The Union and devolution Contents

Chapter 5: Strengthening the Union

206.As we noted in Chapter 3, we do not share the UK Government’s optimism that the devolution settlements being discussed and implemented at present will provide a stable, long-term territorial settlement. It seems likely that in the longer term there will be pressure for further changes to the devolution settlements.269

207.Sir Kenneth Calman, who chaired the Commission on Scottish Devolution, told us that the continuing devolution of powers has, instead of satisfying demand, generated further demand. He added that “it will not stop; it will continue”.270 Scottish Government Minister Fiona Hyslop MSP was clear that the Scottish Government continued to advocate full fiscal autonomy, but that in the meantime it would “negotiate within the boundaries of what the UK Government are prepared to discuss with us”.271

208.While the UK Government has published a draft Wales Bill for consultation,272 we note that it does not propose devolving all the powers recommended by the Commission on Devolution in Wales. The Commission’s chairman Sir Paul Silk felt that this was simply delaying their implementation till a later date. He noted that “there will always be those who say, ‘Look, there’s that gap, which you should be filling’.”273 Moreover, if further powers were to be devolved to Scotland then it is likely that there would be calls for them to be offered to Wales as well.274 Although the Northern Ireland Assembly already has a large range of powers it is possible, following the devolution of Corporation Tax, that there may be calls for other powers to be devolved there. Within England, there is an on-going process of decentralisation and administrative devolution with no clear end point, or indeed final structure, in sight.275

209.We do not advocate any particular devolution of powers, but we have considered how to ensure that any further discussions about devolution take into account not only the interests of the devolved nations concerned but also the needs of the Union as a whole. Any further changes that do occur should not take place in the ad hoc and piecemeal manner that has characterised devolution since the 1990s.

210.Two significant developments in how the UK deals with devolution are required to achieve this. First, the needs of the Union should be identified. Second, a process should be put in place to ensure that those needs are properly considered during any further discussions of devolution. The key elements of the Union and the principles identified earlier in this report should provide a guide to both of these actions.

Taking into account the needs of the Union

Identifying the core functions of the Union

211.The key elements of the Union, as set out in Chapter 2, are maintained and supported by a wide range of executive and legislative functions. For example, the UK Parliament sets the legislative framework within which the Department for Work and Pensions provides and supports the welfare system that is a part of the social union, funded by taxes set in the UK Budget by the UK Parliament and raised and managed by HMRC and the Treasury. If these key elements are to be protected, then there must be clarity as to which supporting functions must be undertaken at the level of the Union.276

212.Professor Alan Trench of the University of Ulster, told us that:

“you need to reserve a certain range of functions to the UK level if the UK is to function as a meaningful state, and that those are going to refer largely to the three unions that we have been talking about—the economic, political and social. That becomes the underlying rationale for reserving them.”277

213.There was clear agreement amongst our witnesses on where responsibility for certain policy areas should lie. For example, there was unanimous agreement that functions relating to the security and defence union should be governed at a UK level.278 Likewise, it was felt that the international expression of the political union—the UK’s foreign policy and international relations—should be managed at a UK-wide level.279

214.Our witnesses were more divided in relation to those functions related to the economic and social unions. While our witnesses agreed that core functions relating to the economic union should be retained at a UK level (the management of macroeconomic and monetary policy280) there were differing views on the extent to which taxation could be devolved to a national level (see paragraphs 102-117). The extent to which the social union, and in particular the mechanisms of the welfare state, needed to be managed by the UK Government was also contested (see paragraphs 118-126).

215.Earlier in the report we concluded that ending or fundamentally weakening any of the five key elements of the Union—the economic, social, political, cultural and security and defence unions—could threaten the Union as a whole. The question that needs to be resolved is to what extent devolution can take place in policy areas relating to the key elements of the Union, in particular the economic and social unions, without undermining those elements and thus the Union itself.

216.Work should be carried out to identify the core functions that must be undertaken at a UK-wide level if the Union is to continue as an effective unifying force. It is the UK Government’s responsibility to undertake this work, acting in consultation with the public, civil society, and the devolved institutions. Ulster Unionist Party Chairman Lord Empey told us that:

“It is essential that all parts [of the UK] are involved in the discussions and in the move to get some kind of coherent outcome with which people can feel comfortable. … If you are a Scottish nationalist, you do not want to be in the United Kingdom. We understand that. If you are an Irish nationalist, you do not want to be in the United Kingdom. The reality is that the people in both those territories voted to stay in the United Kingdom, so you have to honour that, respect it and follow it through to its logical conclusion.”281

217.Oliver Letwin MP, the UK Government Minister with responsibility for the constitution, rejected the idea that any list of core reserved areas could be identified.282 He did, however, agree with other witnesses that foreign affairs should be the responsibility of the UK Government, and that “there is a strong presumption that while macroeconomic policy resides with the UK Government and the Bank of England, there should be at least a core of welfare arrangements, the rules for which are established at UK level”.283 This suggests that even those not temperamentally inclined towards setting out core reserved functions may have underlying assumptions about what must take place at a UK-wide level.

