 Thank you. We welcome to the 9th meeting of the Constitutional Europe Equity and Culture Committee in 2023. I cannot see my witnesses online. Good morning. I am now seeing our guest joining us online. Thank you for that. Good morning, and welcome. Our first agenda item is a decision to take businesss and Doesn't it do that? No you obviously didn't do that to me. The specialist said on Monday that Ed THAT's what it should look like for us in the Ming 2018 and the times it will do to us tomorrow. So that's what it's going to look like. Eat was breakfast to me this morning. Felly, mae'r coleg Mark Ruskell a'r panel yw Professor Nicola McEwen, Professor of Territorial Politics at the University of Edinburgh, Acash Pond, Senior Fellow Institute of Government, and Professor John Denham, Professorial Research Fellow at the Department of Politics and International Relations at the University of Southampton, and director of the Centre for English Identity and Politics. I warm welcome to you all. We have also received apologies from Professor Joe Hunt, Professor in law at Cardiff University. If I could perhaps open with—over the past few months, our inquiry works have identified fundamental concerns which need to be addressed in relation to how devolution is working post exit from Europe by the UK. We have seen tensions around the soil conventions, about balance of power, and where decision making now lies and scrutiny. I wonder if I could just ask a general question about your observations around those areas and if I could begin please with Professor McEwen. Marning, thank you very much for the invitation to come along. It feels to me that devolution may be at a turning point, although, as was always thought, turning points. You do not really know them until much later, much further down the line. There were already changes of foot before Brexit came along with the new devolution settlement making things a lot more complex, a lot more interdependent in terms of the split between devolved and reserved powers, so that was already in train. Brexit clearly exacerbated that, creating a completely new constitutional landscape within which devolution was framed. We have seen a variety of legislative and intergovernmental processes to try to adapt to moving the UK away from the EU regulatory umbrella. Some of those have been where Governments have worked together, some of those where they have been in competition. We are also seeing competitive nationalisms in place now. You could Government flex against muscle perhaps for a variety of reasons, pushing back at the boundaries of devolution from the outside, as the Scottish Government has sometimes pushed to extend those boundaries from the inside. All of those together, the cumulative effect of that suggests to me that we are at some sort of turning point. Good morning and thanks for the invitation to take part in this. I was hoping to be with you in Edinburgh, but I'm afraid that the train strike put paid to that, but I'm happy that I can take part virtually. I would agree with a lot of what Nicola has just said. A lot of aspects of devolution and the territorial constitution have been put into a degree of uncertainty. Things do feel in flux in various respects. The specific points that I would highlight are, first of all, what we have seen is post Brexit, to some extent as part of the wider UK Government narrative about taking back control to Westminster and so on. Initially, in the phrase take back control, Brexit was about taking back power from Brussels, but that has been part of a wider constitutional perspective that many people in the current Government at Westminster hold that is rooted in a traditional view of parliamentary sovereignty and has led to this greater willingness to take back powers from other institutions, for example in terms of relationship between Westminster and the courts, but also in terms of the relationship between Westminster and the devolved institutions. Hence, the willingness that we have seen to legislate without consent on a number of occasions is something that was largely unknown prior to 2016, and the Sewell convention, yes, was always a convention, was always known to be, or assumed to be legally unenforceable, but it was taken to be a much more binding political rule that Governments would abide by then. It now has been revealed to be. That is, I think, one big area, so this whole question of how devolution can be protected or potentially entrenched, I think, is a big area of debate. And then, I think, also, as Nicola has already alluded to, I think because of the withdrawal of EU law, we were left with this big zone of regulatory uncertainty and that's created a new need for greater co-operation between the Governments for new institutions and a new culture, frankly, of shared governance. I think that the UK as a whole and the UK Government in particular is sort of thumbling towards a new set of approaches for dealing with these issues. I think that those are probably the two big issues. I mean, there are others as well, I think, the relationship between executive and legislative power, which is an issue that I know the committee has taken an interest in. That has been destabilised somewhat and there has been a growing reliance on delegated powers and so on. That raises the issues of scrutiny and then I'm sure John Denham will be speaking about the place of England within the union, which, to some extent, Brexit has also shone a spotlight on, to a greater extent, than previously. There's a big set of issues that you're addressing in this inquiry, so I look forward to diving into some of those in more detail. Thank you very much, Mr Pwn. Can I bring in Professor John Denham, please? Thank you very much, chair, and somebody whose work is spent largely thinking about the politics of England and the governance of England and England's position within the union. It's a privilege to take part in this session, so thank you very much. I would make two broad points. Brexit ought to make us consider that the United Kingdom that joined the common market in the 1970s was entirely different from the United Kingdom that left the EU in 2020. The role of the state changed. We obviously had national devolution. British politics fought across the island of Britain was replaced much more clearly by different national political configurations. Just before the common market decision killed Brandon was worried about England being too dominant within the union, now we have a Government of the UK with a majority that relies almost entirely on England, the 156th majority, giving it a UK majority of 80. As Akash has mentioned, our ideas of parliamentary sovereignty have changed, not just in relation to the nations but also to the role of referenda and, for example, with the current EU legislation, the extent to which parliamentary sovereignty is now seen as an enabler of executive power in a way that would have been inconceivable even when I was an MP back in 2015. All of those changes. The second thing that we can say very clearly now is that if a United Kingdom Government had attempted to do Scottish and Welsh devolution at the turn of the century in a UK that was outside the EU, nobody would have ever heard of the Sewell convention. The idea that the Sewell convention would have been adequate to resolve the differences of competence is unbelievable. Of course, that is because we were in the EU, so vast areas of potentially contested domestic policy were off the agenda. Sewell obviously looked adequate, and it is not a surprise that it is since then that the problems have come to light. I think that the thought experiment, imagine that you wanted to do devolution at the end of the last century and the pressures, I am sure, would have been there to do that. We would have had to confront all of the issues about what a union might look like in the 21st century that had been pushed under the carpet. I think that where we are at the moment is a point where people are still very reluctant to have that debate about what a 21st century union might look like. I will take one example and I will stop at this point, but in the United Kingdom outside the European Union, the question of whether you can happily conflate the Government of England with the Government of the UK would have had to have been addressed explicitly, because it is the source of many of the difficulties that we have at the moment. From an English point of view, it is one of the reasons why England is so badly governed. There are issues for the union, but it is actually a problem for England itself. We would have had to confront those. I suppose that what I want to say to your very timely inquiry is that we actually have to have that discussion about a union in the 21st century, and the idea that some adjustments to inter-governmental relations are