Devolution: A Decade On - Justice Committee Contents

Examination of Witnesses (Questions 648-659)


13 MAY 2008

  Q648 Chairman: Lord Chancellor, Mr Gallagher, welcome to both of you. Let me start by clarifying something. In your memorandum, you state that, whilst responsibility for devolution strategy now sits in the Ministry of Justice, the Cabinet Office has a co-ordinating role. What is this co-ordinating role?

Mr Straw: It does indeed sit within my Department and with me, so, amongst other things, I chair the Constitutional Committee of the Cabinet which handles certain devolution issues, but, as you are aware, there are also the three territorial departments for Northern Ireland, Scotland and Wales, and the Cabinet Office, and I will ask Mr Gallagher to say a further word about this, has a complementary, co-ordinating role.

  Mr Gallagher: There are three things that Central Government has to do in relation to the devolved administrations. The first is to manage the individual settlements, each of which is different and, therefore, there are functions to be discharged in relation to the Scottish Settlement, the Welsh Settlement and indeed the Northern Irish Settlement and those are the responsibility of the territorial Secretaries of State and their Departments. Then there is, as the memorandum says, the strategy in relation to devolution which is pretty closely linked into the Government's approach to the Constitution as a whole, for which the Secretary of State is also responsible. Finally, there is the co-ordination of government business and indeed the co-ordination of business in relation to each of the devolved administrations and all of them together and that is what the Cabinet Office does; it both co-ordinates inter-departmental work inside the Government and it is also responsible for servicing the Joint Ministerial Committees with the devolved administrations, so that is the division of work.

  Q649  Chairman: Up to now, it has not been a very busy task.

  Mr Gallagher: They are working up to it just at the moment, Chairman.

  Q650  Chairman: So what do you do, Lord Chancellor, Secretary of State, in all of this?

  Mr Straw: A lot, as it happens, just in case you think I am idle! As Jim said, there are issues about overall policy in respect of devolution and I am involved in those and the discussions. There are issues that come before the relevant Cabinet committees which will see the light of day in due course and obviously I am chairing the overarching joint ministerial committee towards the end of June which is meeting, by the way, on June 26 as well. Because of my constitutional responsibilities, I have a lot to do day by day with the territorial Secretaries of State. I do not look for work in this area any more than I look for work in other areas because I have got quite enough to do.

  Q651  Chairman: We got the firm impression from our discussions, particularly in Edinburgh and, to some extent, in Cardiff, that the bilateral relationships had built up quite strongly and effectively, despite, in some cases, partisan differences, but that these were really valued and productive and that that began to make the role of the Scotland Office, in particular, and sometimes the Welsh Office more superfluous. It is an even more confusing picture when we have the Cabinet Office involved, your overarching involvement, but the real work appearing to be done in bilateral discussions. Could we not at least remove a separate Secretary of State for Scotland and a separate Secretary of State for Wales from this now very complex bunch of cooks?

  Mr Straw: You will excuse me if I say that decisions about the machinery of government are for the Prime Minister of the day, but there have been suggestions around that that could happen and it may or may not be the case that such an arrangement will be decided on in the future, but, I have to say, having observed the work of the territorial Secretaries of State, I think there is a valuable job for them to do. Government is quite a complicated business, so the Cabinet Office has a role across government of co-ordinating what individual departments do and you have got these separate secretariats and you could say, "Well, what the overseas and defence policy secretariat is doing is duplicating the work of the Defence and Foreign Offices and their Secretaries of State", but it is not the case, they complement that, and it is also the case in the area of devolution. On the bilateral relationships, the first point to say is that, if you live in a democracy, you have to accept the decisions of electors and there will be times when the decisions of electors will be similar in the devolved administrations as they are in Westminster and times when they will not be, and that will be true decade by decade. It is the responsibility of the Westminster administration, the Whitehall administration and the devolved ones, regardless of the Party label attached to those administrations, to work co-operatively in the public interest, and I am glad you note that the bilateral relationship has been a good one and certainly there is a good deal of business between the Ministry of Justice and not so much the Welsh administration because they do not have responsibility for justice and criminal law, but the Scottish administration. The co-operation is good and, for example, we co-operate on JHA matters. So on the latest Criminal Justice and Immigration Act, which received Royal Assent last Thursday, there was agreement by the Scottish Executive that the amendment to section 127 of the Criminal Justice and Public Order Act 1994, which relates to industrial action by prison officers, should cover Scotland, but with an order-making power which, in practice, would only be triggered by the Scottish Executive. It suited them, although it is a devolved matter, to have that put into legislation. That was agreed and there was no problem about it.