218.We recommend that the UK Government identifies which public responsibilities are essential to the effective functioning of the Union, and therefore need to remain the responsibility of the UK Parliament and Government. This should help to ensure that the coherence and stability of the Union can be properly protected in any further discussions regarding the devolution settlements.

219.This work should reflect a wide range of views. There should be engagement with the public and civil society which must reach beyond those interested in constitutional matters and make explicit the connection between devolution and the decisions and service provision that affect people’s lives. The process will also require discussion with the devolved institutions and consultation with the UK Parliament.

A draw down model of powers?

220.Identifying functions that must be reserved to the UK Parliament and Government could create an assumption that any other powers should, in principle, be devolved. Professor Trench noted that “There is a big decision to be made about whether, in the absence of an explicit rationale for reserving something, it should at least be devolvable if not devolved”.284

221.The Federal Trust for Education and Research published a paper with Unlock Democracy on devolution in England, calling for local areas to be able to “call down powers from a central menu”.285 The Trust’s Director, Brendan Donnelly, suggested that such a system could work, although he noted that the devolution of powers would “have to be up to the regions themselves. It would not be decided centrally whether they were able to do it.”286 Willie Sullivan, Director of Electoral Reform Society Scotland, also supported the view that “instead of power being seen as concentrated in the centre and then devolved out” that power should lie with “much smaller groups of people” who would then decide what to share with the centre.287

222.Powers should not be devolved simply because theoretically they can be exercised at a lower level of government (see paragraphs 195-198). We therefore do not advocate a “draw down” model of devolution in which all powers outside the core functions of the Union are ‘devolvable’ upon a request by a nation or region. There are core powers that should only be exercised by the UK Government and Parliament. They are not necessarily, however, the only powers that can be managed most effectively at the level of Union.288

223.There is no single list of the powers that could or should be devolved across the board. In the event that there are further demands for powers to be devolved, these should only be considered as part of an appropriate process that takes into account the needs of the Union and all the nations within it. We detail the key elements of such a process below.

A proper process for considering any proposals for devolution

224.The UK Government should also put in place a proper process to deal with any further proposals for devolution in an appropriate, structured fashion. This process should take full account of the needs of the Union and ensure that any changes would not affect the cohesiveness and effectiveness of the Union.289

225.This process needs to be flexible while offering a framework that ensures proper consideration is given to the needs of the Union as a whole. Mark Durkan MP, former leader of the Social Democratic and Labour Party, told us that the UK could not “take a line-dancing approach to devolution, where everybody now takes the same next steps and should only take the same next steps” but at the same time “We have to do more than take the dolly mixtures approach to devolution, which is very confused and confusing”.290 An appropriate process should provide stability without enforcing rigidity, maintaining the UK’s historic balance of unity and diversity.

226.Proposals for further devolution, whether brought forward by the UK Government in response to suggestions by devolved administrations or by independent Commissions, should present any case for devolution alongside a Devolution Impact Assessment.

227.This assessment should include a thorough analysis of the proposals, addressing (but not restricted to) the following elements, and based on the principles described in Chapter 4:

228.The assessment could be applied both to requests for any further devolution of powers to the nations, and for the devolution of powers (whether legislative or administrative) within England.291 The issues surrounding devolution in England are considered in more detail in Chapter 8.

Public information, engagement, consultation and consent

229.We heard that it was hard to engage the interest of the public in discussions about issues related to devolution.292 Democratic Unionist Party MLA and Minister Lord Morrow suggested that “people are generally concerned with the quality of delivery and accountability for decision making as opposed to the structures of government”.293 Other witnesses agreed that while devolution and decentralisation were not concepts that aroused much interest, people became more engaged if the conversation was focused on public services, local economic growth and issues that motivate people and communities—the ends rather than the means.294

