Building a Stronger Union: House of Lords Constitution Committee

https://lordslibrary.parliament.uk/building-a-stronger-union-house-of-lords-constitution-committee/

On 20 January 2023, the House of Lords is scheduled to debate a motion from Baroness Taylor of Bolton (Labour) to take note of the report from the House of Lords Constitution Committee ‘Respect and co-operation: Building a stronger union for the 21st century’.

The Constitution Committee inquiry examined the future governance of the UK. It considered the current balance of powers within the UK, the challenges for multi-level governance, the approach to devolution within England, the role of Whitehall, and the UK funding arrangements. The committee’s report was published on 20 January 2022. The government responded in September 2022.

1. Committee findings

While recognising the “current strains” on the union, the committee expressed its “faith in its future as a supple, adaptable, shared asset for all our nations, regions and communities”. The committee stated the UK’s “unique constitutional arrangements” provided flexibility and allowed an approach which could “adapt to accommodate its different nations and regions”.

However, it believed there had been an “increasing lack of overall coherence” in the UK’s constitutional arrangements. The committee argued the “failure to develop a modern form of ‘shared governance’ which recognises central and devolved governments have distinct statutory responsibilities that often intersect” had “undermined the strength of the union”.

The committee focused its inquiry on the following areas for reform:

• State of the union: the committee stated the constitution provided for “significant autonomy” of its constituent nations, “complemented by the pooling of resources and sharing of risks, to ensure greater resilience in its collective response to global security, industrial changes, and financial and health challenges”. The committee said the UK’s collective response to the Covid-19 pandemic demonstrated the union’s strength. However, the committee said that a modern style of governance was needed. It said improving shared governance required a “greater degree of respect and partnership between the different layers of government”.
• Parliamentary sovereignty: the committee stated that the supreme court had “consistently reaffirmed” that parliamentary sovereignty remained a “fundamental doctrine” of the constitution. However, it argued the UK Parliament’s legislative supremacy “ultimately depends for its political legitimacy on the consent of the people”. The committee said the doctrine of parliamentary sovereignty had “successfully accommodated” devolution and would continue to do so. However, it said Parliament’s legislative authority must be exercised with “respect and restraint”.
• Sewel convention: the committee said the convention was a fundamental part of the UK’s devolution arrangements and had generally worked well. However, it argued that Brexit had “placed it under strain”. The committee said that for the Sewel convention to operate well, constructive relations and good faith were required between the UK and devolved governments. It said the UK government should always demonstrate that it had taken all reasonable steps to secure consent for the UK Parliament to legislate in devolved areas. The committee also said questions remained unanswered over the principle of legislative consent in the English context, following the repeal of the English votes for English law procedure.
• Intergovernmental relations (IGR): the committee welcomed the ‘Review of intergovernmental relations’ which was published on 13 January 2022. It was a joint review undertaken by the UK government and the devolved administrations to update intergovernmental structures and ways of working. The committee said the new structures would only be a success if they were accompanied by a stronger culture of co-operation and partnership between the UK government and the devolved administrations. It said greater transparency and accountability was needed from the UK government about its approach.
• Interparliamentary relations: the committee argued that “enhanced” interparliamentary relations had an important role in allowing all legislatures in the UK to scrutinise the new intergovernmental arrangements and to hold their respective executives to account. The committee found there was a “strong appetite” among the devolved legislatures for greater interparliamentary engagement with the UK Parliament. It believed the House of Lords could play a key role in facilitating this.
• Governance of England: the committee strongly supported the development of devolution within England to help improve economic performance and address regional inequalities. It said the government’s levelling-up agenda required a long-term commitment, with cross-party support. It noted evidence of increasing public support for devolution within England.
• Whitehall: it found that “significant culture change” was required in Whitehall for it to be able to respond effectively to the challenges of governing the UK in the 21st century. It called for the end of the “top-down mindset”. It welcomed the move to combine ministerial responsibility for English devolution and intergovernmental relations under one cabinet post. However, the committee stated this needed to become a “settled part of the machinery of government” and should not be “vulnerable to frequent and significant restructuring”.
• Funding arrangements: the committee said it believed the Barnett formula required reform to introduce a fairer allocation of funding. It found that the UK government’s “lack of engagement” with the devolved administrations on the overall design of the UK shared prosperity fund had “undermined trust”.
• Union’s purpose and potential in the 21st century: the committee argued that after the challenges of Brexit and the Covid-19 pandemic there was a “clear opportunity to reset relationships to achieve a better functioning union” and “deliver greater resilience across the whole United Kingdom”.

The committee found that while the UK’s “demise [was not] inevitable”, there was “no room for complacency”. It argued that each of the UK’s nations and regions would be “diminished if the union ceased to exist”. The committee called on the government to set out a clearer vision for shaping the union in the 21st century.

2. Committee’s key recommendations

The committee stated that its approach was not to concentrate on “some grand, new constitutional settlement” but to put forward a “range of practicable, achievable improvements to the functioning of the union and to its inter-relationships”. Its key recommendations included:

• Other than in exceptional circumstances, the UK government should not seek to legislate in devolved areas without consent. The House of Lords should strengthen its scrutiny of bills that engage the Sewel convention. This should include the government submitting a memorandum about the devolution implications of relevant bills at their introduction to the House of Lords; a greater degree of committee scrutiny of legislative issues, seeking input from the devolved legislatures where appropriate; and greater prominence of the devolved legislatures’ granting or withholding of consent in ‘House of Lords Business’ by highlighting their decisions against each stage of the bill during its progress in the House. The committee argued it was more appropriate for Parliament to scrutinise the convention’s operation than the courts.
• Scrutiny of intergovernmental relations needed to be underpinned by greater transparency. The committee recommended the government enter a formal arrangement with the House of Lords on the information it would provide about its intergovernmental engagements. It recommended the government make time available for the House of Lords to debate the government’s annual report on IGR.
• The renewed intergovernmental structures should be accompanied by enhanced interparliamentary relations. It recommended the new interparliamentary forum be based on equal partnership among the legislatures. The committee said the UK government and devolved administrations should undertake to engage with the forum. The committee also recommended that the UK ministerial code contain a formal commitment for UK ministers to appear before committees of the devolved administrations.
• A principled devolution framework for devolution in England. The committee said the framework needed to provide a “clear baseline” for further devolution of powers within England. It said the deals-based approach was not “sufficiently ambitious”.
• Significant culture change in Whitehall, including the end of its “top-down mindset”. It agreed with the recommendation made in the Dunlop review that a senior cabinet position should have the duty to uphold the integrity of the constitution, including the operation of IGR and the devolution arrangements. The Dunlop review, commissioned by the government, was an independent assessment of the UK government’s operations in areas of IGR and devolution. It was published in March 2021.
• The government should introduce greater fiscal devolution to English devolved authorities.
• To rebuild trust and partnership, the devolved administrations and English devolved authorities should have a more constructive role in the governance of the UK shared prosperity fund, including decisions about local priorities and the allocation of funding.

The committee concluded that its vision was of a more “cooperative union based on a new sense of respect and partnership between the different layers of government”. It said there should be a new emphasis on shared governance in the interests of all its citizens.

3. Government response and further correspondence

3.1 Government response

The government responded to the committee report on 2 September 2022. It welcomed the report, particularly its emphasis on positive intergovernmental working. The government said “this spirit of cooperation is at the foundation” of the agreed arrangements in the ‘Review of intergovernmental relations’.

• Its response to some of the specific recommendations put forward by the committee included:
• The government would carefully consider the committee’s recommendations on legislative consent. It said it was “engaging in discussions” with the devolved administrations on principles for future working on legislation.
• The government said it was “keen to enhance” the transparency of intergovernmental working, including through the publication of communiques that are jointly agreed by all four governments. It said it would reflect on the recommendations made by the committee. It highlighted that it had published its annual report on IGR and “warmly welcome[d] constructive discussion”.
• The government said it would consider the committee’s recommendation for a change to the ministerial code to establish an expectation that UK ministers would appear before committees of devolved legislatures. However, it highlighted that the practice already existed and would continue to operate. Therefore, it did not believe it was necessary to revise the code. It stressed that the ministers of the UK government were accountable to the UK Parliament.
• The government said the ‘Levelling Up’ white paper, published in February 2022, addressed the need for a devolution framework. It said the framework set out in the white paper provided a roadmap for “places in England to unlock the benefits of devolution”. The government said the framework would develop over time.
• The government said it had taken initial steps to address the complexities in the funding landscape. It highlighted the levelling up fund and the shared prosperity fund as examples. However, the government acknowledged that “more could be done”. It said the government intended to set out a plan for streamlining the funding, which would include a commitment to help local stakeholders navigate funding opportunities.
• The government said it was committed to working with the devolved governments in the implementation of the UK shared prosperity fund. It said it was working with the devolved governments at both a ministerial and official level, and with local government associations and local partners to “make the fund a success”. The government said it would continue this engagement.

3.2 Committee chair’s letter to the government

On 21 October 2022, committee chair, Baroness Drake wrote to the government to highlight several recommendations that were not addressed by the government in its response and to seek clarification on certain points where the government did respond. She asked for further information about the government’s views on:

• government memorandums on the devolution implications of relevant bills
• time in the House of Lords to debate the government’s annual report on IGR
• changing the ministerial code to include an expectation that UK ministers would appear before committees of the devolved administrations
• the risk to funding for devolved authorities in the current economic climate
• responsibility within the cabinet to uphold the “integrity of the constitution”, including matters of IGR and devolution

At the time of writing, a response to Baroness Drake’s letter had not been published.

4. Recent Labour Party proposals

In 2020, Leader of the Labour Party Keir Starmer asked former Labour prime minister Gordon Brown to set out plans to “settle the future of the union” and to “consider how power, wealth and opportunity could be devolved to the most local level”. Mr Brown established a commission which included Labour councillors, MPs and peers, legal experts, and academics.

The commission published its report in December 2022. It contained 40 recommendations for constitutional change in the UK, covering issues such as rights, devolution within England, devolution to Scotland, Wales and Northern Ireland, IGR, and reform of the House of Lords. The commission called for:

• A clear constitutional statement setting out the purpose of the British state.
• A legal requirement to ensure political decisions are made as close to the people impacted as possible.
• A reformed second chamber to have the power to block the UK Parliament from legislating in devolved areas without the consent of the devolved legislatures.
• An obligation on governments to work together in the interests of the public and the use of joint policy initiatives.
• Reforms to Whitehall and Westminster to take account of the fact that in some areas they operate for England only. Proposals included a minister for each region of England; a cabinet committee to deal with English matters; and a committee of all English MPs to debate England-only legislation.
• An ambition to transfer 50,000 civil service posts from Whitehall to outside London.

Keir Starmer said the report proposed the “the biggest ever transfer of power from Westminster to the British people”. He said the commission’s recommendations would be a matter for public consultation so they “can be tested, refined and made ready for implementation”. Mr Starmer said the final plans would be set out in Labour’s next manifesto.

An official spokesperson for Prime Minister Rishi Sunak said the government was “doing a great deal to devolve power to local areas” and had relocated “thousands of jobs”.