going to resolve really quite fundamental problems seems to me to be all very optimistic in the extreme. Okay, thank you for that. I'm going to move to questions from committee members, and can I invite Mr Cameron first, please? Thank you, convener, and welcome to the panel. If I could start with Professor Denham, please, just picking up on a point that you've just made, and also to thank you for your submission. I do think that it's something that we don't, in Scotland, think enough about, which is the English aspect of devolution. It's a very welcome submission. I was very struck by the comments that you made about the fact that your belief that tensions within the union stem from the conflation of the Government of England and the Government of the Union, and that there's been a failure to delineate between the two. I just would like to ask you, particularly with relation to inter-governmental relations, which I think is a major part of what we're looking at, what sort of system would you like to see in place, or what sort of system would be beneficial to try and mediate, agree, etc. between the component parts of the union in this drainage? Thank you very much for the question. I think that what's important is to actually separate out the governance structures of the UK and of England. If we look at England, for example, there is no civil service structure that coordinates the development and implementation of policy in England. English governmental policy is fragmented across union departments, some of which are England only, some of which are England and Wales, some of which are UK-wide, but in an uncoordinated fashion and in practice the UK treasury dictates much of English domestic policy as we saw in the budget yesterday. The first step is to create a machinery of government for England that focuses on how England's domestic policy is governed. As you do that, you can then become more explicit about what is an issue for England and where are the union-wide areas of concern. If you have a structure that does that, then when you talk about intra-governmental relations, certainly on most issues of domestic policy but also things probably like the internal market, you would explicitly identify the English issues and the union-wide issues. Where you can see that there's an English issue that is distinct perhaps from a Scottish issue, you then should have a union structure that enables you to say, how are we going to negotiate the best resolution to this difference of interest. At the moment, that process doesn't take place. This is not just about the formal structures of the Whitehall, it's really about the mindset of ministers and the mindset of civil servants. Even if their day job effectively is about delivery for England, imagine that that is the same as being a UK minister. It's that mindset that they bring to it that you govern as an English UK minister and then what Wales or Scotland or Northern Ireland might want is a secondary consideration that you somehow have to build into your processes. If you separated out the two, I think that that would lead to better governance for England, but I think that it would lead to a much more explicit discussion with the devolved nations and devolved Governments about potential conflicts of interest. Thank you for that. Can I turn to the other panellists on the subject of intergovernmental relations and get their thoughts on what sort of system should be in place, how we improve it, et cetera? Nicola, can I turn to you first, please? Yes, so I just want to follow up on John's contribution there, because I think that that's really interesting, because what we tend to see within Whitehall is that there will be a small team within Subjects Portfolio Departments that deals with devolution, and then the rest deals with what they think of as a UK issue. If you were to flip that on its head, as John suggests, I think that that's potentially really interesting. It would serve intergovernmental relations as well, because then it would make it easier to know when the UK Government was acting for England and in its capacity as effectively a Government for England, and when it was acting as the UK Government acting for the union, as it were. I think that those Whitehall machinery aspects are key to reforming and improving the way that intergovernmental relations take place. We have had a big reform of the machinery of intergovernmental relations. It's not yet fully implemented. Obviously, there's been quite a bit of political volatility since that reform was introduced that has affected. It's introduction to the Seneff actually did some research, a review of how it is being implemented. It seems to be a little patchy. I think that the interministerial groups that are meeting regularly are groups of officials and ministers that would have met regularly anyway, more in the sort of deftra space where there were already very good working relationships. Some others appear to be not yet up and running. There are still a long ways to go in terms of the process, but I said at the time and I still think that that process has potential, but I think that it's also about the culture and the practice and the attitudes that ministers bring from all of the administrations and the extent to which there is a willingness to genuinely work together. Thank you for that. In fact, interestingly, last week we had evidence from civil servants who talked about this interrelationship between the culture and the system that you set up and the view that, if you put the system in place, the culture will follow. I don't know if you agree with that, and I was going to bring in Akash Pawn on this. Nicola, do you have a comment on culture? Absolutely. I've done lots of research interviews and lots of research around this, and I've lost count of the amount of times I've heard that trees about the culture matter. I don't think that that's unrelated to process. A lot of the way that it was before, it was ad hoc, they often didn't meet. Whereas, if you have a system that institutionalise regular interaction, one hopes that the ministers get to know each other, that the officials get to know each other, that they get used to working together. One of the innovations of the new system was that it is designed to be less hierarchical. It is a little bit more of an equality of a relationship in the portfolio and the intermediary level. That should, in time, one hopes, help to build some of the trust that has been eroded over recent years. Akash, have you any comments on that or the wider question of intergovernmental relations? I agree that the conflation of English and UK functions in Westminster and Whitehall is the source of some of those problems. I'm less convinced than John that there's an easy solution to that when you've got a state that has evolved over many centuries. That is, at its heart, a kind of conflation of UK and English matters. In terms of big structural solutions, it's quite hard to fix that. However, I agree with the analysis of the problem. The way I think that it bleeds through into a suboptimal IGR system is, as I think that both other witnesses have referred to, that the UK Government finds it difficult to differentiate between when it's engaging with the devolved Administrations as the Government of the UK, in which case a hierarchical relationship and attitude, probably in some sense, is appropriate. When the Treasury is engaging with the devolved Administrations about spending allocations or when the Department for Trade is involving devolved Administrations to feed into international trade negotiations, in that situation, we are talking about a UK Government consulting with and taking into account views from subnational entities. However, in other areas where the functions are fully devolved, the four Governments should be coming together more on the basis of equals. The UK Government, because it doesn't formally differentiate between its English and UK functions, finds it hard to make that adjustment. It does vary quite a bit across departments. There's been some good progress around the development of common frameworks, for example, which are supposed to operate and be agreed on the basis of consensus between the four nations. However, in terms of the operation of the intergovernmental relations machinery, as Nicolaus just said, it still tends to be quite patchy and dependent on individual Ministers and Secretaries of State, the extent to which they prioritise engagement with the devolved bodies. You can see it just in terms of which interministerial groups have been meeting. The deaf one, the education one, the sports cabinet, the DCMS run have been meeting. In other areas, it seems like there's been no progress at all. Health and welfare and justice, for example, as far as I can see, have not even established an interministerial