  Q652  Chairman: Is there any danger that the role of the Scotland Office will become one of dampening down, interfering with or undermining bilateral relationships because its purpose might be seen to be different? Does it become the tool of the Party in power at Westminster, making sure that the bilateral relationships do not get too friendly?

  Mr Straw: I have seen absolutely no evidence of that and it is certainly also not the instinct, nor the practice, of the current Secretary of State, nor, I believe, of any future Secretary of State; it would be inappropriate and it does not happen.

  Mr Gallagher: It is worth realising that of course the Scotland Office and indeed the Wales Office have a task to do in the management of the settlements themselves. They have orders to make and they have constitutional machinery to maintain, so the Scotland Office, for example, since devolution, has started, has made, I think, something like 165 orders under the Scotland Act. That is a function which they have to discharge which cannot, by definition, be discharged in bilateral relationships between departments.

  Q653  Alun Michael: I wonder if I could ask about a specific issue that has come up in our hearings, namely the Civil Service Code and the Civil Service itself. We have heard Scottish and Welsh voices speaking about the importance of having a single Civil Service operating at the highest possible standards, irrespective of accountability which might be to a department in Whitehall or indeed an agency or to a devolved administration. If I understand it correctly, the fact that there are three Codes is a bit of a historical accident rather than something that was done by design. In view of your revision of the Code at the moment, would it not be an opportunity to embed those highest principles, which everybody wants to see observed by the Civil Service, in a single Civil Service Code?

  Mr Straw: It is a thought for consideration.

  Mr Gallagher: There is, I understand, a single Civil Service Code at present which makes clear that those civil servants who work for the devolved administrations owe their loyalty to the ministers of those administrations and that those civil servants who work for the UK Government owe their loyalty to ministers in the UK Government.

  Q654  Alun Michael: The reason I ask the question is that there is a reference to three Codes, I think, in the White Paper, and our questions led to the suggestion that there are at the moment different Codes, but it was not as a matter of principle, it was just something that had happened.

  Mr Gallagher: As a matter of fact, the Codes would be the same in content. The Code is single and the same in content at present. The suggestion was that there might be the capacity to make different Codes which made it explicit that their loyalties were owed to different ministers, but that the content of these Codes would be uniform.

  Q655  Alun Michael: But it would be possible, would it not, to make clear within such a Code the nature of loyalty to whoever is the individual or organisation that is being served?

  Mr Gallagher: As indeed it is at present, yes.

  Mr Straw: If I may reply to Mr Michael, I can see the point Mr Michael is raising, but I wonder whether changing the number of Codes to one would be worth the candle, particularly where you would not produce any substantive change and it might arouse sensitivities. But, if you come to a contrary recommendation, I am sure the Prime Minister, in consultation with the senior ministers in these devolved administrations, would wish to consider it.

  Q656  Alun Michael: I think probably it is not worth pursuing further than that. I think it was a bit of a puzzle to us as to why we are in the situation we are and the important point is the clarity of the same principles being applied wherever. Could I move on then to another issue which is the Barnett Formula. Again we have heard quite a lot of evidence, most of which seems to confirm, as Joel Barnett did in his evidence to us, that he had not realised that he was establishing something that was going to last for decades rather than a year or two and that, like democracy, the Barnett Formula has all sorts of failings, but seems be better than all the alternatives. What do you see as the future of the Barnett Formula or of a potential review of it?

  Mr Straw: Well, Lord Barnett should be pleased that his formula has worked out as durable as he!

  Q657  Chairman: I do not think he is!

  Mr Straw: Well, he was always a shrinking violet, but I am pleased for him! First of all, the specific answer to Mr Michael is that the Chancellor of the Exchequer, the Treasury, will publish factual papers about the operation of the Formula, I think, by the summer, and you have got the Calman Commission which is looking at issues of financial accountability and we will take both into account and anything that your Committee, Mr Chairman, says before coming to decisions about whether there are any changes that need to be made. The Barnett Formula is a population-based formula and that is a statement of the obvious, but it has shifted over time. I think that there is a myth about that the share of the population between Scotland and England and, in this case obviously, Wales of fixed in aspic in 1978 and has not changed in the Formula in line with the relative changes in the population since then, but it has in fact changed over time. It was quite close to 11% of total spending of Scotland's share and, because the population of England has grown as Scotland's has not, is now down to 10.08. So that is an indication of the fact that it has an automatic adjustment within it to take account of population changes. There is then a much bigger issue, which of course was aired 10 years ago in a report by the Treasury Select Committee and the response by the Government at the time, about the question of a needs assessment as well. It is quite interesting re-reading that report because I am not saying that forever and a day there should not be a needs assessment, but what is brought out there is the way in which needs assessments change each year and those of us who have had experience of dealing with, say, the old rate support grant needs assessments.

  Alun Michael: Or police grant even.

  Mr Straw: Or police grant, know that they carry with them their own problems and it may be better to have a formula which says, when you are dealing with such large numbers of people, as you are with the Scottish, English and Welsh populations, that it is population-based and then it is left to the administrations within those countries, in this case within their devolved responsibilities, to determine the relative allocation of need as they think best rather than, as it were, to do it twice over.

  Q658  Dr Whitehead: Now that we are 10 years on from devolution, perhaps one might say there has been a chance to have a look at a wider overview, and one of those was provided to us by Professor Jeffery who submitted to the Committee a statement where he said, "The challenges posed by the piecemeal approach to devolution by the new patterns of relationship between the governments of the UK and by England's weight vis-a"-vis the rest of the UK can all be clustered under one overarching problem: the failure at the point of devolution, or since, to restate what the UK as a whole in its new part-devolved format is for; what the role of the centre should be; how the centre should relate to the different nations; and how the parts should combine to make a whole". Do you think that is a fair criticism of the 10 years since devolution?

  Mr Straw: No, I think it is almost entirely wrong, and it was not a piecemeal change, first of all. People may or may not have agreed with devolution in 1997-98, but it was something which, after all, had been discussed in public in Scotland, but also, to a significant degree, in England as well.

The Committee suspended from 4.37pm to 4.51pm for a division in the House

  Q659 Chairman: I hope you have remembered what question it was you were answering and the sentence you were about to utter!

  Mr Straw: Dr Whitehead had asked me about the views of Professor Jeffery in his evidence to you and I was invited to say whether I agreed with him and I said I disagreed with him, and I was about to say that devolution had been hotly debated in Scotland for over 30 years. After all, the Labour Government passed the Scotland Act in 1978. There was a referendum there and, but for its failure to reach the referendum threshold required, it would have led to the establishment of a Scottish Assembly and we would have had devolution there now for 30 years rather than for 10. In terms of the Settlement that became encapsulated in the 1998 Act, that itself was the subject, as you know, Mr Chairman, of very great debate in Scotland through the Convention and in former discussion over a period of about six or seven years before that. It was also discussed in the years preceding the General Election in the so-called Cook-Maclennan working party between the Liberal Democrats and the Labour Party, then there was a White Paper, then there was the Act and then there was a referendum. No settlement is perfect, but it was thought through very carefully. It was also, I have to say since I actively participated in all these discussions, the subject of very considerable debate inside government in the relevant Cabinet committee which met intensively as we were putting together the White Paper and then agreeing the legislation. I think it is a settlement that may need to be changed in the future, but it has stood the test of time and that is illustrated by the fact that I do not think there have been any amendments, or certainly no significant amendments, to the Scotland Act since then. The basic architecture has been accepted. On the other point of Professor Jeffrey's where he seemed to be saying, "Well, now you've got devolution, what's the Union for?", I frankly think it is a kind of banal question because there are many, many countries which are coherent entities as countries and members of the United Nations, but have degrees of devolution within them which may be very significantly stronger than that in respect of Scotland, even though that is a reasonably strong level of devolution, and still everybody recognises their common loyalty and identity with the country as a whole as well as within the individual provinces, states or, in this case, nations within that country. I can expand, if you want, on the purpose of the United Kingdom, but the short point is that we have learnt, I think, over the three centuries since the Act of Union that we are much stronger together than we are apart, that we benefit from the differences, but also from the commonalities there. The other thing I would say about Scotland, which was always one of the reasons why I was relatively relaxed about devolution, is that it was fundamental to the Act of Settlement of 1707 that there was built into that administrative, judicial and legal separation from 1707. Then certainly, from the establishment in the 19th Century of the Scottish Office, administrative devolution, so two-thirds of devolution had already taken place in practice. What we were doing was adding the third legislative stage in ensuring that the administration of devolved responsibilities was based in the devolved legislature and not at arm's length at Westminster, and people had got used to that and accepted that and accepted that it worked.

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