Devolved Administrations: Memorandum of Understanding
Lord Empey
To ask Her Majesty’s Government whether they are planning to review the operation of the memorandum of understanding with the devolved Administrations.
Lord Empey (UUP)
My Lords, I begin by apologising to the House. I missed the cut by 20 seconds before the break in proceedings—my plane was slightly delayed. I apologise to your Lordships for that.
Like many Members of your Lordships’ House I have been dismayed by the manner in which successive Governments have approached the constitution of our country. We have seen a series of haphazard and ill-thought-out variations to the powers and status of devolved institutions in recent times, most notably the promises made on the hoof at the time of the referendum on Scottish independence. The position and membership of your Lordships’ House and the decisions in the other place concerning English votes for English laws are further examples of significant matters that have been dealt with in a less than serious and satisfactory manner.
The current debate and parliamentary activity to bring about Brexit illustrate how our constitution has been allowed to change over the years, seemingly without parliamentary challenge or even understanding. I have no doubt that a point will come when some of these matters will face legal challenge, and all the while I do not believe that the people of this country feel satisfied that the institutions of government are operating in a way that contributes to an increase in their sense of well-being.
I have been a long-time supporter of the devolution of powers to our home nations. I have always believed that this could lead to local decision-making and be more effective than the London-centric model we have become used to in this country. I also felt that local identity would be respected by these institutions to a greater extent than by those here at Westminster.
When I appeared before the Constitution Committee of your Lordships’ House, I said that there was a policy in Whitehall of “devolve and forget”—in other words, once powers are devolved, Whitehall can pay little or no attention to what happens in those policy areas. This was a fatal mistake in the case of Northern Ireland when, after 1921, oversight consisted of a desk somewhere in the Home Office manned by a junior civil servant. Our Troubles might have been avoided if attention had been paid to devolution at Stormont in those days. Are we going to make the same mistake again now that there is a Scottish Parliament and a Welsh Assembly? I hope not, but see little evidence that the lessons of the past have been learned.
I believe that the memorandum of understanding should be amended to introduce some light-touch oversight by Parliament of the work of the devolved institutions. As most of the revenue raised and spent by these institutions is taxpayers’ money voted to them by Parliament, it seems reasonable that there is some acknowledgment of and accountability for these vast sums of money. I do not propose any detailed scrutiny, but perhaps an annual appearance before a parliamentary committee or even a report to Parliament once a year, in a similar fashion to the requirement for devolved institutions to report to the Secretary of State for Defence on the implementation of the military covenant. If I recall, that obligation was introduced in the Armed Forces Act 2011. Sadly and ironically, Northern Ireland is the only one of the three that has not complied with this and put forward any contribution whatever. Given that, I believe it should be a requirement in statute, rather than the gentleman’s agreement we currently have.
This proposal would enable Peers and Members of the other place to be aware of what is going on in the regions and get an understanding of how devolution is working in practice. I also hope that the sharing of ideas between the regions and Whitehall might do everybody involved some good. We have seen some innovative policies introduced in the devolved areas. Even last week we were talking about what the Scottish Parliament has done on the unit cost of alcohol. Other innovative movements have been made, on plastic bags, for example. There are things both sides could learn, but my anxiety is we have absolutely no connection to the regions after there is an annual vote in Parliament on the Budget—the money is transferred and basically, that is that.
I know that not all the money spent by the devolved Administrations is from Whitehall. There are locally raised revenues as well, such as fees in the case of Northern Ireland rates. The Scottish Parliament has had tax-raising powers since its inception, although it never used them. We understand they have now been extended and that there is a demand—I am sure the noble Lord, Lord Wigley, will tell me if I am wrong—for some similar powers in Wales. That is understandable; nevertheless, the vast majority of the money the regions spend, even taking out European contributions, is taxpayers’ money. Yet, once taxpayers’ money is sent to those regions, that is the end of it. In all the Administrations there are public accounts committees that follow up on what is done locally, but there is a gap between the regions and Parliament.
I do not believe that Parliament should be breathing down the neck of the devolved Administrations on every decision. I am talking about something I regard as light touch, but which would at least keep the regions and Parliament connected. It would also mean that the people in the devolved areas understand where most of the money comes from. Quite frankly, a lot of them do not. I have said—I do not mean to be facetious—that the devolved Administrations can at times look like giant ATMs: the money spews out and, when there is not enough of it, London and Westminster get blamed for not providing more. There is no accountability. In an era in which accountability and transparency are the buzzwords of the day, I see no reason why we should not, in a very light-touch fashion, do something similar with our devolved Administrations.