230.Dr Jan Eichhorn, Chancellor’s Fellow in Social Policy, University of Edinburgh, told us that scepticism over the public’s willingness to engage in discussions of how the country is governed was misplaced: “A clear plurality in each part [of the UK] said that too little time had been spent” discussing ideas about changes to how the UK is governed. People did not feel, however, that they were able to shape the debate: they “perceive the process as largely elite-driven, by party-political processes with little space for the involvement of ordinary people.”295 Katie Ghose, Chief Executive of the Electoral Reform Society, told us that public engagement varied from area to area within the UK: “It is completely arbitrary as to whether any local resident of any corner of the country is going to have any say over the flavour and settlement of devolution in their area.”296

231.It will take time to engage the public fully in a debate about the structure of the UK.297 An important part of this is ensuring that citizens are informed about the issues involved. We heard that there was a lack of understanding about the territorial constitution and the respective responsibilities of UK and devolved governments (see paragraphs 199-205). A number of witnesses stressed the importance of political education. The First Minister of Wales noted the generational difference that education made to public understanding of devolution in Wales.298 The internet also provides a valuable route through which information about the devolution settlements, and the responsibilities of different governments more generally, can be accessed by citizens.

232.There are different avenues through which discussions of constitutional matters may take place. Discussions can, and do already, take place through the public engagement that politicians undertake in their constituencies and with special interest groups. There are also formal mechanisms through which detailed consideration of constitutional issues may take place. These include cross-party talks such as the Smith Commission, longer-term Commissions like the Kilbrandon Commission on the constitution or the Calman and Silk Commissions, as well as citizen-focused conventions or assemblies.299 Witnesses stressed the importance of using a range of methods to engage with the public, and of utilising new technology and social media.300

233.A ‘constitutional convention’ has been suggested by political parties,301 parliamentarians,302 and witnesses to this inquiry,303 as a way to focus discussion on many of the current issues relating to the UK’s constitution. The term constitutional convention covers a wide range of types of forum, with differing levels of public involvement. Dr Alan Renwick of the UCL Constitution Unit set out four different types:

234.Efforts to engage with the public through such forums could include a single UK-wide forum (or one focussing on England), or multiple smaller forums across the country.306 Likewise there are different ways in which such conventions can operate. As an example, Jessica Blair of the Institute of Welsh Affairs told us of an online constitutional convention that had engaged with 12,000 people across Wales.307

235.While we were conducting this inquiry, the Electoral Reform Society and a group of universities explored an alternative approach. They ran a pair of pilot ‘Citizens’ Assemblies’. Each was made up of around 35 people, one comprising solely members of the public and the other a mixture of the public and local politicians.308 They told us that the convention or assembly model could be a useful adjunct to representative democracy, helping to bridge the gap between formal politics and the broader public. It could provide a new way to respond to the public’s needs; allowing the public a greater role while confronting citizens with the difficult questions that face elected politicians.309 The organisers also suggested that the events showed that members of the public were willing to devote time and effort to these sorts of discussions.310 Dr Eichhorn also told us that polling suggested members of the public would be willing to take part in a constitutional convention: “The vast majority of people—70 to 76% in each part of the UK—would be willing to give up at least a few hours to take part in such a convention if they were invited to do so.”311

236.There are significant difficulties in using any citizen-based forum to address substantial constitutional questions. These include considering how to ensure that the output of the forum would actually make a difference, and how to avoid overloading the convention with too broad a scope so that it did not “collapse under the weight of much too wide an agenda”.312 There is also the question of who should take part. There would need to be a balance between having a representative cross-section of society and maintaining a manageable size of assembly. It would also be important to ensure that the ‘usual suspects’ in public discourse on the constitution did not dominate.313

237.There are different options for how any recommendations made by a convention or assembly would be taken forward. We were told that the Icelandic constitutional convention and, less formally, the Electoral Reform Society Scotland’s citizens’ assembly on improving democracy in Scotland both passed their conclusions on to experts.314 The Irish Constitutional Convention made 40 recommendations, but few of these have been accepted by the Government and only two of those which require a referendum in order to be implemented have been put to the electorate.315

238.We illustrate in this Chapter a range of ways in which the public could be informed and engaged in conversations about the territorial constitution of the UK. While we do not advocate a particular method, the implementation of our recommendations would benefit from public engagement and consultation. If the public are to remain convinced of the benefits of the Union, and the Union is to reflect their needs and preferences, they should be involved in the steps we recommend to strengthen it.

