Devolution and Exiting the EU: reconciling differences and building strong relationships Contents

Conclusions and recommendations

Questions around sovereignty and the two models of devolution

1.UK Governments have repeatedly noted that “the current devolution settlements were created in the context of the UK’s membership of the EU”. This EU context has masked many of the key constitutional questions and ambiguities raised by the introduction and subsequent development of devolution since 1998. With the UK leaving the EU, many questions and ambiguities have now been exposed and need to be addressed. (Paragraph 19)

2.The ultimate supremacy of the UK Parliament is legal fact as several witnesses, including the Minister, have recognised. However, sovereignty is a political concept that does not always obey legal direction. The introduction of popular sovereignty through the use of referendums, the establishment of devolved governments for the nations of Scotland, Northern Ireland and Wales, and the commitments made when establishing them, have introduced political considerations that have arguably qualified sovereignty within the UK and changed the balance of power. (Paragraph 20)

3.Devolution is now an established and significant feature of the UK constitutional architecture and should be treated with respect to maintain the integrity of the United Kingdom. The Government needs to bring clarity to the situation by setting out, in response to this report, its Devolution Policy for the Union. A document setting out the Government’s Devolution Policy for the Union should be issued at the start of every Parliament. This policy should outline where the constitutional architecture of devolution needs to be buttressed or amended and should, where necessary, provide justification for asymmetry within the devolution settlement. While we accept that asymmetry may be necessary and even preferable within the UK context, the Government should explicitly recognise and be held accountable for representational and institutional asymmetries within the UK political system. (Paragraph 21)

4.Although, there remains some variation in the different devolution settlements, the shifting of Wales from a conferred to a reserved powers model indicates that the reserved powers model is now the constitutionally preferred model for devolution within the UK. Powers are not conferred by the UK Parliament onto the devolved legislatures, rather particular matters are reserved to the UK Parliament and all other areas devolved. (Paragraph 31)

5.The Government must recognise that the reserved powers model of devolution means that powers are devolved by default and not conferred by the UK Parliament. This should be set out as the first item of an expanded Memorandum of Understanding on Devolution. Nevertheless, we acknowledge the practical difficulties that arise from Brexit, and the Government’s need to find practical solutions to address them (see Chapter 6). (Paragraph 32)

European Union (Withdrawal) Bill and the devolved Administrations

6.We are pleased that the European Union (Withdrawal) Act goes some way towards addressing the concerns raised in our 28 November 2017 report on Clause 11, and we believe it is unfortunate that an agreement acceptable to each of the UK, Welsh and Scottish Governments was not ultimately reached on that basis. However, we note that while the mechanisms for providing a functioning statute book on exit day in relation to the devolved institutions have been altered to account for many of the original concerns expressed by the devolved institutions, the underlying UK Government approach to the issue has not changed. (Paragraph 53)

7.It is highly regrettable that there was little consultation with devolved Governments in advance of the publication of the European Union (Withdrawal) Bill, as earlier consultation could have possibly avoided much of the acrimony that was created between the UK Government and the devolved Governments. When the UK Government is considering legislation that falls within a devolved competence, draft legislation should preferably be shared far enough in advance for a devolved government to identify and work through any issues in the legislation with the UK Government. (Paragraph 64)

8.It is clear that, while the Sewel Convention was entrenched in statute by the UK Parliament through the Scotland Act 2016 and the Wales Act 2017, no corresponding parliamentary procedures have been established to recognise the Convention in the legislative process. Nor has thought been given to how the devolved legislatures might more effectively communicate their legislative consent decisions and have these officially taken account of as a Bill progresses through the UK Parliament. (Paragraph 65)

9.The House of Commons and the House of Lords should consider establishing a procedure to acknowledge more clearly that a Bill is in an area that requires legislative consent and whether that consent has been given by a devolved legislature; and where such consent cannot be obtained, what procedures should follow.” (Paragraph 66)

