Over the past decade the House of Lords Constitution Committee has immersed itself in the principles, purposes and operation of devolution. Last week marked 10 years since the referendum on Scottish independence, and in that time the Committee has published multiple reports on the changing face of the territorial constitution, offering encouragement, detailed critique and practical recommendations. A number of these publications are cited in the introduction to its most recent report on The Governance of the Union: Consultation, Co-operation and Legislative Consent, which is published today. This report addresses the new system of intergovernmental relations introduced in 2022, the operation of the Sewel convention, the use of secondary legislation in devolved areas and plans by the new Labour Government for further devolution in England. Most notably, it recommends that a “principle of positive engagement” be added to the existing principles for intergovernmental relations, currently listed in The Review of Intergovernmental Relations policy document of January 2022.

The report reviews what has been a difficult period for intergovernmental relations since 2014. Separatist nationalism, disagreements over Brexit and the politicisation of the Covid situation have together put a strain upon the informal pathways of cooperation designed in 1998 for an altogether more consensual and less dramatic landscape of intergovernmental relations than has recently prevailed. Nonetheless, while identifying ongoing problems and recommending further modifications to how both Whitehall and the devolved governments should operate, the report also notes considerable progress as the new intergovernmental system beds down, and as the operation of common frameworks take effect.

The inquiry upon which the report is based took place during the last months of the Sunak Government. There is therefore a fresh opportunity for a new government to look at the report’s recommendations and take these on board as it develops its own plans for the territorial constitution. The Committee hopes the report will be a “reference point” for the Government “to build and maintain a more effective Union, characterised by respect for, and co-operation with, the governments and legislatures of the devolved nations.”

Recognising the strains of the past decade, the Committee seeks to identify systemic reasons, as well as challenging circumstances, that might explain why intergovernmental relations have at times faltered. It notes the strain that the Sewel convention has come under in recent years, and places responsibility for this upon both central and devolved levels of government. The Committee observes that since Brexit, “the UK Government has legislated without the consent of one or more of the devolved legislatures on multiple occasions, and at times has done so on bills unrelated to Brexit.” But it appreciates that the picture is complex:

we also recognise that the increased occasions on which the UK Government has legislated without consent may in part be the result of a trend since Brexit for the devolved governments to take a more expansive view of devolved competence. This has led to differences of opinion between the UK Government and the devolved government as to whether consent is required with regard to specific bills. In such circumstances, close and timely engagement between governments is required to address differences of opinion and, where possible, reach consensus.

The Committee also notes that Devolution Guidance Notes are out of date and “should be updated as a matter of priority”. The Committee urges the Government to do so “without delay”, while also updating the Cabinet Manual.

Any territorial system, federal or otherwise, depends for its success as much upon a constructive political and constitutional culture as it does upon institutional design. The Committee recognises the importance of a cooperative mindset in relation to devolution. “Without goodwill and co-operation, structures and conventions risk becoming meaningless. This is particularly important in those times when different political parties are in power in different nations of the UK—some of which aspire to the break-up of the Union.”

Areas that continue to need improvement include the operation of the civil service. The importance of the role of officials in the effective operation of devolution was emphasised by witnesses, as was a lack of knowledge and understanding of devolution within Whitehall. This knowledge gap is something the Committee has repeatedly noted in previous reports. Once again the Committee urges the Government “to ensure that every department has a properly equipped team—and a Ministerial lead—with the knowledge and skills necessary to address, anticipate and engage with devolution matters as they arise, providing an identified point of contact for the devolved administrations.”

The Committee heard much positive evidence about the new IGR structures which, in its view, “have the potential to remedy criticisms levelled at the previous intergovernmental structures by creating a more regular, transparent, and formal system of intergovernmental working.” However, it also notes that this system is still in its infancy and:

the true test of their efficacy depends on how they operate in practice. If they are to realise their potential as genuine vehicles for collaboration and co-operation, the new Government must fully embed them into the day-to-day business of government and the devolved governments must demonstrate their commitment to engaging with the new structures.

Another encouraging sign for a more mature set of devolved relationships is to be found in the move towards Common Frameworks. The Committee notes difficulties: in particular the collapse of the devolved institutions in Northern Ireland in February 2022 and criticisms levelled at the way in which the Internal Market Act 2020 passed through Parliament. It does however see positive prospects for cooperation and urges the Government “to mobilise every effort to finalise and fully implement all 32 common frameworks agreed between the UK Government and the devolved governments.”

At Whitehall too, while at official level there is room for improved education about devolution, there are grounds for optimism. The Committee continues to see an important role for the territorial offices “in strengthening the Union by enhancing Whitehall understanding of devolution and the political context in the devolved nations, and by guiding UK Government policy accordingly.” It also welcomes the new Government’s appointment of a Minister for Intergovernmental Relations, who will be based in the Cabinet Office, with responsibility for devolution. The Committee expresses its wish to engage with the new minister on issues raised in the report.

