Devolution: A Decade On - Justice Committee Contents

Examination of Witness (Questions 502-519)


22 APRIL 2008

  Q502 Chairman: Mr McConnell welcome. We understand that you have a rather different interview with the Foreign Affairs Committee tomorrow on an entirely different subject and possibly even different in character.

  Mr McConnell: An interesting and challenging week.

  Q503  Chairman: We wish you well on that occasion, which relates not to England, Scotland, Wales or Northern Ireland but to Malawi; an abiding interest which I know you have. We are going to follow a rather similar structure to that which we followed with Lord Steel so you can predict the direction we are going, but the emphasis will be different because of your experience in government. On the basis of that, what do you think about the Sewel motion issue? Is it easily manageable? Does it need clarifying and tidying up, perhaps along with the concordats as well, into some more codified basis?

  Mr McConnell: The process of Sewel motions, as they were originally known—others have other descriptions—was actually a great asset for the Scottish Parliament. I took that view very strongly from the earliest days and I do not believe that there was ever a reasonable case made against that mechanism on any individual occasion on which it was used. The process of Sewel motions is a safeguard for the devolved institution. The principle at stake here is that Westminster cannot legislate for areas which are the responsibility of the devolved Scottish Parliament without the permission of that devolved Scottish Parliament. That seems to me to be an absolutely fundamental democratic principle, having established the Scottish Parliament, and the Sewel motion allowed that control to be exercised. At the same time, it facilitated the opportunity to legislate for the whole of the UK, when a bit of consistency was required and when the legislative programmes in both parliaments meant that it was better done here. I have no problem with the Sewel motion process whatsoever.

  Q504  Julie Morgan: Does Scotland need a voice at Cabinet level now post devolution?

  Mr McConnell: May I answer that in a slightly different way from the way Lord Steel did, because there are one or two things I would like to say to the Committee that I can perhaps fit into this answer. I always took the view when I was First Minister that it was the responsibility of the UK Prime Minister to determine the makeup of the Cabinet and it was the responsibility of the UK Parliament to determine some of the other issues that were just raised about the voting on solely English matters. There are issues about the makeup of the cabinet and these will ultimately be addressed in some way that will change the current arrangement. The most serious issue for the UK, not just for Scotland, is the response of wider UK institutions, perhaps including government and the Civil Service but much wider than that as well, 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 or the way in which different parts of the UK learn from each other. I give you one example, which is the policy that we had in Scotland on immigration, which was to deal with a particular problem we had in Scotland of a declining population. It was a very big success, it was a bit of flexibility introduced by the then Home Secretary David Blunkett and as an example of the way in which UK government departments have to become a bit more flexible in responding to Scotland, Wales, Northern Ireland and indeed parts of England it was a very good and successful example. It was done by bilateral discussion between me and the Home Secretary and did not involve a Secretary of State for Scotland or any intermediaries. Those bilateral relationships are very, very important but they should also be celebrated by the whole and then used to improve policy at the centre, rather than just seen as something that happens in one part of the kingdom and is not relevant to anybody else.

  Q505  Julie Morgan: Are you saying that those bilateral relationships with different government department ministers are as important as the relationship with the Secretary of State or more important?

  Mr McConnell: Far, far more important. One of the reasons why the JMC's were effectively, in terms of meetings, abandoned by agreement between myself and the Prime Minister, certainly in relation to Scotland, was because we wanted to create much stronger relationships, bilateral relationships, between the individual departments in devolved Scotland and the individual departments of Whitehall and it was certainly the case between 2003 and 2007 that the relationships between my Justice Minister and the Home Secretary or between our Transport Minister and the Transport Secretary and so on, were significantly stronger and far, far more productive than they would have been if we had continued to have an amorphous discussion through JMC's or deal with everything simply through a Secretary of State for Scotland.

  Julie Morgan: What do you see as the role of the Secretary of State for Scotland?

  Q506  Chairman: Before you answer that may I just check what you said about the JMC's? Are you saying it is not really worth resurrecting them because they are much more diffuse than the useful bilateral relationships you described?