10.It is clear from the evidence to our inquiry that there is a considerable level of ambiguity surrounding the Sewel Convention. It is unclear whether Lord Sewel’s commitment on the floor of the House of Lords is to be taken as the definitive statement of the Convention and exceptions to it, or whether the Convention through the practice of this commitment developed and grew into a convention that the UK Government should never legislate without consent of a devolved legislature, notwithstanding the supremacy of the UK Parliament and its ability to legislate in an abnormal situation. Such ambiguity is apparent from the divergent views of the UK Government and the devolved administrations, as well as those of academic commentators. (Paragraph 67)

11.In the case of the European Union (Withdrawal) Bill, the Government chose to interpret the Sewel Convention in such a way that legislative consent from the Scottish Parliament was deemed unnecessary because of the very particular circumstances of the Bill. That interpretation of the Sewel Convention was contested by the Scottish and Wales Governments. We recommend that the Government sets out a clear statement of circumstances under which legislative consent is not required by the Sewel Convention in future in both the Devolution Policy for the Union that we have recommended it should state and in the Memorandum of Understanding between the UK Government and the devolved institutions. (Paragraph 68)

The English Question

12.At a time when devolution has become an established feature of the UK constitution, the question of England’s place in the constitution needs urgently to be addressed. A failure to do so risks a sense of increasing disconnection of the English people from the political system. As part of the Government’s devolution policy, there must be a clear statement of how the different parts of England are fairly and effectively being represented. Consideration should be given to extending the existing decentralisation of powers and funding to combined authorities and mayors to a greater number of areas. Moreover, the Government should draw up plans for how decentralisation to more rural areas of England might effectively be pursued. (Paragraph 91)

13.The Government should consider whether devolution for England should mean the devolution of whole areas of competence and not piecemeal powers and functions. While a reserved powers model may not be appropriate for England, powers might be conferred on lower tiers of government in discrete areas that can clearly be identified. (Paragraph 92)

14.Devolution of areas of competence should also include the devolution of the administrative responsibilities and funding for these areas. By devolving powers, the Government could ease the pressure on Whitehall capacity by allowing decisions in appropriate areas to be made and functions carried out at the most appropriate possible level of government. The Government should start by considering devolving the issue of skills and training away from Whitehall to the local level, with the requisite budgets. (Paragraph 93)

15.The problems caused by the dual role of the UK Government as the Government of both the UK and England could be eased by including separate English representation in inter-governmental mechanisms such as the Joint Ministerial Committee Structures. Representation of the English regions on the Joint Ministerial Committee should be given except in specific circumstances when a meeting at national-only level is necessary and appropriate. (Paragraph 94)

Common Frameworks

16.Common Frameworks, where competences over a particular matter are devolved and therefore there must be agreement about policy between Whitehall and the devolved administrations, will be an important element of our constitutional architecture once the UK has left the EU. We are pleased to note that there is wide acceptance of the necessity and importance of Common Frameworks. The extensive work done by the UK and devolved Governments in collaboration to identify areas where Common Frameworks will be required is a promising sign of future cooperation. (Paragraph 103)

17.We are, however, concerned that the UK Government does not have a common strategy or policy for how Common Frameworks should operate, and is instead leaving it to different Whitehall departments to develop their own strategies and models. This runs the risk of creating a disparate set of Frameworks with no consistent or coherent rational or operational logic. As these are new systems, it will be challenging enough for civil servants, legislators and end users to come to terms quickly with how Common Frameworks operate. The Government is adding to this challenge by permitting the creation of multiple different systems by different departments and this appears to us to be deeply unhelpful. (Paragraph 104)

18.The Government should seek to develop a coherent policy for the establishment, operation and monitoring of Common Frameworks, which acknowledges the need for parliamentary scrutiny of these frameworks. This should have been set out in a white paper, for members of all the UK’s parliaments and assemblies to examine, but it may now be too late. Instead, the Committee recommends the Government set out a clear set of principles for the governance and operation of Common Frameworks in its Response, or alongside its Response, to this Report. (Paragraph 105)

