Chapter 7: Adapting to devolution
276.One thing that became clear to us during our work on devolution and inter-governmental relations is that the UK Government has not adapted to the creation of the devolved institutions. Peter Riddell, Director of the Institute for Government, told us that:
“it is crucial that the Government and the political parties behave as if they actually believed in a UK. By that I mean … that they recognise that they have responsibilities in Scotland and Wales, rather than almost treading around them—Northern Ireland being slightly different, for obvious reasons—which means engaging with elected politicians in Scotland and Wales. That would be trying to break away from this silo mentality, because the Union will atrophy unless Ministers and other politicians at Westminster behave as if there is a Union. That applies to the Civil Service, too.”374
277.With the current evolution of the devolution settlements increasing the number and scope of shared and overlapping competencies, the UK Government and Civil Service should incorporate the consequences of devolution into its day-to-day activities.
278.In this chapter, we highlight areas in which the UK Government has failed adequately to adapt to devolution thus far. These include:
- promoting the meaning, purpose and benefits of the Union;
- developing effective inter-governmental relations with the three devolved administrations;
- ensuring that the public understand what the UK Government does, distinct from devolved national governments; and
- foreseeing the strain devolution places on the unified UK Civil Service.
279.The chapter ends by addressing two more general concerns: oversight of constitutional change within the UK Government, and parliamentary involvement in referendums affecting the integrity of the UK.
Promoting the Union
280.The history of the Union shows the ongoing need to balance unity and diversity. Devolution recognises and accommodates diversity; it needs to be matched by a recognition of the continuing importance of unity.375 Sir Paul Silk, who chaired the Commission on Devolution in Wales, told us that “The United Kingdom Government must have the responsibility for promoting the benefits of the Union, involving all four parts of it.”376 Alexandra Runswick, Director of Unlock Democracy, told us that: “if you want people to identify with the Union, you have to make a case for the Union; you have to make a case for what the Union is and why it matters”.377
281.Professor Charlie Jeffery, Professor of Politics at the University of Edinburgh, described two attempts, made during the Scottish referendum campaign, to promote unity. One had focused on a “cultural appeal to history, heritage and shared achievement”, the other on the benefits of the social union and the pooling and sharing of risks and resources. He was sceptical that either approach would work without what he called a “diffuse belief in the values that it [the Union] is trying to embody”, which he felt was “absent”.378 Other witnesses stressed that the purpose and benefits of the Union must be articulated in a way that resonated with people’s priorities.379 Some noted that people take the Union for granted, making it hard to promote its benefits: “it is quite difficult for people to evaluate 300 years of rather familiar furniture and what difference it has made”.380
282.Maggie Chapman, co-convenor of the Scottish Green Party, told us that during the independence referendum the media preferred “telling us stories about doom and gloom. That is how it works. Being able to articulate the positive case for the Union was not easy. The mainstream media was not interested.”381 The current political situation, where different parties are in power in each of the different nations of the UK, may also lead to an emphasis on the differences between nations and parties, rather than commonalities. Parties that are popular in the devolved nations may have different agendas and priorities from the UK Government, potentially driving a public sense of isolation from the UK Government in the devolved nations and undermining efforts to promote the benefits of a Union governed by a party that is unpopular in that a devolved nation.382
283.The stability of the Union requires careful management of the balance between unity and diversity. The development of devolution in recent decades, and the emerging ‘devolution deals’ in England, have accentuated diversity in the Union. A counter-balancing effort to support and promote unity is now required. The Government should set out a strategy for taking this work forward.
Inter-governmental relations: A new mindset
284.In March 2015 this Committee published a report on inter-governmental relations in the UK. We concluded that: “The structures and practices of inter-governmental relations should serve to strengthen, and provide constitutional stability to, the Union.”383 Revisiting the subject, we consider below three different areas in which change is required: the formal structures of inter-governmental relations; the approach within the UK Civil Service and Government; and parliamentary scrutiny.
Formal structures of inter-governmental relations
285.Badly designed institutions can exacerbate divisions within nations, rather than strengthening the state as a whole. Professor Michael Keating, Professor of Scottish Politics, University of Aberdeen, used the example of Belgium where, he told us, “all the institutions that people interact with are within their community. They can vote only for candidates from the two language groups, and so you get a separation of politics and an appeal to intra group solidarity, and there is no incentive at all to appeal to the other side”, to Belgian identity and solidarity.384 Professor Neil Walker, Regius Professor of Public Law and the Law of Nature and Nations, University of Edinburgh, noted that resolving institutional questions “in a way that does not seem unfair to any of the constituent parts” was “vital” to ensuring the support of all four nations for the Union.385
286.In 2002, this Committee published a report on inter-institutional relations in the United Kingdom. It recommended that:
“further use should be made of the formal mechanisms for intergovernmental relations, even if they seem to many of those presently involved to be excessive. Formal mechanisms, such as the Joint Ministerial Committee (JMC), are not intended to serve as a substitute for good relations in other respects, or for good and frequent informal contacts, but rather to serve as a framework for such relations and to act as a fall-back in case informal personal relations cease to be sufficient. Such mechanisms are likely to become increasingly important when governments of different political persuasions have to deal with each other.”386
287.The evidence we received for our 2015 report found that little progress had been made in the intervening 13 years. Witnesses were generally critical of the effectiveness of the Joint Ministerial Committee.387 They suggested the JMC and its sub-committees had become venues for grandstanding and the airing of grievances, rather than a forum for mutual co-operation and collaboration.388 Those concerns were echoed in evidence to this inquiry, with several witnesses commenting on the need for an improvement in the structures of, and approach to, inter-governmental relations.389
288.In 2015, we recommended that the JMC structure be used to facilitate joint policy-making and co-ordination, incorporating mechanisms by which “policy initiatives can come from the devolved administrations, as well as from the UK Government”. In addition, the JMC should be provided with the ability to create temporary sub-committees on particular cross-cutting issues, and formal bilateral forums co-ordinating the operation of the fiscal devolution settlements should be “brought within the auspices of the JMC structure, to ensure that their work is co-ordinated as part of a wider inter-governmental relations strategy”.390 To try to counter the perception of UK Government dominance, the hosting of the JMC meetings should be rotated around the devolved nations.391
289.We also recommended that the UK Government should consider “whether the framework of inter-governmental relations should be set out in statute”, setting out “the existence and membership of the Joint Ministerial Committee and its core sub-committees, along with the core principles governing relations between administrations.”392
290.We have yet to receive a Government response to our 2015 report on inter-governmental relations. Many of its recommendations relate to a review of the Memorandum of Understanding (MoU) currently being undertaken by the four administrations, and there have been no plenary meetings of the Joint Ministerial Committee (JMC) since March 2015 at which changes to the MoU could have been agreed. The fact that the JMC has not met for well over a year encapsulates our concerns about the inadequate nature of the formal structures currently in place for managing relations between the UK Government and the devolved administrations.
