8.Central to the relationship between the UK and Scottish Governments are the relationships between the politicians of the two administrations. The UK’s constitutional settlement places great emphasis on the importance of these personal relationships. This is reflected in the Memorandum of Understanding (MoU) between the two governments, which states that intergovernmental business should be conducted informally by default, and that intergovernmental disputes should be resolved informally between officials wherever possible. Some commentators spoke positively of this arrangement, arguing that it “helped foster positive working relationships across administrations” and allows for flexibility. On the other hand, the Centre on Constitutional Change has noted that the lack of routinised and institutionalised engagement has meant that “we do not have an integrated set of Government-to-Government relations” to rely upon when the relationship is put under pressure.
9.We heard that the reliance on informal relationships was unproblematic during the first years of devolution when the Labour Party controlled all four of the UK’s executives. Baroness Liddell, former Secretary of State for Scotland (2001–2003), told us that the fact her counterpart in Scotland was of the same party meant “there was an ease of discussion” between them. Baroness Liddell explained that these relationships fostered an informal and personalised approach to intergovernmental relations:
We had also a lot of people in the Scottish Executive in very senior positions who had been Members of Parliament […] whose personal phone numbers you had […] The relationships were fairly good and, when they were not good, they were frank because we all knew one another.
Michael Moore, former Secretary of State for Scotland (2012–2015), agreed with this analysis, describing the “personality-driven nature of the relationships in the early days”. However, 20 years on from devolution those relationships are no longer as prevalent, with Michael Moore telling us that “after 20 years, the instinctive understanding or personal connections that Baroness Liddell talks about had disappeared to some extent”. Rt Hon David Mundell MP, Secretary of State for Scotland, made a similar point:
There was a very different relationship between the UK Government and the Scottish Government in the early years of devolution, based on personal relationships within the Labour Party. When the SNP came into power in 2007 that political alignment ended and there was a clear desire for the relationship between the two governments to become more formalised.
10.This loss of personal relations between politicians appears to have corresponded with a breakdown in trust between the two governments on a political level. We heard that this loss of trust began in 2007, when the SNP replaced the Labour Party in the Scottish Government. The House of Commons Library has noted that, upon election in 2007 the new SNP Scottish Government indicated its intention to “stand up for Scotland” by opposing UK Government policies rather than “being careful not to be seen arguing with London”, as it characterised the position of the previous administration. Alun Evans, former Director of the Scotland Office (2012–2015), described to us the contrast between the “benign relation” during the Labour-Lib Dem coalition years in Edinburgh, and the current situation “where you have two democratically-elected governments with completely opposing views”.
11.We heard that the polarised politics of the two governments became particularly evident during the Scottish Independence referendum of 2014. Although relations between officials continued to be “extremely cordial and robust”, the political relationship became “particularly strained and tested”. Sir Peter Housden, former Permanent Secretary to the Scottish Government (2010–2015), told us, “at senior level, [relations] could not have been tenser on occasions”. Michael Moore—Secretary of State for Scotland at the time—likewise noted, “it was difficult […] the politics was very hard”. Professor Nicola McEwen, and the former Scottish Government civil servants we spoke to in private, both told us that on a day to day level there was an atmosphere of suspicion between the two governments, which often manifested itself as a fear of sharing information.
12.This trend of strained personal relations and lost trust between political leaders appears to have been exacerbated by Brexit where, as with the Scottish Independence referendum, the two governments have diametrically opposed political goals. We heard from former senior Scottish Government civil servants that Brexit is the worst crisis devolution has faced to date, which has put into perspective how successfully earlier disagreements and disputes were managed and resolved. Professor Gallagher told us, “both governments got off to a bad start” in terms of their initial approaches to the EU referendum result:
Both were obsessed with sovereignty. The Scottish Government’s immediate reaction about another independence referendum did not serve to build trust […] The UK government’s predictable but erroneous reaction of substituting UK parliamentary sovereignty for Brussels responsibility failed to take account of the embedded nature of devolution in the UK constitution.
Baroness Liddell echoed these concerns; “you need to have an understanding and respect for where each other is coming from. Looking at it now as an observer, sometimes I do worry if that respect exists to the same extent that it needs to to make progress”.
13.We heard specific examples of Brexit-related developments which have contributed to loss of trust between the two governments. An oft-cited example was the European Union (Withdrawal) Act, which was introduced in the UK Parliament “without substantive consultation” with the Scottish Government, thereby triggering “prolonged public arguments”. Michael Russell MSP, Scottish Government Cabinet Secretary for Government Business and Constitutional Relations, claimed:
There was a convention that bills were shared and discussed. That broke down pretty quickly in Brexit, because I think the Withdrawal Bill was only shown to us two weeks before it was published […] A bill of that nature, which would require legislative consent, would [previously] have been shared over a long period of time. That simply did not happen.
Professor Nicola McEwen similarly noted that the deteriorating levels of trust have resulted in a refusal to share information at an early stage of policy development, which has “contributed to the frustrations”. Mr Russell also acknowledged that the loss of information sharing has been a two-way process, saying that the Scottish Government has also not “shared some things that they might have expected […] I think we have grown shy of each other in doing so”.
