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

Summary of conclusions and recommendations

Introduction

1.As a Committee, part of our remit is to keep under review constitutional aspects of devolution. As such, we intend to return to this matter and will seek to examine the efficacy of the intergovernmental relations arrangements and the operation of the Sewel Convention again in the near future. (Paragraph 59)

2.In addition to responding to our report within the normal two-month timeframe, we also ask that the new Government undertakes to review both the operation of intergovernmental relations and the Sewel convention over the coming year, with a view to implementing the recommendations in our report. We invite the Government to provide an update to the Committee on progress made by the end of September 2025. (Paragraph 59)

Are the new intergovernmental relations structures working?

3.As discussed in Chapter 1, the new intergovernmental relations structures are, on paper, a welcome initiative. They have the potential to remedy criticisms levelled at the previous intergovernmental structures by creating a more regular, transparent and formal system of intergovernmental working. However, the realisation of their full potential, as genuine vehicles for collaboration and co-operation, will require the new Government to fully embed them into the day-to-day business of government. The devolved administrations must also demonstrate commitment to engaging with the new structures. (Paragraph 73)

4.We recommend that intergovernmental meetings are scheduled consistently, at intervals deemed appropriate by both the UK Government and the devolved governments. Other than in exceptional circumstances, devolved governments should be given sufficient notice of meetings, allowing them the opportunity to contribute meaningfully to the development of meeting agendas. Where appropriate, meetings should be attended by the relevant Secretary of State and the cancellation of meetings at late notice should be avoided. (Paragraph 74)

5.We welcome the manifesto commitment made by the new Government to “renew opportunities for the Prime Minister and Heads of Devolved Government to collaborate with each other” and reiterate our previous recommendation that the Prime Minister and Heads of Devolved Governments Council should meet on a regular basis, and at least twice annually. (Paragraph 75)

6.As set out in paragraph 186, the effectiveness of the intergovernmental relations structures under the new government will be helped by the recent appointment of the Chancellor of the Duchy of Lancaster as Minister for Intergovernmental Relations, with responsibility for devolution, and the location of this post in the Cabinet Office. (Paragraph 76)

7.While we welcome the commitment by the governments of the United Kingdom to promote understanding of, and accountability for, intergovernmental activity through enhanced reporting to their respective legislatures, we are concerned by reports that information on intergovernmental activity is sometimes lacking. (Paragraph 81)

8.To fulfil their pledge to improve transparency and accountability, all four governments should ensure reporting on intergovernmental activity is timely and includes sufficient detail to facilitate effective scrutiny by their respective legislatures. (Paragraph 81)

9.The UK Government is more powerful than the devolved governments and, by its nature as the government for the entire UK, possesses information about policy choices that may impact on the devolved nations. As such, while successful devolution requires goodwill on the part of every government, it is particularly incumbent upon the UK Government to take account of the impact its decisions may have throughout the UK and therefore to demonstrate goodwill in its interaction with the devolved governments and share information in good faith. Devolution also requires goodwill, constructive engagement and sharing of information by devolved governments, but where they are themselves hostile to the Union such goodwill and cooperation can be lacking. (Paragraph 92)

10.Where different political parties are in power in different parts of the United Kingdom, underlying political differences are inevitable and unavoidable. If intergovernmental relations are to be effective and sustainable, then it is essential that all parties foster a culture of positive engagement; politicians throughout the United Kingdom, whatever their view of the current constitutional structures, must be prepared to overcome political differences in the interests of the people they serve. (Paragraph 93)

11.The dispute resolution process, as a feature of the new intergovernmental relations process, has not yet been tested. As referenced in paragraph 94, it has been initiated only once—in a dispute between the Northern Ireland Executive and the UK Government that was paused following the collapse of the Northern Ireland institutions in February 2022. It is therefore not possible, at this time, to assess the efficacy of the new dispute resolution process. (Paragraph 113)

12.Nevertheless, in many circumstances, engagement with the dispute resolution process is unlikely to be the most practical course of action. There are three particular reasons for this. Often, informal dialogue between governments will be more effective. Where legislation is involved, the speed and process by which bills and substantive amendments make their way through the legislatures may make it impracticable to pursue a complaint through the dispute resolution process. The reality of different political parties holding power in different parts of the UK—some of which support the Union and others of which aspire to independence—is that publicity engendered by high-profile public disputes will at times be more appealing than resolving issues through established governance structures. For all these reasons it may be that use of the dispute resolution process will remain limited. We will keep this under review. (Paragraph 114)

