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The Governance of the Union: Consultation, Co-operation and Legislative consent Contents

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Chapter 3: How can intergovernmental relations be improved?

The role of the territorial offices

156.The territorial offices consist of the Scotland Office, the Wales Office and the Northern Ireland Office. The civil service document ‘Introduction to Devolution’ describes the territorial offices as “invaluable in helping the UK Government to understand the detail of the devolution settlements, and how to take forward policies with another administration … They represent the UK Government in the devolved nations and the devolved nations in the UK Government.”191

157.In written evidence, DLUHC described the role of the territorial offices:

“Ministers and officials within the Territorial Offices encourage and support early engagement between UK Government departments and the devolved administrations, helping to ensure that departments consider the whole of the UK in their work throughout the policy development process. The Territorial Offices also engage directly with the devolved administrations on specific issues.”192

158.During our inquiry it was acknowledged that the Northern Ireland Office was in a different position to the Scotland Office and the Wales Office due to its much larger size and the unique political situation in Northern Ireland. The Northern Ireland Office was regularly required to adopt strategic and administrative oversight in Northern Ireland due to the suspension of the devolved institutions in Northern Ireland.193 As such, in this part of the report we focus more closely, though not exclusively, on the role of the Scotland and Wales Offices.

159.Taking evidence before a general election was called in May 2024, we asked then Secretary of State for Scotland, the Rt Hon Alister Jack MP, then Secretary of State for Wales, the Rt Hon David TC Davies MP and then Parliamentary Under-Secretary of State at the Northern Ireland Office, Lord Caine to provide examples of the role played by the territorial offices in maintaining and improving relationships between the UK Government and the governments of the devolved nations.

160.Mr Jack said that every Quarter he chaired the “Delivering for Scotland” board, which involved meeting with senior civil servants in every department across Whitehall to discuss what was being done to strengthen the Union. The Scotland Office assisted Government departments facing problems related to devolution and helped departments to understand the devolution settlement.194 He said this had been effective because the Scotland Office brought “knowledge of the issues, both legal and policy-wise, that those Whitehall departments would not necessarily have.”195

161.Mr Jack offered the Post Office (Horizon System) Offences Bill as an example of an occasion on which the Scotland Office had bought its influence to bear on UK Government policy. In this instance he worked with the Department for Business and Trade to ensure that what the Lord Advocate wanted to deliver was delivered in the Bill. He made sure the Department for Business and Trade “understood that we should respect what the law officers in Scotland wanted to do, so that they could then deal with the justice issues correctly.”196

162.Mr Davies said the role of the Wales Office was to “represent Wales around the Cabinet table”.197 He cited the development of the floating offshore wind industry in the Celtic Sea as an example of where the Wales Office had “been very good for the development of an important industry in Wales”. He had held meetings with the Crown Estate and several government departments “each of which has had problems or issues that require resolving”. He explained that as a Cabinet Minister and member of Government, he was able to meet with ministers in the relevant departments “whenever [he needed] to”.198

163.Mr Davies also spoke about the decision by the UK Government and the Indian company Tata to close Tata’s blast furnaces at Port Talbot in Wales. He said the Wales Office had played a role in supporting the proposal to replace the blast furnaces with an electric arc furnace, which would save 5,000 jobs. The Wales Office acknowledged that there would be 2,800 job losses and was undertaking work to ensure other government departments were “stepping up” and that training and other support was provided to people who lost their jobs. The Wales Office was seeking to ensure that freeport status was quickly allocated to Port Talbot, so the town could attract other industries. He said this work required him “to be able to get through the door of numerous government departments around Whitehall and beyond to support the town and the community”.199

164.Lord Caine said that in addition to representing Northern Ireland’s interests around the Cabinet table, the Northern Ireland Office represented the UK Government’s interests in Northern Ireland. This involved ensuring that various political agreements made over the years, including, most recently, the commitments made in the Safeguarding the Union command paper in February 2024 were “properly and faithfully implemented”. He also said the Office worked closely with the Northern Ireland Executive on issues of economic prosperity, including by working together “to encourage inward investment into Northern Ireland.” In terms of a concrete example, Lord Caine also spoke about the Post Office (Horizon System) Offences Bill where conversations between the Northern Ireland Office, the Northern Ireland Executive and the Department for Business and Trade had resulted in amendments to the Bill to ensure that Northern Ireland was included within its scope.200

