Last week the House of Lords Constitution Committee published a major report on ‘The Union and devolution’. Mark Elliott and Stephen Tierney summarise the report, in which it is suggested that the government should fundamentally reassess its approach to devolution and that, in future, any new proposals for devolution ‘should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union’.
The House of Lords Constitution Committee’s report on ‘The Union and devolution’, published last week, declares the Union to be ‘under threat’, and recommends that the United Kingdom government ‘needs fundamentally to reassess how it approaches issues relating to devolution.’ The report is the culmination of a major inquiry which began taking evidence in October last year. The committee heard from 66 witnesses including academics, think tanks, the chairs of commissions on devolution, the UK and devolved governments, as well as party representatives from across the UK and a wide range of civil society groups. The committee also held evidence sessions in Cardiff and Edinburgh.
In its 142 page report the committee takes stock of the United Kingdom’s territorial constitution. Its assessment of the lack of vision with which devolution has been allowed to develop is particularly hard-hitting:
‘Power has been devolved to Scotland, Wales and Northern Ireland in an ad hoc, piecemeal fashion. Successive Governments have taken the Union for granted. Proper consideration of the cumulative impact of devolution on the integrity of the Union itself has been lacking.’
Nor does the committee see any convincing evidence that the UK government has now come to appreciate the difficulties inherent in this casual approach to constitutional design. It concludes that Oliver Letwin, the minister responsible for constitutional reform, ‘does not recognise the concerns expressed by this Committee and many others at the pressures being placed on the UK constitution by the manner in which the devolution of powers has taken place’. The committee is clear that this approach must end:
‘An inattentive approach to the integrity of the Union cannot continue. Following the significant changes that the territorial constitution has undergone in recent years, the time has come to reflect and take stock. While the constitution should reflect the wishes and interests of the nations and regions, that must not be at the expense of the stability, coherence and viability of the Union as a whole. Should any proposals for further devolution arise in the future, they should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union.’
In the first half of the report the committee attempts to define the Union in all its diversity, concluding that it embraces five discrete unions: economic, social, political, cultural, and security and defence. It then identifies the risks that the Union currently faces. The report focuses upon the possible impact of fiscal and welfare devolution to the Scottish Parliament upon the economic and social unions of the United Kingdom, while also addressing the potential implications for the political union of the EU referendum and the possibility of a British bill of rights. It addresses other sources of tension, recommending that that the UK government reconsider the ‘inadequate’ Barnett formula and possibly brand UK government services to make clear to citizens the distinction between services provided by devolved governments and those provided by the UK government.
The report, which is critical of the general complacency towards the Union shown by successive governments, considers that a systematic response is now needed ahead of any further processes of devolution in ‘the interests of the Union as a whole’. To this end the committee recommends a two-stage process, the first of which would involve the identification by the UK government of the core functions essential to the effective operation of the Union in its five dimensions. However, in proposing this, the committee does not buy into the so-called ‘draw-down’ model of devolution, whereby – as the Federal Trust has proposed – any powers that feature on a ‘central menu’ should be subject to devolution on demand. Such an approach is rejected by the committee both because – given the very different positions in which the various nations and regions find themselves – there is ‘no single list of the powers that could or should be devolved across the board’ and because the mere fact that a power can be devolved does not mean that it should be devolved. As the committee puts it, ‘core powers that must be exercised by the UK Government and Parliament … are not necessarily … the only powers that can be managed most effectively at the level of Union’ (our emphasis).
The core functions identified at the first stage of the proposed process would feed into the second stage: namely, the publication of a ‘Devolution Impact Assessment’ alongside any proposals for further devolution. This would measure the potential impact of such proposals ‘on the cohesiveness and stability of the Union as a whole, and on each of its constituent nations’. This is intended to fashion an approach to the territorial constitution that gives practical bite to the committee’s view that ‘[d]evolution needs to be viewed through the lens of the Union, with appropriate consideration given to the needs of, and consequences for, the Union’.
In arriving at this proposed way forward, the committee considers, but rejects, a number of alternative possible approaches. It acknowledges that ‘federalism’ is a broad church, and that the UK’s territorial constitution has some characteristics that might be regarded as federal in nature. However, the committee concludes that more formal and far-reaching federalisation should not be contemplated. It points out that ‘there is no federal structure currently proposed that could accommodate England as a discrete entity’ and that ‘the creation of regional assemblies within England which might otherwise provide a viable basis for a federal system’ does not enjoy public or political support.
