Strengthening the UK union

On 14 March 2024, the House of Lords is due to debate the following motion:

Lord McInnes of Kilwinning (Conservative) to move that this House takes note of the case for strengthening and safeguarding the union of the United Kingdom.

1. Structure of the union and devolved settlements

1.1 Evolution of the union and devolution settlements

The current legislative structure of the union has evolved over hundreds of years. Wales was brought under English law by legislation passed by Henry VIII in 1536.^[1] The English and Scottish Parliaments passed the Acts of Union in 1707, creating the United Kingdom of Great Britain.^[2] The Union with Ireland Act 1800 and similar legislation passed in Ireland abolished the Irish Parliament and provided that Great Britain and Ireland would be united into one kingdom.^[3]The secession of what was initially known as the Irish Free State followed the Anglo-Irish Treaty of 1921.^[4]

Within the overarching constitutional framework of the union, there is also a varying pattern of devolution of powers in different parts of the union. This devolution of administrative, executive and legislative powers has taken various forms in the constituent parts of the UK over time.^[5] The modern legislative frameworks for devolution in Scotland, Wales and Northern Ireland were set out in the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998 respectively. All three acts were passed under the Labour government of Tony Blair and have subsequently been amended, reflecting further changes to the devolved settlement. UK government guidance on devolution notes that “the devolution settlements are complex and are all different”.^[6]

The House of Commons Library has summarised the current picture on devolution as follows:

The UK system of devolution is asymmetric, in that different parts of the UK have different forms of devolution and varying degrees of power. Scotland, Wales and Northern Ireland now all possess executive and legislative devolution, while metro mayors in parts of England (and the mayor of London) have only executive powers. Combined authorities and the London Assembly can scrutinise executive decisions but not legislate in the manner of the Scottish Parliament, Senedd Cymru/Welsh Parliament and the Northern Ireland Assembly.

Those three legislatures can only pass primary and secondary laws in devolved (or “transferred” in the case of Northern Ireland) areas, with “reserved” matters (or reserved and “excepted” in NI) remaining the responsibility of Westminster. The UK Parliament can still legislate in devolved areas, but, under the Sewel convention, does “not normally” do so without the explicit consent of the relevant devolved body.^[7]

Further details about the devolved settlements are set out in a series of House of Commons Library briefings:

• ‘Devolution in Scotland: “The settled will”?’, 19 November 2023
• ‘Devolution in Wales: “A process, not an event”’, 31 July 2023
• ‘Devolution in Northern Ireland’, 17 November 2023

1.2 Intergovernmental relations

As well as the statutory frameworks set out in the devolution acts, there are also non-legislative agreements between the UK’s central government and devolved governments that cover mechanisms for joint decision-making and dispute resolution.

The UK government and the devolved administrations undertook a recent joint review of intergovernmental structures and ways of working. The ‘Review of intergovernmental relations’ reported in January 2022. It set out new working arrangements for intergovernmental relations (IGR), to which all four administrations agreed. The review confirmed that intergovernmental decisions would “continue to work on the basis of agreement by consensus”. It also set out a “clear and agreed” process for resolving disputes.

The new structures and processes are non-statutory and are to be “kept under review”. Overall accountability for IGR continues to sit with the prime minister, the first ministers of Scotland and Wales and the first and deputy first minister of Northern Ireland. In contrast with the previous IGR arrangements, engagement within the new structure is to take place regularly and not just “when needed”.

For more detail regarding intergovernmental relations, see the House of Lords Library briefing ‘Intergovernmental relations within the UK’ (10 January 2024).

1.3 Impact of Brexit: Common frameworks, legislative consent and replacing structural funds

Changes that came about because of the UK’s departure from the European Union have had the potential to affect relationships within the union of the United Kingdom.

As a result of Brexit, powers returned to the UK over policy areas that used to fall within the EU’s competence. Where these policy areas intersected with areas of devolved competence within the UK, the UK government and the devolved administrations drew up UK common frameworks,^[8] in line with definitions and principles agreed by the Joint Ministerial Committee (EU Negotiations) in 2017. (This committee was part of the previous IGR structure.) It said that common frameworks would set out a common UK, or GB, approach and how this approach would be governed. This may consist of common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition, depending on the policy area and the objectives being pursued. They may be implemented through legislative or non-legislative means. To date, many common frameworks have been published in provisional form, pending scrutiny by all relevant parliaments and final ministerial clearance.

The common frameworks process led to disagreements between the devolved administrations and the UK government. Originally, the European Union (Withdrawal) Bill introduced in the 2017–19 session proposed that all devolved legislatures would have to comply with retained EU law unless the UK government ‘released’ the policy area to devolved competence.^[9] However, the Scottish and Welsh governments described this as a “naked power grab”.^[10] The proposed mechanism was reversed during the act’s passage so that most powers returning from the EU in areas of devolved competence would go to the devolved legislatures unless the UK government used a new power to ‘freeze’ the policy area.

