Hansard

This has been a valuable and important debate, and it is a pleasure to close on behalf of the committee. I add my thanks to the committee’s clerks for all their work on the inquiry and to our advisers, Professor Michael Keating and Dr Chris McCorkindale, and to all those who gave evidence. I should also mention, as the convener has done, yesterday’s event at the University of Strathclyde, which was insightful and raised many pertinent points.

Before reflecting on contributions from colleagues, I would like to say two things. First—I will say this gently—it is a unanimous report, but I urge those who are listening or watching, or those who will read the Official Report later, to read carefully the conclusions of the report. In the passions that have been aroused this afternoon, as always in constitutional debates, on all sides there has occasionally been a departure from what the report actually says. Some of the language that has been used today has attributed to the committee views that do not accord with the wording of the report. The views of the committee are in the report, and it speaks for itself. I urge people to read it.

Secondly, I will briefly touch on the committee’s findings on use of delegated powers by UK ministers in devolved areas—as the convener indicated I would do at the start of the debate.

The committee notes that managing a regulatory environment while the UK was a member state of the EU regularly included enacting a huge amount of secondary legislation. Much of that related to minor technical matters, and it was routine practice for the Scottish ministers to ask UK ministers to implement EU obligations through Great Britain-wide or UK-wide legislation. UK ministers are therefore, of course, correct in saying that it is long-standing practice for the UK Government to legislate in devolved areas using delegated powers. However, that was done on the basis of the devolved Governments having asked UK ministers to do so, and within the limitations of implementing EU law obligations.

The committee also notes that, before the EU exit process, it was rare for the UK to legislate in devolved areas by using delegated powers other than under section 2(2) of the European Communities Act 1972. More generally, our view is that the extent of UK ministers’ new delegated powers in devolved areas amounts to a significant constitutional change. We have considerable concerns that that change has happened, and is continuing to happen, without any overarching consideration of its impact on how devolution works.

Our findings show that there has been no attempt to design an intergovernmental agreement that would govern the use of delegated powers to manage the post-EU regulatory environment. Instead, the constitutional landscape is now much more complex, with delegated powers for UK ministers in devolved areas existing in numerous UK acts and not solely in policy areas that were previously within EU competence.

Unlike the process for transposition of EU law, there is no generic process or overarching agreement as to how the use of those powers should work. Rather, there is a myriad of statutory and non-statutory requirements for UK ministers to seek the consent of, or to consult, devolved Government ministers, or to do neither. We have therefore recommended that there should be, as has been proposed for common frameworks, a supplementary agreement on use of delegated powers by UK ministers in devolved areas, including criteria for their use.

One of the key conclusions of our work is that there is a significant risk that UK secondary legislation on devolved areas will lessen the accountability of Scottish ministers to the Scottish Parliament. In turn, that will reduce opportunities for the public and stakeholders to engage at devolved level. The Parliament therefore needs to review how it approaches scrutiny of intergovernmental relations and of the Scottish ministers in their shared role in governance of the UK.

Our view is that the starting point of such a review should be the fundamental constitutional principle that the Scottish Parliament should have the opportunity to effectively scrutinise the exercise of all legislative powers within devolved competence. Such an approach is consistent with the Parliament’s founding principles—in particular, that the Scottish Executive, as it then was,

“should be accountable to the Scottish Parliament, and the Parliament and the Executive should be accountable to the people of Scotland.”

I turn to address points that colleagues made during the debate. The cabinet secretary spoke at length about the Sewel convention, among other matters. I will come to his contribution in a moment.

Alexander Stewart emphasised Scottish Conservatives’ support for the principles of devolution. He noted that, in the new intergovernmental relations, the dispute resolution process has not been tested.

Neil Bibby stated that Scottish Labour wanted to reset relations between the UK and Scottish Governments, and Mark Ruskell made a similar point.

Alex Cole-Hamilton stated that devolution depends on trust between the Scottish and UK Governments and that he believes that Scotland’s future lies in a reformed and federal United Kingdom.

Kate Forbes stressed how the debate was, more than anything, about structures.

Jamie Greene spoke interestingly about the continuity act that was passed in session 5 and about the substance of EU policy making, and Alasdair Allan concentrated on the Sewel convention and his view that it is under attack. Keith Brown also spoke about the convention and referred to the ad hoc nature of the British constitution.

Professor John Swinney spoke about the powers of the Scottish Parliament being eroded, and gave us his view that it is time for parties to come together and defend it.

Jackie Dunbar spoke of her experience of the effects of Brexit in her home city of Aberdeen, and referred to “broken Brexit Britain”.

Martin Whitfield spoke about the need to escape from what he described as a “cul-de-sac” and Maurice Golden spoke of what he viewed as “manufactured grievances” on the part of the Scottish Government.

It is important also to note the views of some of the witnesses who gave evidence for the inquiry. In their view, devolution was already changing even before Brexit. Professor McEwen told the committee that changes were already afoot before Brexit came along, with the new devolution settlement making things a lot more complex and interdependent, given the split between devolved and reserved powers.

It is important also to remember that further devolution has taken place since 1998—notably devolution of some taxation and welfare powers under the Scotland Act 2016.

The chair of the House of Commons Public Administration and Constitutional Affairs Committee told our committee that a lot of issues around how devolution works

“began before we left the European Union. They have remained unaddressed largely since 1998. That is because of the absence of effective and needful intergovernmental relationships and, indeed, interparliamentary relationships.”—[Official Report, Constitution, Europe, External Affairs and Culture Committee, 2 March 2023; c 4.]

The new complexity has been recognised, and the formal system of IGR has recently undergone a number of reforms, many of which are still being implemented across Whitehall. Professor McEwen argued that their introduction has been hampered by political volatility since the reform was introduced. The new structure includes a formal dispute resolution process, and the committee noted that it had never been used by the Scottish Government and that that is also the case in Wales.

In evidence to the committee, the chair of the Legislation, Justice and Constitution Committee of the Welsh Senedd asked, in relation to public disputes between the Welsh Government and the UK Government, why they are not being tested through the committee structures that were set up as part of the intergovernmental machinery, or through the dispute resolution procedure, and when they would be tested.

The committee previously agreed that the Sewel convention was under strain. In its current report, the committee agreed that there continue to be many instances in which the devolved legislatures consent to the UK Government legislating in devolved areas through the legislative consent process. That has included some areas related to leaving the EU.

The Scottish Government’s position has been made very clear. Today, the Cabinet Secretary for the Constitution, External Affairs and Culture quoted Mark Drakeford, whose view is that the Sewel convention has “withered on the vine”. The cabinet secretary contrasted the strict observance of the convention before Brexit with afterwards, and stated that it had been breached 11 times. I think that it is important, in the interests of balance and fairness, to note the position of the UK Government. In his letter to the committee on 4 September 2023, the Secretary of State for Levelling Up, Housing and Communities and Minister for Intergovernmental Relations, Michael Gove MP, repeated the UK Government’s commitment to the Sewel convention and stated that the UK Government has no plans to change its status. In the same letter, he set out examples of what he described as “successful” joint working.

The committee’s report is important and constructive, and I commend it to Parliament. I support the motion in the convener’s name.