Baroness Drake
Main Page: Baroness Drake (Labour - Life peer)Governance of the Union (Constitution Committee Report)
Baroness Drake Excerpts
Baroness Drake
That the Grand Committee takes note of the Report from the Constitution Committee The Governance of the Union: Consultation, Co-operation and Legislative Consent (1st Report, HL Paper 13).
Baroness Drake (Lab)
My Lords, the Constitution Committee has published a number of insightful reports on the governance of the union. Among the most significant was the 2022 publication Respect and Co-operation: Building a Stronger Union for the 21st Century. This report meticulously highlighted the worrying deterioration in relations between the UK Government and the devolved Administrations. It traced the erosion of trust and the growing sense of division that was largely attributed to a perceived lack of co-operation and respect in intergovernmental relations. Moreover, it pointed to insufficient commitment to the process of consultation and engagement between the Governments of the United Kingdom.
Continuing concerns about the state of relations between the UK Government and the devolved Administrations prompted the committee to conduct a follow-up inquiry, which brings us to the subject of today’s report, The Governance of the Union. This new report acknowledges that the union faced serious strains. It is undeniable that events such as Brexit, the challenges of Covid, the growing aspirations for independence in Scotland and the suspension of institutions in Northern Ireland presented major challenges, but these challenges, while very significant, do not entirely account for the difficulties in governance. These strains have in fact exposed deeper systemic deficiencies in the structures and processes of intergovernmental relations.
In an earlier report, the committee perceptively recommended the greater use of formal intergovernmental mechanisms, which are likely to become increasingly important when Governments of different political persuasions have to deal with each other and tensions inevitably arise. In 2018, Ministers agreed to review the existing intergovernmental structures and, in January 2022, the UK and devolved Governments jointly agreed to implement a new intergovernmental relations structure. The committee sought to determine whether the distinct pressures of recent years—Brexit, the pandemic, political tensions—remained present and whether the new structures are robust enough to weather future stresses. In doing so, it focused on: whether the intergovernmental relations structures introduced in 2022 are functioning effectively and whether they could be improved; observance of the Sewel convention; and the increasing use of primary legislation by the Government to empower UK Ministers to make secondary legislation and use Henry VIII powers in areas of devolved competence. Whatever the merits of a particular participant’s views, the evidence revealed a pervasive sense of lack of trust, respect and confidence in the system of intergovernmental relations.
The new intergovernmental structures introduced in 2022 represent a welcome initiative. They have the potential to address long-standing criticisms of the intergovernmental framework. Specifically, they aim to create a more regular, transparent and formal system of intergovernmental working and greater transparency, accountability and scrutiny from each Government’s respective legislatures. To realise these benefits, however, it is essential that the Government fully integrate these mechanisms into the day-to-day workings of government. The commitment to enhanced reporting made by all four Governments is a step in the right direction, but to fulfil this commitment all four must ensure that the reporting is timely, detailed and conducive to meaningful scrutiny by their respective legislators.
In this regard, the Government have made some positive moves. They have committed to renew opportunities for the Prime Minister and the heads of devolved Governments to collaborate with each other. They have acknowledged the importance of transparency and have asked the committee what additional information would be useful to see in their annual transparency report. They have committed to keeping the committee’s suggestions under review, including those for greater qualitative analysis for the state of intergovernmental relations, data on the legislative consent process, headline data on the number of meetings held at prime ministerial, Secretary of State or ministerial level, and links to the communiqués published after intergovernmental meetings. The effectiveness of these new structures will depend heavily on how they are operated in practice. Positive engagement and the sharing of information will be essential for success. Both the Government and the devolved Administrations must demonstrate a commitment to collaboration and transparency.
One important recommendation from the committee is the inclusion of a principle of positive engagement to be added to the existing principles in the 2022 review of intergovernmental relations. The Government have expressed agreement on the importance of attitudes and behaviours, pointing to their collaboration with the Scottish Government on the establishment of GB Energy as an example of positive engagement. However, it was disappointing that they did not accept the introduction of such a principle of positive engagement. Their argument was that updating intergovernmental relations principles is a shared responsibility across all four Governments. While I appreciate the point, it is crucial that the Government lead by example, particularly given their dominant position in the union. Can the Minister provide an update to the House on the qualitative progress of transparency and positive engagement in intergovernmental relations? How are these principles being embedded in practice?
Another key area explored by the committee is common frameworks. The report urges the Government to mobilise every effort to implement all 32 common frameworks agreed between the Government and the devolved Administrations. With the restoration of devolved institutions in Northern Ireland, these frameworks provide an important example of intergovernmental co-operation on important policy areas across the constituent nations of the union. I take the opportunity to acknowledge the dedicated efforts of my noble friend Lady Andrews, as chair of the Common Frameworks Scrutiny Committee, and her colleagues for their tireless work in supporting those frameworks. Can the Minister update us on progress towards implementing the common frameworks programme?
The committee’s report highlights the importance of the wider machinery of government in facilitating effective intergovernmental relations. The appointment of a Minister for Intergovernmental Relations, based in the Cabinet Office, is a welcome step. The Minister, along with the Minister for the Constitution and European Union Relations, must work closely together to ensure a shared understanding of the devolved settlement and to protect the integrity of intergovernmental relations in whatever new arrangements may be introduced.
Turning to the Sewel convention, the committee considered the extent to which it had been observed prior to and since Brexit. The convention that the UK Parliament should “not normally” legislate on devolved matters without consent was well observed from 1999 until it came under strain following Brexit. The departure from the EU and the return of powers to Westminster and the devolved Administrations led to a significant increase in policy areas where the boundary between reserved and devolved matters was less than clear and the need for legislative consent became contested. On occasions, the devolved Governments took a more expansive view than the UK Government on whether consent was required, leading to differences of opinion and a deterioration in relations.
