to have responsibility for the politics and the Executive
that would administer those powers for them in a situation which
was closer to them. I am slightly balking at the idea that somehow
we sit here and manage that because clearly we do not. There are
elections and people are elected to make policies. As a democrat
I fundamentally respect the decisions the Scottish people made.
I am constantly being reminded that I should and I do. Therefore
I see my role in terms of management to ensure that this organisation
that is the UK Government and its supporting administration does
not thwart those decisions of the Scottish people, that that space
is left and that it is not invaded accidentally, and that we do
not inadvertently do things which offend that settlement. Equally
well, part of my function is to recognise when that space is spreading
into an area which is properly reserved. So to that extent this
works because it has been successful. It has provided the Scottish
people with the sort of government which they craved up until
1997 and which we promised them. Of course it has its challenges,
but every part of life that involves people and people that have
different views has its challenges and it is tested and it will
be tested. It was tested with the previous Executive and Parliament
as it will be tested with this one.
Q62 Dr Whitehead: I think I am looking
to understand very much the question of what remains happening
in Whitehall as a result of the devolutionary process. For example,
there are five government departments that have an interest in
devolution policy and strategy: we have Scotland, Wales and Northern
Ireland Offices, we have the Ministry of Justice and the Cabinet
Office all with an interest in that process. Do you not think
perhaps there should be one centre for that or do you think that
devolved interest is something that works?
Des Browne: I think it is being
seen to be important for the people of Scotland, Wales and Northern
Ireland that they are represented at the UK level by a Secretary
of State for the reasons that we have already discussed, I will
not go over them again. The manifestation of that is the Scotland,
Wales and Northern Ireland Offices. I have views about Northern
Ireland and less well-informed views about Wales. I have some
experience of Northern Ireland, but that is not what you want
to hear from me, other people can speak for them. You will see
the Secretary of State for Wales after me and I am sure his views
will inform you. We have already recognised that those offices,
because of devolution, are entities which are much smaller than
they were before and for reasons which I think are logical we
have put them into a "family" with another larger department.
Beyond that, decisions about the machinery of Government are matters
for the Prime Minister. With only one exception that I can think
of, in the time that I have been a Member of Parliament all sorts
of decisions have been announced and not debated and discussed
in advance. I think there are very good reasons for that.
Q63 Chairman: It is something we
have criticised in the past.
Des Browne: There is accountability
and if they do not work then that is the ultimate criticism, but
people need to take responsibility for the decisions. I think
this system works. This process has changed decisions that have
been made. We have heard today, although I have not got my head
round the detail of this, that there is to be a reorganisation
in the Ministry of Justice. I do not know what consequences that
will have, if they will be marked for us to any extent, but it
is happening. In administration terms, people are constantly changing
and responding to lessons that they learn, but this works. If
at some stage somebody chooses to change it then I am sure they
will change it to something that will work too.
Q64 Dr Whitehead: There was a full
Cabinet meeting early this month which discussed devolution. Without
going into what transpired in detail, what was the nature of those
discussions?
Des Browne: I think there is a
long-standing good tradition that Cabinet Ministers do not discuss
or hint at what has been discussed in Cabinet or Cabinet sub-committees.
I intend to respect that. I am sorry to disappoint you. It was
a valiant attempt!
Q65 Chairman: I suppose we have to
conclude that there are general issues around devolution which
made it appropriate to gather together the members of the Cabinet
to talk about them.
Des Browne: There are regular
meetings of the CN, which is a sub-committee of Cabinet, which
discuss issues to do with the constitution and devolution. Of
course these are live issues.
Q66 Dr Palmer: If one looks round
the world, there are plenty of examples of devolved administrations
which have different political parties to the national government.
What is a little unusual is that the devolved administration has
a declared objective of long-term separation. Are the current
mechanisms for inter-governmental relations sufficiently robust
now that we have that built-in potential difference in long-term
objective between the Westminster Government and the Executive
of Scotland?
Des Browne: That is essentially
a political question which does not lend itself to an empirical
answer. I will give you a view. My view is that the devolution
settlement in Scotland is robust. It has proved itself to be robust
for over 10 years now. All sorts of people made all sorts of predictions
about what the consequences of it would be. They have not yet
manifested themselves. It seems to me that it serves the Scottish
people well. Has it encouraged the Scottish people to be more
pro separation? No. The latest opinion poll in Scotland suggests
that in fact support for independence is—certainly in my
lifetime—at an historic low, it is at about 23%.
Q67 Dr Palmer: I suppose what I mean
is whether you have found that, given the difference in long-term
objectives, there are practical ways in which difficulties arise
in day-to-day co-operation or is it all going smoothly behind
the scenes?
Des Browne: I am not aware of
practical difficulties in relation to co-operation. I think you
can rest assured that there is a lack of shyness among those who
currently make up the administration in Scotland and if there
were they would point them out to us. My observation is that in
the day-to-day business that needs to take place between the administration
in Scotland and the administration down here people get on with
the job. There are hundreds of contacts among officials every
day. In another capacity a document crossed my desk in which officials
from the Scottish Executive were in touch with our officials seeking
advice in relation to something and we gave it to them, that is
not a problem. Ministers meet each other. The Minister of State
in the Scotland Office speaks to the minister who has responsibility
for parliamentary affairs, I think his name is Bruce Crawford,
on a bi-weekly basis. Contrary to the politics because the politics
go on, at Executive level my experience is that people take their
responsibilities seriously. That means the people who are charged
with the responsibility of delivering for the people in Scotland
have to get on with that job, and the media and other processes
of scrutiny make sure that they do and they have to get on with
the job and we have to get on with the job as well. Actually,
despite what may surface occasionally and make people think that
there is constant tension, there is nothing of the sort; people
are getting on with it at bilateral levels. The JMC Europe meets
regularly and does its business, fisheries ministers talk to fisheries
ministers and people get on with it.
Q68 Dr Palmer: It sounds very cosy.
Professor Jeffrey has said to the Committee that he feels there
is a lack of understanding that conflict is a normal and healthy
reality of devolution and you are telling us that this conflict
is only at the top political level and otherwise there is really
no creative tension.
Des Browne: No, no, I am not.
Frankly, there is creative tension inside the Government here
in Westminster and I would be astonished if there was not creative
tension inside the Government and the Executive in Scotland. People
do not always agree with each other and that is a perfectly healthy
position, but by and large we have a convention that we do not
surface that disagreement because people concentrate on that and
that we arrive at agreements and those agreements we get on and
deliver. I am not privy to these conversations, but I cannot imagine
that people do not come with a position and that our officials
say, "Well, we've got an alternative position, it is conflicting,
but let's see where we get to."
Q69 Dr Palmer: How would you respond
to the suggestion that the mechanisms for inter-governmental relations
be made more transparent so that, apart from the political debate
that we all see, people are actually aware of all these discussions
going on?
Des Browne: I think the convention
that applies inside Government that by and large Government keeps
these debates away from the public— When ministers debate
with others and when we have discussions in Cabinet sub-committees
these conventions which apply that we do not discuss them in public
are healthy because people want to see the matured and formulated
policy rather than the debate necessarily that leads up to it.
Once the Government surfaces its position you can then have a
debate about whether or not that is a sustainable position and
it can come under the challenges that are appropriate in terms
of scrutiny. It does not seem to me necessarily that governance
would be improved by having all of this out in the public domain.
That is not to say that other people may have a different view.
Q70 Dr Palmer: During the 10 years
I have been in Parliament I have only met a member of the Scottish
Parliament once for five minutes. I think by and large relations
between the two parties are almost non-existent. Is that a problem
for you given that you have got this close relationship between
the Government and the Executive? Would you like to see more joint
discussions between the parliaments on issues of joint concern?
Des Browne: It may not be surprising
that since 1999 you have not had a lot of exposure to members
of the Scottish Parliament. I have no idea where your detailed
interests have lay over those years. I know lots of them and I
know lots of MPs who know lots of them and know them very well.
At the heart of devolution is that we have devolved to that Parliament
responsibility for certain areas of public policy and reserved
to ourselves other areas of public policy. I am not sure whether
we need to try and manufacture areas of common interest in order
to have cross-fertilization. I have no way of knowing whether
that is a good thing or a bad thing. I know that those MPs who
share common geographical areas with members of the Scottish Parliament
know them very well. Scotland is not that big a place to be honest.
Q71 Chairman: We talked earlier about
Legislative Consent Motions or Sewel Motions. Do you think there
should be a framework of principles guiding when such motions
are appropriate? Is anyone trying to develop one within Government
or do you think it is a bad idea?
Des Browne: I actually think constraining
Legislative Consent Motions would be a bad idea because at the
heart of Legislative Consent Motions is a decision by the Scottish
Parliament that they think in a pragmatic and sensible way, that
rather than insist on their right to exercise a devolved power
it should be exercised by the UK Parliament. In an area where
there is an agreement of policy and they are content as a Parliament,
reflected in the motion that they pass, those provisions should
apply to Scotland. I will tell you why I think constraining that
would be a bad idea because it covers a really wide range. Towards
the end of the last term of the Scottish Parliament there was
a recognition across the United Kingdom that the law acted upon
was to the disadvantage of mesothelioma sufferers. This is a disgusting
and terrible disease, which is a horrible death and once you get
it it is a death sentence. There was, quite rightly, I think,
a consensus right across the political spectrum that something
should be done about this. We agreed to do it here in the UK Parliament.
Compensation is a devolved area. Quite sensibly and, I think,
unanimously the Scottish Parliament took the view that if they
had to go through an equivalent process it would take some months
and the practical reality of that would be the people who could
otherwise have benefited would be dead so they said, "This
has to be done. It normally is a devolved area, but we think the
UK Parliament should do it because it is ahead of us and let it
get on with it". That is one set of circumstances. There
are currently, I think, five Legislative Consent Motions arising
out of our programme for legislation announced in the Queen's
Speech. Three of them the Scottish Parliament has already passed.
This used to be an issue of great contention but it is no longer.
These have been passed quite quietly. They are eminently sensible.
Two of them I will give you examples of. One of them is to do
with climate change where there is a recognition that since there
is a coherence of policy approach across the UK to the issue of
climate change there is no reason for there to be two separate
pieces of legislation and since the climate does not recognise
the border then it is sensible that the legislation should not.
The second one that I would draw to your attention is about dormant
bank accounts and releasing the ability of the Scottish Executive
to take advantage of the funds that will be released from dormant
bank accounts for investment. With respect, Chairman, I do not
know how anybody would draw up a set of principles that applied
to such a diversity. How many have there been? I cannot remember
now exactly but it is quite a significant number. There used to
be this really sterile debate in Scotland about whether or not
the Scottish Parliament should insist on having this power when
in fact this was just a practical answer to a problem. It is not
giving up its reserved position, we are not taking it from them,
but now all of that has quietened down. Quite interestingly, the
SNP minority led Executive has five agreed Legislative Consent
Motions or Sewel Motions when as a matter of principle they opposed
them. I remember when the Tories as a matter of principle used
to oppose timetabling motions in this parliament, but that has
kind of slipped away as well now. The figure is 95 Bills since
the introduction of devolution have contained clauses requiring
the consent of the Scottish Parliament.
Q72 Mr Tyrie: Professor Curtice gave
evidence to us and he told us that the Scotland Act was "deficient
in the way it cut the number of Scottish MPs" because it
did not take account of demographic changes whereby the English
population was likely to rise, and continue to rise, faster than
the Scottish population. Do you agree with him?
Des Browne: No. The problem does
not lie in the Scotland Act. The Scotland Act did not actually
cut the number of Scottish MPs. What it did was it repealed a
provision which I think lay in a piece of legislation in 1986
which put a minimum on the number of Scottish MPs. I think it
was 71 was the minimum number that was fixed. We know who was
running the Government at that stage so it must have had the support
of that party in power. They fixed the number of Scottish MPs
artificially at 71. Part of the devolution deal as it were was
that that would be repealed. It was in the White Paper. The people
of Scotland accepted it. It was repealed. That meant that Scotland
was no different with the one exception of the Shetland and Orkney
Islands constituency. It may well apply to all of the Islands'
constituencies for demographic and geographical reasons. Scotland
was put into exactly the same position as the rest of the United
Kingdom and the Boundary Commission was charged with exactly the
same responsibility of fixing the size of the constituencies against
the same criteria. Therefore the number of MPs in Scotland came
down to 59. This is no respectable argument in my view, given
the nature and the importance of the decision which the UK Parliament
makes and the importance of those to the people of Scotland, that
they deserve to be less well represented than the rest of the
United Kingdom. They did not deserve to be better represented
after devolution. I am not privy to what caused the 1986 provision
to be made in the first place, but maybe those who were in Government
know about that.
Q73 Mr Tyrie: As the average size
of the voting population increases faster than those in Scotland
will the number of Scottish seats fall below 59?
Des Browne: I think we should
make these decisions about representation across the whole of
the UK. At the moment this Parliament by legislation gives the
Boundary Commission a set of criteria to apply. If the demography
of the whole of the UK makes a mockery of those criteria then
we should look at those criteria, but what we should not do is
make decisions about the UK Parliament based on some prejudice
or argument about the representation of a part of it as opposed
to another part of it. We should make these decisions right across
the whole of the UK and therefore other factors will come into
play. Clearly there are factors that you would apply even now
to the consideration of representation in Northern Ireland that
you might not apply elsewhere.
Q74 Mr Tyrie: Would you consider
that a good way of providing for what you would see as the necessary
equivalent treatment right across the UK is the creation of one
Boundary Commission for the whole of the United Kingdom?
Des Browne: I think the reality
is that we have devolution in Scotland and we have another set
of constituencies so we are going to have a separate Boundary
Commission for Scotland in any event.
Q75 Mr Tyrie: I am talking about
for the Westminster Parliament.
Des Browne: There are a number
of reasons why it makes sense to have a separate Boundary Commission
for Scotland. One is that they have another Parliament. We would
have to have a separate Boundary Commission for that in any event.
So we are going to have a separate Boundary Commission for Scotland.
