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Lord Acton: My Lords, I am sorry to interrupt my noble friend, but did not Palmerston say that only three people had ever understood that question? One was dead, one was mad, and he himself had forgotten.
The main point about the Barnett formula is a constitutional one. As the Government say, it is for the Treasury and the United Kingdom Government to decide the Treasury policy that describes the contours and the processes of the Barnett formula.
Devolution seems to be at the crossroads, more so with the European convention emerging and throwing light on the whole principle of subsidiarity in all the different countries, regions and sub-regions of Europe. One consequence that we do not cover in our report is the need for something to be done about England. It is astonishing that we have these great changes in Wales and Scotlandand, indeed, in Northern Irelandbut that nothing has been done about England. I hope very much that the proposals on regional referendums will promote that. I shall be most grateful if the Minister can explain why regional government does not come under the new constitutional ministry. The regions and the nations should fit together.
In a previous debate, the noble Lord, Lord Norton, rightly asked what the constitution was for. What is devolution for? Is it: Secretary of State plus, with a few unco-ordinated and unrelated expedients; or is it a move towards a more democratic and pluralist Britain? I hope that new Labour, moving towards the democracy, if not the socialism of democratic socialism, is promoting the latter and that the report will show that the reform process is continuing.
Lord Prys-Davies: My Lords, as a non-member of the Select Committee, I am bound to thank the noble Lord, Lord Norton of Louth, and his colleagues on the Select Committee for their educative report. I congratulate the noble Lord on the way he has taken us through the main findings of his committee and given us the benefit of his observations on the Government's response, which I also found somewhat disappointing. It is a splendid report, and I should like to offer one or two comments on it before I come to detailed issues.
The committee has told us that this is the first comprehensive review of the practical working at inter-governmental level of the current devolution settlements since they came into operation in 1999. The evidence that the committee received from very senior politicians and civil servants directly involved in the working of the settlements, and also from highly
I shall comment on four issues out of very many and I do so as a supporter of devolution. That is the only interest that I have to declare. First, I support the committee's first recommendation that further use should be made of formal structures of inter-governmental relations. That recommendation was emphasised by the noble Lord, Lord Norton, this morning. Paragraph 25 of the committee's report says,
Naturally, everyone welcomes goodwillgoodwill mattersbut the committee wisely looked to the future, when the present of level of goodwill in the system may come under great strain or when goodwill will be absent. That could arise when the administrations are run by conflicting political parties in London and Cardiff or London and Edinburgh.
No one quite knows what the future will bring, but it is always relevant to recall Murphy's lawif something can go wrong, one day, it will. Now is the time, thereforewhen the relationship between the administrations, so we are told, is cosy and comfortableto put it on a more formal basis. Perhaps I may borrow the words of the Select Committee:
I turn to the second issue; namely, the role of the Welsh and Scottish Secretaries of State. That issue is now obviously very much alive and has been addressed by the noble Lord, Lord Norton, and my noble friend Lord Morgan. We are bound to acknowledge that the role of the Welsh and Scottish Secretaries of State has changed almost beyond recognition. Their departments have greatly diminished since the setting up of the National Assembly and the Scottish Parliament. Sooner or later, changes along the lines of
I believe deeply that the voice of the National Assembly should be an important influence on the decision to make the post of Secretary of State for Wales a part-time post. I base my opinion in particular on the written evidence of the First Minister to the committee. He wrote:
If the First Minister's conclusion is righthis words have been approved here today in another contextI believe that the loss of a full-time Secretary of State strengthens immeasurably the case for conferring on the National Assembly the power to enact primary legislation in the devolved fields.
That point leads me to the major issue, which is that of primary legislation for Wales, which was discussed in paragraphs 119 to 124 of the report, and which the noble Lord, Lord Norton, discussed in his excellent contribution. There is widespread criticism that the National Assembly is empowered only to pass subordinate legislation. That criticism is reflected in many scholarly articles, in particular those of Professor Rawlings and Professor Patchett.
In addition, there is the difficulty experienced by the Assembly in obtaining a Wales-only Bill, or Wales-only provisions in an England and Wales Bill. Of the four Wales-only Bills which it requested for the 200001 Session, one was accepted. Of the eight requested for the Session 200203, one was accepted. To be blunt, that does not seem to be a very good record, although I accept that it is quite impressive compared with the pre-1999 record of the Welsh Office.