291.We reiterate the conclusions from our 2015 report on inter-governmental relations. The formal structures of inter-governmental relations—in particular, the JMC—must not be allowed to degenerate into a forum for grandstanding and gesture politics which emphasise differences, conflict and division. Instead, the JMC should be reformed to promote and manage co-operation and coordination between the UK Government and the devolved administrations.
The working of central government
292.A number of witnesses noted that the creation of the devolved institutions seemed to have had little impact on the structure and working practices of the UK Government and Civil Service. Professor Richard Wyn Jones, Professor of Welsh Politics at Cardiff University, told us during our 2015 inquiry that: “if you look at the central institutions of the state, almost nothing, frankly, has changed [since devolution in 1999]. We still have the territorial offices. … There has been very little change at the centre, and you have had this fundamental change in the devolved territories.”393
293.Former Scotland Office Director Alun Evans told us that the culture of the Civil Service had yet to adapt to devolution: “The more important issue is to get a different culture within UK Government departments, to recognise and build on what has been achieved in the devolution model rather than somehow, if not fighting against it, being slightly grudging in celebrating what goes on.”394
294.Some witnesses suggested that this approach within the UK Government manifested what Lord Empey, Chair of the Ulster Unionist Party, called a “devolve and forget” mentality towards devolution. He suggested that the Civil Service was keen to take a hands-off approach to devolved policy areas: “The departments seem to want to push it over, so that it is off the table, in a way, and they can forget about it and go on to something else.”395 Mr Riddell made a similar observation:
“One thing that has struck us a lot … has been the sense within Whitehall particularly, although also in Westminster, that says, ‘Right. Scotland, Wales and Northern Ireland are looking after their own affairs. We don’t have to think about them’. … Psychologically, people post-1999 were almost saying, ‘Oh well, we’ve done devolution’.”396
295.It may be that this attitude of “devolve and forget” initially derived from a fear that well-intentioned continuing involvement might be seen as interference. Yet this attitude has now become entrenched and widespread, to the detriment of effective relations and the interests of the people of the devolved nations.
296.Part of the problem is the inconsistency with which inter-governmental relations are handled within Whitehall. Professor Alan Page, Professor of Public Law, University of Dundee, told us in 2015 that: “intergovernmental relations are for the most part left to the uncoordinated efforts of Whitehall departments”.397 He was echoed by the Institute for Government which noted that: “There is also a wider frustration at the devolved level about the variable performance of Whitehall in consulting and engaging the devolved governments when developing policy that affects devolved areas.”398
297.This inconsistency is exacerbated by the fact that inter-governmental relations tend to be informal, rather than structured through formal mechanisms. We quoted Lindsey Whyte, Deputy Director in charge of Devolution at HM Treasury, in our 2015 report: “I would characterise the current situation by saying that the vast majority of our interaction is informal, and also bilateral with individual devolved administrations.”399
298.Owen Kelly, Chief Executive of Scottish Financial Enterprise, suggested that where businesses needed to interact with more than one government, they had to take matters into their own hands:
“One of the things we have been trying to do … is to look for ways in which we can bring round the same table the Scottish Government and the UK Government to talk about the things that affect our industry. That is not always easy to achieve, which is, again, understandable: there are different political parties in Government. But I think people have now come to accept the task of having to take our own steps to ensure coordination that suits our interests.”400
299.A number of the recommendations in our Inter-governmental relations report were about the role and duties of the Civil Service and are relevant to addressing the concerns expressed above. These included the following, which we continue to commend to the Government:
- The changing devolution settlements will result in a more complex arrangement of devolved and reserved policy areas, particularly in areas such as welfare and tax policy. In the light of these changes, we recommend that the Government consider whether more formal structures are needed at a Civil Service level to manage these increasingly complex inter-governmental relations—particularly in the context of those departments which are most affected by the changes.
- We recommend that the concordats setting out relations between UK government departments and the devolved administrations be reviewed at least once during each Parliament and, in particular, each time there is a change in the devolution settlements. Devolution guidance notes should also be reviewed and updated regularly.
- Departmental concordats should set out clearly how the devolved administrations should be consulted on, and alerted to, forthcoming changes to UK Government policy that might have an effect on the devolved administrations.