There is, of course, demand for different types of devolution in England. The last time a devolved parliament for the north-east was attempted, it was rejected by the people of that area. It looks as if local authority-based devolution will happen in England. That is fine, but local authorities are accountable to the people who elect them. That accountability for tax is not forthcoming for the formal three national Parliaments we have today.
I believe the memorandum of understanding between the devolved regions and Parliament, which has worked fairly well to date, should be looked at again. I hope that the Minister—I welcome her to the Dispatch Box—will indicate in her response whether the Government are looking at this. On the wider constitutional question, I appeal to her to say to her right honourable colleagues that the constitution of the United Kingdom is a delicate flower which has been subject to tremendous upheaval in recent times, and the process has not been gone through in a sensible and measured way. It has been haphazard and on the hoof, and I am not sure we yet understand the full implications of where it will lead us.
With those comments, I hope that the Minister might address this question in her reply.
Lord Bew (CB)
My Lords, I thank the noble Lord, Lord Empey, for securing this debate, and I support strongly the themes of his speech, in particular when he talked quite correctly about the tendency of Westminster to devolve and forget. The noble Lord speaks with the authority of someone who was not only a Minister in the devolved Parliament in Northern Ireland but also for a time an acting First Minister. He pointed out the tendency of those in the devolved regions, perhaps particularly in Northern Ireland, to forget where the money actually comes from. There is remarkably little understanding of the reality of the UK’s intervention throughout the politics of Northern Ireland, and the points he made are profound.
I would go slightly further. The Question tabled by the noble Lord, Lord Empey, asks that we should,
“review the operation of the Memorandum of Understanding”.
I think it is inevitable that over the next two years we are going to have to make substantial changes. One obvious reason is Brexit, which looms quite large over many passages of the existing 2013 memorandum. It is perfectly clear that it is going to lead to changes to that memorandum of understanding with the devolved regions. We have to remember that in the case of Northern Ireland we are talking about a great clutter of understandings and that, as a consequence of Brexit, all of them are either going to go or will have to be amended in a serious way. I sense that there may well be understandings with the Irish Government about the representation of Northern Ireland in the European Union and agreements there. That was in the days when there were agreements between the Irish Government and the British Government—halcyon days as regards European policy. My understanding is that documents from quite far back into the last century may be lying around, so no doubt there will have to be a big tidy-up and substantive change.
I want to support another point made by the noble Lord, Lord Empey. He is quite right when he says that the way we have gone about devolution in this country is haphazard and we stumble in and out of it in what is sometimes an unreflective way. Perhaps I may remind noble Lords of speeches made both in this House and the other place on the introduction of Scottish devolution. They do not read well because 85% of them say, “This is the answer to Scottish nationalism. Once we introduce devolution, we will never hear of it again. This is the benign compromise that will definitely work”. Well, we did hear of it again and we had a really close-run referendum.
Perhaps I can say as an aside that all that was often based on the Irish argument: “If only we had done this in Ireland in the early part of the century, we would not have lost Ireland and devolution would have worked”. That was very strongly supported by Conservative thinkers and historians of the highest quality. Is it not obvious that Scottish nationalism has far weaker historical roots than Irish nationalism? We know that in the period after devolution in Scotland there was a major thrust towards independence. What makes it so widely accepted that had we given devolution to Ireland in the early part of the 20th century, given the much stronger historical roots of Irish nationalism, there would not have been a strong thrust towards independence thereafter? The great problem was identified at the time by Sir Edward Carson, which is that once a devolved Parliament is set up, it is extremely difficult for Westminster, even though it may say that it will maintain supremacy, to gainsay that. You can say every day of the week that that is what you are going to do, but in fact it is very hard. We live by conventional wisdoms on devolution which are not put under any sort of profound or deeply based examination. But we have it and it is there. It is now part of the constitution of the United Kingdom and we have to look at its best working.
When we look at its best working, we have to talk about amending the memorandum. It is a working model for a world that is just about to change. Let us take just the last week in Northern Ireland when we had the public hearings into the renewable heat incentive. Here, we are talking about millions of pounds of public money going astray. At first glance, it looks to me as though we are not talking about some awful scheme of dishonesty, but that we have a devolved administrative and political system incapable of, or that has great difficulty in, coping with a problem of moderate complexity. Yet we propose to say that the same political community—if it returns to power in the next few months, as I devoutly hope—can have the power to deal with corporation tax, which will have every clever lawyer in the world crawling over every detail, and which is a problem of even greater complexity.