Nor does the committee recommend a Charter of the Union (as the Bingham Centre for the Rule of Law has done) or a new Act of Union (as the Constitutional Reform Group has canvassed). Such a scheme could, in the view of the committee, be perceived as an attempt to bind nations into the Union, which would undermine efforts to promote its benefits. Instead the report sets out a number of principles that should underpin any future development of devolution: solidarity, ‘which is essential for the coherence of the Union’; diversity, ‘reflecting the importance of recognising local circumstances and preferences’; responsiveness to demand, and consent for any change; subsidiarity and clarity, the latter ‘to assist public understanding of where responsibility lies’.
The report concludes by examining the ‘English question’. It is said to be ‘the central unresolved issue facing decision-makers grappling with the UK’s territorial constitution’, and to consist of two principal facets respectively concerning England’s place within the Union and the internal governance of England. As to the former, the committee dismisses as unviable the idea of an English Parliament, not least because, due to England’s relative size, it would ‘introduce a destabilising asymmetry of power to the Union’. The committee also expresses doubt about regional assemblies – the creation of which might, at least in part, address both aspects of the English question – concluding that they ‘will not provide a realistic solution to the governance of England’ unless there is a ‘coherent strategy’ for implementing them across England and making ‘appropriate changes to the UK’s constitution and existing governance structures’.
The committee therefore acknowledges that, at least for the time being, the English question will fall to be addressed through ‘English votes for England laws’ and the ‘devolution deals’ that are being struck under the Cities and Local Government Devolution Act 2016. The former – an attempt to address England’s place and lack of separate representation within the Union – features little in the report, since it will be the subject of a separate inquiry. As to the latter, the committee expresses a ‘cautious welcome’ for the principle, but concern about the manner of implementation. The committee argues that the government should set out a ‘clear vision’ of what it hopes to achieve through this policy and of where it will ‘eventually lead’; criticises the government for ‘imposing’ elected mayors as part of the devolution deals; calls for the devolution deals to embrace ‘a wider range of governance structures for combined authorities’ rather than ‘rigidly … apply[ing] a single model regardless of local circumstances and wishes’, and regrets the lack of public engagement in this sphere.
Since the beginning of 2015, the committee has, almost exclusively, focused its attention upon devolution-related issues – a theme that will continue in the new parliamentary session as the committee begins its examination of the constitutional implications of ‘English votes for English laws’. In The Union and devolution, the Committee builds upon two of its other recent reports. First, in March 2015, in Proposals for the Devolution of Further Powers to Scotland, the committee addressed the Smith Commission’s recommendations and the proposals that were subsequently made in the light of them. That report recommended that the UK government and UK-wide political parties ‘devise and articulate a coherent vision for the shape and structure of the United Kingdom, without which there cannot be constitutional stability’. Second, also in March 2015, the committee published its report on Inter-Governmental Relations in the United Kingdom, in which it called – in the light of the increasingly complex and asymmetrical nature of the territorial constitution – for greater co-operation and co-ordination at both ministerial and official levels, and for such institutional changes, such as to the Joint Ministerial Committee, as might facilitate that. The government’s response to the latter report is still awaited.
It is therefore unsurprising that the committee in The Union and devolution re-emphasises many of its conclusions about inter-governmental relations and the role of the civil service. It recommends that the UK government ‘undertake a thorough review of the Civil Service… [to]… consider how the devolved administrations can be more effectively and more consistently involved in policy development’. It is particularly concerned about the role of the civil service in relation to any future independence referendums, arguing that civil servants involved in any such process ‘should be given clear guidance on their duties and rights’. On a related point, the committee argues that any future secession referendum by one of the UK’s four nations should be set out in primary legislation by the UK parliament, to enable ‘proper scrutiny by representatives of all four nations’.
The nature of the UK’s constitutional architecture has not only enabled the territorial constitution to undergo radical changes over the last two decades, but has permitted that to happen with a degree of casualness that in effect normalises major constitutional reform. It is the ad hoc manner in which such reform has been approached – and, in particular, successive UK governments’ failures to evaluate proposed changes through the prism of the Union itself – that lies at the heart of the concerns identified by the Constitution Committee in The Union and devolution. Those concerns are of a piece with the committee’s broader view, as evidenced by its recent reports in this area, that a new, consistent and joined-up strategy for territorial government is necessary if the United Kingdom is to remain a viable state. If it is to succeed, that strategy must embrace both nuts-and-bolts questions about how the UK is to work in this new era of multi-layered governance and much bigger questions about how the territorial constitution is to be managed and shaped in the years and decades to come.
Mark Elliott and Stephen Tierney serve as Legal Advisers to the Constitution Committee. This post is written in a personal capacity. It was originally published on the UK Constitutional Law Association blog and Public Law for Everyone and is re-posted with permission.
About the authors
Mark Elliott is Professor of Public Law at the University of Cambridge.
Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh.