The relationship between the UK and Scottish Governments Contents

5Devolution understanding and relations in Whitehall

Informal relationships and institutional memory

75.As we saw in chapter 1, informal and personal relationship between politicians are essential to the good functioning of intergovernmental relations in the UK. This is also true of the relationship between civil servants, with the Memorandum of Understanding stating that intergovernmental business should be conducted informally through officials “wherever possible”.171 These official–level relationships have changed over time; we heard that when the Scottish Government was established, many of the civil servants who set up and ran it were drawn from Whitehall, which meant the pre–existing relationships between officials were carried over.172 However, these informal routes of communication have been lost with the appointment of newer generations of civil servants, who have less knowledge and experience of their colleagues in other UK governments.173 As Lord McConnell put it, “one of the things I worry about 20 years on is that I am not convinced at all that there are enough civil servants in the UK Government departments who have experience and knowledge of devolution in Scotland”.174

76.We also heard that Brexit posed new challenges for official-level intergovernmental relations, with Michael Russell MSP, Scottish Government Cabinet Secretary for Government Business and Constitutional Relations, telling us that Brexit has reduced Whitehall’s capacity to build relationships with the devolved administrations as the “pressure on the UK civil service as a result of Brexit, [has caused a] deterioration in the relationship”.175 Professor Colin Reid told us that the Brexit workload creates the risk that:

In the rush to get new arrangements in place, and with the significance of international trade matters […] the tendency to overlook the devolution dimension will become more pronounced, just as its significance is increased.176

Chloe Smith MP, UK Government Minister for the Constitution, accepted that the unprecedented Brexit workload has impacted the extent and quality of information sharing and consultation.177

77.The quality of Whitehall’s devolution knowledge also varies considerably between departments. We heard that departments whose policy areas interact significantly with devolved competence tend to have well-established relationships with their Scottish Government counterparts—with DEFRA being cited as a department with strong relationships with the devolved administrations.178 On the other hand, other departments which have few policy areas which overlap with devolved responsibilities often have little or no understanding of devolution.179 However, Brexit is likely to increase the number of policy areas which intersect with devolved competence,180 and as Professor McEwen said, “there will be some Whitehall departments that are entering into the intergovernmental space that have not previously engaged that much with devolution issues”.181

78.Strong official–level relationships are as important to effective intergovernmental relations as strong political relationships. However, the relationships between civil servants that were established at the time of devolution are no longer in place, and while the Brexit process is requiring more Whitehall departments to work collaboratively with the devolved institutions, it is also reducing their capacity to do so effectively.

In the rest of this chapter we consider how official level relationships between the UK and Scottish Governments can be strengthened.

Early engagement and consideration of devolution implications

79.The Centre on Constitutional Change notes that early engagement between governments is an important part of effective intergovernmental relations, because it helps both governments identify potential areas of policy conflict before policy positions become entrenched at a political level.182 Throughout our inquiry witnesses expressed concerns about the extent to which Whitehall officials actively engage with their counterparts in Edinburgh, and the extent to which they fully consider the implications their policy has on the devolved administrations.

80.Former Scottish Government officials told us that during policy development meetings with their UK Government counterparts, they often felt they had to “wave the Scottish flag” to remind Whitehall that policy changes could affect Scotland.183 Professor Colin Reid told us that “problems often arise unconsciously because of a lack of awareness in UK departments of the workings of the devolution settlements”.184 Similarly, Lord Wallace said that during his time “as a law officer, I had to regularly remind UK Government departments that there could be Scottish law implications and they could not just cut and paste”.185 Michael Moore, former Secretary of State for Scotland, agreed, saying that “you would find bits of Whitehall departments that just did not realise that what they were doing had consequences in Scotland”.186 The Scottish Government Cabinet Secretary for Government Business and Constitutional Relations, believed that this is still an issue today; “we have had to deal in recent months with documents, issued by the UK Government, which [for example] did not recognise that there was a separate Scottish legal system. That is pretty incredible to me”.187

