House of Lords - Constitution

Select Committee on Constitution Second Report

CHAPTER 2:- ARRANGEMENTS WITHIN THE UK GOVERNMENT

52. Within the UK Government, responsibility for intergovernmental relations is widely dispersed. Few parts of the UK Government are untouched by devolution. In a department such as the Department for the Environment, Food and Rural Affairs (DEFRA) almost every part of the organisation has to interact with its counterparts in the devolved administrations with some degree of frequency.

53. We are more concerned with how the UK Government is organised at the centre to deal with intergovernmental relations. The key participants are the Scotland, Wales and Northern Ireland Offices and their Secretaries of State, and the group that was formerly in the Cabinet Office and is now in the Office of the Deputy Prime Minister. We heard evidence from the four Ministers involved as well as the civil servants heading each office.

THE SECRETARIES OF STATE FOR THE DEVOLVED AREAS OF THE UK AND THEIR OFFICES

54. The Scotland and Wales Offices, in their present form, were established in 1999 to deal with UK Government functions which related to Scotland and Wales. The Northern Ireland Office was established in 1972 when the UK Government established direct rule in Northern Ireland. Each Office has rather different functions as a consequence of the different devolution settlements. The Secretaries of State for Scotland and Wales are each supported by a Parliamentary Under-Secretary; until devolution was suspended, the Secretary of State for Northern Ireland (who unlike the others has programme responsibilities) was supported by a Minister of State and a Parliamentary Under-Secretary.

55. The Secretaries of State and their offices play a number of roles. Different views have been expressed as to what these roles are and some of the claims made are contested. Not all of the roles are related to devolution. According to a senior official in the Scotland Office, the Secretary of State:

"is there to have particular regard to the impact of government in Scotland and to Scottish concerns that need to be dealt with within government"[41]

The Secretary of State herself described her role as:

"to be the voice of Scotland within the Cabinet and also to promote the Government's policies in Scotland"[42]

These remarks were echoed in the case of Wales, and another senior official (in the context of Northern Ireland) said:

"it is a false dichotomy to say that the Secretary of State is either Northern Ireland's man in government or the government's man in Northern Ireland. He tries to be both".[43]

56. This particular interpretation of the Secretary of State's role implies that the minister assumes a broad political role in relation to the devolved area concerned. It involves membership of many Cabinet Committees (twenty in the case of the Secretaries of State for both Scotland and Wales).[44] Such a role need not be limited to devolution; it follows that the Secretary of State will be involved in discussions on any matter concerning that area whether the matter is devolved or not. Indeed, one would expect them to be more active where the matter remains a UK responsibility (for example in relation to defence) than where the matter has passed to the devolved bodies. This role relates to the devolved area, and not to devolution as such; it is very much the same role as that always played by the relevant Secretaries of State.

57. Beyond this, we are sceptical about the value of the political role of the Secretaries of State for Scotland and Wales. The Secretary of State is not accountable to Parliament for what the devolved administration does. He or she has no financial responsibility for how the devolved administration spends its funds. While the role may have been valuable for a transitional period, while the devolved institutions were established and immediately afterward, we have to question what its value is once devolution has become a settled part of the constitution.

58. In relation to devolution, we found the comment of Mr Paul Murphy, then Secretary of State for Wales, particularly telling. He said

"on the question of representing the views of the Assembly, that is not my job. I present the views of the Assembly, which is quite different. The representation of the views is the job of Rhodri Morgan and for the Assembly Government itself, not for me."[45]

The Secretary of State later also said:

"… my role is not simply one presenting the views of the Assembly but of presenting the views of Wales".[46]

He retains his own sources of information in Wales, and clearly he assumes that there may be a difference between the views of Wales and those of the Assembly.[47]

59. This Janus-faced role of political presentation and liaison is not in itself the consequence of devolution. It complements a further role arising as a result of devolution, that of resolving issues concerning both the UK Government and the devolved administration. The Secretaries of State for Scotland and Wales have lost almost all responsibilities for government programmes; elections are the principal exception for Scotland, and of course the Secretary of State for Northern Ireland has retained responsibility for policing, criminal justice and security there throughout the period of devolved government, as well as a broader responsibility for management of the peace process.[48] In other areas, the Secretaries of State have no direct involvement in policy-making. Rather, the relationship is directly between the devolved administration or administrations involved and the relevant UK Department. The Secretary of State and his or her Office only become involved when matters cannot be resolved at that level or become complicated or difficult, as their expertise is in the particular devolution settlements, not the policy issues involved.[49] The Secretary of State is therefore at one remove from the making of policy, kept abreast of what is going on but only involved when an issue cannot be resolved directly between the devolved administration and the relevant UK Department. For the Secretaries of State this means that a great deal of their work is done behind the scenes.[50] Consequently, the nature of the roles of Secretary of State has changed considerably with devolution. The evidence we heard suggests that the political involvement and sensitivity of the Secretaries of State and the expertise in each particular devolution settlement housed within their Offices have played a significant role in defusing such issues and preventing them from turning into disputes.