- We recommend that the Government sets out a strategy for ensuring that senior civil servants have either experience of, or training in, working with devolved administrations.401
300.Some changes have occurred since the publication of our report. The most noteworthy is the creation of a UK Governance Group led by the Cabinet Office, which “brings together under one command [officials working in] the Scotland Office, the Wales Office, the Office of the Advocate General for Scotland and the Constitution Group (part of the Cabinet Office).”402 While territorial offices continue to exist (and the Northern Ireland Office is not included in the UK Governance Group), we were told by Akash Paun of the Institute for Government that this does represent “an attempt to create that more coherent centre” that was previously lacking.403 We also note that the UK Government has improved the provision of information about devolution for officials with online resources,404 blog posts on devolution and inter-governmental co-operation written by officials from different departments and administrations,405 and a new ‘Devolution toolkit’.406
301.Part of the challenge facing the UK Government in adapting to devolution is to embed awareness and knowledge of the devolved administrations across Whitehall. We welcome the changes that the UK Government has made in the last year, including the creation of new guidance and training for civil servants, and the establishment of the UK Governance Group. We look forward to hearing about these changes and any other improvements in more detail in their response to our 2015 report on inter-governmental relations.
302.These changes must be seen as merely the start of a larger process. Civil servants in Whitehall departments must consider how they can engage with their counterparts in the devolved administrations across the breadth of government policy. The UK Government must work towards a situation where policy is developed in consultation and collaboration with the devolved administrations. Where different policy choices are made, it is important that the different administrations work together to consider the potential cross-border impacts or UK-wide effects of those choices.
303.Adapting to devolution will require fundamental changes in how the UK Government operates. Devolved competencies range across so many areas of public responsibility that the delivery of government policies often requires collaboration and the sharing of information between the UK and devolved governments. The UK Government should undertake a thorough review, covering the whole Civil Service, to consider how the devolved administrations can be more effectively, and more consistently, involved in policy development and implementation.
304.One suggestion the UK Government should consider taking forward is establishing branches of core government departments such as the Treasury and the Cabinet Office in Scotland. This would ensure that there are staff based in Scotland to facilitate collaboration and co-operation and to manage the increased complexities of the overlapping and shared competencies that will result from the Scotland Act 2016.
305.This must be the start of a new mindset throughout the UK Government and Civil Service with regard to relations with the devolved nations. The mechanisms by which the UK Government manages relations with the devolved administrations must strengthen, rather than weaken, the Union. The UK Government must recognise that it retains an overarching responsibility for ensuring that the governance of the UK operates effectively. Instead of a ‘devolve and forget’ attitude they should be engaging with the devolved administrations across the whole breadth of government policy: not interfering, but co-operating and collaborating where possible and managing cross-border or UK-wide impacts that may result from differing policy and service delivery choices. The UK Government should work to reach an agreement with the devolved administrations to ensure a constructive approach to this engagement is introduced and maintained for the long-term on all sides.
Transparency and parliamentary scrutiny
306.Our 2015 report concluded that the current system of inter-governmental relations was insufficiently transparent.407 The Institute for Government and Professor Sir Jeffrey Jowell, Director of the Bingham Centre for the Rule of Law, echoed this view in their evidence for this inquiry.408 In our report we focused our conclusions on transparency and scrutiny of the Joint Ministerial Committee. While acknowledging the need to balance openness and confidentiality, we concluded that “the current lack of information is not acceptable” and recommended “that the dates, venues and headline agenda items of Joint Ministerial Committee meetings be announced further in advance” and that the Government should consider what additional information could be published after JMC meetings.409
307.That report also included recommendations aimed at making the work of Whitehall departments more transparent. We suggested that “UK Government departments detail in their annual reports which areas of their work are devolved and which are reserved. They should also set out the forums and bodies through which they engage with the devolved administrations, reporting at a high level on their activity over the past year.”410
308.Transparency is also vital for parliamentary scrutiny. In our 2015 report we recommended a number of measures to improve the ability of the UK Parliament to scrutinise inter-governmental relations. These included a recommendation that “the Prime Minister should make an annual statement to the House of Commons after the plenary meeting of the Joint Ministerial Committee” (which echoes a conclusion in our 2002 report). We also supported “an independent annual audit of inter-governmental relations.”411
309.Having made these recommendations about the importance of parliamentary scrutiny of inter-governmental relations, we were disappointed by the manner in which the Scotland Act 2016 was taken through Parliament with little scope for scrutiny or amendment.412 That the Bill had almost completed its passage before the vital fiscal framework was published is indicative of a wider problem. Opportunities for parliamentary scrutiny are often limited.
310.Our 2015 recommendations echoed similar proposals to improve transparency put forward by the Smith Commission. The Commission recommended that the UK and Scottish Governments work together to create a more transparent relationship, including “the laying of reports before respective Parliaments on the implementation and effective operation of the revised MoU”, and “the pro-active reporting to respective Parliaments of … the conclusions of Joint Ministerial Committee, Joint Exchequer Committee and other inter-administration bilateral meetings.” 413
311.The Scottish Parliament’s Devolution (Further Powers) Committee published a report on parliamentary scrutiny of inter-governmental relations in October 2015, in which they made a number of recommendations for greater transparency.414 In response, the Scottish Government committed to provide committees in the Scottish Parliament with additional information about inter-governmental meetings:
“Subject to [respect for the confidentiality of meetings], the Scottish Government agrees to provide, to the relevant committee of the Scottish Parliament, as far as practicable, advance written notice at least one month prior to scheduled relevant meetings, or in the case of meetings with less than one month’s notice, as soon as possible after meetings are scheduled. … Advance written notice will include agenda items and a broad outline of key issues to be discussed, with recognition that agenda items, from time to time, may be marked as ‘private’ in recognition of the need for confidentiality.
