Further to the House of Lords Constitution Committee’s report ‘Respect and Co-operation: Building a Stronger Union for the 21 century’, published in January 2022, the Committee, chaired by Baroness Drake, is conducting an inquiry into relations between the national and devolved administrations. In the context of numerous matters relating to the territorial constitution, the inquiry will focus on:
The Committee invites interested organisations and individuals to submit written evidence to the inquiry.
The deadline for written evidence submissions is 5pm on 8 April 2024.
‘Intergovernmental relations’ refers to the mechanisms by which the relationship between the UK Government and the Scottish Government, Welsh Government and Northern Ireland Executive is conducted. Following a review of intergovernmental relations undertaken jointly by the UK Government and the devolved administrations, a new intergovernmental relations structure was established in January 2022.387 The resulting policy paper, ‘Review of intergovernmental relations’, states the following:
“All governments are committed to promoting collaboration and the avoidance of disagreements, facilitated by the new intergovernmental machinery in which engagement will normally take place at the lowest appropriate level possible”388
The new intergovernmental relations structure established a new dispute resolution process. The ‘Review of intergovernmental relations’ policy paper states that:
“Any government may refer a disagreement to the [Intergovernmental Relations] Secretariat as a dispute. Escalation of a disagreement between governments as a dispute will only be considered after due and full consideration has been given at portfolio-level, … where a disagreement cannot be resolved at portfolio level, and has significant implications for the relationship between two or more governments.”389
The role of the Office of the Secretary of State for Scotland and the Office of the Secretary of State for Wales is to ensure the interests of the relevant nation are represented “at the heart of the UK government” and that the UK Government’s responsibilities are represented in the relevant nation.390 The Northern Ireland Office ensures “the smooth working of the devolution settlement in Northern Ireland.”391
The devolved legislatures of Scotland, Wales and Northern Ireland are limited in their legislation-making powers to areas within devolved competence. The UK parliament, by contrast, has competence to legislate across the UK. However, the Sewel convention, established in 1999, specifies that the UK Parliament will “not normally” legislate in areas of devolved competence without the consent of the relevant devolved legislature.
The Devolution Guidance Notes, produced by the Cabinet Office, advise that, when a bill alters the executive competences of the devolved ministers, the devolved ministers should be adequately consulted. The Guidance Notes also state that consent is required for bills that alter the executive competence of the devolved governments.392
The Committee has previously concluded that: “For the Sewel convention to operate well, constructive relationships and good faith are required between the UK Government and the devolved administrations.”393
The Sewel convention does not apply to delegated legislation. However, previous Committee reports have raised concerns about the use of delegated powers to make regulations in areas of devolved competence, and the use of Henry VIII powers to alter acts of the devolved legislatures.394
The Committee has previously concluded that events such as Brexit placed a strain on the legislative consent process and the public health response to the COVID-19 pandemic exposed long-standing tensions in intergovernmental relations.395
This is an opportune moment for the Committee to consider the efficacy of the new intergovernmental relations structures, which have now been in place for two years. It is also a timely moment for the Committee to revisit the issue of consultation with the devolved administrations and assess current adherence to the Sewel convention.
The Committee welcomes written submissions on any aspect of this topic, and particularly on the following questions:
1.How effective are the new intergovernmental relations structures—introduced in January 2022—at maintaining and improving relationships between the UK Government and the governments of the devolved nations?
2.Is there scope to strengthen the role of the territorial departments (the Office of the Secretary of State for Scotland, the Office of the Secretary of State for Wales and the Northern Ireland Office) at official and ministerial level in order to improve communication and consultation between the UK and devolved administrations?
3.To what extent are the devolved administrations consulted prior to legislation being introduced in the UK Parliament that alters the executive competences of the devolved ministers? What impact has this had on the executive competences of the devolved ministers?
4.Has respect for the Sewel convention eroded or strengthened in recent years? If so, what has been the cause of any such development?
5.Is there any scope to strengthen the Sewel convention. If so, how?
6.The Sewel convention does not apply to delegated legislation. Within this context, what are the implications of the UK Government:
(a) using delegated legislation in areas of devolved competence, with or without consultation or consent?
(b)using Henry VIII powers to alter acts of the devolved legislatures?
387 House of Lords Library, Intergovernmental relations within the UK (10 January 2024): https://lordslibrary.parliament.uk/intergovernmental-relations-within-the-uk/ [accessed 23 September 2024]
388 Cabinet Office and Department for Levelling Up, Housing and Communities, Policy paper: Review of intergovernmental relations (13 January 2022), para 21: https://assets.publishing.service.gov.uk/media/61df0068e90e07037ba76b4c/The_Review_of_Intergovernmental_Relations.pdf [accessed 23 September 2024]
389 Ibid.
390 Office of the Secretary of State for Scotland: https://www.gov.uk/government/organisations/office-of-the-secretary-of-state-for-scotland [accessed 23 September 2024]; Office of the Secretary of State for Wales: https://www.gov.uk/government/organisations/office-of-the-secretary-of-state-for-wales [accessed 23 September 2024]
391 Northern Ireland Office: https://www.gov.uk/government/organisations/northern-ireland-office [accessed 23 September 2024]
392 Cabinet Office, Devolution Guidance Note 8: Post-Devolution Primary Legislation affecting Northern Ireland: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/60983/post-devolution-primary-ni.pdf [accessed 23 September 2024]; Cabinet Office, Devolution Guidance Note 10: Post-Devolution Primary Legislation affecting Scotland: https://assets.publishing.service.gov.uk/media/5a79c7efe5274a18ba50ec92/post-devolution-primary-scotland.pdf [accessed 23 September 2024]; Cabinet Office, Devolution Guidance Note: Parliamentary and Assembly Primary Legislation Affecting Wales: https://assets.publishing.service.gov.uk/media/5ad9edd4ed915d32a3a7100a/DGN_-_Parliamentary_and_Assembly_Primary_Legislation_Affacting_Wales.pdf [accessed 23 September 2024]
393 Constitution Committee, Respect and Co-operation: Building a Stronger Union for the 21 century (10 Report, Session 2021–22, HL Paper 142), para 123
394 Constitution Committee, Nationality and Borders Bill (11 Report, Session 2021–22, HL Paper 149), paras 103-104; Constitution Committee, Trade (Australia and New Zealand) Bill (11 Report, Session 2022–23, HL Paper 135), para 20; Constitution Committee, Levelling-up and Regeneration Bill (12 Report, Session 2022–23, HL Paper 140), paras 23-24; Constitution Committee, Retained EU Law (Revocation and Reform) Bill (13 Report, Session 2022–23, HL Paper 151), paras 39-40
395 Constitution Committee, Respect and Co-operation: Building a Stronger Union for the 21 century (10 Report, Session 2021–22, HL Paper 142), paras 45 and 120.