19.We note the five-year sunset provision in relation to the frozen EU Frameworks. The new systems for discussing, agreeing, monitoring and amending Common Frameworks should be set up as soon as possible so that they will be fully operational before the five-year period is ended. In the short-term, we recommend that either a Joint Ministerial Committee for Common Frameworks be set up or individual Joint Ministerial Committees for departmental areas be established in order that experience of joint decision-making can be built up. (Paragraph 106)

Whitehall’s attitude towards devolution

20.The Committee welcomes the continued work within Whitehall to improve knowledge and understanding of devolution. However, we are concerned that so much work still needs to be done 20 years on from the establishment of devolution in 1998. It is clear from the evidence to this inquiry that Whitehall still operates extensively on the basis of a structure and culture which take little account of the realities of devolution in the UK. This is inimical to the principles of devolution and good governance in UK. (Paragraph 117)

21.Programmes such as the Cabinet Office ‘Devolution and You’ programme should be extended across Whitehall. All relevant civil servants should have training to establish a sufficient level of understanding of the devolution settlement. Officials in departments that have contact with the devolved administrations should have comprehensive training on the detail of the devolution settlements before or immediately upon taking up a such a position. (Paragraph 118)

22.We welcome the fact that work on the Common Frameworks by officials from different administrations has enabled Whitehall, Holyrood and Cardiff bay to build successful relationships and has led to officials working closely together. This model of working together should be adopted more widely across Whitehall and the devolved administrations in order to establish and entrench relationships and ways of working together towards a common purpose. (Paragraph 119)

23.In line with the recognition that devolution is an established and fundamental feature of the UK’s constitutional architecture, the Government should commit to a systematic review, in the year following the UK’s exit from the EU, of how Whitehall is structured and how it relates to the devolved administrations in Scotland, Wales and Northern Ireland. This review should also consider whether the role of the territorial offices in Whitehall and corresponding Secretaries of State are still necessary and, if they are, whether they might be reformed to promote better relations across Whitehall with the devolved administrations. (Paragraph 120)

24.We note the evidence we have heard about the tendency in Whitehall to hold onto power and control in areas which might more effectively be administered at lower levels of government in England. We further recommend that the review called for above should also consider Whitehall’s relationships with local government and the metropolitan administrations in England. The review should aim to identify those areas where power might appropriately be devolved from Whitehall to local authorities and metropolitan mayors in England. (Paragraph 121)

Inter-governmental relations: the missing part of devolution?

25.The absence of formal and effective inter-governmental relations mechanisms has been the missing part of the devolution settlement ever since devolution was established in 1998. The process of the UK leaving the EU has provided the opportunity for the Government to re-think and redesign inter-governmental relations in order to put them on a better footing. Once the UK has left the EU, and UK Common Frameworks are established, the present lack of intergovernmental institutions for the underpinning of trusting relationships and consent will no longer be sustainable. We recommend that the Government take the opportunity provided by Brexit to seek to develop, in conjunction with the devolved Administrations, a new system of inter-governmental machinery and ensure it is given a statutory footing. Doing this will make clear that inter-governmental relations are as important a part of the devolution settlement as the powers held by the devolved institutions. (Paragraph 132)

26.We agree with those who gave evidence to the inquiry recommending that the JMC must be reformed. The new inter-governmental apparatus that emerges from this reform should ideally have an independent secretariat to schedule and organise inter-governmental meetings. The secretariat should also provide an independent conduit for discussions among administrations at official and ministerial level in between formal inter-governmental meetings. (Paragraph 133)

27.We note the evidence that the JMC(E) has been the most successful and effective form of the JMC. We further note a replication of this success in recent meetings of the JMC(EN) to discuss UK Common Frameworks. It is clear to us that the success of these JMCs is due in large part to the important and well-defined roles that they carry out which focus minds on a common purpose and remove the heat from political debates. (Paragraph 134)