“After each inter-governmental ministerial meeting within the scope of this Agreement, the Scottish Government will provide the relevant committee of the Scottish Parliament with a written summary of the issues discussed at the meeting as soon as practicable and, if possible, within two weeks. Such a summary will include any joint statement released after the meeting, information pertaining to who attended the meeting, when the meeting took place, and where appropriate, subject to the need to respect confidentiality, an indication of key issues and of the content of discussions and an outline of the positions advanced by the Scottish Government.”415
312.The Smith Commission recognised the need for greater transparency of inter-governmental relations and made several recommendations to that end. Given the rigorous and uncompromising way in which the UK Government has sought to implement the Smith Commission’s recommendations, we trust that the UK Government’s response to our recommendations about the transparency of inter-governmental relations will be as constructive as the Scottish Government’s recent commitments to the Scottish Parliament on that issue.
313.A change of mindset throughout the UK Government with regard to inter-governmental relations should be reflected by a change in how Parliament scrutinises the UK Government’s activities in this area. Both Houses should consider how they might appropriately hold the UK Government to account for its progress towards more constructive and stable relationships with the devolved institutions. The recommendations in our 2015 report Inter-governmental relations in the UK provide a foundation on which we hope both Houses will build. These include a recommendation that the Prime Minister should make an annual statement to the Commons after each plenary meeting of the Joint Ministerial Committee, and support for an independent annual audit of inter-governmental relations.
Providing clarity over the role of the UK Government
314.In Chapter 4, we noted the importance of clarity in the context of the Union and the devolution settlements. By granting nations (and increasingly areas within England) greater powers, devolution complicates the picture of what the UK Government does: it does different things in different parts of the UK depending on their respective devolution settlements. This reduces the capacity for a UK-wide narrative around issues addressed by Parliament or through Government actions. This is inescapable, but it is therefore all the more important that action be taken to clarify what activities are undertaken by the UK Government and to use that information to promote the importance of the Union.
315.We heard suggestions from a number of witnesses about ways in which the UK Government and its departments could promote the Union and clarify to citizens in devolved nations the respective roles of their two governments. The suggestions we heard ranged from a special ‘UK’ or ‘Union Day’ to celebrate the Union,416 to investing in railway infrastructure linking the nations instead of building High Speed 2 within England.417
316.Another group of suggestions centred on clarifying the role of UK government departments and other government bodies to help people to understand what is—and what is not—done at the Union level. One example would be to highlight the activity of UK government departments through appropriate branding. Baroness Goldie, former leader of the Scottish Conservatives, recalled the way in which the EU applied its branding to works that it had funded:
“We are moving into an age where the Westminster Government, of whatever political hue, should be cognisant of the need to make more visible to the recipients of its services throughout the United Kingdom that it has provided them. Whether it is in an emblematic Union Jack, a logo on letterheads or whatever it may be, I do not know, but something needs to give a visible connection to the provision of service. Despite the new powers coming to the Scottish Parliament, a very significant part of core funding will still come from the United Kingdom Treasury and that will fund essential services in Scotland.”418
317.The need for improvement was highlighted by Alun Evans who told us that, as Director of the Scotland Office during the independence referendum campaign, he went to “the Isle of Skye and to the jobcentre there and [heard] what a good job it does. The assumption of most people there was that this was part of the Scottish Government as opposed to the UK Government, because there is no celebration and no real branding of what the UK Government do for Scotland in Scotland.”419 Several witnesses noted that there were more UK civil servants in Scotland and Wales than civil servants working for the respective devolved governments.420 Some of these officials deliver reserved services for local citizens; jobcentres, for example, are staffed entirely by officials working for the Department for Work and Pensions. Others work for central UK Government departments. For example, the Department for International Development has a substantial presence in Scotland, as does the Department for Transport in Wales.421 Clear branding of the work that these officials do could help to demonstrate the importance of UK-wide services to local communities, and the extent to which UK Government departments provide employment opportunities and support the local economies.
318.We note that City Deals have been agreed for cities in Wales and Scotland. The Deals so far agreed outside England involve Glasgow and Clyde Valley, Aberdeen City Region and Cardiff Capital Region.422 These deals represent co-operation between local, devolved and UK governments and provide a useful opportunity to highlight both the role of the UK Government in devolved nations and the benefits of co-operation and collaboration between different levels of government.
319.The division of responsibilities between local government, devolved government and the UK Government can be hard for members of the public to disentangle. One consequence is that it can be unclear to the public which services are provided by the UK Government, potentially weakening their perception of the value of the Union.
320.We recommend that the UK Government consider the ways in which all UK Government services and departments could be branded, to make clear to citizens the distinction between services provided by devolved and local government and those provided by the UK Government. This should be part of a long-term strategy to develop better public understanding of the respective roles of the UK and devolved governments and legislatures.
321.The Economic Affairs Committee warned in their report on financial devolution to Scotland that with the devolution of almost complete control of income tax to the Scottish Parliament, “It may not be clear to people in Scotland how [their taxes] fund reserved services and which Government is accountable for them. There is a risk that this will weaken the connection between the Scottish electorate and the UK Government.”423
322.Steps should be taken to clarify the two governments’ respective roles. The UK Government has, since 2014, sent a personalised Annual Tax Summary to members of the public setting out how their taxes were spent. This offers an opportunity to set out the reality of how—and by whom—revenue is raised and spent in the devolved nations. In 2015, HM Revenue and Customs sent Scottish citizens a letter informing them about the Scottish Rate of Income Tax, which subsequently came into force in April 2016 under the Scotland Act 2012. Former leader of the Scottish Conservatives Baroness Goldie told us that this was “just a part of what is now going to confront the Scottish populace in terms of the new powers”.424 In combination, these communications to taxpayers could be beneficial for clarity over powers and responsibilities. The Annual Tax Summary sent to each taxpayer in the devolved nations should set out how they are contributing through their taxes to the revenue of their devolved government and the UK Government, and on what services the revenues raised by different governments are spent.