In conclusion, I suggest that we need to look at the memorandum again, with a view to stiffening it; the key point is transparency, as said by the noble Lord, Lord Empey. I agree with the light-touch transparency measures he suggested, but I draw attention to the recommendation in the House of Lords report on the constitution that talks about making provision for more discussion of the affairs of the Northern Ireland Assembly on the Floor of this House. We can no longer just lock it away. I thank the noble Lord, Lord Empey, for introducing the debate.
Lord Wigley (PC)
My Lords, I also thank the noble Lord, Lord Empey, for arriving and facilitating this short debate. I will take a slightly different tack from him on the question of the memorandum of understanding because, as has already been mentioned, the decision to leave the EU raises quite distinct and different issues. Indeed, they are different in the devolved nations, in the context of the memorandum of understanding; Northern Ireland is clearly in difficulty because of the non-functioning of a devolved Government at present. So my comments are related more to the position in Wales, Scotland and particularly, of course, Wales.
Leaving the EU involves changes to the exercise of power relating to devolved matters, including agriculture, the environment, tourism and transport. The Sewel convention requires the UK Government not normally to intervene in devolved matters; to do so without the consent of the devolved Assemblies is seen in both Wales and Scotland as a power grab. Indeed, in a remarkable joint initiative following the publication of the EU withdrawal Bill, the SNP Government in Edinburgh and Labour Government in Cardiff issued a joint statement describing that as a “naked power grab”, indicating that, without clear assurances, the Bill would be rejected by both Parliaments. Despite the matter being raised subsequently on more than a dozen occasions in the House of Commons, the UK Government have still not clarified how they will proceed if the devolved Assemblies refuse to support the Bill.
A Plaid Cymru amendment to the withdrawal Bill in the Commons that would have made the Sewel convention binding in this context was defeated, with the Labour Party refusing to support the stance taken earlier by the Welsh Labour Government. Both the Welsh and Scottish Governments agree that if we are outside the EU single market, but within a UK single market—with or without Ireland—there has to be a mechanism to co-ordinate that. However, we are still in the dark as to what such a mechanism will be. If one of the causes of the present difficulties is the total ineffectiveness of the Joint Ministerial Committee on EU Negotiations, then we certainly face a challenge there. The committee met in February, but not then until October, at a time when critical issues were arising. If that is meant to be the prototype for future co-ordination negotiations, it augurs very badly indeed.
The contrast between the embryonic UK mechanism and the one that exists between the EU member states was highlighted by Laura Dunlop QC in her evidence to the Brexit Select Committee on 17 October. She stated that,
“in the European Union, each member state has a participant in the negotiations. In our prototype framework … there is one party in the discussions that is wearing two hats, and that is the UK Government, who are also required to speak for England. That is a significant difficulty”.
In his paper entitled Brexit and the Territorial Constitution, published by the Constitution Society, Professor Richard Rawlings warned of,
“the innate capacities of individual Whitehall departments for power-hoarding through hard-edged legal expressions of institutional self-interest”.
He highlighted the danger that:
“The prospect at the expense of the devolved institutions of … ‘reregulation creep’”—
via common frameworks—
“is clear and immediate”.
He concluded:
“There is an urgent need for multilateral forms of intergovernmental relations which are fit for purpose”.
The UK Government will ignore such warnings at their peril.
Another problem relating to the JMC (EN) is that while it is chaired by the First Secretary of State, there is no formal relationship between his department and the Department for Exiting the EU. The UK in its present form may not survive the tensions created by the current failings of Westminster to address these problems. The Welsh Labour Government have stated overtly that Brexit represents an existential challenge to the UK. If it survives, it will undoubtedly need a new UK constitution, which inevitably will be quasi-federal in its nature.
Perhaps I may quote Fflur Jones, a partner in Darwin Gray solicitors, in her report, The EU Withdrawal Bill—A Legal Perspective, when she concluded that Brexit,
“will require intense scrutiny to ensure … that the UK government does not ride rough shod over the current devolution settlement and the principles of the UK’s evolved territorial constitution. Indeed, now is the time for that territorial constitution to be reflected in a written UK constitution so that there can be no doubt over the approach that should be adopted by the UK government to matters affecting Wales and the other devolved administrations”.
I conclude with a plea, which reinforces the House of Lords Brexit committee’s conclusions, for the UK Government not to treat these matters as minor, subsidiary or of little consequence. A failure to carry the devolved Administrations towards an acceptable consensus will undermine the future of the union.