  Mr McConnell: Given the current situation, both in Scotland and to some extent in Wales with the coalition government there and in Northern Ireland with a re-established assembly and government there, I can see there being a purpose in some kind of mechanism that allows discussion between all four and perhaps occasionally also on a bilateral basis in a formal committee-type session. I would not be against the re-establishment of some JMC-type format, but it is important to understand that they did not just wither on the vine; a conscious decision was made to stop the JMC's meeting in order to facilitate and encourage a much stronger bilateral relationship. I think it improved policy. The changes, for example, in rail were agreed between transport ministers in a way that was by far the most constructive and positive way to do that. The agreement in Scotland on immigration visas similarly was a bilateral decision. There were other similar decisions although, not every discussion resulted in a positive decision. There is an ongoing discussion about air guns, for example, that continues to this day, but by and large the bilateral discussions were much more successful than the JMC's. However, I do understand that right now we do have a situation in which the UK Government needs to find a forum in which to have discussions with the three devolved governments and some form of JMC probably needs to be re-constituted.

  Q507  Chairman: Would it be better to see it as a sort of referee or longstop body if the bilateral structures are not working in any particular case?

  Mr McConnell: It would be better if it were seen as a forum for dialogue rather than for dispute resolution. That may be impossible but it would be better if it were that.

  Q508  Julie Morgan: What do you see as the role for the Secretary of State for Scotland?

  Mr McConnell: The role for the Secretary of State for Scotland in my view is that legal and technical responsibility that is set out in statute. I am not convinced there is a case for an intermediary or a referee.

  Q509  Julie Morgan: What did you think of Lord Steel's proposal of one member of the Cabinet with responsibility for all the devolved bodies and the junior ministers in each devolved body?

  Mr McConnell: Before last May I would have said, and I did say, that such an arrangement was inevitable. Since last May, and this is not just in relation to Scotland, if you look at things from a UK perspective, you have a decidedly more publicly antagonistic relationship between the UK Government and the Scottish Government. You have a slightly different political administration in Wales and you have a brand new administration in Northern Ireland. Whereas before last May I would have been saying both on the record and privately that such an arrangement was inevitable, given that that change had not been made prior to 2007, at the moment it would probably make sense to continue the discussions that have begun about how best to get the right level of coordination between the administrations before anybody makes dramatic changes to the Cabinet structure.

  Q510  Julie Morgan: What about the Scottish Executive's claim that the residual functions of the Scottish Office should be devolved to the Scottish Parliament, in particular the elections to the Scottish Parliament?

  Mr McConnell: I take the view on powers—and I take this view on financial powers but in relation to other powers too—that it is absolutely right 10 years on from the Scotland Act being introduced to have a review of powers. I very much welcome this Committee's inquiry. A UK perspective on that review is essential. I also welcome the Calman Commission that has been established more recently in relation to Scotland and the ongoing debates in Wales are very welcome too. At the same time, any changes in the current arrangements need to be very, very carefully considered. That is particularly true in relation to finance but it is also true in relation to other areas where there could be further devolutional change as well. Elections are an example. There is an awful lot of immediate commonsense in the idea of one body being responsible for all the decision making in relation to the elections in Scotland. At the same time, however, those decisions have an impact elsewhere in the United Kingdom too and therefore, before a decision is made to devolve any further powers, administrative or legislative powers, in relation to the Scottish elections, there needs to be some kind of agreement between the UK Government and the Scottish Government on the way in which those powers would be exercised to ensure that the cohesiveness of the UK is not damaged as a result and it is that kind of sensible approach which is required here. When we devolved the rail powers back in 2004 when Alistair Darling was Secretary of State for Transport, we did it by discussion; we agreed a budget, we agreed a timetable, it has been a very smooth transition. It has actually improved the railways rather than damaged them, but it was done in a very sensible and constructive manner. If there are going to be any further transfers of powers of any kind, then I would hope that we could move away from the getting-boxed-into-corners approach that seems to be happening and instead have specific discussion on the practicalities and the evidence for a change and then how it could be implemented.

  Q511  Alun Michael: It really follows on from that because you have been talking about values and quality, rather than necessarily having to create lines where none are necessary and it relates to another area which is the draft Constitutional Renewal Bill. This has something in it which requires the Minister for the Civil Service to publish separate codes of conduct for civil servants who serve the Scottish Executive or the Welsh Assembly Government. I must say that I am a little puzzled by that because it seems to me that one of the options might be to have something in that code about how the different civil servants of different bodies deal with each other, but it requires those separate codes. What is your view of that?