323.Another element of clarification and branding is the presentation of the work of Whitehall departments that do not deliver UK-wide services. We heard that almost half of Welsh people thought that the NHS in Wales was run from Westminster rather than Cardiff.425 Liberal Democrat Councillor Robert Brown told us that it was time for “a separation at Westminster and Whitehall of the functions that are specific to the UK and the functions that are specifically English.”426 Similarly, the Society of Conservative Lawyers proposed a realignment of the remit of the UK Government departments whose remit almost solely relate to England to make them “100% English”. This would mean the Department for Education, Department of Health and the Department for Communities and Local Government incorporating “the English Department for” into their titles. They also proposed HM Treasury being rebranded as the UK Treasury for clarity over its continued UK-wide role.427
The Civil Service
324.The Welsh and Scottish Governments are supported by officials who are part of the same Home Civil Service that supports the UK Government. The Northern Irish Civil Service is a parallel but ‘semi-detached’ body with its roots in 1920s devolution and the pre-partition administration of Ireland.428 One of the concerns we discussed with our witnesses was the role of the Civil Service when faced with conflicting priorities or directives from the devolved governments on the one hand and the central UK Government on the other. Civil servants have a duty to serve the Crown, and when the Crown is represented by two sets of ministers with different and potentially conflicting objectives there is the potential for tension and uncertainty. The most extreme example of this was during the 2014 Scottish referendum. In particular, we were concerned that civil servants with a duty to the United Kingdom as a whole were being placed in a position where they had to act in ways that went against the interests of the Union.
325.In 2002, this Committee published a report on inter-institutional relations in the United Kingdom in which we recommended that a unified Home Civil Service should be retained.429 That recommendation was later echoed by the Silk and Calman Commissions.430
326.Sir John Elvidge, former Permanent Secretary to the Scottish Government, was clear that the unified Civil Service was still alive and well. He told us that the ethos had always felt slightly different in Scotland compared to Whitehall but that the unified Civil Service was “an important piece of glue in our very unusual constitutional settlement”.431 Dame Gill Morgan, former Permanent Secretary to the Welsh Government, noted there were “significant advantages” to retaining a unified Civil Service.432 Lord O’Donnell and Lord Kerslake, Heads of the Home Civil Service from 2005–11 and 2012–14 respectively, were both clear that the unified Civil Service was still very much the reality.433
327.Yet in 2015, following the Scottish independence referendum, the House of Commons Public Administration Select Committee (PASC) produced a report entitled Lessons for Civil Service impartiality from the Scottish independence referendum. They found that:
“In practice the single unified Civil Service has become something of a constitutional fiction, since civil servants in Scotland are expected to serve the Scottish Government in the same way as civil servants in Whitehall departments serve the UK Government.”434
PASC concluded, however, that “the advantages that flow from having a single Home Civil Service justify the retention of a single UK Civil Service”.435
328.There are undoubtedly significant advantages deriving from the existence of a single Home Civil Service. Lord O’Donnell and Lord Kerslake argued that as part of the single service, the permanent secretaries of the devolved governments were better connected to UK-wide issues and priorities: they attended the heads of departments’ regular meetings; had the Head of the Civil Service as their line manager; and were recruited from the same pool of officials as served the UK Government. They contrasted this with the situation for the Northern Ireland Civil Service, whose senior members were not necessarily in the same Civil Service ‘loop’ and whose officials were less likely to have the opportunity to work in other administrations across the UK.436
329.Dame Gill Morgan described other benefits to a unified Civil Service, suggesting that it brought:
“significant advantages, with our complex devolution settlements, to have civil servants who share a unifying ethos, common skills and standards and know each other. This helps joint working on shared and non-devolved issues and allows problems and disagreements to be resolved.”437
Other witnesses were also generally in favour of retaining a unified Civil Service.438
330.Yet while the Civil Service may be unified in an administrative sense–and with the consequential administrative benefits outlined above—it cannot still be considered a unified civil service in political terms. Dame Gill told us that political tensions affected the unified nature of the Civil Service: “Maintaining common approaches became harder with changes in Governments and with increased discussions about potential Scottish Independence.”439
331.Dame Gill elaborated on the potential tensions civil servants in the devolved administrations now face:
“Differing political parties in power lead to more inherent policy conflicts for which both Governments have an electoral mandate. Where there is common purpose, Civil Servants can deliver both for the [devolved administration] and for the UK. Often however there is a need to ensure that differing policies can dovetail together to make a coherent whole. This requires negotiation and flexibility at both ends … It can be challenging as the default in London is that the UK position trumps the [devolved administration] position despite the parallel mandates and even though delivery mechanisms may differ significantly. In other areas the positions adopted are irreconcilable.”440
332.Lord O’Donnell acknowledged that the referendum was a challenge for the Civil Service: “If you were thinking of trying to devise a stress test for a unified Civil Service, what would you do? You would have a referendum where the Scottish Government are in favour of it, and the UK Government are on the other side.”441 Yet he felt that the unified Civil Service weathered the storm well. Sir John Elvidge felt that the Civil Service “withstood the strains of that experience pretty successfully.”442 Lord Kerslake agreed, telling us that: “The striking thing about the referendum was how few challenges came up”, although he acknowledged that there were “a few bumps along the way”.443
333.The former senior civil servants we heard from were clear as to the duties of civil servants in the context of the Scottish independence referendum. Lord O’Donnell told us that: “The Scottish Civil Service had to support the Scottish Government in its objective in terms of independence, just as the UK Government [civil servants] had to support the UK position.”444 Asked whether it was the duty of a civil servant working in Scotland to seek to preserve the unity of the United Kingdom, he answered “No”.445
