Governance of the Union (Constitution Committee Report)

Lord Beith Excerpts

Monday 28th April 2025 Grand Committee

[Lord Beith (LD)]

My Lords, I pay tribute to the noble Baroness, Lady Drake, for her very clear presentation of the report and all the work that she did on this report and many others as chairman of the committee. She did an excellent job.

Devolution is about difference. It involves recognising that the nations and regions of the United Kingdom are different, with different needs, and that they are different in how they address those needs and in their political composition. Devolution acknowledges this and has mechanisms for coping with difference, particularly where it impacts on the UK as a whole, or other devolved Administrations, as the noble Lord, Lord Norton of Louth, clearly recognised in his very experienced contribution. This committee, in successive reports, has sought to ensure that the mechanisms are fit for purpose, are used and are used in a constructive way.

We occasionally lapsed into pessimism. There is a line in the summary of the report that says that

“the reality of different political parties holding power in different parts of the UK is that publicity engendered by high-profile public disputes will at times be more appealing than resolving issues through established governance structures”.

Sadly, I think that we can all recognise that as being true, and we can recognise certain periods when that was even truer than usual. Indeed, the noble Lord, Lord Murphy of Torfaen, threw light on some of the dark places in trying to make devolution work.

I turn to the Sewel convention, and I use the word “convention”—with the noble Lord, Lord Norton, looking at me—not in the constitutional law sense but with an admission that it is not the law but a political convention. That is how the committee describes it, not as a constitutional convention but as a political convention; it is a matter of terminology. The need to observe the conditions and principles that the convention embodies was well put forward by my noble friend Lord Thomas of Gresford and referred to by several other contributors.

The noble Baroness, Lady Andrews, spoke in the debate, and I pay tribute to her for the work that she did on common frameworks, which are there to ensure that we can have a single market and that there are not adverse effects from what happens in one part of the United Kingdom on other parts—or, if there are, they are recognised and prepared for. That is an integral part of the devolution procedure, yet the internal market Act, and the passing of it, was one of the most obvious cases in which the Sewel practice was not followed, disgracefully and repeatedly.

Much of what the report is about is the positive spirit in which we need to engage these processes; the noble Lord, Lord Kerr of Kinlochard, illustrated that when talking about the Civil Service. To start with, departmental Ministers need to understand devolution better—that applies not so much to the territorial departments but the other departments for which it is not central to their way of thinking. Civil servants in all departments need a better understanding of devolution and to avoid what one of our witnesses described as the unitary mindset, which is still present and needs to be dealt with.

As the noble Lord, Lord Murphy, indicated, the territorial department has a potential role, but there is a difficulty here in getting the right balance for where it should be in the constitutional structure. We saw stages, for example, when the Johnson Government became a rival Government of the respective countries. In relation to Scotland, they were trying visibly to compete on who would build the bridge: the UK Government or the devolved Government.

Somebody needs to speak in this debate about England, because not much has been said about England, as in the whole devolution story. Some of us are not entirely happy with the method that has been chosen to bring devolution to England, because it involves single individuals having a lot of concentrated power, which is a very confused and jumbled pattern, even for those who advocate it. However, a genuine attempt has been made to build on what is there as part of the overall devolution pattern.

We are to have the Council of the Nations and Regions. I agree with the noble Lord, Lord McInnes, that the meetings of the Prime Minister and the First Ministers will prove more important than that council. I am bound to inquire what the council will do. I have a real fear that it will become simply a bureaucratic process that everybody has to go through, but which is not a real contributor to the effective working of the constitution. There was the proposed appointment, which did not happen in the end, of Sue Gray—the noble Baroness, Lady Gray of Tottenham—as the Prime Minister’s envoy to the nations and regions. Nobody else, as far as I know, was appointed to that job when she was not appointed to it, which suggests that the whole thing is surrounded by a miasma of confusion and nobody is quite sure how it will work or whether it can be made to work.

In general, the Government’s response to the committee has been encouraging and constructive. However, one area where they have been particularly weak—as was referred to by the noble Lord, Lord Kerr, and others—is around delegated legislation and the application of the same principle that Sewel applied to primary legislation to delegated legislation. Statutory instruments are the means by which many of the detailed changes in people’s lives are made. Nowadays, they, rather than primary legislation, set out so much of the detail that determines what people can buy, what conditions they can educate their children in and so on. There is enormous potential for trespass on devolved powers and a lack of a working process for consultation—that has to be dealt with.

When the Government responded to us on that, all they said was that they noted the committee’s

“recommendations on developing criteria and publishing guidance on the use of delegated powers … The Government will consider this as part of its work on engagement with the devolved governments on legislation”.

That may be true, but it is pretty weak, feeble and unconvincing. These are important decisions, and they are a test case for making the machinery—through which devolution can operate when there are differences—that can be made to work. I therefore call on the Minister—when she comes to respond to the committee, not just today but later in the year in more detail—to address this problem before it gets too serious.