group there. I think that there's been progress made, but there's certainly further to go. I just wanted to follow up on those points around the culture that was raised with us last week. I suppose that we've been quite focused on this inquiry, looking at the formal consent mechanisms of steel. We noticed in evidence that you've submitted that there are now references to consultation entering into legislation. I'm wondering to what extent there are good examples of where Governments are working together on co-design, so going beyond just formal consent mechanisms, consultation or whatever form that might be, but in areas where there may actually be co-design or there has been co-design in the past. I'm not sure who would like to start with that, Akashia, on my screen at the moment, so maybe start with yourself and we'll work backwards. That's a really important question. It's easy to get focused on process and machinery and so on, but are there practical examples of good joint working? I think that there are some, even amidst relatively poor relationships at the high political level. You can see that there are now much more regular reports on intergovernmental relations. That is one of the ways in which things have improved following and, to some extent, before the intergovernmental relations review. We now have quarterly IGR reports and annual reports, and those, if you look at them, contain some quite interesting case studies. A few I noticed in some of the recent reports. The UK and Welsh Governments have worked together, it seems, on the establishment of a free port in Wales. Progress is being made with green free ports in Scotland as well. I believe that progress has been a bit slower, but that's quite an interesting area. Some of the city and growth deals have been essentially co-designed and co-funded and represent some good practice as well. There's been collaboration, for example, around the settlement of refugees from Ukraine, for example, the homes for Ukraine scheme, and, certainly, during Covid, there was a lot of good joint working. You can find a few areas like that that, hopefully, one could build upon. On the other hand, there's been less good practice around funding for the levelling up fund, the shared prosperity fund and the way that the UK Government has unrolled out those in a way that bypasses the devolved administrations is not ideal and has led to unhelpful duplication of functions between central and devolved Governments. It's not all a bleak picture in my view. John Lennon, can I bring you in as well? John Lennon, I just want to make the obvious observation that the examples that he gave were all with the possible exception of Ukraine refugees, examples of where the UK Government had decided on a priority that it wished to work with the devolved administration on. Free ports are, I don't think, whatever suggested by the Welsh Government or the Scottish Government. The desire to invest in city deals explicitly came from a UK Government view that it should not respect the boundaries of the devolution settlement. The areas where there has been co-operation should largely be understood where the UK Government wishes to extend its remit but actually needs in practice the engagement of the devolved administrations. You can argue whether that's a good thing or a bad thing, but I think that that is quite different from a normal practice of co-design that might cross boundaries in different ways. One obvious area where lots of these problems were revealed in practice was Covid and issues of different public health strategies in the different nations. It took a long, long time there for people to really understand even the different powers that existed in different nations, let alone why people were taking different approaches. Whilst I agree that those are signs that there are possible good working relationships, I think that there's a difference between ones that are essentially top down from the UK Government, which engage with the devolved administrations and areas where people running England, Wales and Scotland get together and say, we have a common problem, let us discuss the different strategies by which we can approach it. That's where I think that the culture and practice is more difficult because without the sort of whitehall reforms that I talked about, which I haven't think much easily than people think, you don't have a set of civil servants who think of themselves as responsible for England who can sit down with their colleagues from Wales and Scotland and say, what's our joint interest here? I guess that what Akash is describing there is more akin to how the UK Government would work with an English region, be it a mayoral set-up or a county council or regional body, in terms of directing a priority and then seeking involvement in that policy. Yes, I think that almost certainly the devolved administrations have more say than an English region would do because you have a constitutional authority of a significant nature and therefore the UK Government sensibly has to engage with it. If you look at the process of free ports in England, there's really been very little engagement with the local authority view of those free ports, it's been much more, and the local authority has put in bits, but I think that there's been, as far as I can see, much less negotiation about the nature of those free ports within England. England suffers from a different type of centralisation, though I would think that the examples that Akash has given are probably a much higher quality engagement with the Scottish and Welsh Governments over the nature of free ports than has actually happened internally within England. Okay, thanks. Yeah, I mean, I agree with a lot of what John has said there. A lot of the examples are, going back to the point that I made originally, a reflection of the UK Government perhaps being more willing to engage in areas that are devolved, seeing itself both as the UK Government acting in reserve matters, but legitimately acting for the whole of the UK on all matters and recognising the need to work with the devolved institutions on that. However, you asked about co-design, and I think that it does come a bit later more in terms of implementation and rolling out rather than the original ideas generation. I don't think that we're really seeing that with the exception of common frameworks. The frameworks programme was a positive example of co-design, which is very much a four administration project and led, obviously, by officials rather than the ministers. However, even there, there was no a priori reason why common frameworks only had to be in areas of devolved competence. There are lots of areas of repatriated EU law, that were in reserved areas, that intersected with devolved responsibilities. It could have been that you developed common frameworks and common approaches in those areas, too, but they didn't. That was a decision that was taken at the beginning that this was about areas that were devolved. It gets to the point about perhaps a different approach to devolution and perhaps created by the challenges of Brexit. I will make one additional point. Akesh mentioned the increased transparency. That is right. I agree with that. One of the positives, particularly from the UK Government and the Welsh Government, is that we have seen an increase in the reporting of what takes place in the inter-governmental arena. However, the quarterly reports are interesting, but they are a bit glossy, and you could be forgiven for thinking that everything was hunky-dory if you just took them at their face value. I think that it masks some of the issues underlying. However, the one thing that I did want to make is that the Scottish Government and the agreement that the Scottish Government had with the Scottish Parliament was pioneering in the sense that it pushed the issue of transparency up the agenda. It seems to have fallen away a bit in the Scottish Government. I am not really seeing the annual report. I haven't seen one for a number of years, so it's not really an annual report. I am not quite sure where the relationship is there with the Parliament in terms of scrutiny. That's very useful. It brings me on to the next topic that I wanted to ask you about, which is about common frameworks and your impressions about how those are working at the moment. We had some scrutiny this week in Parliament on the Waste and Resources common framework, and it was very interesting listening to a civil servant of the Scottish Government who was explaining that this is a very evidence-based approach. I wouldn't say that it is completely political or politics-free, but it feels like a very iterative framework that is considering evidence on issues such as exemptions around deposit return or single-use plastics. I wonder what your overall impressions are of