While the Welsh government accepted this change and recommended legislative consent to the bill, the Scottish government did not.^[11] The European Union (Withdrawal) Act 2018  was passed without the Scottish Parliament’s consent.^[12] In the event, the government did not use its power to ‘freeze’ certain policy areas, and it has now expired and been repealed.^[13]

The House of Lords Common Frameworks Scrutiny Committee has examined the role of common frameworks in the context of relations between governments within the UK.^[14] In its final reflections before it ceased at the end of 2023, the committee said common frameworks had been “an important mechanism for reaching consensus on policy areas for which powers returned to the UK” and “robust, innovative and unique sources of collaboration between the UK government and the devolved governments”. However, the committee also said they represented an “unfulfilled opportunity” as the programme had become “process rather than policy driven”. It argued there had been a “failure of leadership” at the top of government in recognising the contribution common frameworks could make to the resilience of the union.

In response, Secretary of State for Levelling Up, Housing and Communities and Minister for Intergovernmental Relations Michael Gove said that while ideally more common frameworks would have been fully implemented by now, he was pleased that those which were currently operational were being used as the basis for intergovernmental policy design and implementation.^[15]Mr Gove rejected the committee’s view about a failure of leadership, although he acknowledged that implementation had been slower than envisaged because of the absence of a Northern Ireland executive to formally agree the frameworks post-scrutiny. He said that the implementation of the IGR review and the new structures had “created a better overall context in which frameworks operate”.

Disagreements over the extent of devolved competence also arose during the passage of the United Kingdom Internal Market Act 2020 (UKIM Act 2020).^[16]This legislation concerned enshrining ‘market access principles’ of mutual recognition and non-discrimination. In other words, while each government of the UK can regulate goods and services in its part of the UK, it cannot prohibit the sale of goods in its part of the UK that comply with the applicable regulations in the part of the UK where they are produced. Equally, it cannot regulate to discriminate against goods from another part of the UK. The Scottish and Welsh governments argued that this would undermine the devolution settlement.^[17] Neither the Scottish Parliament nor the Welsh Senedd consented to the act. The Welsh government also sought judicial review of its impact on the Senedd’s legislative competence. In February 2022, the Court of Appeal upheld a High Court ruling that it was too soon for a judicial review of the impact of the UKIM Act 2020.^[18]

There are, however, some exclusions to the act where market access principles will not apply. Delegated powers under the act allow new exceptions to be made. A process for agreeing such exclusions in areas of policy divergence within a common framework has been developed by the UK government and the devolved administrations, with guidance published in December 2021.^[19] The approval of both Houses of Parliament is needed through the affirmative resolution procedure for new exclusions from the act’s market access principles. Speaking for the government in January 2024, Baroness Penn, parliamentary under secretary of state at the Department for Levelling up, Housing and Communities, noted:

The government do not view UKIM as altering the devolved settlements. Individual legislatures retain the ability to make regulations in areas where they have competence and the devolved administrations are able to make and enforce regulations within their own jurisdiction. Yes, the act establishes the market access principles, which ensure that regulations made in one nation do not affect intra-UK trade by creating internal trade barriers, but should the UK government and a devolved administration agree that a specific regulation should be excluded from the application of those principles, there exists a process by which to do so.^[20]

In a 2022 report on the union, the House of Lords Constitution Committee concluded that implementing Brexit had placed the Sewel convention “under strain”.^[21] This is the convention that the UK Parliament does not normally legislate in areas of devolved competence without consent of the relevant devolved legislature.^[22] The committee said that “other than in exceptional circumstances, the UK government ought not to seek to legislate in devolved areas without consent”. It did not believe that it would be desirable to involve the courts in adjudicating disputes on the meaning and application of the Sewel convention, as such questions would be “best resolved through political deliberation”. The committee called for strengthened scrutiny in the House of Lords of bills that engage the convention.

Responding in August 2022 the government welcomed the report, particularly its emphasis on positive intergovernmental working.^[23] It said “this spirit of cooperation is at the foundation” of the agreed arrangements in the ‘Review of intergovernmental relations’. The government would carefully consider the committee’s recommendations on legislative consent. It said it was “engaging in discussions” with the devolved administrations on principles for future working on legislation.