Lord Lexden (Con)
My Lords, my noble friend Lord Empey has done us a great service by bringing forward this Question for debate. He has spoken eloquently on many occasions, as he has again tonight, about the strains which devolution, applied in different ways in different places, has put on the unity of our country. The benefits of devolution have been frequently rehearsed; the loosening of the ties that bind the constituent parts have received markedly less attention. Those ties need urgent strengthening to secure the future of our union.
My noble friend, I know, welcomed the decision of your Lordships’ Constitution Committee to take up this important issue at the end of 2014, when I was a member of it. The committee published its recommendations in two substantial reports, Inter-governmental Relations in the United Kingdom and The Union and Devolution. The first, which appeared in March 2015, stressed the need to make the memorandum of understanding, which is the subject of this debate, an effective instrument of good government in our country. It is one of the principal means by which devolution can be successfully reconciled with a strong union.
The memorandum sets out the arrangements under which the Joint Ministerial Committee, bringing together members of all four UK Administrations, should fulfil the vital task of maintaining accord between the powers granted to the devolved bodies and the overall interests of the union.
The first of the two Constitution Committee reports which bear on this debate made it clear that a revision of the memorandum is essential to enable the Joint Ministerial Committee to become a truly effective guardian of the unity of our country, which at the moment it is not. The Constitution Committee’s report called for much greater transparency of the JMC’s meetings, agendas and minutes. It also called for more frequent meetings and—a crucial point—provision for the devolved Administrations to initiate policy proposals.
A stronger union requires a stronger voice for the devolved institutions within the JMC, which might usefully be renamed the UK intergovernmental council to make everyone clearly aware of its vital constitutional role. Most urgently of all, the JMC needs to ensure that Northern Ireland’s voice is always heard clearly, particularly in relation to Brexit, whether or not its devolved institutions are in active life.
The Government responded to the Constitution Committee’s report on intergovernmental relations after an interval of just under two years. This hardly suggests that the safeguarding of our union—that “precious union”, as Mrs May describes it—has aroused great interest yet among policymakers. The committee returned to the issue in its report The Union and Devolution, for which it had to wait a mere nine months for a government response. In that second report, it said that,
“a new mindset is required at all levels of government—one that recognises the devolved institutions as now being established components of the UK’s constitution”.
Has that new mindset now been created? The evidence is not yet compelling. The Government are disinclined to set out the framework of intergovernmental relations in statute as the committee suggested, but by such means the devolved Governments would have their place in the new constitutional order properly defined and firmly delineated.
There have been profuse promises of greater transparency, and of more information about the work of the JMC, but a series of Written Questions I put down last month yielded brief, not very enlightening replies. On 17 January, the Government referred to a commitment to a review of the workings of the JMC. When will it be completed and the results published? The Constitution Committee concluded:
“The stability of the Union requires careful management of the balance between unity and diversity”.
The existing balance needs reconsideration and change. Why should people in Northern Ireland alone be deprived of the right to a same-sex marriage? Why should Northern Ireland be deprived of the benefits of the new and greatly improved libel laws?
Speaking on 9 October, my noble friend Lord Lang of Monkton, who chaired the Constitution Committee with immense skill, told the House:
“I sense that the Government have not yet fully engaged with the need to devise and articulate a vision for the future of the state and its devolution settlements”.—[Official Report, 9/10/17; col. 28.]
We badly need that vision, to which a revised memorandum of understanding would help give practical expression.
The Earl of Kinnoull (CB)
My Lords, it is a great pleasure to follow the noble Lord, Lord Lexden, and his typically carefully crafted remarks. I too congratulate the noble Lord, Lord Empey, on securing this important debate. It is most unfortunate that Brexit has, I feel, to a large extent prevented us from recent consideration of the constitutional mechanics of our now heavily devolved union. I also congratulate the Minister on her new position and wish her well in it.
I note that I am the Scot speaking tonight and that there is strong representation from the other devolved parts of the UK. The memorandum of understanding is stuck in its October 2013 time warp. How different the world looked then. This was before the Scottish referendum, before the great burst of devolution that stemmed from that and before the upcoming removal of what the European Union Select Committee termed “the constitutional glue” that the EU afforded to the four nations of the UK. I have become very aware of the true and subtle extent of this through the EU Select Committee over the last 18 months. The thick sheaf of EU law and court mechanisms have led to much legal and regulatory consistency in the heavily devolved UK, consistency driven by the EU. This needs to be replicated somehow to maintain that glue and the MoU should be part of that.