334.Civil servants working for the three governments across Great Britain are bound by the Civil Service Code, which sets out the values of the Civil Service and the standards of behaviour expected of civil servants. Although each administration has its own version, their wording is almost identical.446 Each code sets out the accountability of officials to ministers. As Sir John told us, “Civil servants are faced with a very clear statement that their loyalty to the Crown … is for all practical purposes expressed through their loyalty to the sovereign’s Ministers of the day”.447 In the case of the devolved administrations, this means that civil servants serve their ministers in the devolved governments in the same way that they would serve departmental ministers in the UK Government.448
335.Our witnesses drew a comparison between the impartiality required from officials during a change of UK Government, and the challenges facing civil servants in Scottish independence campaign. Ken Thomson, Director-General Strategy and External Affairs in the Scottish Government, told us that it was “the same principle that you have on a change of party in Government: the loyalty of the Civil Service needs to transfer to the ministers of the day.”.449 Lord O’Donnell also compared the Scottish independence referendum with the referendum on the Alternative Vote in 2011, with members of the Coalition Government “having to go out there, argue completely different things, and then once that had been decided come back and form together.”450
336.But such comparisons do not bear close scrutiny. In the case of a general election, there is only one set of ministers in place at a time, whereas during the Scottish referendum there were two sets of ministers in two Parliaments taking diametrically opposing views. Moreover, there could be no question of coming together again afterwards in the event of the ministers who supported independence winning the referendum.
337.PASC investigated two high-profile controversies surrounding the role of the Civil Service that arose during the referendum. The first was the publication of Permanent Secretary to the Treasury Sir Nicholas Macpherson’s advice to the UK Government on sharing a currency with an independent Scotland, which PASC concluded should not have been published.451 The second was the production of the Scottish Government’s White Paper Scotland’s Future,452 about which they concluded:
“The contents of the Scottish Government White Paper, Scotland’s Future, included a description of the SNP’s proposed programme for government that was contingent upon their winning the 2016 Scottish Parliament elections. This did not uphold the factual standards expected of a UK Government White Paper and therefore raised questions about the use of public money for partisan purposes.
Parts of the White Paper should not have been included in a Government publication. Civil servants should always advise against the appearance of partisan bias in Government documents—and they should not be required to carry out ministers’ wishes, if they are being asked to use public funds to promote the agenda of a political party, as was evident in this case.”453
338.Referendums on such fundamental issues as Scottish independence make impartiality a particularly acute issue in a unified Civil Service. The Civil Service Code, in its UK, Scottish and Welsh versions, does not address the fundamental issue of an existential referendum. Sir John Elvidge told us that, in relation to the referendum, “nothing in what passes for a rule book, in the Civil Service Code, contained any obvious preparation for a challenge of that kind” and that “it might be helpful if there were more explicit recognition of the existence of devolution in the code and in various other places”.454 Dame Gill stated that the referendum made “the concept of a unified civil service more complex to manage”, and added: “The Civil Service code is, as yet, blind to these issues.”455
339.While guidance was issued by both Governments ahead of the ‘purdah’ period,456 it is notable that the controversial Scotland’s Future White Paper was published in November 2013, well before the referendum guidance was published.
340.We are surprised that the Civil Service, unified or not, should have failed to provide clear and definitive guidance in advance for the circumstances surrounding the Scottish independence referendum. They were clearly signalled. Although guidance was issued to civil servants ahead of the 28-day purdah period, in reality the referendum campaign lasted considerably longer as almost two years elapsed between the Edinburgh Agreement and the date of the referendum.
341.Referendums that affect the integrity of the UK should be handled by the Civil Service as though they were elections: civil servants may support ministers to the extent of gathering information for them but may not become actively involved in the campaign or the drafting of manifesto-like material. We endorse the House of Commons Public Administration Select Committee’s recommendation that “the Civil Service Code should be revised to specifically refer to referendums and provide civil servants across the UK with clear and definitive guidance on their role in respect of referendum campaigns … so that the provisions which apply in respect of parties in elections in the Code also apply in respect of the ‘yes’ and ‘no’ campaigns in referendums, and so that any future referendum does not give rise to the same uncertainty and controversy”.457 This guidance should make clear how Civil Service impartiality will be protected in these difficult circumstances, and in particular during the ‘long campaign’ leading up to the shorter official ‘purdah’ period.
342.In addition, we recommend that the Civil Service Code be amended to reflect the reality of devolution, and in particular the pressures that may be placed on civil servants faced with conflicting political priorities. As the Commons Public Administration Select Committee concluded, “There is now an opportunity to strengthen and clarify the Civil Service Code based on the culture and practice of government since the advent of devolution”.458
The Government’s approach to the process of constitutional change
343.In our reports on the office of Lord Chancellor and on inter-governmental relations, we expressed concerns about the lack of clear ministerial oversight of the constitution.459 In the latter report, we were particularly concerned that the Cabinet Minister responsible for devolution was not a member of the devolution Cabinet Committee.460 We were pleased that, following the 2015 general election, the Cabinet Minister with oversight of the constitution, Oliver Letwin MP, was named as Chair of a new Constitutional Reform Cabinet Committee, whose remit was: “To consider matters relating to constitutional reform within the United Kingdom”.461
344.We were subsequently concerned to hear from Mr Letwin that in the nine months since the general election the Committee had met only once.462 The reason given by Mr Letwin was that “we have used the home affairs committee for clearance processes rather than the constitutional affairs committee because it is better to involve all these other ministries in general.”463 We recognise that almost all of the members of the Constitutional Reform Committee are also members of the much larger Home Affairs Committee.464 We are concerned, however, that the consideration of constitutional issues as simply one part of the work of the much broader-ranging Home Affairs Cabinet Committee risks the loss of any explicit focus on the constitutional implications of the UK Government’s policies.