common frameworks right now, whether there is enough transparency there and whether common frameworks are going to be put under pressure by individual issues that are coming out of the internal market act or, indeed, the retained EU law bill. Shall we start with yourself again? Yes, sure. I think that there has been a lot of positive progress with common frameworks developments. I think that there is over 30 of them published. A lot of them are still listed as provisional, so they have not been fully finalised and implemented, but I think that they are because they are quite technical, civil service-driven frameworks, they are serving to facilitate a lot of interaction in a slightly more structured way between officials working in these quite technical regulatory areas where there is a need for, as you say, information sharing, evidence gathering, analysis of whether rules brought in in one part of the UK might have negative effects elsewhere. Those are complex questions that will require quite a lot of on-going attention, so it is not entirely clear yet how they are going to interact with the UK internal market act going forward. The idea of common frameworks, as we have already discussed, was that, through agreement and consensus, divergence would be managed and common approaches would hopefully be the default, but, by agreement and notification, the four nations might take different approaches over time. Obviously, the UK internal market act cut across the whole common frameworks programme in creating the market access principles that limit the scope for effective divergence. If a product or service is able to be provided to consumers in one part of the UK, then all other parts of the UK have to accept it within their market. That is the kind of hard law that has been brought in that cuts across the common frameworks programme. We have seen one exclusion agreed so far, I believe, to the UK internal market act on single-use plastics. There is potential for that mechanism to be used more often. That comes down to the political will, willingness of central government and ministers at Westminster to allow greater divergence following agreement through the common frameworks process. The interesting thing about the frameworks was the importance that particularly the devolved Governments attach to the principles that underlay the frameworks programme, and particularly the principle of acknowledging policy divergence while enabling the functioning of the UK internal markets. I always thought that the principles were sufficiently ambiguous to get the players to work together, but we are always going to be difficult to operate in practice. I think that we are probably starting to see that now. It is difficult to tell, because although there is transparency around what the frameworks are, it is much more difficult to see how they are operating in practice. They did evolve. In the outset, there was an expectation that those would lead to common regulatory approaches in the sense, whereas they are not that now. In the main, they are more about ways of working, ways of engagement. As I said, there has been an attempt to sort of depoliticise those and make them quite technical, but the technical can very quickly become very political. With single-use plastics exemption, that was interesting. It revealed that and it developed a process for agreeing to exemptions that could protect the authority of the devolved institutions to make public policy that had the same scope as it would have had prior to the internal market act, but it slowed the process. Even where that mechanism works, it slows the pace of policy development and implementation. That is in effect on devolution. We are hearing the probability that a similar exemption might not be permitted around deposit return schemes. It is not clear how much that mechanism will, in fact, be utilised or permitted. There is a dispute resolution process within each framework, but we are talking time in terms of policy development and implementation. The transparency issue is key here. John, do you have any reflections on what you are doing on this one? Nicola Nacash knows far more about the current operation than I do, but if I go back to my thought experiment about doing devolution if the UK was outside the EU and you were starting from scratch, some of the differences you might see would be a more strategic approach to identifying the issues that needed to be dealt with through a common framework and a way that had political buy-in. Secondly, there is very much a four nations discussion about those issues in which England had its distinct voice. Thirdly, some sort of UK-wide resolution or the dispute resolution procedure where it was not possible to agree, but probably operated in a way that incentivised people to find an agreement rather than to find a disagreement. In other words, avoiding the situation of a UK Government trump card always being played at the end of the discussions. You can see how some of the discussions might work, but the way it would have been set up if you were trying to do that 20 years ago, knowing that all those areas that had been in the EU, which are now going to be disputed, would be much more open, politically bought-in and strategic than it seems to be at the moment. Thank you very much. I thought I would start with Professor Nicola McEwen, but it is a question for the entire panel. I wonder to what extent you feel the Scottish Parliament's legislative and scrutiny function has been underutilised as a result of the powers retained by Scottish ministers in a post-Brexit environment? To what extent do you feel that the Scottish Parliament's role is or is not evolving in a post-Brexit environment and its interactions with Scottish ministers? If I understood the question correctly, I think that the Scottish ministers and ministers in all the Administrations have, mostly through UK legislation, been given enormous powers to act in secondary legislation to do things at pace. We have seen that in previous legislation, we are seeing it now with the rule legislation. I am sure that we will come on to talk about that because it has the potential to have an enormous impact on devolution and on regulatory standards, but it is another example of where things are being done at pace without sufficient scrutiny. That is not a criticism of the scrutiny mechanisms in the Scottish Parliament. It is a feature of time and the process and the tools that you are equipped with to engage in scrutiny sufficiently. That is an issue in terms of continuity legislation. That is one that originated within the Scottish Parliament. That, too, has given Scottish ministers a lot of power that is not subject to the usual scrutiny processes. I am not sure yet how that is being exercised, but there are clearly capacity issues within the Scottish Parliament that might hamper your ability to scrutinise those processes effectively. There are also capacity issues in the Scottish Government that might inhibit their ability to do the things that they are empowered to do. Thanks for that. That is very helpful. Just to pick up on your last point, do you think that it is largely down to capacity issues, or is there institutional mechanism reform that might be helpful in that regard, in addition to capacity? That is a really good question. I think that it is probably a bit of both. Personally, I think that there should be more MSPs, but that is probably not going to fly. I think that you are all stretched very thinly. I am not an advocate of a revising chamber in the Scottish Parliament if that is what you were hinting at. I am not deeply opposed to it either. I just think that there are other ways that are perhaps more democratically accountable. I would like to see an enhanced committee system. I think that a lot of that is about resource, but you also do very good jobs. I am sure that comment was for the committee as a whole. I cannot see if anyone else on the panel wants to come in. I am not going to comment on how well the Scottish Parliament works, so that is way outside my expertise. I would like to comment on how the Scottish Parliament does scrutiny, but what I would add is that there is clearly a growing reliance on delegated legislation in many areas that Nicolaus has mentioned. I do not think that the UK Parliament necessarily, even with its much greater capacity, has a much greater number of members across two houses and does a particularly forensic job of scrutinising all of it. It is not just about capacity, it is about whether the often very technical pieces of legislation, but within which there may be some important regulatory changes, are the likely focus of attention for parliamentarians. They are often not very politically salient, so they are not the kind of issues that necessarily get members of Parliament, press