Looking back, the MoU and the supplementary agreements of October 2013 were a thoroughly practical set of principles, and proportionate in the 2013 circumstances. The language concerning the secretariat in the MoU suggests to me that this most important of constitutional apparatus has no full-time staff to look after things, certainly at a senior level. I hope I am wrong. Will the Minister describe the MoU’s staffing at the Cabinet Office, and in particular what full-time positions there are devoted to the MoU, especially at senior level? Whatever the answer to that question, the constitutional apparatus was designed for October 2013. Just 11 months later we had the Scottish referendum and much more power being devolved. Yet there have been no changes to the MoU, nor is there public evidence of any consideration of whether this vital apparatus needed updating.
The Smith commission agreement was published in November 2014. In the foreword, in the section headed “Inter-governmental working”, the noble Lord, Lord Smith, noted:
“Throughout the course of the Commission, the issue of weak inter-governmental working was repeatedly raised as a problem. That current situation coupled with what will be a stronger Scottish Parliament and a more complex devolution settlement means the problem needs to be fixed”.
I submit that three years on this remains just as true and just as in need of action. As the senior partner in the MoU apparatus, the UK Government must take that lead.
What a large set of factors need to be considered in the review. Clearly, the MoU was not drafted for the current Northern Ireland situation. It does not work. The workings of the JMC (EU Negotiations) came under very heavy scrutiny by the EU Select Committee and we reported on many unsatisfactory features. It is not working. The noble Lord, Lord Wigley, has told us of the problems for Wales and, indeed, Scotland. Now even more power will be devolved as a result of Brexit. In her January speech, the Prime Minister made that clear and talked of the importance of,
“maintaining the necessary common standards and frameworks for our own domestic market”.
The MoU is a core framework. There will therefore be other, new complexities that must be addressed in a strong and fair MoU.
Recently I met here a long-term friend who is a Canadian constitutional lawyer based in Montreal. He went over the last 20 to 30 years of history in this area in Canada. The result is today a reasonably happy one but he stressed to me how much effort is required in the maintenance of effective relations between the national Government and the devolved provinces. We should heed this lesson from another’s experience. So in closing I ask the Minister to tell us if there is any update on the January plan to review and “update as necessary” the memorandum of understanding, as its paragraph 31 says should happen annually, in the light of the constitutional developments since October 2013 and the other foreseeable ones, and indeed the Prime Minister’s own speech of 22 January.
Lord Thomas of Gresford (LD)
My Lords, I, too, thank the noble Lord, Lord Empey, for raising this very important topic.
Paragraph 20 of the memorandum of understanding states:
“The UK Government will involve the devolved administrations as fully as possible in discussions about the formulation of the UK’s policy position on all EU and international issues which touch on devolved matters”.
Paragraph B2.5 of the annexed Concordat on Co-ordination of European Union Policy Issues—Wales states that,
“the UK Government wishes to involve the Welsh Ministers as directly and fully as possible in decision making on EU matters which touch on devolved areas”.
Nothing could more directly touch on devolved areas than Brexit. Nevertheless, the Government have failed adequately to discuss the formulation of the UK’s policy position with the Welsh Government and have not involved Welsh Ministers—directly or, indeed, indirectly—in decision-making about the negotiations.
These failures have led to an impasse such that neither the Welsh Assembly nor the Scottish Parliament will grant legislative consent to the withdrawal Bill currently before the House of Commons. Welsh and Scottish parliamentarians from every political party in the devolved Administrations, including the Conservatives, met the junior Minister in Committee Room 4A last month—I was present—and made it clear to him that they were united in refusing legislative consent to the Bill in its present form.
Why is that? Currently, the Welsh Assembly and the Welsh Government are legally obliged to comply with EU law. Although legislative competence has been devolved from Westminster, their policy autonomy is significantly constrained in areas such as agriculture, environmental protection, state aid for industry, public procurement, and aspects of transport and energy by that framework of EU law. The effect of the withdrawal Bill is to remove the need for such compliance. These policy areas would, without more, fall completely under devolved control and quickly give rise to significant policy differences—so the Government, quite naturally, have concerns about the coherence of the internal UK market.
During Second Reading on 7 September the Minister, David Davis, said that the purpose of the devolution section of the withdrawal Bill was,
“recreating in UK law the common frameworks currently provided by EU law, and providing that the devolved institutions cannot generally modify them”.—[Official Report, Commons, 7/9/17; col. 354.]
The Joint Ministerial Committee (EU Negotiations), formed under the aegis of the memorandum of understanding, met for the first time in eight months on 16 October last. It issued a weak communiqué, which posited UK frameworks setting out a common approach and common goals. But, under the Bill, it is Westminster which will have the sole power to legislate to replace the EU frameworks with UK frameworks.
