Following a year-long inquiry into the future governance of the United Kingdom, the House of Lords Constitution Committee today publishes its report, Respect and Co-operation: Building a Stronger Union for the 21st century.
The document comprises 10 chapters, beginning with reflections upon the state of the Union. It then turns to parliamentary sovereignty, relations between the central institutions of United Kingdom government and the devolved administrations, the governance of England, and the operation of the machinery of central government and funding arrangements. The report culminates in final thoughts concerning the purpose of the Union and recommendations based upon its potential for future success. Aside from its detailed suggestions for how governing arrangements might be improved, the report contains a wide-ranging review of how the country is governed today which should be of interest to scholars, students and constitutional practitioners.
The orientation of the report is reflected in the title. The Committee reiterates its confidence in the Union but is also mindful of the challenges which the government of the United Kingdom faces: ‘This Committee believes in the United Kingdom. We cherish the principle of mutuality upon which it rests. We recognise its current strains but have faith in its future as a supple, adaptable, shared asset for all our nations, regions and communities’ [para 1]. The report notes that the constitution operates within a very different political environment to that in which it last addressed the state of the Union systematically in 2016. In recent times the constitution has been stress tested by ‘a financial crash, climate change, an information and technology revolution, withdrawal from the EU, a pandemic, and new emerging threats from regimes hostile to liberal democracy’ [para 4]. Although fully alive to these challenges, and to heightened discontent with governance of the United Kingdom provoked by EU withdrawal, the Committee also sees strength in the flexibility of the United Kingdom’s constitutional arrangements [para 58] which has allowed the country to respond to these challenges, in particular the most recent: ‘Global pandemics do not respect national boundaries and crossborder co-operation is therefore critical. We believe the United Kingdom’s collective response to the COVID-19 pandemic, including the furlough scheme, financial support to businesses and the procurement of vaccines, demonstrates the continued strength and importance of the Union’ [para 44]. The Committee also notes how the conditions for state government are becoming increasingly parlous in an unstable international environment. The constitution’s accommodation of pluralism is however well suited to the digital age. It provides for the 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, the pace of industrial change, economic, financial and public health challenges, present and future’ [para 36].
The Committee is not uncritical of current constitutional arrangements. It invites the Government to overcome both a ‘devolve and forget’ mentality and a unilateral approach to strengthening the Union which has been ‘insufficiently sensitive to its pluralism’. Accordingly, the Committee invites the Government ‘to set out a clearer vision about how it will be shaped in the 21st century’ [para 74]. In doing so, the Committee calls for greater ‘shared governance’ which ‘will require a greater degree of respect and partnership between the different layers of government’ [para 59].
The report reviews the operation of parliamentary sovereignty in Chapter 3, noting how the Supreme Court repeatedly affirms this fundamental doctrine of the constitution. The Committee also explores the political constraints which operate upon, and in practice circumscribe, how legislative supremacy operates [para 96]; explaining how these limit the political capacity if not the lawful competence of Parliament. The Committee is robust in its praise for the flexibility that comes with Parliament’s constitutional competence which ‘has successfully accommodated the process of devolution and will continue to do so.’ That said, ‘Parliament’s legislative authority must continue to be exercised with respect and restraint if the Union is to be strengthened’ [para 98].
The principle of legislative supremacy is of course tempered in practice by the operation of the Sewel convention which the Committee addresses in Chapter 4. The report observes that while the legislative consent procedure generally worked well from 1999, ‘implementing Brexit has placed it under strain’ [para 120]. For the Sewel convention to operate successfully, constructive relationships and good faith are required between the UK Government and the devolved administrations; to this end the Committee also notes Northern Ireland’s particular constitutional circumstances [paras 142-148], and the ongoing issue of England’s constitutional position following repeal of the EVEL standing orders [paras 149-158]. The Committee notes some misplaced criticisms directed at the Supreme Court for failing to enforce the Sewel convention. This is of course not constitutionally possible: ‘As any breach of the convention will have political consequences, we believe that Parliament is the appropriate forum to scrutinise its operation’ [para 129]. Furthermore, ‘We do not believe it would be desirable to involve the courts in adjudicating disputes on the meaning and application of the convention, which are best resolved through political deliberation’ [para 140].
The Committee is however alive to tensions in the operation of the convention, particularly during the turbulent period in which Parliament was required to legislate quickly to give effect to the United Kingdom’s withdrawal from the European Union in the face of opposition from nationalist parties across the United Kingdom: ‘The Sewel convention is undermined both if the Government refuses to seek, or chooses to act without, consent, and if devolved administrations recommend the refusal of consent to their legislatures, for purely political purposes’ [para 123].
The report considers the lessons learned from this period and proposes a series of reforms to parliamentary procedure, including heightened scrutiny by the House of Lords of bills that engage the Sewel convention [para 138]. The report recommends the provision of a memorandum by the Government about the devolution implications of relevant bills, a greater degree of committee scrutiny of legislative consent issues – seeking input from the devolved legislatures, where appropriate – and greater prominence for the granting, or withholding, of legislative consent by the devolved legislatures in House of Lords Business.
Chapters Five and Six of the report turn to issues of intergovernmental and inter-parliamentary relations. The report notes that most witnesses agreed that intergovernmental structures require reform, particularly given that both Brexit and the Covid-19 pandemic had ‘highlighted the deficiencies in the current arrangements’ [para 164]. The Committee notes that any reform requires not only good governance structures, but also a willingness to facilitate a culture of cooperation and respect. The Review of Intergovernmental Relations was published shortly before the Report. The Report generally welcomes these changes, but also notes where the new framework for intergovernmental relations fails to implement some of the recommendations of the Dunlop review, particularly as regards commitments to biannual summits hosted by the Prime Minister. The Report also recommends greater data sharing to facilitate better decision-making, and more detailed transparency to facilitate the ability of legislatures to hold governments to account. The Report does not currently recommend placing these structures on a statutory basis, although it recognised that this may be necessary in the future should attitudes and behaviours not change to ensure the success of the new framework for intergovernmental relations.
The Report also recognises the importance of facilitating greater inter-parliamentary engagement and cooperation. It notes the role of the informal Inter-Parliamentary Forum on Brexit, which also noted that there may be a need to consider the development of more formal inter-parliamentary structures in the future. The Dunlop Review reached a similar conclusion, as did many of the witnesses who gave evidence to the Committee. The Report welcomes the willingness of Ministers of the UK Government to appear before committees of the devolved legislatures, but recommends that this practice be formalised by the inclusion in the Ministerial Code, where appropriate, of an expectation that Ministers will appear. The Report also welcomed the plans to establish a new interparliamentary forum, stressing that, for this to be successful, this forum needed to be based on ‘an equal partnership among the legislatures and relatively informal arrangements’ [para 223].
Chapter 7 of the report turns to the vexed ‘English question’, noting that the answer to this question is not merely about ensuring a voice for England in the UK Parliament, but also about facilitating greater devolution in England. This is particularly pertinent given the extent of centralisation of power in England, combined with greater regional variations when contrasted with other Western European countries. The report recommends greater decentralisation in England [para 240] (while also noting that the Smith Commission argued for further decentralisation in Scotland [para 239]). To this end, the report recommends the development of a principled devolution framework to be developed by the Government in cooperation with the Local Government Association and devolved authorities [para 259]. This would require the provision of adequate resources and support, alongside greater alignment between subnational bodies. The Report also stresses the importance of ensuring greater dialogue between nations and regions, ensuring an opportunity for English devolved authorities to influence discussion at the national level.
The report recognises that the challenge of governing the United Kingdom in the 21st century requires a change in culture within Whitehall, particularly in order to end its ‘top down mindset’ [para 279]. The report endorses the conclusion of the Dunlop review as to the need for a senior Cabinet position having responsibility for devolution, noting that this is currently the Secretary of State for Levelling Up, Housing and Communities. However, the Committee noted that care should be taken to ensure that the broader responsibilities of this Ministerial Office do not undermine the focus on devolution issues. It also notes the establishment of the Cabinet Union Strategy Committee and the Union Policy Implementation sub-committee in line with the recommendations of the Dunlop review. The report also endorses the Dunlop review’s recommendation to establish a single Permanent Secretary with responsibility for the Union. It also welcomed the dispersal of governmental departments across the UK and the Government’s commitment to increasing civil servant knowledge of devolution arrangements. However, the report notes that the policy of secondment should be expanded further.
The report then turns to issues of finance. The report continues to recommend reforming the Barnett formula. Pending reform, there is a need for greater parliamentary scrutiny over the Treasury’s statement of funding policy. The report also recommends that the Government examines how funding arrangements could ‘more effectively address relative needs in the nations and regions’ [para 322]. The report also recommends greater fiscal devolution to devolved authorities and the rationalisation of the funding pots available to local government through the introduction of a framework of multi-year funding pots. This is necessary to ensure meaningful devolution, in particular to ensure that the redistribution of resources by central government is not used ‘as a vehicle to impose its own policy preferences on English devolved authorities’ [para 334]. Finally, whilst welcoming the creation of the Shared Prosperity Fund, the report recommends a more constructive role for devolved administrations and devolved authorities in order to develop trust in the scheme.
Despite pointing out weaknesses and concerns, the Report ultimately remains optimistic about the ability of the Union to fulfil its true potential, particularly through a process of strengthening effective relations, alongside a renewed sense of respect and partnership. Belying much of the negativity that often characterises assessments of the constitution, the Committee declares: ‘Our report is a call to action—not just to a carefully, mutually respectful restoration of our governing arrangements and institutions, important though that is—but to the creation of a re-energised, more supple, less rancorous Union for the benefit of all’ [para 11]. It accepts that there is no room for complacency but also contends that after the challenges of Brexit and the pandemic, the time is now right to reset relationships to achieve a better functioning Union ready to achieve its full potential in the 21st century.
Stephen Tierney is Professor of Constitutional Theory, University of Edinburgh
Alison Young is the Sir David Williams Professor of Public Law at the University of Cambridge
They both serve as Legal Advisers to the House of Lords Constitution Committee. This blog post is written in a personal capacity.
(Suggested citation: S. Tierney and A. Young, ‘Constitution Committee report on the Future Governance of the UK’, U.K. Const. L. Blog (20th Jan. 2022) (available at https://ukconstitutionallaw.org/))