Meanwhile, it is not being overlooked in Wales that the Scottish Parliament has passed 62 Public Bills, eight Private Members' Bills and one Private Bill. Of course, some of the Scottish Bills have their roots in Scottish law, but at least some of the rest tackle
I am glad that the committee recommended that steps be taken to ensure a greater measure of consistency by Whitehall departments in their approach to primary legislation affecting the responsibilities of the Assembly. The committee has endorsed in particular the general principles advocated by Professor Rawlings as a very useful starting point. That is to be found on page 37 of the report. Of course there may be debate about the details of the Rawlings formula, if I may so describe the principles, but the case for such a formula has surely been made out. That is why I read with gratitude that the Government are not slamming the door on this recommendation.
However, the Rawlings formula is not the end of the story. As my noble friend Lord Morgan mentioned, Professor Rawlings has further pursued his thoughts, and in his written evidence to the commission set up by the Assembly and chaired by my noble friend Lord Richard, he has developed a powerful case for not denying to the National Assembly the primary legislative competence enjoyed by the Northern Ireland Assembly, and ultimately the legislative competence of the Scottish Parliament.
I was especially glad to note that the side title on page 7 of the report, "Reviewing the Barnett Formula", is immediately followed by a question mark. I am glad that the question mark is in place and that the committee has an open mind on the need for a review.
I conclude by repeating my thanks to the noble Lord, Lord Norton of Louth, and the members of his committee. The Select Committee is on track to achieve the target suggested by the very respected Oxford scholar, Professor Vernon Bogdanor; that is to say, to establish for itself the authority of a delegated powers committee.
Lord Holme of Cheltenham: My Lords, this has been a short but rich debate, with some outstanding contributions from members of the committee and from two noble Lords who were not members of the committee. The noble Baroness, Lady Gibson, gave us the benefit of some perceptive direct observation of Welsh institutions in action, and the noble Lord, Lord Prys-Davies, put questions of wisdom and penetration.
Perhaps it would be appropriate to pass on to the noble and learned Lord congratulations on his new responsibilities for constitutional affairs. He now has the most gloomily romantic role possible in British public life; he is "the last Lord Chancellor". That sounds like a novel by Edward Bulwer Lytton, or by Disraeli himself. It is not a role in which I readily see the genial and practical figure of the noble and learned Lord, Lord Falconer, but I am getting used to the idea, as I am sure he is. If he is not here today, let us hope that he has gone to Scotland or Wales to pursue government business.
I shall not be as reticent as committee colleagues on the Labour Benches. Unhappily, the Department for Constitutional Affairs over which the Lord Chancellor now presides seems to be a different story. It is uneasily poised between those two stages Karl Marx identified, of tragedy and farce; it is somewhere in the middle of that spectrum. It is extraordinarily difficult to conceive it possible to take such an important set of changes and execute them so ineptly, and to the great damage of the cause of constitutional reform.
As today's Financial Times reveals, the new department was cobbled together at the last moment, as an afterthought. It is certainly discourteous to Scotland and Wales; it may also be damaging. I reiterate my question to the noble Lord, Lord Filkin: were the First Ministers of Scotland and Wales consulted by the Government before this announcement? It is alarmingly ill-thought out in detailand as always, the devil is in the detailand appears to be the product not so much of joined-up thinkingthat much vaunted attribute of the Governmentas dismembered improvisation. For those of uscertainly all on these Bencheswho support the thrust of the reforms, who are committed to greater separation of powers, who have for years regarded ourselves as close allies in the great causes of devolution and constitutional reform, the coming and going of the past week has been discouraging. I say that plainly to the Minister.
Moving on, it was not the task of our committee to review devolution as a whole. However, I should like the noble Baroness, Lady Gould, to say a word about where devolution now stands. It seems that devolution at least has not lived up to the fears of those who opposed it so bitterly, and who saw it as the slippery road to independence. The opinion polls in the appendix to the report show, if anything, that the slippery road to independence has become somewhat
It is clear that no political party in Scotland wants a reversal of devolution. It is clear, despite a relentless campaign of hostility by elements of the Scottish pressincluding, sadly, that once great newspaper, the Scotsmanthat the Scottish public have a high level of acceptance of their institution, even if, as the same polls show, it has not lived up to its greatest promises. Nevertheless, the institutions are well on their way. The most interesting thing about them is that, although devolution is demonstrably working, it is working in an untested way. It is untested because of the party alignment of the parties in government in Scotland and Walesstill a coalition in the case of Scotlandand because of the great professionalism of the Civil Service which serves all three Governments.
