Devolution
Inter-governmental relations in the UK: Government response
24.We received the delayed11 Government response to our report on Inter-governmental relations in the UK on 17 January 2017.12 In our report, published on 27 March 2015, we emphasised the importance of effective inter-governmental relations between the UK Government, the Scottish and Welsh Governments and the Northern Ireland Executive.13 We noted that the complexity of these relationships had increased as a result of further devolution and that a formal underpinning for managing them was essential.
25.We recommended strengthening the Joint Ministerial Committee (JMC), and bringing under its auspices additional formal bilateral mechanisms to manage some areas of devolved policy where there were shared competence and overlapping responsibility. We also recommended that devolution needed to be treated more effectively as a single cohesive issue by the UK Government and that there should be much greater transparency and parliamentary scrutiny of inter-governmental relations.
26.The Government’s response affirmed the importance of inter-governmental relations, noting that the JMC had agreed to meet more frequently and that it would consider revisiting its Memorandum of Understanding in light of Brexit. The response also said that, in line with our recommendation, they were committed to revising and updating the Concordats and devolution guidance notes, and that transparency would be improved by laying JMC reports before both Houses of Parliament (this is expected in autumn 2017).
27.The Government rejected our recommendation to put the framework of inter-governmental relations into statute and did not fully engage with our call for the need to devise and articulate a vision for the future of the state and its devolution settlements.
28.We note that as a result of the UK’s decision to leave the European Union, there have been more frequent JMC meetings in the course of the last year. However, given the concerns and requests for action set out in a joint letter from Scottish and Welsh ministers in June 2017,14 there is room to improve the way the JMC operates, particularly by scheduling regular meetings, agreeing agendas further in advance, and by ensuring that the devolved administrations can initiate policy proposals.
The Union and devolution: Government response
29.We also received a late Government response to our report on The Union and devolution on 7 March 2017.15 In our report, published on 25 May 2016, we explored the nature of the Union, and set out some of the risks arising from the devolution process to date.16 We concluded that power had been devolved to Scotland, Wales and Northern Ireland in an ad hoc, piecemeal fashion and that successive governments had taken the Union for granted. We did not share the Government’s confidence that all the pieces for a stable constitutional settlement would be in place with the implementation of the Scotland Act 2016 and the passage of the Wales Bill (see below).
30.In our report we set out practical measures to protect and strengthen the Union to ensure that any future devolution does not occur at the expense of its stability, coherence and viability. We recommended a two-stage process. First, the UK Government should identify which functions are essential to the effective functioning of the Union, and which therefore need to remain at all times the responsibility of the UK Parliament and Government. The Government in its response declined to do so, beyond the headline areas of “defence, foreign policy and the constitution.”
31.Second, we proposed that the UK Government should publish a Devolution Impact Assessment alongside any future proposals for devolution. This would measure the potential impact of such proposals on the Union as a whole, as well as on each of its constituent nations. The Government noted that the Smith Commission and Silk Commission had been guided by principles in their work, but did not commit to making Devolution Impact Assessments for future devolution proposals.
32.A debate on these two reports and the Government responses is expected in this session.
Wales Bill
33.We reported on the latest stage of devolution to Wales, in the form of the Wales Bill, on 28 October 2016.17 We welcomed the decision to move the Welsh devolution settlement to a reserved powers model, putting it on the same footing as the Scottish settlement, however we raised a number of concerns about the detail of its implementation.
34.We concluded that there was no evidence of a clear rationale or fundamental principles underlying the scope of the powers devolved by the Wales Bill. We also argued that the complexity of the Bill increased the likelihood of demarcation disputes regarding the extent of the Welsh Assembly’s powers, and thus risked not only future litigation but the need for further legislation.
35.As with the Scotland Act 2016, the Wales Bill included a ‘permanence’ provision and a clause to put the Sewel Convention on a statutory footing. We reiterated our argument that setting these out in statute risked uncertainty about the lynchpin principle of parliamentary sovereignty and the potential involvement of the courts in discussions about the legislative competence of Parliament. Our concerns were realised during R (Miller) v Secretary of State for Exiting the European Union, when the interventions by the Lord Advocate on behalf of the Scottish government and the Counsel General for Wales on behalf of the Welsh government relied on the applicability of the Sewel Convention.18 The Supreme Court judgment noted that “we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution” but concluded that “policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary.”19
36.The Government’s response to our report stated that the effect of including the Sewel Convention in the Bill was “to place existing practice on a statutory footing” while also saying that this did not “create new legal rights or obligations or in any way effect the sovereignty of Parliament.”20 We nonetheless remain of the view that including a formulation of the Sewel Convention in the Wales Act, and the Scotland Act, created the undesirable risk of the involvement of the courts in discussions about the legislative competence of Parliament.
‘English Votes for English Laws’
37.During our 2016 inquiry on The Union and devolution we were asked by the then Leader of the House of Commons to consider examining the operation of the Government’s proposals for ‘English votes for English laws’ (EVEL), which were introduced in October 2015. We agreed to undertake a review of the constitutional impact of the new EVEL procedures, including their effect on the House of Lords and on Government, and their wider implications for the constitution as a whole.
38.In our report,21 we agreed that the Government’s plan to review the impact of EVEL in the autumn of 2016 should not be seen as a final judgement on the procedures as it would be too soon to fully assess their impact on the Union and that the procedures should be retained on a trial basis until the end of that Parliament.
39.We recommended that after the next general election (which we then anticipated to be in 2020), a Joint Committee should be established to review the ‘technical and constitutional’ aspects of EVEL. We also recommended that the Joint Committee’s review should include an assessment of whether EVEL has altered public perceptions in England of a ‘democratic deficit’ and whether EVEL has affected public attitudes in the devolved nations.
40.The Government’s review of EVEL concluded that the procedures “will undoubtedly not remain unchanged, not least because the political makeup of the House and the devolution settlements have not remained static” and said that it would keep the operation of EVEL under review.22
11 We noted in our Sessional report 2015–16 that Government responses were “often delayed and unsatisfactory.” Constitution Committee, Sessional report 2015–16 (1st Report of Session 2015–16, HL Paper 9)
12 Letter from Chris Skidmore MP, Minister for the Constitution, to the Chairman, 17 January 2017: http://www.parliament.uk/documents/lords-committees/constitution/GovernmentResponse/Government-response-to-IGR-report-1701173.pdf [accessed 27 June 2017]
13 Constitution Committee, Inter-governmental relations in the United Kingdom (11th Report of Session 2014–15, HL Paper 146)
14 Letter from Mark Drakeford AM/AC and Michael Russell MSP to David Davis MP, 15 June 2017: https://beta.gov.scot/news/scottish-and-welsh-governments-write-to-brexit-secretary-david-davis/ [accessed 27 June 2017]
15 Letter from Chris Skidmore MP, Minister for the Constitution, to the Chairman, 7 March 2017: http://www.parliament.uk/documents/lords-committees/constitution/GovernmentResponse/CC42-Government-Response-to-The%20Union-and-Devolution.pdf [accessed 27 June 2017]
16 Constitution Committee, The Union and devolution (10th Report of Session 2015–16, HL Paper 149)
17 Constitution Committee, Wales Bill (5th Report, Session 2016–17, HL Paper 59)
19 Ibid.
20 Government response to the Constitution Committee’s report on the Wales Bill, 13 December 2016: http://www.parliament.uk/documents/lords-committees/constitution/GovernmentResponse/Government-response-to-the-Wales-Bill-131216.pdf [accessed 27 June 2017]
21 Constitution Committee, English votes for English laws (6th Report, Session 2016–17, HL Paper 61)