14.We also heard that relations were further strained when the UK Parliament passed the Withdrawal Act without the consent of the Scottish Parliament. The Scottish Government argued this was a breach of the Sewel Convention - the idea that the UK Government will “not normally” legislate in areas of Scottish Parliament competence without its consent. The UK Government argued that ‘no one would dispute that these are not normal times. Later, the UK Government referred the Scottish Parliament’s European Union (Legal Continuity) (Scotland) Act to the Supreme Court, on the basis that the Act went beyond the Scottish Parliament’s powers. We heard that this was interpreted by the Scottish Government as “a particularly [un]friendly action”, which further tested relations. Finally, tensions grew further when, in response to the UK Parliament passing the European Union (Withdrawal) Act without the Scottish Parliament’s consent, the Scottish Government committed to advising the Scottish Parliament to refuse consent to any of the UK Government’s Brexit bills, “until the Sewel Convention is made operable again”. Rt Hon David Mundell MP, Secretary of State for Scotland, argued that this “polarised” response has served to “undermine” any attempt at compromise.
15.Despite these events, the Secretary of State had a more optimistic view of the current state of the UK’s intergovernmental relations. He contrasted the current situation with the period during the Scottish Independence Referendum, saying, “I do not agree with those who claim that relations between the UK and Scottish Governments are at their lowest ebb”. He argued that the Scottish Government has had “clear engagement and input at a ministerial and official level throughout the EU Exit process”.
16.Throughout our inquiry we have heard many recommendations for how to reform intergovernmental relations in the UK. These ranged from improving civil service training, to re–examining the role of the Scotland Office. However, the point made repeatedly by witnesses was that these are largely technical reforms, which can only go so far. We heard that the fundamental issue is how to develop and embed a strong relationship between the two governments where both parties trust and respect each other. As Michael Russell MSP told us:
The issue [that needs] to be addressed is: can you put together a relationship of equity? […] I want equality[…] A system in which the component parts respected each other, were able to work together, had equal opportunities and equal says.
Other witnesses and commentators similarly called for a re-examination of the principles underpinning intergovernmental relations, and a concerted effort from both governments towards building trust and facilitating relationships. Akash Paun, Institute for Government, suggested that agreeing a “statement of the principles of the intergovernmental relationship” might reset the relationship, and help rebuild trust. The Royal Society of Edinburgh told us that the underlying principles should be “consultation, consensus and parity”. Michael Russell MSP referenced “the principle of equality”. The Law Society of Scotland argued that “cooperation” should be the underlying principle. The Centre on Constitutional Change has made no specific recommendations about what the underlying principles should be, but suggested “respect for the authority of different governments”, “cooperation”, and “proportionality” might be useful starting points. The Minister for the Constitution, Chloe Smith MP, told us that one of the five pillars of the ongoing Cabinet Office review was “a set of principles to provide the context of future relations”. The Secretary of State for Scotland also agreed that it is important to examine the principles underpinning intergovernmental relations, and said that collaboration on post-Brexit arrangements will represent “a new era of intergovernmental relations”.
17.A stronger relationship would not mean an end to disagreement between the two governments. As Professor Gallagher argued, effective intergovernmental relations are not the same as intergovernmental agreement and he noted that there are limitations to what compromises and resolutions intergovernmental relations can broker. Professor Gallagher argued “they are allowed to disagree”, and disagreement should not, in itself, be regarded as a breakdown in intergovernmental relations. This point is particularly relevant in the context of Brexit where the two governments have such divergent policy objectives that, as Professor Gallagher put it, “no system of intergovernmental relations was going to cope well with it”. Michael Clancy, Law Society of Scotland, noted how important it is that the intergovernmental relationship is strong enough to withstand disagreement on particular policy issues, without the broader political relationship being weakened.
18.The relationship between the UK and Scottish Governments has come under renewed strain at a time when cooperation and trust is needed most. The current system of intergovernmental relations is not able to cope with the pressure being placed on it. Whilst we recognise that disagreement between the UK and Scottish Governments is inevitable and legitimate, we believe that the frequency and nature of the disputes we have seen in recent years have been exacerbated by a fundamental—and avoidable—deficit of trust in the relationship. The two governments need to have a relationship that is strong enough to survive disagreement. In the remainder of this Report we recommend reforms which could be made to improve machinery and governance arrangements which support intergovernmental relations. However, none of these reforms will be successful unless trust is rebuilt through a fundamental change in the approaches of both governments.
19.We are encouraged by both governments’ expressions of willingness to improve intergovernmental relations and welcome the Secretary of State’s commitment to a “new era of intergovernmental relations” after Brexit. We call on both Governments to work to rebuild trust and recognise the need for a cooperative and constructive relationship underpinned by the principle of parity of esteem. This would ensure that both governments are treated as equals in their respective areas of competence, and ensure mutual respect for each other’s authority, even in the face of disagreement. Unless both governments summon the political will to work to rebuild trust the relationship will only deteriorate further.
9 , October 2013
10 Centre on Constitutional Change, , October 2018, p. 6
15 Secretary of State for Scotland ()
17 Neil McGarvey and Paul Cairney, Scottish Politics: An Introduction, Basingstoke: Palgrave, 2008, p. 162
18 House of Commons Library, , July 2018
20 ; Secretary of State for Scotland ()
23 ; ; House of Commons Library, , July 2018, p. 18
25 Professor Jim Gallagher ()
28 Centre on Constitutional Change, , October 2018, p. 28
33 Scottish Government, , October 2018, p. 33
34 HC Deb 14 June 2018, , [Commons Chamber]
36 BBC News, , 13 September 2018
37 Secretary of State for Scotland ()
38 Secretary of State for Scotland ()
39 Secretary of State for Scotland ()
41 ; ; The Law Society of Scotland (); Royal Society of Edinburgh (); Centre on Constitutional Change, , October 2018
43 Royal Society of Edinburgh ()
45 The Law Society of Scotland ()
46 Centre on Constitutional Change, , October 2018, pp. 15–16
48 Secretary of State for Scotland ()
Published: 7 June 2019