  Mr McConnell: I may surprise you with my view on this. If anything has been wrong in that relationship over the last few years, it has been the reduction in interchange between the civil servants working for the Scottish Government and the civil servants working for the UK Government. Most of the best civil servants that I worked with as First Minister in my nearly six years in that position and previously as both Finance Minister and Education Minister too, I would say had experience of working for Whitehall departments as well as working for the old Scottish Office or for the new devolved Scottish Government. However, I have detected a very distinct trend over the last eight years that there is less of that interchange taking place. I have expressed my concerns about this on a number of occasions to the last two Cabinet Secretaries in Whitehall as well as to the Civil Service management in Scotland. Young, ambitious, able civil servants should get experience of Whitehall departments, if they want to work in Scotland at a high level, and actually I also think that young, ambitious, able civil servants in Whitehall departments should be made to go to work for one of the devolved administrations for a short time and understand the complexity of the modern United Kingdom. I worry about the creation of an entirely separate Scottish Civil Service. I can say honestly to the Committee that never once in my eight years as a minister in Scotland, nearly six years as First Minister, was the technical membership of the Home Civil Service for Scottish civil servants a problem in terms of ministers in Scotland directing civil servants in the policies that they should pursue. Civil servants in Scotland knew that ultimately I was, as First Minister, their political boss, they did not look over their shoulder to a Whitehall department or to senior management there. They worked to our ministerial team and Cabinet. If anything, the problem is not a need to separate the civil servants more; it is actually to integrate them more because that is a danger, not a political danger to the United Kingdom but a danger to the quality of the civil servants that work for the different governments.

  Q512  Alun Michael: That is a very comprehensive and clear reply. It follows from that, does it not, that your view would be that there ought to be a single code, albeit that single code might need to have elements within it that paid regard to the devolution settlements?

  Mr McConnell: A consistent set of values and principles on which the Civil Service operates across the whole UK is a good thing. Within that, there need to be specific arrangements for reporting accountability, promotion and so on and it is entirely appropriate that that would be the case.

  Q513  Chairman: We have covered a lot of very helpful ground there. Perhaps I should just ask you about these dual processes which are currently going on, the National Conversation and the Calman Commission. Can good come of this?

  Mr McConnell: I hope that good can come of reviewing the settlement. I am not convinced, in a political climate where the political parties are in a stand-off situation, particularly in the buildup to a UK general election at some time in the next two years, that there is going to be an awful lot of discussion that is productive for the longer term. I do believe a review is important, but at the same time I want to see such a review look at the evidence of the way powers have been used, the relationships. It is easy in a situation, for example, where the issue of nuclear power is controversial and where the Scottish Parliament takes a different view, not just the Scottish Government but probably the whole Scottish Parliament, on nuclear power from the UK Parliament and the UK Government: it is easy for that then to become extrapolated into a demand for separate energy powers in Scotland. As there are bigger issues than that at stake in energy policy, it is important to make decisions on powers because this is what was done when the Scotland Act was prepared: the powers were looked at separately from day-to-day issues and in an energy review of powers it is absolutely essential that the long-term implications of devolving more powers are looked at, rather than any short-term gut reactions or spontaneous reaction to it, a political disagreement on one issue and one decision.

  Q514  Chairman: But we still have to have these discussions, do we not?

  Mr McConnell: Yes.

  Q515  Chairman: We were not creating a devolution system on the assumption that all levels of it would always be run by the same party or people of the same views: we were creating a system of devolved government in which people were bound, at some point or other, to elect different administrations in different parts of the United Kingdom.

  Mr McConnell: Yes. Even where the same party holds the ministerial positions in different administrations, it should be welcomed that there will be differences in approach.

  Q516  Chairman: It was not always sweetness and light, was it?

