The UK’s devolved institutions in Northern Ireland, Scotland and Wales celebrated their twenty-first anniversary this year. Their powers have changed several times since their creation, but much of this has occurred in an ad hoc way, without deep consideration at UK level of the overall devolution framework. Paul Evans explains how a new Procedure Committee inquiry into how the House of Commons should adapt to the ‘territorial constitution’ presents an opportunity to give some key devolution issues the attention they deserve.
Devolution in the UK turned 21 this year, and watching it grow has been a fascinating study in making up the constitution as you go along. The Scotland Act 2016 and the Wales Act 2017 (each of them the third major reworkings of the statutory basis of devolution in those nations in less than 20 years) declared the devolved legislatures there, along with their governments, to be a permanent part of the UK’s constitutional arrangements, which could be abolished only with the consent of the people in a referendum.
In both those nations 16- and 17-year olds have been newly enfranchised and will participate in the elections of their parliaments next year. The Northern Ireland Assembly restarted (once more) in January after a three-year absence, and in May the Welsh Assembly renamed itself the Welsh Parliament (or Senedd Cymru if you prefer to use the UK’s – so far – only other official language).
All in all, the journey towards a pragmatic form of de facto federalism in the UK has been a remarkably peaceful and generally good-natured velvet revolution. So perhaps it’s not so surprising that the House of Commons Procedure Committee has not felt the need to have a major review of the implications of devolution for the workings of the Commons since 1999.
Watching its progeny develop their own values and make their own decisions has, nonetheless, been a challenging learning experience for Westminster. The assertions of devolution’s permanency and its implication of equality of esteem between the four legislatures of the UK has often appeared more rhetorical than real. Whitehall seems never to have fully come to terms with the loss of centralised control which devolution necessarily entails. But, collectively, the elected members of the four legislatures have done little better in opening up and sustaining channels of communication – though some good work has been done at the margins.
However, the very public rows over the 2017 EU Withdrawal Bill, the UK Internal Market Bill and other Brexit legislation, along with the divergent responses to the COVID-19 pandemic, have highlighted tensions between the four governments of the UK. Wide areas of legislative and policy competence have been repatriated from the EU. As a consequence, the overlap between the powers of Westminster and the devolved legislatures has massively increased. The potential for conflict has grown proportionately.
Both Theresa May and Boris Johnson declared a commitment to strengthening the Union in the wake of Brexit. But the Dunlop Review of UK intergovernmental relations (IGR) which was initiated two years ago, and is known to have reported last year, languishes unpublished somewhere in Whitehall. IGR is currently opaque, ad hoc, disorganised and (at the moment) dysfunctional. The First Minister of Wales complained in July that, during the key stage of unlocking the lockdown, he hadn’t had a conversation with the Prime Minister for over six weeks.
In this context, the recently announced inquiry by the House of Commons Procedure Committee on ‘the procedure of the House of Commons and the territorial constitution’ looks timely, if not overdue. Its call for evidence (submissions are invited by 12 November) canvasses three principal questions: the efficacy of the ‘English Votes for English Laws’ (EVEL) standing orders introduced in 2015; the operation of the so-called Sewel Convention (by which the UK government has undertaken not to legislate on matters within the competence of the devolved legislatures without their consent}; and the parliamentary scrutiny of UK IGR. The committee expresses itself happy to hear about other issues. These are all good questions.
EVEL cannot be said to have emerged as a convincing answer to the English Question. It was a technocratic solution, absurdly over-engineered procedurally, to an emotional problem. It was steamrollered through in 2015 by the Conservative government without any attempt at consensus, and was soundly criticised by the Procedure Committee, the Public Administration and Constitutional Affairs Committee (PACAC) – which commented that ‘Never again should standing orders be drafted by the Government, rather than Clerks’ – and the Lords Constitution Committee. Michael Kenny and Daniel Gover produced a report for the Constitution Unit on the first year of the operation of the standing orders. Their conclusions were more positive than mine would have been, but they pinpointed the crucial failing of the system – that while it may have given English MPs a vote (and in theory a veto) over legislation relating exclusively to English matters, it failed to give England an identifiable and separate ‘voice’ in parliament.