28.It is important that inter-governmental relations mechanisms have a clearly-defined purpose and are not just arrangements for the airing of grievances. Common Frameworks should if possible be agreed by consensus and, if a consensus cannot be reached, each government should report the reasons for the failure to agree to their respective legislatures. (Paragraph 135)

29.The UK Government exhibits a lack of engagement with the issue of England’s representation at inter-governmental level. As the UK leaves the EU, this lack of engagement is increasingly unacceptable and must be addressed. The Minister told us that different parts of England have different and potentially conflicting interests. Yet his answer to this problem was to identify the Secretaries of State as the individuals responsible for both identifying and taking account of the differing views of the English regions; and for establishing the overall balance of the UK-wide approach. This is an excellent example of the problem with the dual role of the UK Government which we set out in Chapter 5. The Minister’s observation that there are properly constituted authorities to deal with in Scotland, Wales and Northern Ireland but not in England only underlines further the need for England and regions of England to be more effectively represented. (Paragraph 136)

30.We agree that England should be better represented at inter-governmental meetings. In the short-term, the Government should develop proposals for including the metropolitan mayors and other local leaders in reformed inter-governmental mechanisms. For the long-term, the Government should consider establishing a committee which would represent English cities and counties and would have representation on JMCs (or their replacement) to advocate the interests of all parts of England. (Paragraph 137)

Inter-parliamentary scrutiny

31.It is regrettable that the UK Government had previously not considered providing the UK Parliament with the same level of information related to Joint Ministerial Committee meetings as the Scottish Government provides the Scottish Parliament. We note, however, the Minister’s commitment given in evidence to this inquiry to reflect on what information related to JMC meetings the UK Government could usefully offer the UK Parliament. We recommend that the UK Government should consider the merits of replicating the commitment made by the Scottish Government to the Scottish Parliament and, providing notice and advanced sight of agendas for all intergovernmental meetings to the UK Parliament. This is no more than a courtesy to Parliament and its committees. It does not deprive ministers of a safe space for other private meetings or discussions. (Paragraph 148)

32.One of the central constitutional roles of parliaments and assemblies in the UK political system is to scrutinise the work of government. With the increase in the extent of inter-governmental relations which must inevitably follow the UK’s exit from the EU, it is imperative that mechanisms be developed to scrutinise properly the work done at the inter-governmental level. The importance of devolution within the UK’s constitutional architecture should be recognised by developing mechanisms and procedures for the different parliaments and assemblies of the UK to communicate formally with one another. This is essential in order to build understanding and friendships between parliamentarians from all UK legislatures, as well as strengthening public trust and confidence in the way that the four parliaments and assemblies can work together. (Paragraph 149)

33.In order to allow for effective scrutiny, the Governments of the UK should support changes to Standing Orders and, where necessary, bring forward legislation to allow committees of the UK’s parliaments and assemblies to meet jointly and establish inter-parliamentary committees. To help facilitate joint working and the work of inter-parliamentary committees, members of these committees from across the UK should have easy access to one another’s parliamentary estates for the purposes of committee meetings, assured through the mutual recognition of parliamentary passes. For the Houses of Parliament in Westminster we refer this issue to the Administration Committee. (Paragraph 150)

34.As we highlighted above, Common Frameworks will form a key part of the UK constitutional architecture after the UK leaves the EU which will require scrutiny to prevent a democratic deficit. We therefore invite the Clerks of the four parliaments and assemblies to instruct parliamentary officials to work up a joint proposal for an inter-parliamentary body to scrutinise UK Common Frameworks. These proposals should address issues such as the size and composition of the body, how frequently it should meet, what its main objectives and terms of references should be and what the potential cost of the body would be. We suggest the proposals should be presented to the Interparliamentary Forum on Brexit which would then seek the endorsement of the Speakers and Presiding officers of the UK Parliaments. (Paragraph 151)

Published: 31 July 2018