345.If the remit and membership of the Constitutional Reform Cabinet Committee as constituted at the start of this Parliament were not appropriate to its role overseeing changes to the constitution, then they should have been improved, rather than a decision being taken simply to abandon the Committee. The fact that another committee brings together a similar but broader range of ministers does not mean that it will scrutinise proposals in the same way, and with an appropriate focus on the impact of proposals on the constitution as a whole. We would welcome an explanation from the UK Government as to how the focus on the constitutional elements of policy that should have been the remit of the Constitution Reform Cabinet Committee has been integrated into the work of the Home Affairs Cabinet Committee.
346.Several of our witnesses talked about the importance of a Cabinet Minister leading a drive to ensure that proper consideration was given to issues relating to the territorial constitution.465 Professor Jeffery told us that: “We have seen, I am afraid, a real absence of territorial statecraft—thinking about how the state as a whole can accommodate the demands for decentralisation in its various parts. Unless we do that, we will continue on this ratchet process of gradual disintegration.”466 Professor Jim Gallagher of Nuffield College, Oxford, agreed: “you need a senior Cabinet Minister with a substantial department of state, money to spend, authority in the Cabinet and the vision to do the statecraft that [Professor Jeffery] has described.”467
347.The fact that Mr Letwin has responsibility for constitutional matters and that a permanent secretary under him heads the UK Governance Group goes some way to addressing those concerns.468 However, it is notable that HM Treasury—in addition to its powerful role managing the financial side of devolution through the Block Grant and the fiscal framework—has been leading on the ‘devolution deals’ addressed in the next chapter, showing yet another dispersal of responsibility for the UK’s governance.469 Oversight by a Cabinet Committee with an appropriate focus on the constitution is therefore all the more necessary.470
Secession referendums and Parliament
348.In our 2010 report on referendums, we stated that proposals for “any of the nations of the UK to secede from the Union” were the kind of constitutional question that should be decided by a referendum.471
349.The constitution is a reserved matter. This means that UK Parliament legislation is required to enable a lawful referendum on secession to take place.472 Parliament used an Order in Council under section 30 of the Scotland Act 1998 to allow the Scottish Parliament to legislate to hold the independence referendum,473 which they subsequently did through the Scottish Independence Referendum Act 2013.474 Under the Northern Ireland Act 1998, a referendum on whether Northern Ireland should remain in the UK or form part of a united Ireland may be held under UK secondary legislation.475
350.This Committee, in its second report on the Scottish referendum arrangements published in November 2012, stated that use of a section 30 Order “significantly curtails the opportunity of the UK Parliament to have an effective input into the process”. It was “hard to avoid the conclusion that more could have been done to include the United Kingdom Parliament in this process.”476
351.The constitution being a reserved matter, provision for any future referendum on an issue as fundamental to the Union as the secession of one of its four nations should be set out in primary legislation by the UK Parliament. This will enable proper scrutiny by representatives of all four nations.
375 Q 225 (Professor Matthew Flinders) and written evidence from Professor Arthur Aughey (UDE0003). Professor Colin Kidd stressed the importance of ‘Britishness’ as a unifying force, rather than the Union, but also recommended its active promotion (UDE0007).
379 Q 270 (Professor Richard Rawlings), Q 66 (Dr Jan Eichhorn), and written evidence from Professor Nicola McEwen (UDE0061)
383 Constitution Committee, Inter-governmental relations, para 16
386 Constitution Committee, Devolution (2nd Report, Session 2002–03, HL Paper 28) para 29
387 The Joint Ministerial Committee is the main formal mechanism for meetings between ministers from the UK, Scottish and Welsh Governments and the Northern Ireland Executive. The JMC, and inter-governmental relations more generally, is governed by a Memorandum of Understanding between the four administrations, supplemented by bilateral concordats between UK Government departments and other administrations. For more information see Chapter 2 of our report Inter-governmental relations (11th Report, Session 2014–15, HL Paper 146)
388 Constitution Committee, Inter-governmental relations, para 42
389 See written evidence from the Welsh Government (UDE0024), Professor Adam Tomkins (UDE0021) and the Institute for Government (UDE0048),Q 146 (Sir John Elvidge), Q 250 (Carwyn Jones AM)
390 Constitution Committee, Inter-governmental relations, paras 62, 70 and 71
391 Constitution Committee, Inter-governmental relations, para 101
392 Constitution Committee, Inter-governmental relations, para 86
393 Constitution Committee, Inter-governmental relations, para 107
397 Constitution Committee, Inter-governmental relations, para 148
398 Constitution Committee, Inter-governmental relations, para 149
399 Constitution Committee, Inter-governmental relations, para 142
401 Constitution Committee, Inter-governmental relations, paras 147, 162, 173, and 170