Engagement with the devolved administrations

165.Notwithstanding the above examples provided by ministers, several witnesses described the role of the territorial offices as limited. One reason for this was that much of the interaction between governments took place bilaterally between the devolved administrations and the relevant Whitehall department.201

166.Ms Evans told us the Welsh Government’s “normal day-to-day engagement route with the UK Government was the decision-making portfolio Minister in the area in question”. She continued: “We do not have a day-to-day relationship with the Secretary of State for Wales, purely because he does not take decisions in the areas that we are particularly concerned about.”202 She said there was no coordinating influence from the Secretary of State for Wales and she did not think there should be as it would create additional bureaucracy: “The Secretary of State is not a gateway to the UK Government.” By speaking directly to the individual who was responsible for specific policy decisions, progress could be made “as speedily as possible”.203 She added that the Welsh Government had a “long history” of working well with particular UK Government departments, in particular when it came to coordination on agriculture.204

167.Dr Goodall said officials in the Welsh Government would also approach the individual departments that mirror their own responsibilities.205 He said contact with colleagues in the Wales office tended to be less regular than with some of the other departments206 and “more routine”.207 He said that more so than with the Wales Office, “constitutional contact” and engagement on intergovernmental relations tended to take place with the then Secretary of State for Levelling Up, Housing and Communities.208

168.In written evidence the Scottish Government said it “believes that most contact should be carried out on a bilateral or multilateral basis, between departments which deal on a day-to-day basis with the issues at stake, as is currently the case.”209

169.The Northern Ireland Executive Office said that the Northern Ireland Office was not “the sole route through which the Executive engages the UKG”. It said: “[M]ost departments will have direct links with their Whitehall counterparts - these links will reflect relationships built up over time on policy or legislative issues”.210

170.However, Mr Jack argued that the territorial offices were involved in discussions between UK Government departments and the governments of the devolved administrations. He gave an example of an occasion on which the Department for Health and Social Care had discussed with the Scottish Government the possibility of health data being shared across the United Kingdom. Mr Jack said he became involved in the discussions because he felt they were “going in the wrong direction”: the NHS in Scotland was being given the option to opt out of data sharing. He felt that improving standards of health care in Scotland and the sharing of best practice meant there should not be an opt-out.211 In his view, it worked better when officials from the Scottish Government engaged the Scotland Office in the first instance on a policy matter: “If they went to the Department of Health first, the Department of Health would get in touch with us and we would advise it on where there may be pitfalls or issues, and give it that expertise, which would, hopefully, solve the problem. That works 90% of the time.”212

171.Lord Caine summarised the role of the Northern Ireland Office when it came to the devolved administrations engaging with UK Government departments:

“The Northern Ireland Office does not have great expertise in agriculture and rural affairs or the health service specifically, but [the Department for Environment, Food and Rural Affairs] does not have great expertise in the politics of Northern Ireland, so we work collaboratively. They can deal with the technical side of things. We generally act as the department that will alert other parts of Whitehall as to particular issues or nuances.”213

172.Other witnesses recognised that there was an important role for the territorial offices. The offices had a role in providing expertise and looking strategically at the situation in the devolved nations. There was also some value in the secretaries of state having a voice in Cabinet and being a single point of contact for the devolved administrations, particularly when it came to the UK’s legislative agenda.214

173.While Professor Gallagher said it was inevitable that the agriculture departments in Edinburgh or Cardiff would want to build a relationship with the Department for Environment, Food and Rural Affairs, he emphasised that not all policy areas had a clear government department with which to liaise (for example an official working on gender equality issues). One of the purposes of the territorial offices was to spot absences and problems.215

174.Professor Gallagher also thought the territorial offices were a way of signalling that the UK Government had not simply devolved powers and forgotten about them: “they have been remembered at the centre as well and they have a voice there too.”216 He thought the territorial offices were potentially an ally for the devolved administrations. In respect to Scotland, he said: “If we had not spent the last 15 years arguing about independence, it is conceivable that the devolved Administration and the Secretary of State could have been close chums in pushing domestic interests.”217

175.Dr Rycroft thought the territorial offices should be both facilitating relationships and getting involved in the substance of policy. While they may not be in the room the whole time, they should know what is going on. They hold the expertise on the devolution settlements and ought to understand what is happening politically in the devolved nations. This was critical in guiding Whitehall in its policy responses “when they were doing the Scotland Act and the Wales Act … [and] throughout Brexit”.218

176.In Respect and Co-operation: Building a Stronger Union for the 21st Century we said:

“We believe that retaining separate territorial secretaries of state helps to maintain the prominence that the Union and intergovernmental relations demand in the Cabinet and across Whitehall.”219

Resources and spending power

177.Some witnesses thought the territorial offices’ limited role was due to resource constraints.220 Dr Rycroft commented on how few people were employed by the territorial offices, which made it more difficult for them to make their presence felt.221 Professor Martin said that for as long as the Scotland and Wales Offices were retained in their current size, their role was going to be limited.222

178.Mr Jack and Mr Davies challenged this view. Mr Jack said that as territorial departments “we punch above our weight in what we achieve.”223 Mr Davies said he believed the Wales Office had “perfectly adequate resources to do the job that we need to do” and praised the high quality of civil servants who worked in the Office.224

179.Professor Martin told us the currency of Whitehall departments was “money and activity” and the Scotland and Wales offices were not set up to “play in that space”.225 Mr Jack expressed a similar view: he said the one thing he would change about the territorial offices would be to make Scotland and Wales spending departments again. He said: “At the moment, we work with other departments on our spending, but the time has now come to go back to where we were prior to joining the EU—this is not a pre-devolution thing but a pre-EU thing—and for structural funds to be spent by the territorial offices.” Mr Davies echoed this sentiment.226

180.The territorial offices have an important role to play in strengthening the Union by enhancing Whitehall understanding of devolution and the political context in the devolved nations, and by guiding UK Government policy accordingly. The secretaries of state for Scotland, Wales and Northern Ireland have a particular duty to engage constructively with, and demonstrate respect for, the competences of the devolved administrations. They are in a position to represent the interests of the respective nations in the Cabinet and have direct access to ministers in other Government departments. We look forward to further clarity as to the respective roles of the territorial secretaries of state and the new Minister for Intergovernmental Relations.

Machinery of Government

181.The efficacy of the new intergovernmental relations structures depends in part on the new Government’s choices regarding machinery of government. This was an issue raised by Dr Rycroft, who expressed concern about where responsibility for the territorial constitution lay within the UK Government. He told us that during his time in office, he had, along with then Prime Minister David Cameron and then Cabinet Secretary Jeremy Heywood, set up the UK Governance Group in the Cabinet Office, which included the Constitution Group, the Scotland Office, the Wales Office and the Office of the Advocate General for Scotland. Dr Rycroft said: “Our very deliberate intention there was to give the territorial departments the heft of the centre, to give them the authority of the Cabinet Office in their dealings with Whitehall, and that worked quite well … The other deeper thing was to build up the capability and understanding in Whitehall of the expertise in devolution and constitution issues.”227

182.Dr Rycroft compared this to the setup under the Conservative Government in power prior to the July 2024 general election:

“Some of the Constitution Group stuff now sits in DLUHC and some of the responsibilities are still in the Cabinet Office, but that sense of a unity of purpose, the centrality of constitutional issues to the governance of the United Kingdom, has dissipated, which is very symptomatic of the short-term nature of Whitehall consideration of some of the important issues that the country faces.”

He hoped that the new Government would carefully consider what arrangements to put in place “to ensure that constitutional issues get due attention, with the right expertise behind them, at the heart of government.”228

183.Dr Rycroft advocated for a new post of First Secretary of State:

“With the First Secretary of State and the territorial Secretaries of State, you then have a powerhouse of political authority within the system to think about and to manage both constitutional and devolution issues. In a way, nothing is more important, at the end of the day, in thinking about running the country.”229

Professor Gallagher also thought there should be “a powerful central constitutional Minister who would do devolution and other constitutional things.” He thought a Cabinet Committee chaired by that minister and attended by the territorial ministers and relevant departments should steer the Government’s constitutional policy.230

184.In Respect and Co-operation: Building a Stronger Union for the 21st Century we said:

“We endorse the Dunlop review’s recommendation that a senior Cabinet position—at present the Secretary of State for Levelling Up, Housing and Communities—should have a duty to uphold the integrity of the constitution, including the operation of intergovernmental relations and the devolution arrangements more generally.”

