INTRODUCTION: DEVOLUTION IN THE UNITED
KINGDOM
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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