Governance of the Union (Constitution Committee Report)

Lord Norton of Louth Excerpts

Monday 28th April 2025 Grand Committee

[Lord Norton of Louth (Con)]

My Lords, I, too, welcome this report from the Constitution Committee and the fact that it is one of several produced by the committee on the working of our devolved system of government. It has done a commendable job in analysing the process of inter-institutional relations within the UK and setting it within a clear framework of the value of the union.

I chaired the committee when it produced its first report on devolution, Devolution: Inter-Institutional Relations in the United Kingdom, in 2002. Our focus was on ensuring that the relationships worked well and that mechanisms for resolving disputes remained in good working order. At the time, with the same party in control in Westminster, Holyrood and Cardiff Bay, a great deal was done through personal contact. We recognised that one had to plan for a time when different parties were in control. Our foresight was not acted on; had it been, the relationships between the different Administrations may have been stronger than they have been. Indeed, I believe that the union would be stronger had successive Governments paid more heed to recommendations from the Constitution Committee.

I have criticised successive Governments for being in reactive mode in dealing with the devolved Administrations. There has been a tendency to concede powers in the belief that this will persuade people in the different parts of the United Kingdom to support remaining in the union. The reactive mode has a pervasive impact, in that, in day-to-day administration, the needs of the different nations tend to be dealt with as an afterthought and relations conducted on a grace-and-favour basis. The Constitution Committee has pressed consistently for a more proactive approach, putting the case for the union and emphasising the benefits that it delivers to all in the United Kingdom. It has highlighted ways for the relationships between the different Administrations to be strengthened. This report deserves to be given much more visibility than it has been, and is being, accorded.

I wish to focus on the issue of legislative consent and what is misleadingly called the Sewel convention. It was not a convention when it was first articulated, and it is not a convention now. It does not stipulate behaviour that is adhered to invariably. It is a statement of principle—of what can be described as best practice or the Government’s best endeavours. The understanding of its status was confused from the beginning and made worse by being embodied in the Scotland Act 2016 still under the rubric of a convention. I pointed out to the Government at the time that a convention in statute is a contradiction in terms. The Supreme Court in the Miller case recognised that it was no more than a political statement.

We need to get away from talking about the Sewel convention, in part because it is a constitutional nonsense, and because it invites a reaction from devolved Administrations when a measure is introduced. We need to focus on engagement at any early stage—as is delineated in this report—and build on what the Government variously claim is happening: engagement with devolved Administrations when legislation is being developed. As the report emphasises, that should be a two-way process: the devolved Governments should also engage with Whitehall when they are developing legislation. Alongside the noble Lord, Lord Kerr, I endorse the recommendation of the committee that consent should be sought where delegated legislation covers devolved areas.

The Government are working on a memorandum of understanding with the devolved Administrations, which, as we have heard, is expected to be published later this year. This is the only positive element in the Government’s response to the committee’s report; otherwise, the Government are basically satisfied with what is presently in place. The response does not do justice to the committee’s considered report. Given the track record of the Constitution Committee in making the case for the union, and the prescience of its recommendations, it is crucial that the Government adopt a more positive stance and act on those recommendations. I do not want us to debate this again in 20 years’ time and say, “I told you so”. I look forward to the Minister engaging more positively than Pat McFadden’s letter does with this very important report—it deserves better.