Governance of the Union (Constitution Committee Report)

Lord Kerr of Kinlochard Excerpts

Monday 28th April 2025 Grand Committee

[Lord Kerr of Kinlochard (CB)]

I have never been a member of the Constitution Committee; I have asked regularly to become a member and have regularly been rejected. It is my youth and exuberance, I think, that are not there; I am working on both.

I can speak only of Scotland, but I think this is an excellent report. My experience is that what really matters—and the report says this—are not so much institutional frameworks but mutual respect. I was a unionist foot soldier in the 2014 army, and I was shocked that disdainful Achilles sulked in his No. 10 tent and played no part in the campaign. I was also shocked when his victory speech was about not reconciliation and binding up the wounds but English votes for English laws, rubbing salt in the wounds in Scotland.

Subsequently, I used to advise Mrs Sturgeon on EU issues and was astonished at how little she was told about referendum planning and Brexit negotiations. The 27 European Governments knew far more about the negotiations, because of Mr Barnier’s meticulous briefings, than our devolved Governments did. Of course, then came the open contempt and childish insults of the Johnson/Truss period. I am very glad that we seem to have turned that page and that the grown-ups seem to be back. The 2022 arrangements do not seem to have worked perfectly, but they are clearly a lot better than previous ostentatious ostracism.

Bringing intergovernmental relations back to the centre and to the Cabinet Office is a very wise move, but I repeat that what matters are not so much the frameworks as mutual respect. Of course, Scots are absolute experts at having grievances, but there is really no reason to give them a real one. We should seize the moment now, when the wind is not in the SNP’s sails, and reinforce the union by showing that the centre respects, listens to and takes account of the views of the devolved Governments. They are democratically elected, too.

I have two smaller points to make. First, for me, the most striking paragraph in the report is paragraph 303, where the then Secretary of State for Scotland and Wales in the previous Government asserted that

“the Sewel convention should not apply to secondary legislation”.

I am a member of the Secondary Legislation Scrutiny Committee, and this was news to me. Surely it is wrong. I hope that the present Government will honour Sewel in respect of primary legislation rather better than their predecessor did, but I also think that using delegated powers to do by ministerial fiat what Parliament said in the Scotland Act it would normally refrain from doing in primary law seems rather outrageous. I am very glad that, in its report, the committee disagreed with Mr Jack and Mr Davies.

I am not quite clear what the present Government think on that issue. The concluding paragraph of their response to the report is a little enigmatic. It states:

“The Government notes the Committee’s recommendations on developing criteria and publishing guidance on the use of delegated powers in devolved areas, and on engagement with the devolved governments on the use of these powers. The Government will consider this as part of its work on engagement with the devolved governments on legislation”.


Quiet, Sir Humphrey—I remember you well.

Finally, this is a small point but an important one. On cross-postings, positive engagement makes sense, but no such injunction will cut much ice in the public service without common understanding. There used to be many more cross-postings than there are now. When I worked in Brussels and Washington, I always had at least two Edinburgh-based civil servants on my staff. Others were seconded to the Treasury and to the Foreign Office, as well as to the Cabinet Office and No. 10. When I was at the top of the Foreign Office, I presided over two-way exchanges with St Andrew’s House in Edinburgh. I worry that devolution is eroding the concept of a united Civil Service. Of course there will always be problems when the political complexion of the devolved Government is different from that of the central government. That will always cause problems for civil servants, but if you cannot ride two horses you should not be in the circus.

It is very good that the silly jibes about Scotland, the Scottish Government and successive First Ministers have stopped and that we seem to be trying constructively to rebuild. Where is the memorandum of understanding promised by the Government? It is taking a while to cook. I look forward to seeing it.