The Independent Commission on the Constitutional Future of Wales (‘the Commission’) published its final report on 17 January 2024. This blog summarises recommendations made by the Commission with respect to intergovernmental relations and legislative consent and compares them to recent recommendations made by the Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee.
The Commission was set up by the Welsh Government and consisted of 11 members with a range of political views. It was co-chaired by Professor Laura McAllister, Professor of Public Policy and the Governance of Wales at Cardiff University, and the Rt. Revd. and Rt. Hon. Dr Rowan Williams, former Archbishop of Wales and Archbishop of Canterbury. The Commission was tasked with two objectives:
- to consider and develop options for fundamental reform of the constitutional structures of the United Kingdom, in which Wales remains an integral part
- to consider and develop all progressive principal options to strengthen Welsh democracy and deliver improvements for the people of Wales.
In its report, the Commission considered three options for the future governance of Wales: enhanced devolution, a federal structure, and an independent Wales. It also considered the scope to broaden the Welsh devolution settlement in a number of specific policy areas. The Commission made no recommendations about the three options for the future governance of Wales but set out the risks and opportunities of each and called for “a constructive debate focused on what is best for Wales, based on the best evidence and analysis available, so that the people of Wales can make an informed and thoughtful choice.”
The Commission’s report made ten recommendations:
- Three recommendations are about ways of strengthening Welsh democracy, for example through Senedd reform and civic education.
- Seven recommendations are about ‘protecting devolution’. As part of this strand, the Commission considered the state of intergovernmental relations, legislative consent, and ways of working between the Welsh Government and UK Government in a number of policy areas.
Intergovernmental relations and legislative consent have also been central themes in recent reports by the Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee. This blog summarises recommendations made by the Commission and the Committee on intergovernmental relations and legislative consent. For information on other parts of the Commission’s report, see a BBC article.
Intergovernmental Relations
The Commission’s report noted that even though citizens rarely use terms like ‘intergovernmental relations’ to refer to how governments interact, they value collaboration between governments. The report stated:
This holds true even if they dislike one of those governments: they exist, they are making decisions and they should work collaboratively.
In 2022, the UK Government and devolved governments agreed a new approach to intergovernmental relations. As part of this, they established a number of interministerial committees and groups that should facilitate regular interactions between the UK Government and the devolved governments. A SPICe blog gives more information on the new arrangements and the SPICe intergovernmental activity hub tracks activity by the intergovernmental groups and committees.
The Commission found that the new intergovernmental structure “creates a potentially coherent framework for shared governance” as long as, amongst other factors, it “develops to provide the continuity and stability that builds trust and shared understanding, so that it can sustain changes in personnel and become sufficiently robust to manage crises or disagreements when they arise.”
However, the Commission also noted a Welsh Government report published in July 2023, which stated that a number of issues in the implementation of the new approach had arisen, including poor communication, delays in convening groups, and “questionable commitment from some UK Ministers to the groups as forums for genuine engagement, which was not helped by the rapid turnover of UK Ministers”.
The Commission recommended:
Inter-governmental relations: The Welsh Government should propose to the governments of the UK, Scotland and Northern Ireland that the Westminster Parliament should legislate for intergovernmental mechanisms so as to secure a duty of co-operation and parity of esteem between the governments of the UK.
Intergovernmental relations are also a central theme in the Constitution, Europe, External Affairs and Culture Committee’s most recent report ‘How Devolution is Changing Post-EU’, published in October 2023. In this report, the Committee recommended that a new Memorandum of Understanding (MoU) and supplementary agreements between the UK Government and the Devolved Governments should be reached. The current MoU on devolution was last updated in 2013. The proposed new MoU should “address how devolution now works outside of the EU and based on a clear constitutional design including consideration of the principles of subsidiarity and proportionality.”
Legislative consent
According to the Sewel Convention, the UK Parliament will not normally legislate on devolved matters without the consent of the devolved legislatures. The Sewel Convention only applies to primary legislation, not to secondary legislation. You can find out more about the Sewel Convention and how it applies to Scotland in a SPICe factsheet ‘consent mechanisms in the Scottish Parliament’.
The Commission noted that the UK Parliament has passed legislation within scope of the convention without the consent of the Senedd 11 times since the EU exit referendum in 2016. It stated that as a result, the “value of the Sewel convention in protecting the powers of the devolved institutions is in doubt” and requires reinforcement. The Commission recommended:
Sewel convention: The Welsh Government should press the UK Government to present to the Westminster Parliament legislation to specify that the consent of the devolved institutions is required for any change to the devolved powers, except when required for reasons to be agreed between them, such as: international obligations, defence, national security or macroeconomic policy.
More specifically, the Commission recommended:
• Putting into statute that the consent of the devolved institutions is required as a matter of law for any of the following:
– Any change of the scope of devolved legislative or executive powers
– Any other change to the devolution settlement
– Any exercise of legislative power by the UK Parliament within devolved competence, other than changes strictly required to fulfil the UK’s international obligations, maintain its defence or national security, or its macroeconomic policy
– Any exercise of executive power by UK government ministers within devolved competence.
• Structuring the legislation enacting this in such a way that it could not readily be repealed or amended by a simple majority of the House of Commons without, at a minimum, significant reputational damage.
The operation of the Sewel Convention and the use of delegated powers by UK Ministers within devolved competence have also been highlighted in the Constitution, Europe, External Affairs and Culture Committee’s recent reports. In ‘The Impact of Brexit on Devolution’, published in September 2022, the Committee agreed that “the Sewel Convention is under strain following Brexit” and noted the view of some of its witnesses to the inquiry that without reform, “there is a risk of the convention, and the legislative consent process that puts Sewel into practice, collapsing altogether.”
In its subsequent ‘How Devolution is Changing Post-EU‘ report, published in October 2023, the Committee noted “that there is clearly a fundamental difference of viewpoint between the UK Government and all the devolved governments with regards to how the Sewel Convention has been operating since EU exit. It is also clear that this has led to a deterioration in relations between the UK Government and all the devolved Governments.” It further stated that “this level of disagreement on a fundamental constitutional matter is not sustainable particularly within the context of an increasing shared space at an intergovernmental level.”
In ‘How Devolution is Changing Post-EU‘, the Committee also noted the extent of primary legislation enacted at Westminster which includes delegated powers exercisable by UK Ministers within devolved legislative competence. Whereas the Welsh Commission has recommended that the Sewel Convention should apply to the exercise of such powers, the Committee has taken a different approach and recommended that a supplementary agreement to the updated MoU on the use of delegated powers within devolved competence should be reached.
The recommendations made by the Commission and the Committee raise similar concerns about the state of intergovernmental relations and the operation of legislative consent, although they differ in their views on how best to address the challenges. Given the concerns noted apply to governments and legislatures across the UK, interparliamentary working may one way of addressing them. In ‘How Devolution is Changing Post-EU‘, the Committee stated its intention to “pursue the issues in this report at an interparliamentary level through the Interparliamentary Forum”.
Annie Bosse, SPICe Research
“The Red Dragon flag of Wales” by simontcope is licensed under CC BY-SA 2.0.