The noble Lord, Lord Prys-Davies, is right to warn us that this is the time to test the mechanisms, as the committee recommended, to make sure that should the party alignment change and tensions of interest arise, the institutions can continue to work as relatively robustly as they have done so far.
I understand why we all shy away from the Barnett formula; on a Friday morning it is enough to frighten the horses. Nevertheless, it is important to recognise that there is a first stage to devolution. Although Scotland and Wales have considerable discretion on spending, they do not have any responsibilitysave a marginal responsibility in Scotlandfor raising revenues. There is no representation without taxation and government becomes real at the point politicians have to consider what taxes they should ask for from citizens to support their purposes. That is not the stage we are at in Scotland and Wales.
It may take some time to reach that stagesome would say that it should be never. However, it will be interesting to know from the Minister, first, whether the Government are reviewing the Barnett formula and by what process and over what time-scale we may hope to hear what "son of Barnett" is. We would like to know, secondly, whether the Government can envisage within the new Department for Constitutional Affairs a way of considering an evolution of the status of government in Scotland and Wales so that it becomes more fully responsible to its citizens in the way I have described.
I have one detailed question in connection with the homogeneity of the Civil Service. Civil servants have a loyalty to the Crown and in that spirit they can deal with governments of different political complexions in an impartial and professional way. To what and how should civil servants in Scotland, Wales and the Northern Ireland Civil Service, which is separate, express their loyalty to the settlement? Let us suppose that there were a conflict between the demands of the centre and those of Scotland, Wales or Northern Ireland and the settlements that have established the form of government they have. How would they mediate that? For instance, would it require specific amendments to the Civil Service code in respect of civil servants in Northern Ireland and Scotland?
Finally, I want to move to a topical matter. It was reliably reported on the BBC and in some newspapers today that the colleague of the noble and learned Lord the Lord Chancellor, the Leader of another place, who appears to moonlight as a junior Minister responsible for Wales, is to make an interesting speech tonight. It is reported that he is to speak about income tax. I suppose that the Chancellor of the Exchequer is having a wretched enough weekend without my dwelling on that. But I want to ask about the constitutional issues which the Leader of another place is intending to raise and whether they are the position of the Government.
It is reported that he will say tonight that his commitment to a second Chamber with a substantial elected element remains undiluted by his translation. Is that the position of the Government as a whole? Members of this House would like to know whether that is the latest word on constitutional thinking.
And what about proportional representation? Your Lordships are well accustomed to hearing that tune from these Benches, but the Leader of another place seems to be in favour of proportional representation. He appears to believe that it is an important part of the Scottish and Welsh settlements. It is clear from our observations that that is part of what makes it work in Scotland and Wales. It has saved the Conservative Party from oblivion in Scotland and Wales, although it seems reluctant to draw the appropriate conclusions from that.
Moreover, it seems to represent a change of mind on PR by the Government as a whole. I understand that Mr Hain will say that it should be introduced for Westminster elections. That is music to the ear of these Benches, but if it is the position of the new Department for Constitutional Affairsalthough I shall be most interested to hear what it is, I recognise that the Minister may be slightly on the back footcan we expect a full Statement from the Government on this interesting development in policy?
Lord Glentoran: My Lords, first, I thank my noble friend Lord Norton for bringing this report to your Lordships' House and all noble Lords who have taken part and made for such an erudite and interesting debate. I am grateful for this opportunity to discuss the important issue of the stability of the devolution arrangements.
There is certainly no room for complacency, given that the turnouts in the recent elections to both the Welsh Assembly and the Scottish Parliament fell below 50 per cent38 per cent and 49 per cent respectively.
While these declining turnouts will be, in part, a reflection on the performance of the Scottish and Welsh administrations over the past four years, we cannot reject out of hand concern among the public about the devolution settlement itself.
This debate on the report of the Select Committee on the Constitution is most timely. It is of paramount importance that the roles of the Scottish Parliament and the executiveand their Welsh and Northern Irish counterparts for that matterare both clearly understood by the electorate and are stable and durable in the long run.
One of my principal concerns is the arrangements for intergovernmental relations in the United Kingdom, which are discussed in chapter 1 of the report. During the 1997 devolution referendum debates and subsequent consideration of the Scotland Act in this House and in another place, many concerns were expressed about what would happen in the event of a fundamental disagreement between governments in London and Edinburgh. The noble Lord, Lord Prys-Davies, made those points.
