Devolution (Constitution Committee Reports)

Lord Garel-Jones Excerpts

Monday 9th October 2017 Lords Chamber

[Lord Lang of Monkton (Con)]

My Lords, thanks to the courtesy of my successor as chairman of the Constitution Committee, the noble Baroness, Lady Taylor of Bolton, I welcome the opportunity to introduce the debate on two reports published by the committee during my tenure.

I also welcome to the House, and to the Dispatch Box for his first appearance there, my noble friend Lord Duncan of Springbank. I am sure that the House much looks forward to his maiden speech and to further contributions, particularly given his knowledge of agriculture, especially fisheries, and his experience in the European Parliament. We wish him all success as he takes up his new role.

Our committee has waited quite some time for the opportunity to debate these two reports. The Union and Devolution report was published over a year ago and that on intergovernmental relations two and a half years ago. Since then there have been two general elections, one election in Scotland, another in Wales, the constitutional crisis in Northern Ireland and the referendum on our membership of the European Union. We are nevertheless grateful for this opportunity to debate the reports. Despite that heady brew, I believe that our reports remain valid—indeed, perhaps even more so—and relevant to present circumstances. I particularly welcome the fact that the European Committee’s admirable report on Brexit and devolution is to be debated alongside the report of the Constitution Committee, adding topicality and focus to our proceedings, and I look forward to hearing the noble Lord, Lord Jay of Ewelme, introduce his committee’s report shortly.

If Europe has been one unsettling force upon our nation’s constitution over the past half century, devolution has been another. It is one that has cast a shadow over my entire career in politics, as it has over those of others who have consistently resisted it, because we believed that it could not form a new or stable settlement that would improve government but would, instead, generate an inexorable process of demanding ever more powers with no obvious stopping point and, ultimately, would put in jeopardy the unity of the United Kingdom. And so it has proved. This is not the time to dwell on the past but it is why our committee decided that there was a need to address the subject in a positive way, accepting that what was done is done, and trying now to find ways of bringing stability and balanced decision-making to what has become a dangerously fragile situation.

For years, the approach of central government was one of instant concession to the inevitable demands from the new territorial Administrations for ever more powers. What was piously called “incremental devolution”, when a “settlement” became a “process”, was in fact open house for a succession of ad hoc, piecemeal, demand-led giveaways. I know that those involved in the successive tides of further devolution tried hard to rationalise their packages—I say that particularly because I see my noble friends Lord Lindsay and Lord Selkirk present today; both of them will speak after me and both were active in seeking to develop successful packages—and it is always possible to do so because you can rationalise anything if you try hard enough.

However, I blame central government because it offered little, if any, resistance. In the case of the Smith commission, for example—I am delighted to see the noble Lord, Lord Smith of Kelvin, in his place, unless he has just slipped out, because his was a heroic achievement in attaining any kind of outcome from the commission’s deliberations—the Government promised at the outset to accept in full whatever the committee of MSPs might demand. This was a wholly reactive process that gave no thought either to the role of Parliament or to the implications of such changes for the integrity of the nation as a whole. That is where we are now, but at long last in the case of Scotland, where the threat is most acute, the Government of the day, in the person of my right honourable friend the Prime Minister, has said, politely but firmly, “No, now is not the time”. For that, she deserves great credit—it has changed the weather.

Dwelling on Scotland for a moment, if I may—for it is important as part of the background to our recommendations—despite the clear verdict of the Scottish people in the 2014 referendum to remain in the United Kingdom, the Scottish Government, instead of getting on with governing, have continued to pursue separation to the exclusion of all else. It is my belief that they prospered in the subsequent 2015 general election not because of a sudden belated rush of converts to separation but precisely because the electorate thought that the referendum had already settled that matter “for a generation”. They failed badly in 2016 and 2017 because it had by then become clear that they intended to break that pledge.

In Edinburgh, the administration of Scottish government has been neglected—almost no legislation has been laid before the Scottish Parliament—so it comes as no surprise that in a recent Scottish opinion poll fewer than half of voters were reported to believe that Scotland’s health service, education service or economy had been improved by 20 years of devolution. Perhaps the First Minister should remember the words of Alexander Pope:

“For forms of government let fools contest;


Whate’er is best administer’d is best”.

It is with “whate’er is best administer’d” that our reports are concerned.

But the Scottish experience reveals that the destabilising threats persist. The constitution needs continuing careful attention. Enoch Powell’s dictum that power devolved is power retained may remain true in theory, but in recent years we have come close to ceding sovereignty not just de facto but even in legislation. The 2016 Scotland Act, with its ill-advised declaratory first two Sections, has already led to a hazardous encounter in the Supreme Court.

Our committee’s reports have tried to set out a new way forward. Their central messages are: put the United Kingdom first in constitutional matters, and make no change that could undermine the core United Kingdom Parliament, where all the countries of the union are well represented. At the same time, central government should work proactively and sympathetically at all levels with its devolved Administrations, recognising the different needs in each and, above all, dispelling the despairing criticism we heard in evidence from both Wales and Northern Ireland of “devolve and forget”.

These three words should send a strong signal to central government that a new approach is needed. Our report on intergovernmental relations sought to outline that approach. We recognise that there would need to be continuing reappraisal, which, since we published it, the Scotland Act 2016, the Wales Act 2017 and now the European Union (Withdrawal) Bill will inevitably bring about. This makes it more important than ever that the right mechanisms are in place to govern relations between Governments in all parts of the United Kingdom.

Of course, it seems hard to make headway when all approaches from the centre are met with hostility in some quarters, but consultation may eventually achieve progress where confrontation never will. We made a large number of recommendations but I will confine myself to some of the main ones. In particular, we called for a major overhaul—reinforced, I am glad to say, by the EU Committee’s recent report—of the Joint Ministerial Committee. We called for more transparency of its meetings, agendas and minutes, and for more frequency of meetings, allowing the devolved Administrations to initiate policy proposals. We sought reforms to the committee’s structure, including more formal bilateral mechanisms to manage intergovernmental relations and more co-operation between central government and the devolved Administrations. We welcome such changes as have followed, and especially, of course, the establishment of the European negotiation sub-committee. We expressed deep concern at the lack of co-ordination and oversight of the devolution settlements and called for the identification of a senior Cabinet Minister with specific responsibility for oversight of the constitution as a whole.

After publication, we waited for almost two years for a response from the Government. When it came, they agreed with some of our recommendations, disagreed with others—including one that we had not made—ignored a few and in six cases claimed that they were already doing them. After two years, I suppose we should be grateful for small mercies. However, there has been no sense of enthusiasm for our proposals, still less of urgency. 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. We now have to weave those Administrations into the fabric and processes of the nation’s governance. The drive must come from the centre, and that requires a new attitude and mindset.

The essence of our report, The Union and Devolution, was broadly similar: we must stop taking the union for granted. We could find no evidence of strategic thinking about the cumulative impact of devolution upon the union as a whole, so we tried to set out how the needs and interests of the union, as well as of its nations and regions, can be protected in the event of any further devolution in the future.

[Lord Garel-Jones (Con)]

Is it not the case that, in the increasingly interconnected global world in which we live, it is important for both Scotland and Wales to be part of a United Kingdom that is able to exercise serious influence in international fora, given that, on their own, they would be mere spectators?

[Lord Lang of Monkton]

My noble friend makes a very fine and highly relevant point, with which I agree.

Successive British Governments have failed to adapt to devolution. Again, it has seemed to be a case of devolve and forget. With so much now devolved, so much asymmetry, so much potential for playing catch-up and leap-frog among the different Administrations, and so many overlapping and shared competences between devolved and central government, it stands to reason that there must be a new mindset, on all sides, of co-operation and mutual understanding. That is not easy, I acknowledge, where separatism is the predominant, even the only, motivation, but in the interests of good government it is essential.

In an attempt to disaggregate the problem, we identified some key elements that underpin the union. These include the economic union, the social union, the political union, the cultural union and the security and defence union. Any weakening of those would, in our view, cause grave damage to the nation state. We urged the Government to identify which public responsibilities were, in their view, essential to the effective functioning of the union, so that they could be protected in any future consideration of devolution; and we identified a number of underlying principles that might assist that. Unfortunately, the Government in their response, published almost a year later, declined to do so beyond the headline areas of defence, foreign policy and, ironically, the constitution.

We called for a devolution impact assessment to accompany any future proposals in order to measure any negative effect that they might have on the UK’s core responsibilities and to measure any planned benefit to the relevant devolved Administration and any impact, good or bad, that might be felt in other Administrations. Again, regrettably, the Government declined to commit to those proposals. Will my noble friend the Minister now bring a fresh eye to what we seek and perhaps persuade his colleagues in government to have another look at all of this?

Among our other recommendations we called, yet again, for the replacement of the inadequate and inequitable Barnett formula with a new needs-based system. It is a continuing disgrace that the distribution of resources from the Treasury should take no account of the relative needs of the countries and regions that it is intended to help. We expressed our strong opposition to full fiscal autonomy, which would break the union apart. My personal view is that although the need is obvious for fiscal accountability, we may already have gone too far in the forms chosen for fiscal devolution and indeed with the scope of welfare benefits. We recommended that if there should ever be a future independence referendum, provision for it and its proposed terms should be set out in primary legislation and laid before this Parliament for proper scrutiny by all parts of the United Kingdom.

We recommended that in future, UK government services should be clearly branded throughout all parts of the United Kingdom in order to make sure that the electorate understand where they came from and in case the devolved Governments should by chance forget to tell them. We emphasise the vital importance that the BBC, as the national public service broadcaster, should continue without qualification to provide a common UK-wide service, particularly on news and current affairs, in addition to whatever regional and local services it may provide.

I could go on—in combination, our two reports contained 115 paragraphs of conclusions and recommendations—but I feel that I have already detained the House too long and I hope that other noble Lords will choose to bring out any important points that I may have missed. I therefore conclude by saying that the problems that the Constitution Committee sought to address are still with us. The threat of those who would tear Scotland out of the union may be in abeyance, but it has not dissolved. I am conscious that Northern Ireland is beset by serious problems. Its condition is fragile and I leave it to other noble Lords, better informed than I, to address them should they choose. Similarly, Wales, originally lured into devolution by the slimmest of margins, has its own distinctive subtleties and priorities that others may wish to draw out. My purpose is to emphasise the welfare of the union on which we all depend. Devolution is not a casual throwaway matter. We are all a part of the main. It is time to acknowledge the failings of the past and the problems and dangers that they have brought and, with care and persistence, to resolve them. I beg to move the Motion in my name.