81.Some witnesses explained that these difficulties are exacerbated by the difference in scale between the two Governments. The former senior Scottish Government officials we spoke to explained that this asymmetry in size means that, where one or two individuals may be responsible for a particular policy area within the Scottish Government, responsibility for that same issue may be split between many more people in Whitehall.188 They said that this creates communication difficulties, and trouble locating the most appropriate individual.189

82.Current guidance for UK Government civil servants encourages officials to ask themselves whether policy changes impact upon the devolved administrations. For example, the ‘Devolution–proof your policy’ guidance document contains a long list of the questions policy officials should ask themselves in order to understand devolution impacts, including:

However, the former senior Scottish Government civil servants suggested these resources are not proving effective, since Whitehall continues to produce policy without adequately considering the devolution implications.191 When asked what systems are in place to monitor whether officials are asking themselves these question properly, the UK Government minister was unable to point to any specific systems.192 We did not get a response to our written follow-up requesting further information on this point.193

83.Professor Colin Reid told us that normalising contact between officials early in the policy–making process would help improve intergovernmental cooperation.194 To help facilitate this engagement, the former senior Scottish Government civil servants recommended that UK Government departments should produce devolution impact assessments. Currently, departments must conduct impact assessments when government action is of a “regulatory nature” (meaning the measure “affects” the private sector, civil society or public services—for example, by imposing or reducing costs).195 Similarly, Whitehall departments often produce and publish Equality Impact Assessments or Environmental Impact Assessments to demonstrate their compliance with the requirements of the Equality Act 2010, and relevant construction and development planning laws.196

84.It was proposed that—to avoid imposing an unnecessary burden—a two–step assessment could be used. This could consist of a preliminary assessment which would only be followed by a comprehensive and published devolution impact assessment where that initial assessment warrants it. It was suggested that such assessments would help Whitehall officials identify overlapping areas of competence, and the impact changes could have on Scotland, and thereby ensure devolution is “hardwired” into the policy development process.197

85.These proposals were supported by Sir Peter Housden, Lords Wallace and McConnell, and Michael Russell MSP.198 When asked whether the UK Government would support such a proposal, Chloe Smith MP expressed concerns that such assessments would risk becoming “a hoop that should be jumped through”.199 The minister said that, instead, “what you want fundamentally is for this understanding to be there and for it to be done as a matter of course[…] At the moment I would not say it is necessary to have a special type of impact assessment because I would rather that training did a fuller job more effectively”.200

86.Guidance for Whitehall civil servants encourages them to think about devolution. However, it is clear from our evidence that the effectiveness of this approach has been limited as UK Government officials regularly produce policy changes which have failed to properly think through the implications their policies could have on the devolved administrations.

87.We recommend that Whitehall departments should publish devolution impact assessments on UK Government policies could impact the devolved institutions. This should be a two–stage process, with a full impact assessment only being undertaken when a preliminary assessment suggests a policy change touches on devolved competence. As policy officials should already be thinking through devolution implications, this process should not pose a significant additional burden. We believe routinely publishing these assessments would ensure they are completed to a high standard and encourage civil servants to engage with their devolved counterparts at an early stage in the process, thereby helping to identify potential conflicts before they become politicised disputes.

Whitehall training and guidance

Civil service training

88.We heard that another way to improve Whitehall’s capacity to engage meaningfully with the devolved institutions is providing UK civil servants with high quality training on devolution.201 There is currently a range of devolution training and resources available to UK Government civil servants, most of which come under the ‘Devolution and You’ programme.202 The programme is cross–administration and cross–Whitehall, and led by the Cabinet Office in partnership with the Scottish and Welsh Governments.203 Training opportunities available through the programme include:

89.However, we heard a number of concerns about the extent to which the current training is adequately equipping officials with the knowledge and understanding necessary to work effectively with the Scottish Government.205 Michael Moore, former Secretary of State for Scotland, raised concerns about the number of training opportunities.206 According to the UK Government’s own Devolution Knowledge Survey (conducted in summer 2018), only 20% of respondents across the UK Government and devolved administrations are familiar with the Devolution and You programme, and only a third of civil servants across all four administrations feel they have a good level of knowledge about devolution.207 The UK Government told us that they “regularly assess” the effectiveness of training opportunities.208

90.We were alarmed that only a third of civil servants feel they have a good level of knowledge about devolution. These figures show that much more needs to be done to train officials. Effective training will be particularly important in the coming years as Brexit requires departments and officials with little previous experience of devolution engage with their devolved counterparts much more frequently, and in a more complex devolution setting.

91.We recommend that the UK Government reviews the content of training, to ensure that it keeps up with the rapidly changing devolution landscape, and that it provides officials with the skills and knowledge needed to work effectively with the devolved administrations. We also recommend the UK Government reviews the uptake of training across departments, to identify potential gaps in coverage, and call on it to publish the findings of this review.

Secondment and interchange opportunities

92.In addition to formal training, we also heard that the exchange of staff between the two governments can be an effective means of improving understanding of devolution amongst Whitehall officials, and Scottish Government officials’ understanding of how Whitehall operates. As discussed earlier in this report, the relationship between the two governments in the early years of devolution was helped by both politicians and officials alike having strong informal relations with their counterparts (and understanding how each other operates).

93.Alun Evans, Baroness Liddell, Sir Peter Housden, and Lord McConnell all expressed support for the value of secondment opportunities, and supported expansion of these opportunities.209 Lord McConnell said “I would have significantly more interchange at a younger level between the civil servants, so that they understand how the different levels of Government work and they can anticipate problems better because of that experience”.210 Baroness Liddell similarly noted that interchanges and secondments are “an important way of getting an understanding of what happens in departments”, and of encouraging Whitehall officials to see moving “into the Scottish Executive or the Scotland Office as career progression”.211 The Royal Society of Edinburgh also supported these proposals, as did the former Scottish Government senior officials.212 It was suggested that such an approach would help foster empirical understanding of devolution amongst officials, as well as personal relationships between politicians.213

94.Sir Peter Housden explained the value of existing schemes for intergovernmental exchanges:

One of the good things that have happened—probably over almost a decade—is that the people deemed in the UK Civil Service to have the highest potential to succeed to Director General and other senior posts have spent two days in Scotland as part of their overall programme.[…] So suddenly you have a couple of hundred people who know some of the personalities and who have felt it on the ground.214

Michael Moore similarly noted the value of interchange opportunities, but raised concerns about the number of opportunities currently available:

there were suggestions earlier on about people meeting for induction courses and spending two days in Scotland. That is great, but I would suggest that perhaps longer term, given the complexity of the developing devolution settlement, a greater understanding and more structure to that would be required.215

95.In follow–up correspondence, the UK Government said that since it began in 2016, over 400 civil servants have participated in the Interchange Week programme, and that they are hoping to increase the number of opportunities through an expanded programme.216 Michael Moore noted that the number of civil servants participating in interchanges across Whitehall remains a “challenge”, because “they are just a tiny number of people”.217

96.We believe that interchange, secondment and exchange opportunities between the UK and Scottish Governments are an effective means of improving devolution knowledge and understanding. However, despite gradually expanding the availability of secondment, exchange and interchange opportunities, the number of officials participating in these programmes remains relatively small—at around 400 officials over 3 years. We are concerned that the number of secondment opportunities are insufficient compared to the scale of the devolution knowledge deficit.

97.We therefore recommend that the UK Government expands interchange opportunities for policy officials. Civil servants in policy areas which deal with devolved issues should be given priority access to intergovernmental exchange or secondment programmes. We further recommend that all senior civil servants, and those on fast–tracked development pathways, such as those on the Fast-Stream and apprenticeship schemes, should be offered exchange or secondment opportunities.

