Select Committee on Constitution Second Report


1. This report is the outcome of the first substantive inquiry undertaken by the Committee. We took evidence between February and July 2002 in Westminster, Edinburgh, Cardiff and Belfast. We are most grateful to the Presiding Officers of the Scottish Parliament and the National Assembly for Wales and the Speaker of the Northern Ireland Assembly for the co-operation they gave us and accommodation they afforded us in undertaking the inquiry.

2. During the inquiry we heard oral evidence from a total of 62 witnesses, and received written evidence from a further 17 organisations and individuals. This evidence has already been published.[1] Our witnesses included 10 Ministers in the devolved administrations, the Deputy Prime Minister and three Secretaries of State in the UK Government, the three Chairmen of the House of Commons Select Committees for Scottish, Welsh and Northern Irish Affairs, 28 senior officials from the Home Civil Service or Northern Ireland Civil Service, and 10 academics studying various aspects of devolution. We believe this evidence makes our inquiry the largest and most comprehensive investigation of the working and implications of devolution for the United Kingdom. We have also had informal discussions with a number of other figures involved in devolution, which have informed our thinking about the subject but which do not constitute part of the base of evidence supporting this report.

3. We are most grateful to all those who gave evidence to us. We are particularly grateful to the Ministers from the devolved administrations who answered our wide-ranging questions about the working of devolution in practice. We are also grateful to the many academics who gave evidence or information to us, and would like to acknowledge the valuable research being carried out under the aegis of the Economic and Social Research Council's 'Devolution and Constitutional Change' programme, and the two 'Nations and Regions' programmes, funded by the Leverhulme Trust, at the Constitution Unit, University College London and the Institute of Governance, University of Edinburgh. We also express our appreciation of the splendid work undertaken by our Special Adviser, Mr Alan Trench. He has been tireless in his efforts and an invaluable source of information on the subject.

4. Our Committee has a cross-party membership and includes a wide range of views about devolution. Some of us have long campaigned for devolution while others of us have opposed it. Although our enthusiasm for devolution varies, we agree that devolution has been a major change to the UK's constitution. Our very first witness, Professor Vernon Bogdanor of Oxford University, compared it in scale to the Great Reform Act of 1832. The very magnitude of the change means that this is a very early stage at which to judge devolution, as Professor Bogdanor noted. In our First Report, we decided that we would focus our subsequent inquiries on issues that were a principal part of the constitutional framework and which raised important questions of principle. There is no doubt that devolution meets our 'principle and principal' test.[2] We think our inquiry is timely, partly because the process of devolution has started to settle down, and partly because it is during the early stages of such a major change that precedents are set that will determine how matters are resolved many years in the future. By looking at how devolution is now working, and what precedents have been set, we hope to ensure that it continues to work effectively and that its institutional arrangements throughout the United Kingdom will be sufficiently robust.

5. We have been conscious in carrying out this inquiry that devolution has been a long-standing source of political debate. It did not materialise in 1998 out of the ether. Gladstone and Chamberlain discussed implementing it across Great Britain in the late nineteenth century. It was a major concern for Asquith's Liberal Government in the early years of the twentieth century during the debates on Irish home rule, and was the subject of the Speaker's Conference in 1919. The development of devolved administration through both the Scottish and Welsh Offices was an answer to calls made for devolution at different points during the twentieth century and created a basis for the present arrangements for devolution. It was most notably recommended by a majority of the Royal Commission on the Constitution chaired by Lord Kilbrandon in 1973.[3]

6. Our inquiry is concerned with the inter-institutional relations, and the impact of devolution at a United Kingdom level, and not with the internal working of the devolved institutions themselves. Our inquiry has not concerned itself with the merits or disadvantages of devolution. We have treated it as a settled part of the United Kingdom's constitutional arrangements and have addressed ourselves to how it works at present, and its implications on a more day-to-day, practical level. Few of us were specialists in devolution before we began this inquiry. One of the first points that struck us was the complexity, indeed intricacy, of the arrangements for devolution. We are most grateful to Professor David McCrone of the Institute for Governance of the University of Edinburgh, Mr John Osmond of the Institute for Welsh Affairs in Cardiff and Professor Paul Bew of the Department of Politics at Queen's University of Belfast for helping to explain to us how devolution came about in Scotland, Wales and Northern Ireland respectively, and the nature of developments and their political background in each place since devolution.