coverage and so on. I think that a lot of this delegated legislation does sail underneath the radar, so to speak. There are committees in Westminster that try to flag pieces of statutory instruments and so on of particular constitutional significance. The House of Lords Delegated Hours Committee does a good job in that respect, but there is just a huge, huge mass of legislation that has insufficient attention paid to in any part of the UK, in my view. It is interesting to hear some of your views. Professor Denham, I do not want to put words in your mouth, but I think that you are talking about how adjustment to the mechanisms for communications between the various Governments may not be enough to solve some of those problems. Certainly last week, we heard from former civil servants who were commenting on some of the causes of tension at the moment. We heard from Professor Jim Gallacher, director general or former director general for devolution at the Cabinet Office, who told us that the UK Internal Market Act was a breach of the sole convention. I wonder if any of you have a view on whether we should worry about that or whether the sole convention is still real and functional. I will repeat what I said earlier, so very briefly. We are talking about devolution outside the EU. Had we attempted to do devolution when the UK was already outside the EU, nobody would have invented the sole convention, because nobody would have believed that something as inadequate, flexible or ambiguous as a sole would have been adequate for resolving the disputes that would necessarily arise in UK domestic policy outside of the EU. In that sense, unless somebody thinks that I am wrong and everybody says that, no, that would be fine, I do not believe that we would have invented the sole convention. The idea that we can now make sole work in the context that we are in is mistaken. It does not mean that you cannot make it better, but you actually have to go back and say, let us suppose that we have done the whole devolution thing already outside the EU, we would not have invented the sole convention, we would have had to address the different national interests that exist within the United Kingdom, we would have had to address the nature of the United Kingdom itself. Because we have done it the other way round, we have come out of the EU, but we have an inheritance of an old devolution settlement, the temptation is to say, surely we can just make the devolution settlement work a bit better. That seems to me to be illogical, it is the natural political response. People shy away for all sorts of reasons from this more fundamental nature of the debates about a 21st century union, but ultimately I would say to the committee that we have to confront that question. Otherwise, it is not necessary that the union will fall apart, there are all sorts of issues involved in that, but if we want the union to be a happy, successful place in which we have got the right powers at the right level to tackle the many problems that we face, we are going to have to have these more fundamental discussions about the future of the union. That is absolutely what I believe. Professor McEwn, do you wish to come in? Yes, please. The sole convention was the way to combine devolution with Westminster parliamentary sovereignty. It was Westminster's self-denying ordinance in that, yes, it remained the sovereign Parliament, but it would not act in that way in those areas that were devolved without the consent of the devolved legislatures. That clearly only holds and only works so long as the practice is maintained. What we have seen in the past few years is that, in Brexit-related legislation at least, it has not been maintained. After the first time, it became easier to set aside the withholding of consent from the devolved institutions, and we have seen it on a number of occasions now. I think that that erodes the authority of the devolved legislatures. I read the excellent paper that your adviser, Chris McOrkindale, provided for you, which set out clearly the array and bewildering array of different consent mechanisms that we have in place now. That is a problem and a challenge. Sometimes there is a sort of ambiguity around what consent means now from something that looks more like consultation or seeking to get consent and then, more strongly, something that expects to secure that consent before acting, but none of them, even when Sewell was working in practice, amount to the kind of veto power that you might see in a federation. None of them are giving constitutional protection to devolution and devolved authority to do that. You would have to address parliamentary sovereignty. The Brain Commission report is interesting here. There is a recognition of the problem and an attempt to resolve it, although it is not going as far as changing parliamentary sovereignty, but it relies—at least, my reading of it—very heavily on the much bigger reform of changing the House of Lords and making it the protector of the devolution settlements within the UK Parliament. I am not sure whether that will happen anytime soon. It is such a big change. Short of that, there might need to be other ways to offer at least some procedural protections, if not constitutional ones. The UK Government would argue that it still respect and want to preserve the Sewell convention and that the cases where they have legislated without consent have all been linked to Brexit. Brexit is a not-normal situation and the Sewell convention was always framed in terms of what should normally and not normally happen. That is the line that has been taken. It is quite a tenuous argument. That argument makes some sense for perhaps the original EU withdrawal act and the EU withdrawal agreement act, where there was a need to pass the legislation, for example, to avoid no-deal Brexit at the end of the process, and the Government felt that it had no alternative. However, certainly with some of the other legislation that we have seen passed without consent, most, I would argue, egregiously the UK Internal Markets Act, there has just been a policy decision recently to push through legislation without consent the establishment of the UK ministers spending powers, the financial assistance powers within the UK Internal Markets Act. That was not necessitated by Brexit. That was just a decision that the UK Government took. There has been a weakening of the protection to devolved autonomy that Sewell provides, and it has led to lots of different proposals for what one might do about it. We have produced a report at the Institute for Government that you have seen making some suggestions for procedural reforms, at least to give the consent process more visibility, more transparency, to hold ministers more to account for decisions that they take to proceed without consent. Obviously, there are options to go further than that in terms of trying to give Sewell some form of legal entrenchment. That is very difficult to do within a framework of parliamentary sovereignty, but it is good that that conversation is being had here in Scotland. Certainly, the independent commission on the constitutional future of Wales is concerned about the issue, as has been the Welsh Government for several years. It is an important issue for the committee to consider. The other issue that came to the fore in our evidence last week was the issue of the retained EU law bill. We had Philip Rycroft, former permanent secretary at the department of exerting the EU, who said that the rule bill, frankly, words almost fail me in respect of this bill. It seems to me that it is setting out to do the impossible. It is an extraordinary piece of legislation and the one that we shall see very little benefit from. Can you comment on how you feel going forward in a world with a rule bill that the relationship has changed and what can be done to overcome some of the problems that some witnesses have had? I have not read the evidence from last week yet. I will read it with interest. I expect that I would share many of the sentiments. One thing that interests me is that all the other things that we have been talking about, common frameworks, UK internal market act, all of them are driven by the same concern. A concern is to ensure that leaving the European Union did not inadvertently create barriers to trade and mobility within the United Kingdom. To some extent, all of the Government supported that principle, if not always the operation of it. The rule bill is motivated by completely different concerns. It is motivated by sovereignty. It is about ending the status and supremacy of the EU law. It will potentially have enormous implications for devolution, potentially for regulatory standards. There is a deregulatory assumption bill into the bill in that burdens cannot increase, they can stay the same or they can decrease, but