13.If intergovernmental relations are to be a success, it is vital that civil servants have a comprehensive understanding of devolution and are encouraged, including by ministers, to engage effectively with their counterparts in the devolved administrations where policy proposals are likely to impact upon devolved competence. (Paragraph 126)

14.We urge the new Government to ensure that every department has a properly equipped team—and a Ministerial lead—with the knowledge and skills necessary to address, anticipate and engage with devolution matters as they arise, providing an identified point of contact for the devolved administrations. (Paragraph 126)

15.We note that the Civil Service Devolution Capability Programme has been in place since 2015 yet concerns remain about civil servants’ knowledge of devolution. (Paragraph 127)

16.We reiterate our previous recommendation that to be effective, such training requires significant take up, from the most junior to the most senior civil servants. (Paragraph 127)

17.It is not yet clear how the re-establishment of Northern Ireland institutions in February 2024 will impact on the efficacy of the new intergovernmental relations structures. As such, a full assessment of the intergovernmental relations structures will require time to allow for Northern Ireland’s full participation to bed in. (Paragraph 137)

18.Despite significant setbacks—not least the collapse of devolved institutions in Northern Ireland in February 2022 and the criticisms levelled at the Internal Market Act 2020—common frameworks represent a positive example of intergovernmental cooperation, using a collaborative and consensus-driven approach. (Paragraph 153)

19.When fully implemented common frameworks have the potential to develop UK-wide policy through collaboration and consensus, while also acknowledging the autonomy of each of the devolved administrations in their area of competence and allowing for policy divergence on the basis of consent. In the words of the Common Frameworks Scrutiny Committee “[t]hey therefore have singular potential to strengthen cooperation between the administrations which is essential to maintaining the Union.” (Paragraph 154)

20.As part of our remit to keep under review constitutional aspects of devolution, this Committee maintains a watching brief on the operation of common frameworks. (Paragraph 155)

21.With the re–establishment of the devolved institutions in Northern Ireland, we urge the new Government to mobilise every effort to finalise and fully implement all 32 common frameworks agreed between the UK Government and the devolved governments. (Paragraph 155)

How can intergovernmental relations be improved?

22.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. (Paragraph 180)

23.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. (Paragraph 186)

24.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. (Paragraph 193)

25.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”. (Paragraph 193)

26.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. (Paragraph 201)

27.We welcome the new Government’s commitment to work collaboratively with the governments in Scotland, Wales and Northern Ireland, 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. (Paragraph 202)

28.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. 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. (Paragraph 207)

Observance of the Sewel convention

29.The Sewel convention generally operated well from 1999 until it was put under strain by the implementation of Brexit. Since Brexit, the UK Government has legislated without the consent of one or more of the devolved legislatures on multiple occasions, and at times has done so on bills unrelated to Brexit. (Paragraph 228)

30.We urge the new Government to commit to respecting the Sewel convention, namely by proceeding in accordance with the principle that the UK Parliament will not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. (Paragraph 228)

31.However, we also recognise that the increased occasions on which the UK Government has legislated without consent may in part be the result of a trend since Brexit for the devolved governments to take a more expansive view of devolved competence. This has led to differences of opinion between the UK Government and the devolved government as to whether consent is required with regard to specific bills. In such circumstances, close and timely engagement between governments is required to address differences of opinion and, where possible, reach consensus. Occasions on which amendments have been made to bills to address the concerns of the devolved legislatures and ultimately secure their consent demonstrate the benefits of such engagement. (Paragraph 229)

Strengthening the Sewel convention

32.While improving respect for the Sewel convention is essential, replacing the convention with an express legal duty that the UK Parliament will not legislate in areas of devolved competence without the consent of the relevant devolved legislature would be excessively rigid and would potentially involve the courts in what is fundamentally a political matter between the UK Government and the devolved governments. (Paragraph 241)

33.The Devolution Guidance Notes are out of date. They do not take account of significant developments such as the return of powers following the UK’s departure from the European Union and the development of common frameworks, or the introduction of new intergovernmental relations structures in January 2022. They also make outdated references; for example, they refer to the “Scottish Executive” instead of the Scottish Government and the “National Assembly for Wales” instead of the Senedd. (Paragraph 250)