7. We were reminded at an early stage in our inquiry that the devolution is asymmetrical - there are fundamental differences between each devolution settlement. The arrangements for Scotland and Northern Ireland resemble each other to an extent, although even that resemblance is limited. Both administrations have a devolved legislature and a separate executive, accountable to that legislature. Both the Scottish Parliament and Northern Ireland Assembly have a wide-ranging general legislative competence, which includes all matters not retained for Westminster to deal with at a UK level. Those lists, set out in Schedules 4 and 5 to the Scotland Act 1998 and Schedules 2 and 3 to the Northern Ireland Act 1998, are complicated to understand or to apply in practice, and vary from each other in a number of respects. Most notably, policing, criminal law and criminal justice fall within the competence of the Scottish Parliament but not the Northern Ireland Assembly.

8. In Northern Ireland there is also a distinction between 'reserved' and 'excepted' matters; it would be open to the Northern Ireland Assembly to legislate for reserved matters, provided the Secretary of State consented to that legislation. Further distinguishing features of the Northern Ireland Act are the joint nature of the offices of First Minister and Deputy First Minister, the appointment of Northern Ireland Ministers on a proportional basis using the D'Hondt system, and the lack of collective responsibility for the Executive Committee. These are all part of the power-sharing arrangement for devolved government in Northern Ireland under the Belfast Agreement, forming part of the jigsaw of arrangements which we discuss in more detail in Chapter One below. They serve to make devolution to Northern Ireland different in its nature to that for Scotland.

9. Wales, too, is different. Under the Government of Wales Act 1998, the National Assembly for Wales has only the power to make delegated legislation within the framework of existing primary legislation passed at Westminster. Moreover, the National Assembly is a single body corporate, including both the 'parliamentary' and 'executive' functions within one legal entity and with one set of staff. Its powers are defined with great precision in either the transfer of functions orders or subsequent Westminster legislation. The staff of the Assembly working in the Presiding Office to support Assembly Members (AMs) individually or collectively are all civil servants and ultimately accountable, through the Clerk of the Assembly, to the Permanent Secretary.

10.These differences are such that it is hard to find even common terminology under each settlement to describe functions exercisable by the devolved administration and those remaining at UK level. We have preferred the term 'devolved function' for those exercisable by the devolved administration and 'retained functions' for those exercisable only by the United Kingdom Parliament or Government.

11. Although all the devolution arrangements differ, they have certain things in common. One is that the United Kingdom parliament at Westminster retains its sovereignty and continues to be able to legislate throughout the United Kingdom. As we discuss in Chapter Four, the way in which it does so for both Scotland and Wales raises a number of complex questions. A second is that a number of key functions - including defence, foreign affairs, national security, macro-economic management and many supply-side issues such as competition policy or the labour market - are retained at UK level. In practice, social security is also retained; although formally devolved to Northern Ireland, the requirements of parity give the Northern Ireland Assembly and Executive very little room to develop a distinctive approach. A third is the financial arrangements underpinning devolution, in which (as discussed in Chapter Three) HM Treasury continues to play a dominant role. A fourth is the restraints on all three devolved legislatures or assemblies and their administrations, requiring them to act in compliance with EU law, the European Convention on Human Rights, and the UK's international obligations. A fifth is the civil service, which we discuss in detail in Chapter Five.

12. A further characteristic of devolution is that it makes intergovernmental relations inevitable, and integral to the UK's system of government. The pattern of devolved and retained functions is an intricate one. It can be hard to see in practice (and sometimes in principle) where a devolved function stops and a retained one starts. Even if that were clear, many policies or initiatives of one level of government will require some degree of contact between the devolved administration and UK Government. In some cases joint action may be required, but in any event each administration will need to be aware of what the other is doing and take account of that in its own work. Even if the devolution arrangements did not place the premium that they do on continued good relations between the various governments within the United Kingdom, necessity would compel a high degree of interaction.

13. We should note one further point in relation to Northern Ireland. Devolution to Northern Ireland was suspended by an order of the Secretary of State at a late stage in our work, after we had taken evidence but while we were preparing our report. So far as Northern Ireland is concerned, direct rule may mean that our remarks are not appropriate for the moment. However, we continue to refer to Northern Ireland throughout the report, both because we consider that there are useful lessons or comparisons from Northern Ireland for other parts of the United Kingdom, and in anticipation of a return to devolved government in Northern Ireland.

14. Finally, we consider that the value of this report lies as much in the discussion of the evidence we have gathered as in the specific recommendations we have made. In some areas we have made recommendations; in others, we have simply drawn attention to matters without further comment.

15. We hope that any further consideration will not be limited to our specific recommendations but will encompass the whole report.

1   This evidence was published in July 2002 (HL Paper 147, Session 2001-02). Back

2   First Report, Session 2001-02, HL Paper 11, paragraph 22. Back

3   Royal Commission on the Constitution, 1969-1973. Report Cmnd 5460 (London: HM Stationery Office, 1973). Back

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