there are enormous challenges on the devolved institutions. There are enormous challenges on Whitehall. There are almost 4,000 pieces of legislation that have been identified so far on the rule dashboard. Around half of those are in the sort of defra-type space, which is heavily devolved. We can expect that there will be hundreds, at least, of pieces of legislation that are devolved. It is really complex, because sometimes you get bits of bills that are devolved and bits that are not. How much of a sea will the Scottish Government, let alone the Scottish Parliament, have over what happens to those regulations when everyone is having to act at pace to get this done by the end of this year? There is no sunset for the devolved institutions. Things may fall accidentally. It is creating a lot of uncertainty and a lot of concern, so the evidence that was presented to the committee from the Law Society and the Faculty of Advocates has a lot of concerns among the legal community. It is difficult to know what to do about that other than to continue to raise the issues and to continue to raise the devolution dimension there, because there is no capacity to identify all the pieces of legislation and let alone know what to do with them in the time available. I think that it has the potential to cut across a lot of the other things that we have already been talking about. I think that the bill illustrates the difficulty of talking about Westminster sovereignty as a given, that we understand what Westminster sovereignty is, and it is there. Westminster sovereignty always relied on practice, as well as the doctrine of sovereignty, and that required respect for Parliament and its processes. There is no model of Westminster sovereignty in modern history, which provides ministers with the rights effectively to scrap or rewrite legislation without it going before Parliament. It really is in an unprecedented situation. It illustrates the extent to which a simple understanding of Westminster sovereignty is now being interpreted by a particular Government as a right to remove Parliament from the process of making the laws under which we are governed. Even if we did not have the capacity issues and the devolution issues that Nicolae has mentioned, it is quite impossible to justify the approach to undertaking legislation. In terms of the wider constitution debate, it highlights the fact that there is not a common and shared understanding of what Westminster sovereignty means. What follows from that is that we do not have to keep blocking our thoughts of our constitutional change by saying that we cannot do that because of the sovereignty of Westminster. There are all sorts of models of sovereignty that are available to us that would be democratic and enable the union to function. In a sense, this appalling piece of legislation illustrates why we cannot simply go on saying that we have Westminster sovereignty and we cannot do anything about it. We can reimagine it if we wish to do so. I do not have anything to add on that particular issue. Professor Denham, if I could turn to you first, I read your paper on setting up an English Parliament with great interest, because I always reflect back to the West Lothian question, and I appreciate that you were in government when Scotland achieved its devolution. I am interested in your thoughts based on your paper on the improvements that an English Parliament could mean for the currently devolved nations. I hope that my proposal was not initially for a separate English Parliament, but for a form of English votes for English laws within Westminster. I do not think that the English would vote to set up another set of politicians at any time in the conceivable future. The practical effect of requiring MPs in England to look at English domestic legislation as a national question rather than as a subset of UK policy, if accompanied by the establishment of the machinery of English national government at civil service level and the proper reflection of that in ministerial responsibilities, I think would have taken together the process of disaggregating English domestic issues from the union as a whole and therefore enabling political and governmental debate across the United Kingdom to focus on those issues that we share in common and where we would wish to work together. It is a process of unpicking the confusion, the conflation of England and the UK, which I think would be very valuable indeed. Historically, and you will be aware of this, I am sure, what many people including myself called Anglo-centric British Unionism, which is a long-standing English view of the union in which the union is really England writ large. There has always been an asymmetric view where Scotland and Wales had a different view of what the union was about and Northern Ireland is another one again. Part of the political challenge is, in a sense, to challenge that lazy Anglo-centric view of the union, which is all too common in the conduct of politics and government and the media and academia within England. The big benefit is that, by having a clearer focus on England and a clearer distinction between English interests and union-wide interests, we would both get better union-wide policy that was more respectful of the different interests of different nations. England itself would come out with a clearer sense of its interests and its own good governance. Would any of the other panel members like to comment on that? I would agree that there is, I do not think, much desire among the English public for a fully separate English Parliament and English administration, so I certainly do not think that we are going to end up with any sort of federal settlement in the near or indeed medium term. I think that there is a case, as John has laid out, for resurrecting some form of English votes for English laws. It was tried in a barely low-key, watered-down form that did not really make much difference and was barely noticed either inside or outside Westminster. If, in future, we end up with a Parliament where there is a different majority in England, compared to across the UK as a whole, I think that that issue—the West Lodian question, as you have referred to—could become relevant again. Then, some version of what John has suggested might well make sense, along with that reflection within Governments of which functions are England-only, which are UK-wide. I agree with quite a lot of that. I do think that the primary problem facing England is that less English interests are subsumed into the state and more that England is over-centralised and that that leads to poor Governments, poor policy decisions and a centre that is overburdened and trying to do too much and doing it poorly as a result. I know that John would agree with that as well. My primary concern is that, if one were to end up with a separate English Government and Parliament, would that be more likely or less likely to solve the problem of over-centralisation within England? I have a view that it might worsen the problem because then that those new England-wide institutions would be inclined to hoard power at the expensive regions, mayors, local government and so on within England. I know that John would probably take a different view. You have not come here to talk about devolution within England, but briefly it is the absence of a coherent machinery of government for England, which makes devolution within England so difficult because there is no joining up between Government departments at a whitehall level. All we see of devolution is tightly controlled by the Treasury and does not join up different Government departments. I will take a different view of the dynamics of this. I see coherent English Government good for the union but also essential to unlocking devolution within England. We shall see what happens in the years ahead. If I may, we took evidence two weeks ago from the Constitution Committee and from the House of Lords, and one of the issues that was brought up was the use of secondary legislation. It has been touched upon in my colleague Mr Golden's question. I am interested to hear about the thoughts on Baroness Drake's statement that she said that it is constitutionally dubious to begin to use secondary legislation more and more to intervene in devolved legislation. Then she went on to say that, where secondary legislation is used, there should still be consent sought. We have already had a bit of a discussion about consent and what that means. I would like to hear the panel's views on that, perhaps start with Professor McEwan. I agree with her. Again, I have not read her evidence to your committee and will do so with interest, but from the extract that you read out, I think that that is absolutely right. Even when Sewell was working, there was always a bit of ambiguity about whether it extended in