However, I am happy to concede that, bar one or two skirmishes which are part and parcel of parliamentary and governmental life, significant conflict between the two has not materialised. That is unsurprising. As the report notes, governments of the same political persuasion pursuing broadly similar objectives have been in power in London and Edinburgh since 1999. It is reasonable to expect that that would minimise disagreements.
Furthermore, it is pertinent to note that personal familiarity among both Ministers and officials between the two governments has also facilitated a relatively smooth operationa product of the infancy of the arrangements, I suggest.
While this is all well and good, the absence of significant problems does not mean that the concerns are no longer valid. The questions asked are still very pertinent. The Select Committee's report notes:
Perhaps I may paraphrase the committee's recommendations: it urges greater use of the formal mechanisms already in place. It is hard to disagree with that, but I wonder whether it will be sufficient. I cite the issue of concordats as an example. The report recommends that concordats,
That is an eminently sensible proposal and workable when the two governments are in broad agreement and only minor practical issues need to be resolved. However, will the concordats be of any use in the event of serious conflict? On what legal basis are they agreed? Could either side not unilaterally withdraw from a concordat, irrespective of its terms?
I do not wish there to be serious dispute between the two governments, but we must surely have effective conflict resolution mechanisms in place in order to minimise the damage that such disputes could cause.
I do not have time in this relatively brief contribution to detail a comprehensive package of such measures, but I wish to elaborate on one important issue, already touched upon by the noble Lords, Lord Prys-Davies and Lord Holme; that is, the future role of the Secretary of State for Scotland. The recent reshuffle"shambolic" reshuffle, I might sayhas profound implications for the representation of Scottish and Welsh interests in the United Kingdom.
I regret to say that, even now, many details of the new structure are unclear. It appeared initially that the Scotland Office and the Wales Office, along with the Secretaries of State for Scotland and Wales, were to be abolished and their functions taken over by the new Department for Constitutional Affairs. Then it appeared that the offices would be under the auspices of the DCA but would survive as separate entities. Now, according to the Government's newly published list, Alistair Darling will be part-time Secretary of State for Transport and part-time Secretary of State for Scotland and Peter Hain will be part-time Leader of the House and part-time Secretary of State for Wales. Anne McGuire will be Parliamentary Under-Secretary of State for the Scotland Office and Don Touhig will be the Parliamentary Under-Secretary of State for the Wales Office.
If the media are to be believedand they are not always, by any meansthe hand of the Scottish First Minister has been strengthened by these changes. With the office of Scottish Secretary very much diminished, direct bilaterals between the Scottish Executive and the UK Government can be expected to increase. I think that the noble Lord, Lord Prys-Davies, made that point in relation to the Welsh Office; the noble Lord, Lord Holme, certainly did.
There are still, however, many unanswered questions. For example, does the Secretary of State for Constitutional Affairs have any kind of veto over decisions made by the part-time Scottish and Welsh Secretaries? Who is ultimately responsible for such
That confusion, unhelpful as it is, will no doubt be cleared up in the fullness of time. I am more concerned about whether this diminution of Scotland's and Wales's voice in the Government is strategically desirable. It is true that the end of separate Scottish and Welsh offices and Secretaries of State is a proposal that the committee, in its report, urges the Government to consider. Superficially, it may seem both logical and desirable to parcel up into one the offices of the Scottish and Welsh Secretaries and Ministers responsible for devolution in the English regions.
It is also true that in the past my party has considered that approach. On paper, and in the absence of problems, it may seem ideal, but I doubt whether it is as well suited to the dynamics of devolution and the current realities of politics. Certainly, it is clear that the Prime Minister's proclamation last Thursday and his reshuffle were not thought through.
Critically, the devolution model varies considerably in Scotland, Wales, Northern Ireland, and the English regions. The Scottish Parliament has primary legislative power; the Welsh Assembly does not. The English regional assemblies, should they ever be created, will have different powers again, and what Northern Ireland will end up with remains to be seen. I hope it will be legislative.