We in Wales have by and large been content with the EU framework agreements, based upon a wide perspective of the needs of the states, nations and regions of Europe. Wales is indeed a net beneficiary of European funds, which have significantly helped our deprived areas and our upland farms. But, when a UK framework is created by a Conservative Executive at Westminster, other considerations are bound to come into play. The politics of cutting the cake are very different. Even supposing that European funding is replaced, there are electoral considerations. There is, above all, the English question—the asymmetric aspect of the United Kingdom. Wales is not a priority. Scotland has some clout, simply with the threat of another referendum on independence. Northern Ireland can play its cards with the problems of the Irish border and the threat of a total breakdown of the Belfast agreement—and, in any event, the DUP holds the Government’s majority in its hands, not to mention a cash subsidy of £1 billion. By contrast, Wales holds no levers, and the Welsh Assembly Government is not a friend of the current Tory Administration.
There are 64 policy areas where powers returning from the EU intersect with the Welsh devolution settlement. The plan is that major powers will not go directly to Cardiff but will be retained in Westminster to be devolved, if at all, at the discretion of Ministers by statutory instrument—not even by the will of the Westminster Parliament in primary legislation. This basic lack of democratic process is at the heart of the disquiet voiced by all the devolved Administrations over the withdrawal Bill. In all this, the consultation aspects of the memorandum of understanding, with its joint ministerial committees meeting rarely, if at all, have been a dead letter. They should be scrapped. I am with the noble Lord, Lord Lexden: what is needed without further delay is a statutory UK Council of Ministers, drawing upon all the devolved Administrations and central government so that it can discuss and resolve the many problems that this Tory Brexit throws up.
Lord Hunt of Kings Heath (Lab)
My Lords, I am most grateful to the noble Lord, Lord Empey, for initiating this debate. He speaks with wide experience of service to the devolved Government of Northern Ireland, and of course to the peace process. It has been an excellent and serious debate. We also welcome the noble Baroness, Lady Stedman-Scott, who will be winding up for the Government.
As we have heard, the memorandum of understanding underpins the relationship between the UK and the devolved countries. It includes an agreement to participate in the Joint Ministerial Committee and the concordat on co-ordination between the Administrations on EU policy issues. I agree with the noble Earl that much has happened since the MoU was brought to fruition.
I also have sympathy with the description used by the noble Lord, Lord Empey, of our haphazard approach to constitutional change. He is right; this is the way that we tend to do it. He is also right in that we sometimes a reach a point where it simply is not good enough. One area, which is rather separate from this debate, is Lords reform, which is a classic of its kind. Proposals are made simply to deal with the issue of the Lords, perhaps through an elected House, but they completely ignore the impact this would have on the rest of the constitution. I do not want to trade insults with noble Lords on the other Benches, but that essentially was the problem with the Clegg Bill. Mr Clegg seemed to have no interest in how it would interface with the Commons and the rest of the constitutional arrangements—and there are many other examples.
I do not think anyone can think, post Brexit, that we do not need to come back to look at our constitutional arrangements. My party believes that there needs to be a kind of constitutional convention to allow us to examine these matters in great detail, and I commend that to the House.
The noble Lord, Lord Empey, used the rather wonderful expression “devolve and forget”. I say, for local government in England: if only that were the case. I think he is seeking to place some kind of accountability framework into the relationship between Westminster and the devolved Governments. With respect to him, I am not sure that that is entirely consistent with the spirit of devolution, although I accept that what he described was a light-touch approach—and I certainly understand the benefit of shared knowledge and experience.
I shall give one example from the area I know best, the National Health Service. Essentially, within a common philosophy, we see four countries developing different ways of organising the National Health Service. I have no problem with that, but it is very important none the less that staff are able to move between those four countries easily and that there is shared knowledge and understanding. Certainly I very much support efforts to ensure that, where we see different developments in the four countries, there is a means of sharing understanding and learning from experience—but I am wary of a formalised accountability framework.
The noble Lord, Lord Bew, mentioned the renewable heat initiative. I think he was suggesting it as an example of where Northern Ireland, in particular, has areas where it does not have the expertise or capacity to discharge a particular responsibility. That is a heavy area to go into, and I think we should see the outcome of the independent inquiry before we draw any conclusions.