Scotland to secondary legislation. It did in Wales, but it was more ambiguous in Scotland. That is perhaps worth highlighting and pushing on that as a committee in light. There is an issue of whether there should be this much secondary legislation anyway. I do not think that there should be, but there is. Given that context, it may be worth pushing, as a committee, to ensure that a version of Sewell of consent that works for you is part of that process, because it absolutely should be subject to scrutiny. That is perhaps in the rule bill process because of the capacity issues. It may well be the case that the UK Government takes a lot of this on behalf of the devolved institutions, given the time constraints that are available. I know that there is a lot of intergovernmental working around that, but there is an issue of whether the Government is consent, and then there is a whole other issue of whether Parliament gets a role in that. I think that Parliament absolutely should get a role in that for the purposes of democratic accountability. That is very helpful. Would anyone else like to comment? It is hard to argue with the idea that consent should be the expectation for secondary legislation, at least as much as it is for primary legislation, where UK Government ministers are taking decisions that relate to devolved competences. The point has been well made by witnesses today, and some of the papers produced for the committee that we have the growth of different kinds of consent and consult mechanisms that are established in law. Some are just by convention, some are binding consent requirements, others are just you must seek consent and then within a month the Government at Westminster can proceed regardless, which is definitely not ideal to have this quite important constitutional principle interpreted in such different ways in different legislation. Anything that can be done to bring a bit more consistency and clarity to that, I think, would be helpful. I want to reflect on the conversation that we have had today, the principle of the top-down versus co-design way of government that has come across today and the need to change post-Brexit because what was a convention is now being swept under the carpet, so it is thinking about both short-term what are the solutions to try and change that and then longer-term what would be the solutions. I am interested, because underpinning that, there is also a centralisation issue, which comes out in some of the evidence that we have had. Professor Denham, you have talked about the issue of accountability in an English context and in terms of ministers, but is there not also an interesting issue about centralisation? Certainly looking at the House of Lords, the vast majority of Lords are London-based and we have similar tensions in Scotland about centralisation. Is there an issue about that moving away from what we have now, which Jim Gallacher nicely summed up was constitutional carelessness last week and refreshing how accountability works in the UK, in the House of Commons, the accountability we have and what would be your short-term priorities and then maybe more longer term. I will kick off with you first of all. John Denham and I will work around the other witnesses. Yes, thank you very much indeed. It is a very good question. My short-term measures, i.e. within the first term of a Westminster Parliament, would undoubtedly to begin this process of delineating the Government of England from the government structures of the United Kingdom and beginning to move towards more of a four nations approach to collaboration on union-wide issues and maybe to begin to institute some of the changes in the House of Commons that I have outlined. At the same time, I agree on that, to bring about a very significant devolution of power within England. One of the things that I think is really important is that local government actually assumes its own constitutional autonomy and protection within certainly the way in which England is governed. I think that there is a very interesting question and it is probably the sort of thing that should be discussed across the union if you wanted to give a tier of local government constitutional autonomy and protection in England and, for example, looking at how it is resourced, its rights to raise finance, things of that sort. Is that a principle for England? Is that a principle that would want to see right across the United Kingdom? I could not legislate for it right across the United Kingdom without undoing the devolution settlement, but it seems to me that that is a very useful constitutional debate that ought to be had right across the United Kingdom and not simply be one in which we say that we are only interested in one place. Actually doing something about it might require volunteerism on behalf of devolved nations. It might have different stages, but if I would highlight that as the sort of issue that, in the longer term, we should properly be discussing, I think that that would have been an important one. I think that you are absolutely right that the state has become very, very centralised, and it is obviously particularly true in England. The biggest evolutions in deals in England, which were announced yesterday, are nowhere near the powers of Hampshire County Council that I was elected to in 1981. There has been an extraordinary centralisation of power and also a removal of whole areas of service provision from democratic accountability. I think that that is a debate that is a devolved issue but is properly the sort of thing that in a working United Kingdom, where we wanted to make sure that we had power at the right level right across the United Kingdom, we should also be having on a union-wide level. Okay, thank you. Akash, do you have a view on how we embed a more decentralist approach moving decision-making out of Whitehall towards local communities, as well as to our devolved parliaments and institutions? Yes, as I said a few minutes ago, I absolutely think that overcentralisation is perhaps the essential problem facing England. I think that it leads to poorer governance. It contributes to continued regional inequality. It means that we don't get the benefits of devolution in terms of scope for tailoring policy and to local needs and testing out new approaches, the sort of policy-laboratory idea, and you end up with an essential government trying to do too much that it's not the best place to do. I think that within England there's been some progress made towards decentralisation. It doesn't go as far as I would like yet, but I think that the announcements yesterday for Greater Manchester and West Midlands are quite a potentially transformational step in terms of freeing those regions to control public spending on some quite important areas within their regions. I would like to see a continuation and extension of that process within England, devolution to cities, city regions and county councils. That's something that both parties are committed to. It seems so. I expect that process will continue. Within Scotland, that's a matter for the Scottish Parliament. I wouldn't be in favour of some of the attempts by the UK Government to bypass the devolved institutions in Edinburgh and negotiate funding arrangements directly with local councils in Scotland and Wales and Northern Ireland. I don't think that that's constitutionally appropriate, frankly. I think that it's a matter for the Scottish Parliament and Scottish Government, but my impression is that Scotland has become too centralised and that too doesn't lead to the best policy outcome. It's an area where I would certainly like to see future Scottish Government decentralising to local councils as well. That's really interesting in terms of both the revenue-raising at a local level, what powers they have. I was also thinking about the cross-UK issues, where, if you look at energy production, for example, there are intergovernmental issues, which we don't see addressed. The UK Government sets the legislative framework and the management framework in terms of the grid. The Scottish Parliament and the devolved parliaments have significant powers over renewables. At the local level, it's the councils that have to get on and do the heavy lifting. There are interesting issues about intergovernmental work that shouldn't just be seen as parliamentary. In terms of the comments that you made earlier, Nicola McEwen, do you have a short term and a longer term issue of what needs to be fixed? You've mentioned Sule a lot, and that's been a lot of our evidence. Do you have priorities for the short-term fix, and then the longer-term issues that need to be addressed? Sule would be one of them. I think that there are some things that can be done in the short-term and then some things echoing John Denham's point that would require much bigger