Devolved Administrations: Memorandum of Understanding

Earl of Kinnoull Excerpts

Monday 20th November 2017 Lords Chamber

[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.