269 Q 93 (Alun Evans), Q 202 (Lord Salisbury)

272 Draft Wales Bill, Cm 9144, October 2015

274 See Q 244 (Carwyn Jones AM)

275 See Chapter 8

276 Q 21 (Sir Kenneth Calman)

278 Q 2 (Professor Sir Jeffrey Jowell), Q 10 (Professor Robert Hazell), Q 137 (Claire Baker MSP), Q 202 (Lord Salisbury), Q 214 (Paul Nowak), and written evidence from Professor Charles Lees (UDE0058)

279 Q 51 (Professor Charlie Jeffery), Q 137 (Claire Baker MSP), Q 59 (Dr Jan Eichhorn), and written evidence from Scotland in Union (UDE0017)

280 Q 2 (Professor Sir Jeffrey Jowell), Q 137 (Baroness Goldie MSP), Q 185 (Stephen Herring), and Q 214 (Paul Nowak)

285 Andrew Blick, Devolution in England: A New Approach (April 2014) p 20: [accessed 9 May 2016]

286 Q 71; see also written evidence from Justice for Wales (UDE0025), Dame Rosemary Butler AM (UDE0038) and the Society of Conservative Lawyers (UDE0028)

288 See Q 50 (Professor Jim Gallagher)

289 See written evidence from Dr Cormac Mac Amhlaigh (UDE0036) and the British Academy (UDE0037)

290 309; Lord Salisbury also warned against inflexible uniformity (Q 207)

291 Q 51 (Professor Jim Gallagher)

292 Written evidence from the Political Studies Association (UDE0033)

293 Written evidence from Lord Morrow (UDE0068)

294 Q 201 (Lord Porter of Spalding and Sir Richard Leese), Q 239 (Lord O’Donnell), Q257 (Kirsty Williams AM), Q 278 (Dr Victoria Winkcler), Q 279 (Jessica Blair) and Q 287 (Steve Thomas)

295 Written evidence from Dr Jan Eichhorn (UDE0055). Sir Paul Silk and Steve Thomas of the Welsh LGA felt that the Welsh people were probably tired of constitutional conversations (QQ 25 and 286).

297 Q 217 (Tony Armstrong)

298 Q 262 (Kirsty Williams AM), Q 265 (Dr David S Moon), 251 (Carwyn Jones AM), and written evidence from Scotland in Union (UDE0017)

299 Q 16 (Professor Robert Hazell); see also Alan Renwick, After the Referendum? Options For a Constitutional Convention (2014) pp 21-25: [accessed 9 May 2016]

300 Q 257 (Leanne Wood AM) and Q 279 (Jessica Blair and Dr Victoria Winckler). See also the All-Party Parliamentary Group on Reform, Devolution and Decentralisation in the United Kingdom, Devolution and the Union: A higher ambition, which also calls for a ‘nationwide conversation’ (March 2016): [accessed 9 May 2016]

301 The 2015 general election manifestos of the Labour, Liberal Democrat and Green parties each proposed a constitutional convention.

302 In a March 2013 report, the House of Commons Political and Constitutional Reform Committee called for a constitutional convention Do we need a constitutional convention for the UK? (Fourth Report, Session 2012–13, HC 371). Private Members’ Bills calling for a wide-ranging constitutional convention were introduced in both Houses during the 2015–16 Session.

303 For example, Q7 (Professor Sir Jeffrey Jowell), Q 140 (Claire Baker MSP, Robert Brown and Maggie Chapman), Q 73 (Alexandra Runswick), written evidence from Professor Arthur Aughey (UDE0003), the Constitution Society (UDE0019). By contrast the Society of Conservative Lawyers were distinctly sceptical of the idea (UDE0028)

304 The main organisations involved in the Convention were the Labour Party, Liberal Democrats, Scottish Green Party, trade unions including the Scottish Trade Union Congress, local government, the Church of Scotland and other organisations from Scottish civil society. Calman Commission, Serving Scotland Better, paras 1.76-77

305 Alan Renwick, After the Referendum?, pp 21-25

306 Q 221 (Katie Ghose and Professor Matthew Flinders)

307 Q 274. The report of the online convention is: Institute of Welsh Affairs, Constitutional Convention Report (April 2015): [accessed 20 April 2016]

308 Q 220 (Professor Matthew Flinders). For more information about how members were selected, see Professor Flinders’s supplementary written evidence (UDE0067)

311 Written evidence from Dr Jan Eichhorn (UDE0055)

312 Q 14 (Robert Hazell) and Q 42 (Peter Riddell)

313 Q 48 (Alan Trench)

314 Q 26 (Sir Paul Silk) and Q 163 (Willie Sullivan)

315 Q 14 (Robert Hazell); David Farrell, ‘The government continues to slight the work of the Constitutional Convention’, Irish Politics Forum blog (27 May 2015): [accessed 23 March 2016]. Approval in a referendum is required to amend the Irish constitution.

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