longer-term reforms and restructuring of the union state. On the exchange that you just had with Akash, one of the things that I wanted to note was the idea of shared rule that we've talked a lot about over the past few years, but I think that it's sometimes misunderstood because it's come to mean setting up systems and processes over areas that are devolved. However, what it means in political science terms is that mechanisms are in place for where devolved Governments can help to shape and influence those areas such as energy policy, where they don't necessarily have the competence but are affected by it. It's at the intersection of what's devolved and what's reserved, and we just don't have that or we don't have it much. We have it a little bit in some of the interministerial groups around trade, for example, but I'd like to see a lot more of that in the areas that are reserved, but that affects things that are devolved, so more of that joint working in that space in the way that it has been focused on joint working in devolved areas. That's at the UK devolved intergovernmental space, but I think that there is a lot to be done also in the Scottish local government intergovernmental space, because some of the dissatisfaction and the grievances that the devolved Governments have in the Scottish Government has in its relationship with the UK Government, you see some similar dynamics within Scottish Government local government relationships within Scotland as well. That's an area that I would like to see the Parliament and the Government address in the years to come, so about empowering local authorities. I think that the fiscal capacity issues are important that you already mentioned, and that's not something that requires action on the part of the UK Government, it's something that can be done within Scotland. I'd picked that up as well from the Welsh constitutional work that's going on, which is not just about more powers for the Welsh Government than changing the Parliament, but also relationships with local government. That centralisation agenda that we kicked off with John Denham today feels quite a powerful one in terms of how Governments work, and the people at the centre, that's their view of the world, rather than a more consultative approach. That's really helpful, thank you very much. I think that the question of energy is a fascinating one, because it does illustrate the extent to which we've often separated the debate between devolution in terms of powers and autonomy on the debate about effective public policy. Energy is clearly an issue where, from a UK point of view, we need powers operated coherently and collaboratively at numerous different levels for the UK Government internationally at the level of nations and the level of localities. Unless the right powers are both at the right levels, but secondly, we have ways of having collaboration over those operations, we will never have the optimum output. It has been striking over the last 20 years how almost the debate about devolution of powers or not has become separated from the debate about the achievement of effective Government outcomes. I think that the example of energy is a very, very good one of those, which could be extended to a number of other major policy areas. I think about things like community wealth building, municipal ownership of energy, but also how the grid works. There's something about best practice, but also potentially about whether the actual framework suits different parts of the UK both in a subnational sense but also geographically different opportunities. I think that's something that a more cross-government at a UK devolved nations but also local level would actually, in terms of tackling the climate emergency, is something that doesn't feel to have the political support that really could make the big difference that we need. That's where the combination of culture and practice come in, because collaboration is partly about how people work together, as well as the formal powers for which they are responsible. If you don't get that right, the formal distribution of powers won't produce the outcomes that we want. I wonder if I could just ask a final question in relation to some of the aspects of what we talked about. The importance of inter-governmental relationships but also the direction of the Government in Westminster. In terms of rule, we haven't been able to find a single voice in favour of rule. Anyone who thinks that it's a good idea, except from a small cohort within the ruling Government in Westminster, at the moment. Obviously, there are genuine concerns out there constitutionally. We don't know what the impact of the new Windsor agreement will have on the relationships with Northern Ireland, which again are in a completely different position to Scotland and Wales at the moment. Where do you think that the pressure will come to make a change in this? Is it absolutely about personalities and relationships? Will it take a change of government? Or do you think that there is a mechanism to look into John McFall's concerns that we are sleepwalking into executive power in the UK possibly? Where do you think that the political pressure and the civic pressure will come as those tensions continue over time? I think that the civic pressure, if it comes, will come largely around environmental standards and labour standards and protections being removed. There is already a very big movement of concern about the dumping of sewage in rivers and seas. It has become a major public issue, including in what would be regarded as a whole swath of marginal constituencies. It is largely taking place outside formal party politics. It is very much grassroots mobilisation. You can see that, if rule leads to clear indications of other standards—this is happening within the existing regulations—it could become politically very difficult for the Government between now and the general election. We have a Government now, after some turmoil, which seems anxious to try to close down as many areas of civic contention as possible. That is where the issue is likely to come to a head. If somebody is interested in constitutional issues, you would love to say that it was about the principle of Henry VIII's clauses and the executive rule. I am not sure that it is directly going to come up in that way. I think that it is as people become aware of the potential practical consequences that you are likely to see a reaction. That is, from my perspective, here in England at least. I agree with that. I think that the retained EU law bill is of symbolic importance to the Government and a certain section of the Conservative party to be seen to weeping away the last vestiges of EU law from the UK statute brackets. It has that symbolic sense of finishing the job. As you said, it is hard to find many people pointing to the specific practical benefits that it will bring about. There is a wing of the Conservative party and its coalition of support that would probably favour radical deregulation of environmental and labour standards and other things. However, I do not think that that is where the majority of its support lies. That is why most people voted for Brexit in England. I suspect that, if it leads to watering down of some of the important standards in ways that people were not expecting, we will start to see the resistance that John has just spoken about. In the meantime, it will be a time-consuming, complex process for Governments and the Governments of the UK in general, for I am not entirely sure what benefit. I agree with all of that. If the rule bill is purely about the symbolism, if it keeps everything the same, at worst it is a drain on resource and a swallowing up of time that could have been spent on other things but might in the end not change regulatory standards. However, the risk is that A, it does change standards without efficient scrutiny and B, it changes them by accident because there was not the time or the awareness of regulations that were in place within the time that is available to take the actions that the rule bill allows. I fear the latter, but it is complex and changing so much that it is difficult to politicise in a way that raises that awareness. It will take a political party or a movement to channel that, to get to the point of the sewage in the waters, to regulatory change in Westminster or wherever, to turn that into a bigger political issue. I am not sure that we are quite connecting the dots yet. I thank all of the panel for their attendance this morning. It will help us indeed in our inquiry going forward. I am minded of someone asking for directions and being told that I would not start from here. We are all feeling about this at the moment, but thank you very much for your attendance. On that note, I am going to move into private session for our final agenda items.