Much of this debate has understandably been about Brexit. As noble Lords have commented, we have debated a series of excellent reports by Select Committees on devolution and intergovernmental relations in the UK. Clearly, Brexit gives a new context and urgency to all these issues, but the Government’s stewardship of the JMC on the Brexit negotiations has left a lot to be desired. As the noble Lord, Lord Wigley, said, it did not meet between February and October—and when it does meet it does not currently have an elected voice attending on behalf of Northern Ireland, which is another problem. We would have built into the Act formal consultation with the devolved Administrations in the Brexit process, but we seem to have a rather haphazard and unwise approach to how the Westminster Government work with the devolved countries. The noble Lord, Lord Thomas of Gresford, pointed to the problem of the legislative consent Motions, which are apparently not coming from the devolved countries.
As part of Brexit, there will be a new landscape for devolution to navigate and more competencies overlapping between the UK Government and the devolved legislatures, and there are going to have to be new common frameworks on areas that at the moment are governed by EU agreements. So clearly the MoU has to be updated, and we need to see devolution strengthened and protected throughout the process.
Finally, the Bill currently going through the other place not only includes a sweeping power grab by Ministers at the expense of the sovereignty of Parliament but undermines the UK’s devolution settlement. The risk surely is that in devolving areas the Bill moves power directly from Brussels to London and the plans for common frameworks appear to be simply that they will be imposed from above. We have to avoid this. This has been a very short but excellent debate, which has raised some very profound issues that we need the Government to focus on.
Baroness Stedman-Scott (Con)
My Lords, first, I congratulate the noble Lord, Lord Empey, on securing this short but substantive debate regarding a matter that the Government consider of great importance. I was sorry to hear in his opening remarks of his dismay and assure him that it is not “devolve and forget”. I will do my best to answer all noble Lords’ questions accurately and courteously. If I run out of time, I will obviously write to noble Lords to respond to them, but I am not too keen to hide under “writing to people” any more than I have to, for good reason.
The Government have sent a clear message of our commitment to govern for the whole of the UK, working closely with our colleagues in Scotland, Wales and Northern Ireland to foster strong and sustainable relationships. To echo the comments of my noble friend Lord Duncan, who spoke in this House some weeks ago, at present, communities are facing increasing pressures on a range of matters—their economies and national security to name but two. However, I assure all noble Lords that the UK Government remain committed to strengthening our union to ensure that such obstacles do not inhibit progress across the UK.
The Scotland, Wales and Northern Ireland Offices continue to work to ensure that the best interests of Scotland, Wales and Northern Ireland are properly considered during the development of UK policy and that the UK Government’s responsibilities are represented in those same territories. Further to this work, the UK Governance Group within the Cabinet Office was formed to manage the UK Government’s constitutional and devolution policy. The Government are committed to ensuring they have the right support in place for the constitutional arrangements across the country. The UK Governance Group works closely with colleagues in the devolved Administrations to uphold and implement provisions of the Scotland Act 2017, the Wales Act 2017 and the Belfast agreement.
The memorandum of understanding—MoU—is a written agreement between the UK Government and devolved Administrations that underpins how the UK’s four Administrations work with one another on matters of mutual interest. Supporting the MoU are several supplementary agreements which formalise the Joint Ministerial Committee as a structure for multilateral engagement, including the UK approach to matters relating to EU policy, international relations and financial assistance to industry.
The Government recognise the need to review the memorandum of understanding, not least in the light of the UK’s exit from the European Union. However, this is not a decision for the Government alone. The decision to review the MoU must be taken with the agreement of the four participating Administrations— the UK Government, Scottish Government, Welsh Government and Northern Ireland Executive. We will continue to work together to identify the most appropriate time to do so. I note the importance that the noble Lord places on intergovernmental relations and assure him that the UK Government are committed to positive and productive relations with all devolved Administrations.
I shall say something about the formal structures of intergovernmental relations. There is much to do. The Government have been clear from the start that the devolved Administrations should be fully engaged in the UK’s exit from the EU. The Government are committed to ensuring that constructive engagement with the devolved Administrations continues through formal structures such as the Joint Ministerial Committee and the British-Irish Council, as well as bilaterally between our Ministers and officials. As noble Lords will know, at the apex of the JMC structure is the JMC (Plenary), which is chaired by the Prime Minister and attended by the First Ministers of the devolved Administrations. There are also a number of JMC sub-committees such as the JMC (EU Negotiations) and JMC Europe, which concern themselves with the negotiation process and ongoing EU business respectively.
Important progress was made at the most recent JMC (EU Negotiations) in October 2017. The committee discussed priorities for the future relationship with the EU and agreed the principles that will underpin common UK frameworks. The UK Government are currently working with the devolved Administrations to arrange another meeting of the JMC (EU Negotiations) before Christmas. Additionally, the British-Irish Council met in Jersey on 9 and 10 November, which presented another important opportunity to discuss the UK’s exit from the EU.