  Mr McConnell: No, it was not at all and there were genuine debates taking place, but also the UK is a complex formulation. There are different needs and demands in different parts of the United Kingdom and one development that is still to happen in the UK is for those Whitehall departments which rightly retain reserve powers to become a bit more flexible in the use of those powers. I, for example, discussed with five different Secretaries of State, under various names, Work and Pensions, Social Security, whatever the department was called at different times, the possibility of using Scotland as an area where different methods could be tried to deal with the issue of incapacity benefit and unemployment and trying to get people back into work. I felt Scotland was a manageable size with a particular problem where the department could try something out and, if it worked in Scotland with our assistance in health and housing and so on, it could then perhaps be implemented elsewhere in the UK. Unfortunately none of those Secretaries was in position long enough ever to implement the idea. The same could be true of Wales, the same could be true in Northern Ireland perhaps and actually perhaps in some parts of England. Different policies could be tried out and then used elsewhere in the country if they are successful. The UK Government or Whitehall departments should not be nervous about that. They should welcome the opportunity. We implemented the Fresh Talent visa in Scotland to deal with a population decline problem, to attract in particular more overseas students who come to Scotland to stay in the country to live and work and that has now been copied for the rest of the country by the Prime Minister since he took over last summer and that is an example of something that would probably never have happened in the UK if we had not tried it first. The smoking ban is another example. If we had not gone first, then I do not think that would have been implemented in England ultimately. So trying things out in different parts of the UK can be very positive and maybe there needs to be a slight culture change in Whitehall to welcome that diversity rather than be threatened by it.

  Chairman: I do not know how much you want to say about England, but I must give Mr Turner the opportunity to probe you on the subject.

  Q517  Mr Turner: What is your view that there is a problem of legitimacy at present in England in terms of the English question?

  Mr McConnell: I understand the issue and I can understand English Members of Parliament wanting to search for a solution. I am not absolutely convinced that there is an easy solution. I was just reading, as I was watching Lord Steel's evidence session, the notes about the Committee. This is a Committee that has no Scottish MP's on it, but many of the responsibilities of the Committee do have an impact across the whole of the UK. Although it is primarily concerned, I presume, with the English and Welsh legal systems, many of the Committee's responsibilities cover the whole of the UK. We need to be careful that we do not end up inside the House of Commons losing that common UK identity, British identity, for the mother of parliaments rather than just simply to deal with what is perhaps an immediate political tension.

  Q518  Mr Turner: So if there were to be an English Parliament, it should be outside this building.

  Mr McConnell: I personally feel that English Members of Parliament might find that hard to justify to the population; it is entirely for you but I think it might be hard to justify. I can see that there could be ways in which the rules of the House of Commons could be adapted to deal with some of these issues and I have to say that I may be of a different generation to Lord Steel, but I take a very similar approach to him on this, that if there is a will to find a solution and to make regular judgments that are commonsensical and can work in practice, then I suspect the House of Commons is able to do that; it has been for hundreds of years and there is no reason why it cannot in the 21st century either.

  Q519  Mr Turner: If, as some of us believe, the Barnett formula leads to Scotland having more money per head than England, is it surprising that it appears to have emerged—I do not know what you feel about it—that you are just letting go of one in favour of getting another expenditure?

  Mr McConnell: Those of us who believe that it is in the interests of the people of Scotland, Wales, England and, for as long as they want it, Northern Ireland, to have a United Kingdom and that the sum of these nations is stronger than if we were all separate, need to be careful about making direct comparisons that are simply based on the existence of those national boundaries. If there is an issue about public expenditure in some parts of England, it is at least as much, if not possibly more, about the distribution of public expenditure inside England than it is about the distribution of expenditure between England and Scotland. There are undoubtedly issues that have arisen as a result of decisions of the Scottish Parliament that have given rise to this as a political issue but there are implications of that. The nationalist government have made decisions this winter. Let me give you two examples: one to abolish the graduate endowment, which was the payment that students paid after graduating, effectively a different form of graduate tax but a payment that was made, money that all went to higher education; at the same time our universities and colleges will now receive a smaller increase in their budget than their counterparts south of the border. I voted against the decision but there were implications in that decision. Similarly, we are moving towards an abolition of prescription charges. The Health Service budget in Scotland is rising significantly less quickly than the Health Service budget in England over these next three years, so there are implications to their decisions. Although it looks as though they are making decisions that make things free in Scotland, there will be a price to pay for that in the quality and the quantity of the service that is available in those two cases, in higher education and in the Health Service and it is unfortunate that that then becomes an issue about the distribution of funding across the whole UK. It should actually be a debate primarily inside Scotland about whether they have got it right or not. In my view they have got it wrong.

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