60. However, both these roles rely in large part on the Secretaries of State (especially those for Scotland and Wales) being members not just of the majority party at Westminster but also the dominant party in office in the devolved administrations. The assumption is that parties share "a common agenda, a common understanding as to the values and problems they were trying to address."[51] That obviously raises the question of how these functions would work if different parties were in office. There was a general consensus that this would be a challenge, but also a view that it would make the role of the Secretary of State more important, not less.[52] To an extent Northern Ireland is a parallel, as the Labour Party is not present there. The Secretary of State's evidence suggested a rather more formal relationship with the parties in Northern Ireland than his colleagues for Scotland and Wales have.[53]

61. A third major role for the Secretary of State is in relation to Westminster legislation affecting devolved functions. This is particularly significant for Scotland and Wales, although the different devolution arrangements for each mean that the nature of the role is very different in each case. For Wales, there is a key role in the framing of legislation affecting National Assembly functions, including the selection of Government bills, if any, to receive legislative 'slots' in the following session and instructing Parliamentary Counsel for Wales-only legislation.[54] He does not appear to exercise a role in ensuring any consistency of treatment in what powers are conferred on the National Assembly in Westminster legislation or how that is done. This role also extends to the Secretary of State having a seat in the National Assembly, and being obliged to present the Queen's Speech to the Assembly each year. However, he appears to attend the Assembly formally only for that one occasion and not otherwise, and does not play any active role in the work of the Assembly.[55] For Scotland, the role appears to involve determining whether legislation before the Scottish Parliament is within the Parliament's powers. (If legislation at Westminster affects devolved matters it therefore requires a Sewel motion: see Box 3.) There is a legislative role at Westminster if legislation affecting Scotland is introduced. Determining the status of legislation also calls for heavy involvement from the Advocate-General for Scotland and the Office's legal advisers.[56]

Box 3

Sewel Motions
Sewel motions are motions introduced into the Scottish Parliament inviting the Westminster Parliament to legislate on matters that are devolved and thus fall within the competence of the Scottish Parliament.
Sewel motions derive their name from the statement made in the House of Lords by the Scottish Office Minister, Lord Sewel, during the Second Reading of the Scotland Bill. He outlined the principles governing the introduction of legislation at Westminster affecting devolved matters. The principles are now set out in the Memorandum of Understanding.[57] Paragraph 13 of this provides:
"The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government."
Sewel motions are the means through which such agreement is expressed. We discuss the extent and implications of Sewel motions later: see paragraphs 126-34.

62. A fourth role - at least for Scotland and Northern Ireland - concerns legislation enacted by the Scottish Parliament and Northern Ireland Assembly. Such legislation would be void if it were beyond the Parliament's or Assembly's legislative competence. The primary responsibility for ensuring that a bill is within legislative competence lies with the Minister responsible for the bill and the Presiding Officer. However, the relevant statutes have provisions to prevent the granting of Royal Assent to legislation by challenge before the Judicial Committee of the Privy Council. The consideration of whether legislation is beyond legislative competence falls to the Law Officers and the Secretaries of State for the devolved areas.[58]

63. A fifth role, for all three Secretaries of State, relates to finance. On a formal level, the block grants payable to the devolved administrations (discussed in Chapter Three below) are paid to the Secretaries of State, who pass those grants to the devolved administration after deducting the costs of running their offices. This has served as a convenient means of enabling funding to be paid to the devolved administrations within the existing financial framework of Votes and Appropriations to ensure Parliamentary accountability.[59] However, while it would be conceivable - and proper - to hold a Secretary of State responsible for the use of public funds by his or her department, that does not apply to a devolved administration accountable to its own assembly or legislature and thence to its own electorate. The idea that the Secretary of State might be held accountable in Parliament for the misdeeds of a devolved legislature, assembly or administration may be remote but implies a constitutional fiction which we consider would be better dispensed with.

64. On a more practical level, the Secretary of State has a key role in any negotiations about financial matters, such as the overall amount of the block grants as determined by the Comprehensive Spending Review, and amounts in addition to that (as with the extra money provided to Wales as a consequence of it being awarded Objective One status under the Structural Funds by the European Commission).[60] Quite what that role is appears to vary a good deal. While the Secretaries of State do not simply act as proxies for the devolved administrations, they often do rely heavily on support from officials working for the devolved administrations regarding technical matters.[61]

65. These roles are all important in making devolution work. The issue is not whether they should exist, but whether they should continue to be played by three separate Secretaries of State or by fewer Ministers.

66. The role of the Northern Ireland, Scotland and Wales Offices is, in large part, to support the Secretaries of State. To that extent, they replicate the roles of the Secretaries of State. One important exception is the arrangements within the Scotland Office for legal matters. Scots law is of course different in many respects from the law applying in England, Wales or Northern Ireland. This creates two legal offices: the Advocate-General for Scotland, the UK Government's Scottish law officer, and the Office of the Solicitor to the Advocate-General, (OSAG) which houses the UK Government's general legal advisers on matters of Scots law. OSAG also deals with Scots law issues arising from Westminster legislation and has a role in the scrutiny of legislation before the Scottish Parliament.

67. We are struck by the disparity in size of the Scotland and Wales Offices. In many ways the roles they play are similar. There are two major differences that do exist. First, as noted, the Scotland Office incorporates the Office of the Solicitor to the Advocate-General (OSAG), which has no parallel for Wales. Second, while both offices play important roles in relation to Westminster legislation, since Westminster remains the sole legislature for Wales we would expect the staffing of the two offices to be similar. It is not, though. The latest annual reports for the two show that the Scotland Office has 85 staff (excluding OSAG and the Legal Secretariat to the Advocate-General) and the Wales Office an average of 41 (excluding its legal adviser).[62] The Scotland Office therefore has more than twice as many officials as the Wales Office, even though the devolution settlement for Scotland is rather more straightforward from a UK Government point of view than the Wales one. We were offered no cogent explanation for this discrepancy and do not understand how it has arisen.[63]

68. We recommend that the Government should consider:

(a) merging the existing Devolution and English Regions team (presently in the Office of the Deputy Prime Minister) and those parts of the Scotland and Wales Offices dealing with intergovernmental relations, to create a single group of officials able to deal with the full range of intergovernmental issues;

(b) whether such an intergovernmental group would require leadership and support from three Cabinet Ministers. For Scotland and Wales, adequate Ministerial involvement might be secured by one Cabinet Minister with responsibility for intergovernmental relations overall, with the possibility of appointing Ministers of State to deal with particular policy issues or devolved areas. (For the foreseeable future, however, we envisage that there will continue to be a need for a Secretary of State for Northern Ireland, supported by appropriate staff); and

(c) providing civil service support for this function in the light of the arrangements for dealing with intergovernmental relations at Ministerial level.

The Office of the Deputy Prime Minister

69. The Secretaries of State are by no means the only Cabinet Ministers with a specific interest in devolution. The Cabinet Ministerial Committee on Nations and Regions is chaired by the Deputy Prime Minister, the key figure at the centre of Government, and other Cabinet Ministers attend. (The Committee's predecessor, the Devolution Policy Committee, was chaired by the Lord Chancellor.) Although the existence of the Committee was mentioned in evidence, we were not told how often it meets or what functions it now serves.[64] We therefore have to question what central co-ordinating role that Committee in fact now plays.

70. Official support for the central co-ordination role for devolution has also changed its identity over time. Initially this role was played by members of the Cabinet Office's Constitution Secretariat, which provided specialist advice on issues such as human rights, freedom of information and House of Lords reform as well as devolution. Following legislation to implement much of the Government's agenda for constitutional reform, that Secretariat was wound up in June 2001, as part of changes to the machinery of government.[65] The officials dealing with devolution became part of the Devolution and English Regions team in the General Policy Division of the Office of the Deputy Prime Minister (ODPM).[66] Further changes occurred in June 2002, with the Office of the Deputy Prime Minister becoming a department in its own right, incorporating the local government, planning and housing functions formerly exercised by the Department for Transport, Local Government and the Regions.[67] The role of the Deputy Prime Minister in developing policy on the English regions means that there has been a link between those working on devolution in Scotland, Wales and Northern Ireland with issues of English regional government.

71. Throughout all these organisational changes, we are told that the devolution team has remained in constant existence and with essentially the same personnel. Its staffing is relatively small, but it plays a crucial role.[68] That role includes:

(a) providing oversight of the devolution arrangements in general and the concordats in particular;

(b) general liaison across the UK Government on devolution matters;

(d) providing the Secretariat for meetings of the Joint Ministerial Committee and British-Irish Council.[69]

72. The Cabinet Office/ODPM team is small, comprising six officials. These are the specialists in intergovernmental relations at the heart of the UK Government. It is in the UK Government's own interest to ensure that it has at the centre a group of highly knowledgeable specialists who understand the institutional framework of devolution, the policy issues involved, and are able to advise Ministers on the political issues in the devolved administration. Admittedly this role is not one exercised solely by the Cabinet Office/ODPM team - it is shared with the Secretaries of State and their teams, who are the experts in their particular devolution settlements and the consequent issues arising. But it appears to us that the importance of devolution means that such expertise is needed gathered together at the centre not distributed across a number of Whitehall departments.

73. Moreover, while the present level of staffing may be adequate for the demands the UK Government currently places on its devolution advisers, it cannot assume that this situation will continue indefinitely. We have discussed in Chapter One the issues arising from the present amicable state of relations between Westminster and the devolved institutions, and the ways in which relations will need to become more formal, if not more adversarial, in future.

74. We recommend that the Cabinet Office/Office of the Deputy Prime Minister devolution team should be strengthened in anticipation of an increase in formal liaison between Westminster and the devolved institutions. In particular we consider that the UK Government will require more specialist advice on intergovernmental relations.

75. The changes to the structure of government made in June 2001 and June 2002 have implications for the way the UK Government deals with devolution which have so far escaped public attention. The original arrangements, with the Constitution Secretariat a key part of the Cabinet Office, meant that devolution was emphatically at the heart of government. By moving the devolution team to the Office of the Deputy Prime Minister within the Cabinet Office and then moving ODPM out of the Cabinet Office, devolution is no longer so intimately integrated with the Cabinet Office.

76. This has some importance symbolically, indicating how central devolution issues are to the UK Government. It has greater importance practically, if the Prime Minister and those responsible for the centre of government are to have ready access to devolution expertise. It also means that devolution is removed from two other parts of the Cabinet Office. One is the Central Secretariat, which deals with key Civil Service issues - grading, the Senior Civil Service, the Civil Service Code, for example. Civil Service issues are discussed in detail in Chapter Five below, but for present purposes the key point is that the close linkage that previously existed has been broken. The second part of the Cabinet Office with which a direct link has been broken is the European Secretariat. Such a link appears to us to have been valuable in two ways. First, EU issues are of very great importance to the devolved administrations (and we discuss them in Chapter Six below). The recognition of the need to link EU and devolution issues appears to have eased the way such issues were dealt with in the Cabinet Office. Second, the former situation meant that intergovernmental relations 'up' (with the EU) and 'down' (with the devolved administrations) were dealt with on a common basis. That is no longer the case; treating them in different ways implies that the UK Government considers one set of relations to be more important than the other, by virtue of its closeness to the centre of government.

RELATIONSHIPS AT THE CENTRE

77. A further issue arises from the relationship between the Cabinet Office/ODPM team and the Offices and Secretaries of State for the devolved areas. We have already remarked on the disparities of size between the Scotland and Wales Offices. It does not appear to us that there is any significant duplication of work at the official level, although we are less clear about the respective roles of the Deputy Prime Minister and the Secretaries of State. However, the principal roles of the Deputy Prime Minister and the Secretaries of State for Scotland and Wales - as identified above - relate to intergovernmental relations. That is important for the Secretary of State for Northern Ireland as well, although he has other more pressing concerns. Consequently four Cabinet Ministers are chiefly or heavily concerned with intergovernmental relations. Whether or not that involves duplication, it certainly implies a loss of focus. Four Ministers cannot devote the same attention to the framing of policy for intergovernmental relations and implementing that policy that one could. This may raise no problems in present circumstances, when relations are amicable and informal. If relations become less amicable, clarity of focus and consistency of approach will be at a premium.

78. We therefore recommend that the UK Government consider with care how to deal with devolution matters at an early date, so that the machinery of government relating to devolution can cope not just with intergovernmental relations as they stand but as they are likely to become in the medium term. While implementing major changes would raise problems in the short term, the situation would change dramatically if the National Assembly for Wales were to acquire primary legislative powers.

41 Evidence of Ian Gordon, 20 March 2002, Q. 97. Back

42 Evidence of the Rt Hon. Helen Liddell MP, 10 April 2002, Q. 152. Back

43 Evidence of Mr Bill Jeffrey, 20 March 2002, Q. 99. Back

44 Memorandum by the Cabinet Office, paras 16 and 22, evidence volume, p. 16; evidence of the Rt Hon. H. Liddell MP, the Rt Hon. P. Murphy MP and the Rt Hon. Dr J. Reid, 10 April 2002, QQ 153-55. Back

45 Evidence of the Rt Hon. P. Murphy MP, 10 April 2002, Q. 164. Back

46 Evidence of the Rt Hon. P. Murphy MP, 10 April 2002, Q. 175. Back

47 Evidence of Mrs A. Jackson, 20 March 2002, Q. 100. Back

48 Evidence of the Rt Hon. H. Liddell MP and the Rt Hon. Dr John Reid MP, 10 April 2002, QQ 166 and 168 Back

49 Memorandum by the Cabinet Office, para. 13, evidence volume p. 15; evidence of Mr I. Gordon and Mrs A. Jackson, 20 March 2002, QQ 10, 103 and 122; evidence of Andy Kerr MSP, 16 May 2002, Q. 544; Memorandum by the Welsh Assembly Government, National Assembly for Wales, para. 7-8, evidence volume p. 230; evidence of Carwyn Jones AM, 28 May 2002, QQ 956-59. Back