34.We reiterate our previous recommendation that the Devolution Guidance Notes should be updated as a matter of priority, and we urge the new Government to do so without delay. This should be completed alongside long overdue updates to the Cabinet Manual. (Paragraph 250)

35.In updating to the Devolution Guidance Notes, the UK Government should consider the proposals made by the Senedd Legislation, Justice and Constitution Committee, and how these could be expanded to include the Scottish and Northern Irish institutions. (Paragraph 251)

36.For UK Government consultation with the devolved administrations on UK legislation to be meaningful and effectively resolve differences, it must be timely. We recognise that the legislative timetable in the UK Parliament can make early engagement a challenge and that there are, at times, conflicting accounts from the UK Government and the devolved administrations regarding the timing and quality of consultation. We nonetheless reiterate our previous recommendation that instructions in the Devolution Guidance Notes regarding early consultation should be followed as a matter of course. (Paragraph 266)

37.We note that there is currently no reciprocal convention requiring the devolved administrations to give notice to the UK Government of devolved legislation that could affect reserved matters. (Paragraph 267)

38.We recommend the principle of positive engagement, discussed in paragraph 201, includes a requirement that the UK Government and the devolved governments engage on legislative proposals that impact upon one another’s areas of legislative competence. This should be a feature of the new Government’s manifesto commitment to strengthen the Sewel convention “by setting out a new memorandum of understanding outlining how the nations will work together for the common good.” (Paragraph 267)

39.This memorandum of understanding could include a requirement that a decision by a devolved legislature to withhold consent to a bill be pre-conditioned by meaningful engagement on the part of the devolved government with the UK Government, with both parties having an obligation to make every effort to resolve any concerns raised. (Paragraph 268)

40.Early consultation via a principle of positive engagement would also help resolve differences of view between the UK Government and the devolved governments as to whether legislative consent is required for particular bills. (Paragraph 269)

41.Late consultation by the UK Government on legislation which potentially impacts upon devolved competence diminishes the devolved legislatures’ and their committees’ capacity to effectively scrutinise legislative consent motions. The UK Government should note the time required to consider adequately the increased number of legislative consent motions which are now being put before the devolved legislatures and should take account of the devolved legislatures’ timetables to help ensure in as far as possible that sufficient time for scrutiny is available. (Paragraph 275)

42.We recognise that the Explanatory Notes accompanying a bill set out the Government’s understanding of the territorial extent of the bill. However, they do not provide the House of Lords with an explanation of what engagement has taken place to date to secure the consent of the relevant devolved legislatures. (Paragraph 281)

43.We reiterate our previous recommendation and urge the new Government—on introduction of a bill to the House of Lords that engages the Sewel convention—to submit a memorandum to the House about the devolution implications of the bill and explain what engagement has taken place with the relevant devolved administrations. (Paragraph 281)

44.Where the UK Government considers consent is not required from a devolved legislature and proceeds to give effect to that view, we reiterate our previous recommendation that the Government should justify its approach to the House at the beginning of the bill’s consideration. (Paragraph 282)

Secondary legislation and Henry VIII powers

45.We recommend the new Government develops a clear set of criteria regarding the appropriate use of delegated powers in areas of devolved competence. These criteria should be set out in guidance provided to the Office of the Parliamentary Counsel, which should be published. (Paragraph 305)

46.We reiterate our previous recommendation that formal engagement with the devolved administrations on the use of delegated powers in areas of devolved competence should be a requirement. UK Ministers should either consult devolved ministers or seek their consent, depending on the significance of the delegated power in question. In developing the criteria referred to in paragraph 305, the UK Government should set out the circumstances in which it ought “not normally” to exercise a delegated power without the consent of the relevant devolved institution. For instance, where UK legislation contains powers which empower UK ministers to alter acts of the devolved legislatures, these powers should not normally be exercised without the explicit consent of the relevant legislatures. (Paragraph 306)

47.The process for consulting and seeking the consent of the devolved institutions on the use of delegated powers in areas of devolved competence should be set out in writing and should include recognition of the role of the devolved legislatures in scrutinising such powers. The Senedd’s Statutory Instrument Consent Mechanism provides a useful model for achieving this. The process of consulting and seeking the consent of the devolved institutions on the use of such powers should form part of the principle of positive engagement discussed in Chapters 3 and 5. (Paragraph 307)




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