It was revealed in the recent debate in another place that the Secretary of State and the Under-Secretary of State for Wales sit on 25 Cabinet committees. Will the fact that there are now only part-time Secretaries of State for Scotland and Wales inevitably mean that such representation will be diminished? There are also potential conflicts of interest. When key transport decisions have to be made, will Alistair Darling be acting in the best interests of Scotland or for the transport needs of the UK as a whole? As a Scottish newspaper recently commented:
I turn now to an issue which has been avoided by all other noble Lords. I shall do the same in part. The issue is the Barnett formula. Whatever the future course of the financial relationship between the Scottish and UK governments, is it not the case that Scotland needs a direct voice in the UK Cabinet to
The Select Committee's report is a most timely and helpful contribution to the ongoing debates about the dynamics of devolution. I have only touched on a few of the areas covered by the report. There has been reference to several others. However, we have also had a considerable amount of repetition, which should help the Minister to answer the key points.
I may not be entirely in agreement with all the committee's recommendations, but, in summary, I believe that the report highlights key areas of concern; principally, that there needs to be more robust liaison arrangements between the Scottish and UK governments and parliaments. We believe the report is a sound basis on which further debate may be founded.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, I am very pleased to respond to the debate initiated by the noble Lord today on the report of the Select Committee. It could not be more timely, given both the importance of its contents and the announcement this week of the establishment of a Department for Constitutional Affairs. I have read the committee's report with interest. I acknowledge that it has hadand I trust will continue to havea valuable and important role in its oversight on constitutional affairs.
I am particularly pleased that the Select Committee emphasised the smooth transition that took place to devolution in 1999 and the successful way in which the first term has gone. That is indeed a tribute to all those involved. But we are talking about a process so far of success.
We also saw the second devolved elections take place on 1st May. I congratulate the incoming administrations in Scotland and Wales. I also take the opportunity to assure the House that the Government will continue to work closely with the devolved administrations to deliver for the people of Scotland and Wales.
As the Prime Minister made clear in his Statement on Wednesday, it is precisely because devolution is operating smoothly that it makes sense to combine the roles of Secretary of State for Scotland and Wales with other Cabinet posts. My right honourable friends the Secretaries of State for Scotland and for Wales represent Scottish and Welsh interests in Cabinet and account for them in another place. They are assisted by the Scotland and Wales Offices, which continue as distinct entities reporting to those Secretaries of State but located in my department.
My noble and learned friend Lord Falconer is responsible for the overall devolution settlements and overall government policy on devolution, a responsibility previously that of the Deputy Prime Ministerincluding the Memorandum of Understanding, the Joint Ministerial Committee and
The noble Lord, Lord Norton, acknowledged many of those facts. He acknowledged that the settlement is working well and that there is no present problem, but he and the committee raised the question of whether there will be a problem in future. That is a perfectly proper question. Governments and parliaments should look to the future, rather than simply considering whether things are presently satisfactory. First, having just had elections, and not facing new elections to the Scottish Parliament and the Welsh Assembly until 2007, it seems unlikely that there will be an immediate problem. Of course, that does not remove the need to reflect, but one can hardly say that that is something that is about to hit us in the face.
Secondly, I emphasise that there is existing strong formal machinery. The impression has been given that this is all done between chums and that there is no structure or system of government in place to try to ensure that it works. First, there is a Memorandum of Understandingabout which I shall not go into detail. Secondly, and importantly, there are bilateral concordats with the devolved Administrations. Thirdly, there is a Joint Ministerial Committee chaired by the Prime Minister and including the First Ministers of the devolved administrations to oversee the operation of devolution, which meets in both plenary and functional sessions. Taking the two combined, there have been 16 meetings of the JMC in its various guises.
Fourthly, the Government emphasise that we will keep the operation of those liaison arrangements under review. I shall return to that later. Lastly, as has been recognised, we have a common UK Civil Service. I think that all parts of the House share the belief that that is important in making the United Kingdom constitution work in the circumstances. The way in which they have co-operated and continue to co-operate through and between the devolved administrations and central Government is a tribute to civil servants.
I turn to the role of the Secretary of State. The noble Lord, Lord Norton, also acknowledgedI thank him for thisthat there is no sensible case for three separate full-time Secretaries of State. Perhaps with one exception, I have heard no one argue the case for that. Obviously, there was a case for a full-time Secretary of State for Scotland and for Wales before devolutionthe UK Parliament was running many matters concerning Wales and Scotland.
There was an arguable case for keeping a full-time Secretary of State for Wales and Scotland during the period of bedding in of the devolved settlement, so that we could monitor how things were going and ensure focused political attention. But there is now hardly an informed or respected commentator who does not recognise that the world has changed since 1999 and
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