Meeting of the Parliament 09 January 2024
That is one of the aspects that we have considered. The committee looked at how the common frameworks are developed, and we noted that there is a lack of transparency. That is very much civil service driven, and the implications for both Parliaments and the other devolved Parliaments that are engaged in the process are opaque to us at the moment. I recognise John Swinney’s concerns and the particular example that he has raised. The committee did not consider that specifically, but we may return to it.
As I said, the committee believes that there is a need to re-articulate the definition and principles of the frameworks in the light of experience to date and our constitutional landscape. It recommends that there should be a new memorandum of understanding between the UK Government and the devolved Governments that should include a supplementary agreement on common frameworks, which should include clarity on their purpose and give further transparency to the process.
Finally, I turn to our consideration of the Sewel convention. The committee has stated previously that that convention was “under strain” following the UK’s departure from the EU. Although the Scotland Act 2016 gave statutory recognition to the convention, that did not alter its status, and it did not become judicially enforceable. There continues to be considerable debate about whether the convention should be strengthened in law and subject to judicial review, whether it can be strengthened on a non-statutory basis or whether no strengthening at all is required.
We note that there is clearly a fundamental difference of viewpoint between the UK Government and the devolved Governments regarding the operation of the Sewel convention. It is also clear that that has led to a deterioration in relations between the UK Government and the devolved Governments. The committee’s view is that that level of disagreement on a fundamental constitutional matter is not sustainable, particularly in the context of what is an increasingly shared space at an intergovernmental level.
We note the view of UK ministers that
“it is sometimes necessary for the UK Government to act in its role as the government for the whole of the UK.”
We also note their view that
“it is necessary that the UK Government can fulfil the role of the UK’s national government”.
We are unclear what “necessary” means in that context and note that that is not stated in either the memorandum of understanding or the devolution guidance notes. It is also unclear how “necessary” relates to “not normally” and what the threshold is for necessity in justifying overriding the devolved consent of this Parliament or that of the Welsh and other devolved Parliaments. It is essential that we have an opportunity to hear from the UK Minister for Intergovernmental Relations to discuss the findings of the committee’s report and his written response to our previous letters.
Finally, I want to mention an event that happened yesterday at the University of Strathclyde, where we brought together academics, practising lawyers, former civil servants and postgraduate and PhD students from across these islands—from Queen’s University in Belfast to Durham University and the University of Liverpool, to name a few—to discuss the findings of the report and examine the issues in further detail. There will be a published note from that meeting and a podcast that was chaired by Professor Andrew Tickell, with me and my deputy convener, Donald Cameron. I commend those to the Parliament.
I move,
That the Parliament notes the conclusions and recommendations contained in the Constitution, Europe, External Affairs and Culture Committee’s 5th Report, 2023 (Session 6): How Devolution is Changing Post-EU (SP Paper 453).