Devolution guidance notes

98.Devolution Guidance Notes (DGNs) are civil service documents which advise officials on working arrangements between the UK Government and devolved administrations.218 They are an introduction to the main principles involved in the management of the devolution settlements, bilateral relations, correspondence, parliamentary business, legislation and concordats.219 Devolution Guidance Notes are frequently referred to in written guidance and advice documents for civil servants. For example, the Civil Service’s ‘Devolution Toolkit’ encourages policy officials to review the relevant guidance notes before, during and after policy development.220

99.However, many of the guidance documents are out of date.221 For example, DGN 3 (‘The Role of Secretary of State for Scotland’) refers to the Department for Constitutional Affairs, which was abolished in 2007.222 The outdated nature of most of the DGNs also means the fundamental guidance documents available to civil servants do not account for the two most recent rounds of devolution (the 2012 and 2016 Scotland Acts), and therefore the current context of the relationship between the UK and Scottish Governments. A complete list of the existing DGNs, and the date they were last modified, is below.223

DGN number

DGN title

Last updated

1

Common working arrangements

Nov 2011

2

Handling correspondence under devolution

Nov 2011

3

The role of the Secretary of State for Scotland

October 2006

4

The role of the Secretary of State for Wales

November 2005

5

The role of the Secretary of State for Northern Ireland

Unclear

6

Circulation of inter–ministerial and inter-departmental correspondence

November 2005

7

Court proceedings regarding devolution issues

Not yet published

8

Post–devolution legislation affecting Northern Ireland

Unclear

9

Post-primary legislation affecting Wales

Missing from website

10

Post-devolution primary legislation affecting Scotland

November 2005

11

Ministerial accountability after devolution

November 2011

12

Attendance of UK Ministers and officials at Committees of the Devolved Legislatures

Unclear

13

Handling of Parliamentary Business in the House of Lords

November 2011

14

Orders made under Section 30(2) of the Scotland Act (Alterations to Legislative Competence)

November 2011

15

Scottish Legislative proposals giving devolved powers and functions to UK bodies

November 2011

16

Superseded by DGN17

17

Parliamentary and Assembly Primary Legislation Affecting Wales

Unclear

100.When we raised this with the UK Government minister, Chloe Smith MP, she implied that the UK Government are looking at these documents to ensure they are up to date, as part of the broader review of intergovernmental relations.224 We note that the Devolution Guidance Note webpage was updated shortly after we raised these issues with the minister. Nonetheless, we also note that the substantive content of many individual notes remains out of date.

101.Devolution Guidance Notes, which are the fundamental and authoritative devolution guidance documents, are acutely out of date. It is unacceptable that some Devolution Guidance Notes have not been updated since 2005 and do not reflect the passage of the last two Scotland Acts. This is inadequate and undermines the UK Government’s commitment to fostering effective working relationships between officials. We therefore recommend that Devolution Guidance Notes are updated as a matter of urgency. We believe the UK Government should therefore take this task forward independently of its ongoing review into intergovernmental relations.


176 Professor Colin Reid (FSA0020)

182 Centre on Constitutional Change, Reforming Intergovernmental Relations in the United Kingdom, October 2018, pp. 22–23; Jack Sheldon, Bennett Institute for Public Policy, University of Cambridge (IGR0009).

184 Professor Colin Reid (FSA0020)

190 UK Civil Service, Devolution Toolkit, September 2015

194 Professor Colin Reid (FSA0020)

195 Cabinet Office, Guide to making legislation, July 2017

218 UK Government, Guidance: Devolution guidance notes, March 2019

219 UK Government, Guidance: Devolution guidance notes, March 2019

220 UK Government, Devolution Toolkit, 10 September 2015

223 UK Government, Guidance: Devolution guidance notes, [accessed April 2019]




Published: 7 June 2019