Governance of the Union (Constitution Committee Report)

Baroness Finn Excerpts

Monday 28th April 2025 Grand Committee

[Baroness Finn (Con)]

My Lords, there are moments in political life when structures matter and there are moments when tone matters. There are moments—rarer, but no less important—when what matters most is constitutional clarity: the discipline of understanding where authority lies, who is responsible and how the pieces of a great union fit together. This debate touches on all three, and it is a pleasure to speak in it, especially as I was a member of the committee at the time of the report’s publication.

The Constitution Committee’s report is serious and valuable, and I very much pay tribute to the brilliant clerks and the noble Baroness, Lady Drake, for her excellent and calm chairmanship. It is fair to say that we were not a committee of shrinking violets, and the noble Baroness displayed a degree of patience and diplomacy that would have made Metternich proud.

The Government’s response also recognises much of what must be done to strengthen the practical bonds between our Governments. But it is important to be aware of the potential risks that could corrode the foundations of our union even as we speak the language of strengthening it.

That is why the Conservatives have always worked to strengthen the union. Mutually respected working structures and processes for engagement are essential, as the noble Lord, Lord Murphy of Torfaen, highlighted. It was a Conservative Government that introduced the 2022 Review of Intergovernmental Relations—here I pay tribute to my noble friend Lord McInnes—to strengthen the structures, improve transparency and establish, for the first time, a properly formalised dispute resolution system. It was a Conservative Government that delivered the UK shared prosperity fund, the levelling up funds and direct UK investment into all parts of the country. And it was a Conservative Government that delivered more than £3 billion of levelling-up funding for Scotland, over £2.5 billion for Wales and over £1 billion for Northern Ireland—funding provided on top of the Barnett formula. That record matters, but it is also important to recognise and guard against the potential new risks that lie ahead.

One of the greatest risks lies in the Government’s plan to negotiate a new memorandum of understanding on the Sewel convention. The Sewel convention, as confirmed in the Miller 1 judgment—here I am afraid I agree with the noble Lord, Lord Beith, and not my noble friend Lord Norton of Louth—is primarily a political convention, not a legal obligation. It rests on trust: that Westminster will not normally legislate on devolved matters without consent but that it retains the sovereign right to do so. It is deliberately unenforceable in law, and that is its strength. Conventions survive through mutual respect, not judicial supervision. The committee was right to reject calls to codify Sewel. To invite the courts into political disputes would shatter the union’s foundations. Should any future proposals move in that direction, they must be firmly resisted.

Even without legislation, the Government’s approach carries risks. Embedding the Sewel convention in a formal memorandum of understanding, without parliamentary scrutiny, would hollow out the convention’s political character, turning it into a bureaucratic entitlement. It would replace political trust with procedural expectation and could turn Westminster’s sovereign discretion into the false appearance of obligation. The risk is not theoretical. We have already seen how sensitive and contested questions of legislative consent have become. These disputes reveal a deeper truth: determining whether a measure affects devolved competence is often a matter of political judgment. Embedding such judgments into a MoU risks giving them the false appearance of legal fact, inviting litigation where there should be political debate.

Can the Minister explain how the Government will safeguard the United Kingdom’s constitutional integrity if the memorandum of understanding creates procedural obligations that the courts may one day be asked to enforce? Have the Government prepared a legal issues memorandum assessing the risk that the MoU could create justiciable rights? If so, will they publish that memorandum or place it in the Library? In line with paragraphs 5 to 8 of the Attorney-General’s Legal Risk Guidance, have the Government formally assessed the likelihood that the memorandum could be subject to judicial review and the risk that any resulting obligations could be enforced by the courts? Will they publish a summary of that legal risk assessment?

These are important considerations. Administrative process cannot confer constitutional authority. An MoU which redefines a constitutional principle could tear constitutional authority from Parliament, turn legislative consent into a weapon and leave the union weaker in law and in spirit.

The committee also recommends a formal “principle of positive engagement”. This would codify a duty for Governments to work together on developing and implementing policies of common concern. The intention is understandable, but there are inherent risks. Formalising “positive engagement” must not risk shifting consultation into a form of co-decision, implying that devolved agreement is required not just on devolved matters but on areas properly reserved to Westminster. Over time, this would erode the constitutional boundary between consultation and consent. It would encourage a culture where every major policy risks becoming a four-nation negotiation, undermining clear executive responsibility. The union must remain a living political community, not drift toward a federation of mutual vetoes. Although we support positive engagement, it must always be within the constitutional framework that gives the union its enduring strength.

Beyond these major issues, there are other important issues on which we must reflect. It is only in the last six or seven years that identified structures and processes for regular engagement have emerged. It is therefore critical that they are monitored, and they require proper record-keeping and retention of institutional memory to have an established point of reference. Can the Minister confirm that this will happen?

The common frameworks process, despite understandable delays, remains a constructive example of the importance of intergovernmental co-operation. I pay tribute to the tremendous work of the noble Baroness, Lady Andrews.

The new Council of the Nations and Regions has made a strong start, but it must complement, not compete with, the direct and formal meetings between the Prime Minister and the heads of the devolved Governments, as several noble Lords have mentioned. Likewise, the territorial offices—the Scotland Office, the Wales Office and the Northern Ireland Office—remain critical in reinforcing the UK’s voice across government. Their role must be strengthened, not sidelined. How will these processes work together? How will the Government ensure that the council strengthens the union, rather than confusing or weakening it?

On secondary legislation and delegated powers, the Government should listen carefully to the committee’s warnings. The goal must be genuine engagement, without ceding the right of the UK Parliament to legislate for the United Kingdom as a whole.

Finally, I turn to the crucial issue of Civil Service impartiality within the devolved Administrations, which was raised by the noble Lord, Lord Kerr of Kinlochard. As the Government’s response acknowledges, the Devolution and You programme was launched in 2015, yet nearly a decade later, senior civil servants still struggle with basic devolution principles, as the noble Baroness, Lady Andrews, pointed out. Furthermore, the Constitution Committee’s 17th report of 2022-23, Permanent Secretaries: Their Appointment and Removal, recommended that civil servants in devolved Governments must work only within devolved competence and that the Cabinet Secretary should issue clear guidance to that effect. It found that senior civil servants in Scotland and Wales, although accountable to devolved Governments, remain part of a single United Kingdom Civil Service, and recommended that the Cabinet Secretary manage any challenges, issue guidance and require Permanent Secretaries to escalate concerns and seek written directions if necessary.

The then Government accepted these conclusions and said that they were considering how best to implement them, so I ask the Minister to confirm the following. Is it still the Government’s position that civil servants must work only within devolved competence? Has the promised guidance been issued? If not, will it be published, and when? These are serious constitutional commitments. Clear action is now needed. The Civil Service must remain a single and impartial institution, serving the Crown and the union it upholds.

To conclude, strengthening the union requires more than good process; it requires clarity of authority, discipline in constitutional thinking and respect for the enduring sovereignty of this Parliament. The union cannot be held together by promises alone; it takes action, trust, respect and the political will to defend what we have built together. In the end, the strength of the union will be measured not by what we say but by what we do.