185.In September 2024 the Prime Minister announced, with immediate effect, that:

“Responsibility for Union and devolution policy across Scotland, Wales and Northern Ireland will move from the Ministry of Housing, Communities and Local Government to the Cabinet Office. This change will support cross-government coordination and engagement with the devolved governments which will be led by the Chancellor for the Duchy of Lancaster as Minister for Intergovernmental Relations. Responsibility for devolution policy in England and engagement with Mayors and local government will remain with the Deputy Prime Minister and Ministry of Housing, Communities and Local Government.”231

186.We welcome the new Government’s appointment of a Minister for Intergovernmental Relations, based in the Cabinet Office, with responsibility for devolution. It will be important for the new Minister for Intergovernmental Relations and the Minister for the Cabinet Office (Minister for the Constitution and European Union Relations) to work effectively together to ensure a common understanding of the devolution settlement and the constitution more broadly, including any implications for the integrity of intergovernmental relations. We look forward to engaging the ministers on the issues raised in this report.

Placing intergovernmental relations on a statutory basis

187.Several witnesses supported the possibility of placing intergovernmental relations structures on a statutory footing. Dr Rycroft thought doing so would raise the bar and make “the price of poor behaviour higher”. He said Whitehall was “attuned to statute” and that trust had been so eroded between the governments of the UK that a future UK Government might like to consider placing intergovernmental relations on a statutory basis to rebuild trust.”232

188.The Independent Commission on the Constitutional Future of Wales recommended “putting into statute and making justiciable some key principles of inter-governmental relations and structures”.233 Ms Evans supported this recommendation: “The structures in the [intergovernmental relations] review, as we have talked about, go a long way, but they cannot compel good behaviour as a statutory duty might.”234 She was concerned that it should not be left to “individual ministers who might be particularly sympathetic to this and want to work cooperatively” to make intergovernmental relations work.235 However, she acknowledged that the details of such a duty and the implications of legislating for one would need to be carefully considered before it was introduced.236

189.Witnesses were aware of the limitations involved in placing intergovernmental relations on a statutory footing. Dr Rycroft said statutory obligations would have to be “quite high level”. For example, the structures themselves could be put on a statutory footing with legislation for an independent secretariat and sufficient funding to ensure the arrangements could function over time. He also thought a statutory expectation could be put in place that the Prime Minister and Heads of Devolved Governments Council would meet once a year.237 Professor Gallagher thought there was scope for a statutory framework for intergovernmental arrangements with “a minimalist requirement that they exist and that they meet and a role for a secretariat that is a bit more active than the rather passive one we have had historically.”238 Professor McAllister also recognised a need to keep any statutory principles “fairly high level”.239

190.Dr Whitten said that, from a Northern Ireland point of view, if intergovernmental relations arrangements were placed on a statutory footing, provisions would need to be made about what to do in the event of the collapse of the Northern Ireland Executive, and the extent to which that would impact on the functioning of the entire system.

191.Professor Martin was sceptical about putting the intergovernmental relations arrangements on a statutory footing for two reasons. Firstly, it would create a lack of flexibility and secondly, it would inevitably lead to ‘judicial contests’ between the administrations. He did not think this would be beneficial as the issues at hand were fundamentally political differences.240 Professor Derek Birrell, Professor of Social Policy at the University of Ulster, also thought the danger of “forcing the intergovernmental relations structures into a formal or rigid structure” was that any resulting dispute would be for the courts and not Parliament to resolve.241

192.In Respect and Co-operation: Building a Stronger Union for the 21st Century we concluded:

“Attitudes and behaviours need to change to make the new intergovernmental arrangements a success. If this does not happen, there may be a stronger argument for placing intergovernmental relations on a statutory footing. However, we are alive to the potential downsides of detailed statutory provisions resulting in political disagreements being settled in court rather than through political dialogue.”242

193.While intergovernmental co-operation through the new intergovernmental relations structures requires improvement, we do not believe they have been operational long enough to take a conclusive view as to whether such structures should be underpinned by a statutory framework. We reiterate our previous conclusion that attitudes and behaviours are key to making the new structures work effectively. We welcome the new Government’s commitment in its manifesto to “ensure the structures and institutions of intergovernmental working improve relationships and collaboration on policy”.243

A principle of positive engagement

194.Throughout our inquiry a theme emerged about lack of engagement by both the UK Government and the governments of the devolved nations when it came to policy development and implementation.