Since Brexit, the UK Government legislated without the consent of one or more devolved legislatures on multiple occasions and, at times, in relation to Bills unrelated to Brexit. This may be the result, in part, of the devolved Governments taking a more expansive view, but the trend is a matter of concern and highlights the need for closer and timely engagement between the UK Government and the devolved Administrations, even where devolved Governments are opposed to the union.
Confidence in the observance of the Sewel convention has declined and the committee rightly calls for improvements in its observance. The committee rejected the idea of replacing the Sewel convention with an express legal duty, as this would introduce rigidity and potentially involve the courts in what is fundamentally a political matter.
The Government are the more powerful, however. They must demonstrate greater awareness of the potential impacts of their policies on the devolved nations and engage in constructive dialogue to resolve differences. But there is also a need for a reciprocal convention requiring devolved Administrations to notify the UK Government of devolved legislation that could impact on reserved matters. A new principle of notification and engagement could be a feature in the Government’s proposed new memorandum of understanding, outlining how the nations will work together for the common good.
The report also recommends a greater role for Parliament and the Lords in scrutinising legislation that engages the Sewel convention. It suggests that the Government should go beyond the current Explanatory Notes and submit a memorandum to the House explaining the devolution implications of Bills and engagement. If the Government consider that consent is not required, they should justify that decision at the outset of the Bill’s consideration.
The Government agreed that greater transparency around engagement on Bills and their devolution implications would be helpful and are committed to delivering a new memorandum of understanding on legislation, which they hope to publish later this year. Can the Minister update the House on the progress on this new memorandum of understanding and on the proposals for greater transparency in the engagement process?
Another critical area addressed by the committee is the disturbing rise in the Government’s use of secondary legislation and Henry VIII powers to empower Ministers to make secondary legislation in areas of devolved competence or to amend Acts of the devolved legislatures. While the Sewel convention does not apply to secondary legislation, the committee recommends that the use of such powers in devolved competence areas should be accompanied by a requirement to consult. Furthermore, the Government should publish clear criteria on when such powers should not normally be exercised without consent of the relevant devolved legislatures.
Where UK legislation empowers UK Ministers to alter Acts of the devolved legislatures, they should not normally be exercised without the explicit consent of the relevant legislatures. The committee observed that it would be “constitutionally questionable” for Parliament to circumvent Sewel by introducing Henry VIII powers in a way that foresees or intends changing devolved legislation in areas of devolved competence. The Government committed to considering these proposals in their work with devolved Governments on legislation. Could the Minister update the House on the Government’s considerations, including setting out the circumstances in which the UK Government ought “not normally” to exercise a delegated power without consent?
Finally, I express gratitude to all those who gave written or oral evidence to the inquiry, which was of great value. I thank my excellent committee members for their depth of engagement with the governance of the union. Indeed, the noble Baroness, Lady Finn, was a much-valued member of the committee when the report was prepared. I also thank the committee clerk Kate Wallis and policy adviser Alice Edmonston for so ably supporting the committee. I beg to move.
Baroness Drake (Lab)
My Lords, I will not keep you too long. I thank my noble friend Lady Anderson for her fulsome reply. It is much appreciated. I think my noble friend Lady Andrews and I feel that there is a certain timidity on the positive engagement principle: having drafted something in 2022 does not necessarily mean that it is set in stone, so there should still be an aspiration to stay with that principle. If you win that principle with all the other devolved Administrations it will definitely be indicative of progress.
On the annual transparency report, I am sure the committee will love to continue engaging with the Government. It is really a very important part of it; actually, if done correctly, it would be a clear statement of faith by the Government that they do want to change things.
I did not refer particularly to the impact of the Council of the Nations and Regions because it was so new, but the follow-up report, Executive Oversight and Responsibility for the UK Constitution, which is heading this way, starts to pick up some of the issues that people have articulated today.
I was delighted to hear my noble friend Lady Anderson say that she was upbeat and that the work of the Government was not done. That was very positive and welcome. The memorandum of understanding is certainly awaited with interest. I completely agree with her that it needs to be done correctly but, equally, it needs to be ambitious as well, we hope.
On secondary legislation, the Government’s use of such powers and Henry VIII powers, there is actually a bit of a precedent with the Fisheries Bill, in a sense that somebody put their toe in the water first, which starts to embrace some of the things. The committee has not and never has proposed a rewriting of the constitutional settlement, but the most important thing, which we heard from the noble Lords, Lord Thomas and Lord Kerr, the noble Baroness, Lady Humphreys, and many others, is that the danger for the Government is that if it is perceived that Ministers are empowered too easily with delegated and Henry VIII powers, with the intention of undermining the devolved legislatures, then that union cohesion comes under a lot of pressure. That is the issue that is being struggled with: that sense of faith, or otherwise, by the devolved Governments as to how the UK Government are behaving in that respect.
Finally, as ever, one of the most perceptive comments came from the noble Lord, Lord Norton of Louth—as an ex-chair of the Constitution Committee, I would not have expected anything less from him—when he said that the context of this report has to be understood. He is right: the Constitution Committee’s reports are predicated on a belief that the UK is a joint endeavour and shared asset for all the nations, regions and communities. That is our opening premise on which all of our analysis is made, and has been by Constitution Committees since they engaged with this issue. That is so important. That means that any Government not only have a responsibility to improve the relations of today—obviously, the current Government are seeking to do that—but have to build something that will weather future stresses. That is the bit that is still in play. Obviously, we will look to the Government to build something that has the capacity so that we do not see what we started to see with Brexit and other problems.
I thank everybody who participated today. It has been a great debate, and good luck to the committee taking this forward with the Government.