404 Cabinet Office, ‘Devolution: Guidance for civil servants’ (29 July 2015): https://www.gov.uk/government/publications/devolution-guidance-for-civil-servants/devolution-guidance-for-civil-servants [accessed 6 April 2016]
405 Civil Service Blog, Posts tagged ‘devolution’: https://civilservice.blog.gov.uk/tag/devolution/ [accessed 6 April 2016]
406 Cabinet Office, ‘A Devolution toolkit, version 1.0’ (September 2015): https://www.gov.uk/government/publications/devolution-toolkit [accessed 6 April 2016]
407 Constitution Committee, Inter-governmental relations, paras 174-188
408 Written evidence from Professor Sir Jeffrey Jowell (UDE0053) and the Institute for Government (UDE0048)
409 Constitution Committee, Inter-governmental relations, paras 184-85
410 Constitution Committee, Inter-governmental relations, para 188
411 Constitution Committee, Inter-governmental relations, paras 202 and 203, and Devolution, para 37
412 We highlighted our concerns about the lack of the fiscal framework in Constitution Committee, Scotland Bill, paras 14-16
413 Smith Commission, Report, recommendations 30(2)
414 Scottish Parliament Devolution (Further Powers) Committee, Changing Relationships: Parliamentary Scrutiny of Intergovernmental Relations (8th Report, 2015 (Session 4), SP Paper 809)
415 The Scottish Government and The Scottish Parliament, ‘Inter-governmental relations written agreement between the Scottish Parliament and Scottish Government’ (3 March 2016) paras 11-12: http://www.parliament.scot/20160309_IGR_Agreement3.pdf [accessed 9 May 2016]
416 Written evidence from Stewart Connell (UDE0006),Adrianne Elson (UDE0014), and United Against Separation (UDE0046)
421 See Gavin Freeguard, et al, Whitehall Monitor 2014 (November 2014) p 68: http://www.institute
forgovernment.org.uk/sites/default/files/publications/IFG%20-%20Whitehall%20Monitor%202014.pdf [accessed 9 May 2016]
422 These are different from the ‘devolution deals’ recently announced in England. See para 388.
423 Economic Affairs Committee, A Fracturing Union? para 62; see also Q 89 (Professor Nicola McEwen)
429 Constitution Committee, Devolution, para 169
430 Silk Commission, Legislative Powers to Strengthen Wales, recommendation R.57 and Calman Commission,
Serving Scotland Better, para 4.91
434 House of Commons Public Administration Select Committee (PASC), Lessons for Civil Service impartiality from the Scottish independence referendum (Fifth Report, Session 2014–15, HC 111), para 24
435 PASC, Lessons for Civil Service impartiality, para 24
436 QQ 228-230. Mark Durkan MP told us that in his time as a minister in Northern Ireland, the NICS had given the impression that they considered Whitehall the ‘mothership’ (Q 307)
446 The three Codes are available on the Civil Service Commission website: http://civilservicecommission.independent.gov.uk/code/ [accessed 18 April 2016]. The Northern Ireland Civil Service has a separate Code of Ethics: http://www.nicscommissioners.org/code-of-ethics.htm [accessed 28 April 2016]
448 UK Government Civil Service Code, “Civil servants are accountable to ministers, who in turn are accountable to Parliament”; Welsh Government Civil Service Code “Civil servants are accountable to Ministers. They are in turn accountable to the National Assembly for Wales”; Scottish Government Civil Service Code, “As a civil servant, you are accountable to Scottish Ministers, who in turn are accountable to the Scottish Parliament”.
451 PASC, Lessons for Civil Service impartiality, para 69.
452 Scottish Government, Scotland’s Future
453 PASC, Lessons for Civil Service impartiality, paras 58-59
456 Cabinet Office, Scottish referendum: guidance for UK government civil servants https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/344686/Scottish_referendum_guidance_for_UK_government_civil_servants_on_their_roel_and_conduct_15_August_2015.pdf [accessed 26 April 2016], Scottish Government, Approaching the referendum: Supporting Ministers in Scotland – Good Practice Advice in the Run-Up to the Referendum on Independence (May 2012): http://www.gov.scot/Resource/0043/00438792.pdf [accessed 26 April 2016]
457 PASC, Lessons for Civil Service impartiality, paras 60 and 78.
458 PASC, Lessons for Civil Service impartiality, para 76
459 Constitution Committee, The Office of Lord Chancellor (6th Report, Session 2014–15, HL Paper 75) para 101, and Inter-governmental relations, paras 126-134
460 Constitution Committee, Inter-governmental relations, para 127
461 Cabinet Office, ‘List of Cabinet Committees’: https://www.gov.uk/government/publications/the-cabinet-committees-system-and-list-of-cabinet-committees [accessed 4 April 2016]
464 Cabinet Office, ‘List of Cabinet Committees’: https://www.gov.uk/government/publications/the-cabinet-committees-system-and-list-of-cabinet-committees [accessed 4 April 2016]
470 The Chancellor of the Exchequer is one of the few ministers on the Constitutional Reform Committee who is not a member of the Home Affairs Committee.
471 Constitution Committee, Referendums in the United Kingdom, para 94
472 See Constitution Committee, Referendum on Scottish independence (24th Report, Session 2012–13, HL Paper 263), Chapter 2
473 The Scotland Act 1998 (Modification of Schedule 5) Order 2013 (SI 2013/242)
474 Scottish Independence Referendum Act 2013; in addition, the Scottish Independence Referendum (Franchise) Act 2013 set out the franchise for the referendum.
475 Northern Ireland Act 1998, section 1 and Schedule 1.
476 Constitution Committee, Agreement on a referendum on independence for Scotland, (7th Report, Session 2012–13, HL Paper 62) paras 18-22