One area which it is not yet possible to assess is dispute resolution: the Committee observes that the model introduced in 2022 has not to date been fully tested. It is however alive to the realities of political engagement, recognising that informal dialogue between governments will often be more effective than formal institutional structures. It also notes that structures can only do so much if politicians seek to draw political capital from disagreement: “publicity engendered by high-profile public disputes will at times be more appealing than resolving issues through established governance structures.”

This point is another reminder of how much an effective territorial constitution depends upon a culture of genuine cooperation. This leads to a significant recommendation in the report: that a new “principle of positive engagement” be added to the existing principles for intergovernmental relations set out in The Review of Intergovernmental Relations. The Committee argues:

Such a principle would provide civil servants with a tool by which to remind ministers in the UK Government and the devolved governments of the expectation that they should engage with one another, including by working together on the development and implementation of policies of common concern.

Comparable principles of solidarity, comity or Bundestreue, representing mutual commitment to the success of the constitution, are common in other territorial and federal constitutions. The Committee believes that the principle of positive engagement should involve notice by the Government and by devolved administrations of legislative plans that will affect the other level of government or the country as a whole. Referring to the Sewel convention, it states:

We note that there is currently no reciprocal convention requiring the devolved administrations to give notice to the UK Government of devolved legislation that could affect reserved matters… We recommend that the principle of positive engagement… includes a requirement that the UK Government and the devolved governments engage on legislative proposals that impact upon one another’s areas of legislative competence.

There is scope more broadly for the Sewel convention to operate better, including advance notice and clear explanations whenever Parliament intends to legislate in devolved areas, as well as sustained efforts to consult and seek consent. Furthermore, the Government should develop “a clear set of criteria regarding the appropriate use of delegated powers in areas of devolved competence”, since secondary legislation is not encompassed by the Sewel convention.

The Committee’s report is wide-ranging, touching upon the ever-challenging issue of devolved government within England. As yet, the Government’s plans for England remain in their infancy. The Committee notes the commitment in the King’s Speech to establish a Council of the Nations and Regions, “which will bring together the Prime Minister, the heads of the devolved governments and the mayors of combined authorities”, and the plan to bring forward an English Devolution Bill. The Committee “will keep the government proposals under careful review and examine their constitutional implications in due course, including their capacity to represent parts of England not falling within combined authorities.”

To conclude, with the publication of this latest report after 25 years if devolution, it seems useful to step back and consider the extensive range of reports the Committee has published on devolution, particularly since 2015. In comparison to countries whose constitutions are more readily described as federal, the United Kingdom is often identified as lacking a ‘territorial’ second chamber with a composition based upon some form of territorial weighting or representation. This focus upon institutional design often overlooks that federal second chambers do not always operate in such a territorially-representative way (the heavily partisan American Senate is a case in point). Perhaps more important than how it is composed is the way in which a second chamber assumes the role of guardian of the territorial constitution. 

Over the past decade the Constitution Committee has taken upon itself the role of policing the operation of the devolution statutes, seeking to ensure their effective operation. For example, its work in monitoring respect for the Sewel convention has grown in recent years, resulting in numerous recommendations to the House. In Brexit legislation: constitutional issues the Committee recommended the Procedure and Privileges Committee should consider “how legislative consent could be given greater prominence in the legislative process at Westminster”. The House has now adopted as part of its legislative process the procedural step that when legislative consent has been refused, or not yet granted by the time of third reading, a minister should orally draw it to the attention of the House before third reading commences. In doing this the minister should set out the efforts that were made to secure consent and the reasons for the disagreement. The Committee has made similar recommendations for improving explanations from the Government as to when Sewel is engaged. In this latest report the Committee reiterates its previous recommendation, urging the Government on introduction of a bill to the House of Lords that engages the Sewel convention “to submit a memorandum to the House about the devolution implications of the bill and explain what engagement has taken place with the relevant devolved administrations.”

From the tenor of this report, the Committee is set to continue its work as a devolution watchdog. It concludes:

“As a Committee, we intend to return to this matter in the near future. In the meantime, we ask that the new Government undertakes to review intergovernmental relations and the operation of the Sewel convention over the coming year, with a view to implementing the recommendations in our report. We invite the Government to provide an update to the Committee on progress made by the end of September 2025.”

Stephen Tierney KC (Hon) FRSE is Professor of Constitutional Theory at the University of Edinburgh and Global Distinguished Professor of Law, Notre Dame Law School. He also serves as Legal Adviser to the House of Lords Constitution Committee. This post is written in a personal capacity.

(Suggested citation: S. Tierney, ‘Towards a Principle of Positive Engagement?: The House of Lords Constitution Committee reports on The Governance of the Union’, U.K. Const. L. Blog (27th September 2024) (available at https://ukconstitutionallaw.org/)