A solution to the English Question which is regularly proposed is the creation of an English Parliament, leaving Westminster to get on with the job of legislating for the UK. Meg Russell and Jack Sheldon produced a report for the Unit in 2018 on the options for an English Parliament. Its key conclusion was that the creation of an English Parliament with a coherent role would require major re-engineering of our constitutional arrangements – and logically an English government – for which at present there does not seem to be an appetite.
An English Parliament seems well beyond the scope of the Procedure Committee’s inquiry – though the model of a ‘dual legislature’ at Westminster which Russell and Sheldon discuss is conceivably within it. The committee might do well to re-examine the ideas of the McKay Commission in its 2013 report, commissioned by the UK coalition government but unfortunately disregarded by its Conservative successor.
The surprisingly placid history of the Sewel Convention, now embodied in the Scotland Act and the Government of Wales Act, looks to have the potential to be seriously disrupted by the rows over Brexit-related legislation. The Institute for Government published a report on the stresses on the convention in late September. It contained some practical recommendations which should help the Procedure Committee’s thinking, but the appetite of the current UK government for a more tightly codified convention has to be doubted. However, the ‘asymmetry’ of the operation of the convention alongside EVEL, which means that English MPs have a veto over laws affecting England while the devolved legislatures have only a breachable (and recently breached) convention, is an obvious problem.
The intergovernmental negotiations between the four UK governments, conducted through the Joint Ministerial Committee (JMC), receive scant parliamentary scrutiny. In 2014 the Scottish Parliament’s Devolution (Further Powers) Committee was already advocating for better interparliamentary dialogue. And in the same year both the Strathclyde Commission on the Future Governance of Scotland and the Silk Commission on Devolution in Wales urged institutional investment in interparliamentary working. David Melding MS, one of the most articulate Conservative voices on devolution, told the Lords Constitution Committee in January 2015, ‘I think at Westminster you need to take control again of where the UK constitution is going. … We need a vision for a reformed, decentralised UK constitution for a multinational union’.
Jack Sheldon and Hedydd Phylip discussed the challenges raised for interparliamentary scrutiny of IGR by Brexit in the Unit’s report on Parliament and Brexit, published in March. They cite the active interest in the topic shown by PACAC and the Lords Constitution and EU committees (the Lords have recently established a free-standing committee on the common frameworks). The Welsh Senedd’s Constitutional and Legislative Affairs Committee published a report in July 2018 recommending a Speakers’ Conference on interparliamentary relations, a call for action broadly supported by both the Lords Liaison Committee and the Commons Liaison Committee. The Institute of Welsh Affairs published a research paper on the state of UK interparliamentary relations last month.
All in all, there has been a great deal of thinking and a lot of ideas about making devolution work better in the last five years or so. But while the devolution settlements have shifted significantly, and Brexit has delivered a huge shock to the system, parliamentary capacity has been slow to catch up. That lack of attention could certainly be ascribed to some degree to the amount of parliamentary bandwidth absorbed by the constitutional ructions created by the referendums of 2014 and 2016. But even those members of the different legislatures for whom the continuation of the UK as a union of four nations is not the destination at which they hope the process of devolution will terminate need to make the union work for now.
There is an urgent need to look for a more measured approach to conflict resolution and deeper collaboration, and better interparliamentary dialogue could surely help. It would likely be to each of the UK nations’ mutual benefit if we could have a rather more grown-up conversation about how to resolve our differences amicably.
Since we now have a government which shows little obvious appetite for further constitutional reform in the area of devolution beyond that forced on us by Brexit, these issues can be given the political attention they deserve. The Procedure Committee’s inquiry is a chance to do that. It is to be hoped that all those thinkers out there will seize this opportunity to get things moving. Brexit certainly means the time is ripe.
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About the author
Paul Evans is an Honorary Senior Research Associate at the Constitution Unit. He worked as a Clerk in the House of Commons from 1981 to 2019, retiring as Clerk of Committees, responsible for the staff of the House’s select committees.