The second is the point that we started on, which is that Scotland
is a different legal jurisdiction and it always has been. The
interaction between the Boundary Commission and the justice system
in Scotland is quite well known to the people of Scotland. If
I recollect correctly, the Boundary Commission in Scotland is
chaired by a Senator of the College of Justice, a Scottish High
Court judge. The appeals system goes into the Sheriff Court process.
I think it makes sense to leave it where it is because that works.
Q76 Mr Tyrie: So you want decisions
to be taken right across the UK as a whole but you do not want
a Boundary Commission that is empowered to do that?
Des Browne: If we are going to
change the criteria that we ask the Boundary Commissions to apply
to the size of constituencies then we should make those decisions
across the whole of the UK and not niche decisions in relation
to England. That is exactly what we agreed to do at the point
of legislating for the Scottish Parliament. We said this minimum
number, which no doubt had been imposed for very good reasons,
no longer is relevant and we will remove it.
Q77 Chairman: In order to achieve
that, is it not necessary that at least the two Boundary Commissions
should be able to meet together and decide what the quota for
any constituency in the United Kingdom is, even if it is a separate
Scottish Boundary Commission goes on to work out how you divide
the actual boundaries to achieve whatever number it turns out
to be for Scotland on this population, 57, 58 or 59?
Des Browne: I am afraid, Chairman,
you bring me into an area where my knowledge base is not informed.
I do not have the factual information to engage in that. I do
not know whether Boundary Commissions do meet with each other
and discuss. I have no idea if there is any statutory impediment
to them doing that. I do not know whether they do it on an informal
basis. Secondly, I do not think the criteria that they apply north
and south of the border are different. I do not accept that this
coherence is there. Finally, I do not know if the Boundary Commission
has the authority to determine by law how many constituencies
there should be in Wales, Northern Ireland or wherever. I suspect
they do not. I suspect that we probably preserve that to this
Parliament. I suspect there is nobody round about this table,
with the honourable exception of the clerks who might have a view
about this but keep it to themselves, who would dispute that that
should stay here.
Q78 Mr Tyrie: Could you say something
about the West Lothian question and whether you think that the
current asymmetric arrangements between England and Scotland are
sustainable without some accommodation of what is becoming known
as the "English question"?
Des Browne: I think it is 25 Bills
in the Queen's Speech. As far as I can see more than 20 of them
apply to Scotland and some of them completely in the sense that
they are climate change and we have discussed the Sewel Motion
in relation to that. I cannot give you the break down of this
as I do not have it off the top of my head, but the degree to
which this whole legislative programme applies to the whole of
the United Kingdom and in quite significant parts to Scotland
is actually quite impressive. Even those celebrated cases that
exercise people such as the legislation in relation to student
fees had significant implications for Scotland. It is quite illuminating
that those who were espousing this overt argument about votes
for English laws now seem manifestly to be rolling back from it
as they try to work out the practical implications of dividing
up bits of legislation so that you can have specific votes about
the bits that only apply to England or England and Wales and the
bits that apply to Scotland because it is almost impossible to
do.
Q79 Mr Tyrie: I was not asking you
whether some other solution was sustainable, I was asking whether
you think the current arrangements are unsustainable.
Des Browne: If all you want is
a one word answer then I am quite happy to give it to you rather
than explain to you why I have come to the conclusion. I was trying
to explain to you why I have come to the conclusion I have come
to. The conclusion I have come to is it is sustainable and it
is sustainable because all of those people who attack it discover
as they get into the detail of it that life is never as straightforward
and does not divide along the lines that they would want it to
in order for them to produce some sort of clear cut solution so
they end up with a degree of asymmetry. I think what you do is
you end up with asymmetry right across the United Kingdom. I remember
once being asked this question at the height of another furore
about it in the Scottish media, "How can you vote on these
matters when they don't affect your constituents?" I gave
the answer that Parliament decided. That is how I can vote, because
Parliament decided. The UK Parliament in the majority made this
decision. I remember people thinking that that was a ridiculous
answer, but it is not a ridiculous answer. Parliament makes lots
of decisions that generate asymmetry for very good reasons. London
enjoys a degree of devolution, so people in London and people
who represent people in London have another decision-making process
that is not accountable through this Parliament. Wales has devolution
and it has been progressive and changing and it serves the purpose
of the people of Wales. I know that devolution in Northern Ireland,
which we reinstated after a long period of suspension and which
none of us really wanted to see, has generated another asymmetry
there, but that has served the people of Northern Ireland very
well and there are hundreds of them alive today who would not
have been if we had not been able to do that. Life is diverse.
The United Kingdom is diverse. It is its strength. Its diversity
generates an asymmetry. You will only end up replacing one asymmetry
with another and somebody will say, "There's unfairness in
that asymmetry. How about we change it again to suit that?"
I think, frankly, the answer is that the diversity of the United
Kingdom is its strength and that it will survive.
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