However, those are not the only ways that the Government engage with the devolved Administrations. For example, the First Secretary of State and the Secretary of State for Exiting the European Union have been engaging bilaterally with their counterparts since the general election this year. Noble Lords may also have noted the bilateral meetings between the Prime Minister and First Ministers of Wales and Scotland in recent weeks, which have been reported on positively by all participants. At official level, joint work has been ongoing on matters including the establishment of common frameworks to address the repatriation of powers following the UK’s exit from the EU. Though not as visible as ministerial engagement, the importance of joint working between Administrations should not be overlooked. Ensuring that the principles by which our Administrations work together are fit for purpose, and can ensure the continuation of positive and productive relationships, is key.
As powers are repatriated from the EU, additional requirements will be placed on the existing structures for intergovernmental relations. It is important that we continue to engage positively, as at the last JMC on EU negotiations, on the establishment of frameworks to manage these powers, which may in turn require consideration of our existing governance structures. I hope this will give noble Lords some confidence and assurance that the points they have been raising about Brexit and its impact on the memorandum of understanding will be taken seriously and given due consideration.
Noble Lords may be interested to know that there have been six revisions of the MoU since its inception. It is important that in conducting any review the agreements remain adaptable enough to address the interests of the four participating Administrations. I stress that the four Administrations must agree to any revision of the MoU by consensus. The Government anticipate that a future Joint Ministerial Committee (Plenary) will provide the necessary forum to discuss the timing of any such review. Discussions on the date of the next JMC (Plenary) are currently ongoing, and we are working towards a meeting early in the new year.
I turn to the question of Northern Ireland at the moment. Effective intergovernmental relations can function only with the full participation of each Administration. I will therefore briefly address the situation in Northern Ireland and the current lack of an Executive. The Secretary of State for Northern Ireland and the Prime Minister are fully committed to ensuring that, as we establish our negotiating position, the unique interests of Northern Ireland are protected and advanced. They have a clear understanding of the range of views from across Northern Ireland and will continue to champion Northern Ireland’s interests over the coming months.
The Government believe that all four UK Administrations should be present during meetings of the JMC, and we very much hope that this includes the Northern Ireland Executive. However, our focus remains on the full restoration of devolution to Stormont, and we will not speculate on any other outcomes.
While discussions on the matter continue, UK government officials continue to engage with colleagues in the Northern Ireland Civil Service to ensure that Northern Ireland’s interests are properly represented and that civil servants continue to attend forums such as the JMC.
I now come to some of the questions that noble Lords have put to me. I am conscious of the time, but I will do my best to answer them.
One seemingly burning issue for all noble Lords, not least the noble Lord, Lord Empey, is scrutiny and accountability. The Secretary of State for Northern Ireland has set out that he will be writing to the Northern Ireland Comptroller and Auditor-General to ask that any reports that the Northern Ireland Audit Office produces relating to improper or poor value-for-money expenditure in the absence of an Executive be sent to him. In turn, he will ensure that these are laid in the Libraries of both Houses. He will also be asking Northern Ireland departmental permanent secretaries to draw their responses to his attention, so that those too can be laid in both Libraries. In that way, a proportionate approach will be put in place to allow for continued democratic accountability in this unfortunate period without a devolved Government. I hope that also answers the point raised by the noble Lord, Lord Bew.
Let me deal with one more point about accountability. As the Secretary of State for Northern Ireland made clear in taking through the Northern Ireland Budget Bill last week, we recognise that accountability and oversight are important, and it will be for the Northern Ireland Civil Service and those such as the Northern Ireland Audit Office, which oversees spending, to be satisfied as to the discharge of their relevant duties here. Were any irregularities to be identified, I have asked them to be drawn to my attention, and I would in turn draw them to the attention of the House. But I should be clear to the House that strict equality duties are placed on all public authorities in Northern Ireland, particularly via the Northern Ireland Act 1998, and I am confident that the Northern Ireland Civil Service will act in accordance with those duties in making spending decisions for the whole community.
I have run out of time on this, my first outing, and I have a lot to learn, but I am grateful to noble Lords for their contribution to what has been a fascinating debate. I share noble Lords’ view that careful consideration must be given to the intergovernmental structures as we approach the UK’s exit from the European Union. I hope that noble Lords will be assured that the Government consider effective intergovernmental relations to be of great importance to our United Kingdom. We will continue to work closely with our colleagues in the devolved Administrations to find an appropriate time to conduct the review.
I hope that I have responded courteously and accurately to all noble Lords. I will ensure that noble Lords are written to on those questions that I have not answered orally.