195.Dr Rycroft said that one of the concerns Whitehall had when consulting the devolved administrations was that both ministers and officials did not always know exactly where a policy was going in the early stages of development. He explained that it was therefore “quite risky” to expose policy in its infancy to the devolved governments because “you are showing your workings”. He said: “That becomes an excuse to leave it late in the process, and of course the later you leave it in the process, the more annoyed the devolved Governments are likely to be and the more difficult the whole thing gets.” 244

196.Other witnesses were concerned that the UK Government did not afford the devolved governments the respect they were owed as democratically elected governments with their own mandates and accountability mechanisms. Professor Gallagher did not think UK Government departments and ministers understood that power had been distributed across the UK. He said: “They instinctively assume that it resides in the centre.”245 Professor McAllister said the Welsh Government was seen “as just being another stakeholder instead of being the Government from an elected legislature by the people of Wales, one of the nations of the United Kingdom.”246

197.Dr Williams described devolution in its current form as “a model that is entirely about rather grudging concession and delegation rather than respect for a democratically elected Government.”247

198.Witnesses also acknowledged a lack of sufficient engagement by the devolved governments with the UK Government.248 When it came to the deposit return scheme (discussed in Chapter 2), Mr Jack said he was “very clear in interministerial government meetings from quite an early stage that [the Scottish Government] would require an exclusion from the United Kingdom Internal Market Act”. However, the Scottish Government “thought differently” and thought that if they “kept going, [the Secretary of State] would back down”.249

199.Several witnesses thought the introduction of a formal requirement that the UK Government and the devolved governments ‘co-operate’ or ‘engage’ with one another would be an effective means by which to encourage better quality, earlier engagement between governments. Professor Martin thought it would be an easy concept for a civil servant to remember and raise with ministers.250 Professor Birrell thought it would be a ‘helpful’ innovation and should be incorporated into the Devolution Guidance Notes.251

200.Dr Rycroft thought that creating such a requirement would raise the bar in terms of expectation on all four governments.252 Professor Gallagher was in favour of a “very general statement that says that the law and the constitution expect the Governments to co-operate and that they will be held to account in some very broad way”.253

201.We recommend a principle of positive engagement to be included among the principles for intergovernmental relations, currently listed in ‘The Review of Intergovernmental Relations’ policy document. Such a principle would provide civil servants with a tool by which to remind ministers in the UK Government and the devolved governments of the expectation that they should engage with one another, including by working together on the development and implementation of policies of common concern.

202.We welcome the new Government’s commitment to work collaboratively with the governments in Scotland, Wales and Northern Ireland,254 and urge it to ensure that it fully respects the powers of the devolved governments under the devolution settlement. There is a reciprocal responsibility on behalf of the devolved governments to engage and work collaboratively with the UK Government.

Representation of England

203.In Respect and Co-operation: Building a Stronger Union for the 21st century we examined in detail the governance of England, including the representation of England within the Union and the devolution or decentralisation of power within England. We said:

“England’s place in the Union should not be overlooked, but there are no obvious governance changes to provide England with a distinctive voice that command political and public support. Establishing an English parliament would crystallise England’s relative strength—in population and economic terms—vis a vis the existing devolved legislatures. This would destabilise the Union. It would also do little to address the need for greater decentralisation within England, which we believe has the greatest potential to resolve concerns about the governance of England.”255

204.In that report we also concluded:

“England is highly centralised, with greater regional economic inequalities, compared to most other Western European countries. The English regions—as do Scotland, Wales and Northern Ireland—feel remote from central decision making in the United Kingdom. We strongly support the development of devolution within England, noting that a highly centralised state can have a negative impact on democratic culture and economic prosperity. Greater devolution within England can help improve economic performance, address regional inequalities and improve service delivery.”256

205.Though we did not examine this issue in detail in the inquiry leading to this report, some witnesses expressed a view on the matter. Mr Davies wondered whether there was an argument for including English metro mayors in Interministerial Groups, so that they are represented in the same way as the First Ministers of Scotland, Wales and Northern Ireland.257

206.Dr Rycroft expressed a similar view, suggesting that if, for example, skills policy was devolved to combined authorities or their equivalents across England, it might make sense to invite mayors to intergovernmental meetings discussing skills policy. He cautioned that the devolved governments would be “very jealous … because they will not want to be seen to be demoted to the level of a combined authority”. However, he thought such a proposal could work with “goodwill … and a bit of flexibility”.258

207.We note the new Government’s commitment in the King’s Speech to establish a Council of the Nations and Regions, which will bring together the Prime Minister, the heads of the devolved governments and the mayors of combined authorities. We also note the intention to bring forward an English Devolution Bill.259 This Committee will keep the government proposals under careful review and examine their constitutional implications in due course, including their capacity to represent parts of England that do not fall within a Combined Authority.

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