Devolution: A Decade On - Justice Committee Contents

Examination of Witnesses (Questions 60-79)


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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