In January 2024, Baroness Penn reiterated the government’s view on the Sewel convention, stating:

We remain absolutely committed to the Sewel convention and to working with devolved governments on all bills that engage the legislative consent process. It has been necessary to legislate without the consent of the devolved legislatures in only a small number of cases. As noble Lords have referenced, these largely related to legislation on EU exit and the implementation of new trade deals. In the vast majority of cases, we have legislated with consent.^[24]

Disagreements have also arisen between the UK government and the devolved administrations over post-Brexit funding arrangements. The UK government launched a £2.6bn UK shared prosperity fund in April 2022 to replace EU structural funding that UK regions received during the UK’s EU membership.^[25]The government has stated that this money will “go straight to local places right across England, Scotland, Wales and Northern Ireland to invest in three local priorities: communities and place, support for local businesses and people and skills”.^[26]

However, the devolved administrations do not support this funding being controlled from Westminster rather than by them.^[27] One of the grounds on which the Scottish and Welsh governments objected to the United Kingdom Internal Market Bill was over powers to allow the UK government to provide financial assistance throughout the UK, which they said would enable central government spending in devolved policy areas without input from the devolved administrations.^[28]

The House of Commons Library has set out further analysis of the comparative funding levels in its briefings ‘The UK shared prosperity fund’ (26 April 2022) and ‘Local growth funds’ (6 March 2024).

The following reports and briefings explore in greater detail the topics covered in this section:

• House of Lords Library, ‘Common frameworks and the devolved nations’, 29 September 2021
• House of Lords Common Frameworks Committee, ‘Common frameworks: Building a cooperative union’, 31 March 2021, HL Paper 259 of session 2019–21
• House of Commons Library, ‘Devolution: The Sewel convention’, 13 May 2020
• House of Commons Library, ‘The UK shared prosperity fund’, 26 April 2022; ‘UK shared prosperity fund: Design and development’, 30 March 2022; and ‘Local growth funds’, 6 March 2024

1.4 Calls for reform

There are those who argue that the constitutional arrangements of the union should be reviewed. Such calls have come both from those who seek to strengthen the union and those who wish to see reform that would create a more federal structure.

House of Lords Constitution Committee

The House of Lords Constitution Committee published its report ‘Respect and cooperation: Building a stronger union for the 21st century’ in January 2022. While recognising “current strains” on the union, the committee also expressed “faith in its future as an adaptable, shared asset for all our nations”. It found the UK’s unique constitutional arrangements provided flexibility and “an asymmetrical approach to adapt to and accommodate its different nations and regions”. However, it also believed that “the increasing lack of overall coherence” and “the failure to develop a modern form of ‘shared governance’ which recognises central and devolved governments have distinct statutory responsibilities that often intersect” had “undermined the strength of the union”. The committee called on the government to set out a clearer vision for shaping the union in the 21st century. It also proposed what it described as “practicable, achievable improvements to the functioning of the union and to its inter-relationships”. This included greater parliamentary scrutiny of bills engaging the Sewel convention; steps for building on the outcome of the IGR review (such as sharing lessons learned, better data sharing and more engagement for the devolved administrations in the process of negotiating international trade agreements); greater scrutiny by the House of Lords of IGR; greater interparliamentary engagement across the UK; cultural change across Whitehall; and a “fairer allocation” of funding across the four nations of the UK.

The committee concluded there were “no obvious governance changes to provide England with a distinctive voice that command[ed] political and public support”. It believed that establishing an English Parliament would “crystallise England’s relative strength” economically and demographically compared to the existing devolved legislatures, which would “destabilise the union”. Instead, the committee was in favour of greater decentralisation in England to “improve economic performance, address regional inequalities and improve service delivery”, and “achieve a better overall balance of powers between the centre and the other parts of the United Kingdom”. However, it considered that the government’s current deals-based approach to local government in England was “not sufficiently ambitious”.

The government welcomed the committee’s report. Responding in September 2022, the government stated:

We share the spirit of optimism written into the committee’s report. This is a time for building for the future, as we emerge from the worst public health emergency in over a century.^[29]

Commenting on the committee’s recommendations regarding the Sewell convention, the government argued that it was “engaging in discussions with devolved counterparts on principles for future working on legislation, including our approach to engagement on legislative consent”.

On 26 February 2024, the Lords Constitution Committee issued a call for evidence for a follow-up inquiry on the governance of the union. It stated that the inquiry would focus on:

• co-operation via the new intergovernmental relations arrangements in place since January 2022
• consultation by the UK government with the devolved administrations
• respect for the Sewel convention^[30]

The deadline for submissions is 8 April 2024.

Independent Commission on the Constitutional Future of Wales

In January 2024 the Independent Commission on the Constitutional Future of Wales published its final report. The commission was established in 2021 by the Welsh government.^[31] It had two broad objectives: to consider and develop durable options for fundamental reform of the constitutional structures of the UK, and to consider and develop all “progressive principal options” to strengthen Welsh democracy and deliver improvements for the people of Wales.

An interim report was published in December 2022, with a final report launched in the Senedd Cymru/Welsh Parliament in Cardiff on 18 January 2024.^[32] The findings of the report are considered further in section 4.

Review of the UK constitution: Institute for Government and Bennett Institute for Public Policy

In September 2023, the Institute for Government and Cambridge University’s Bennett Institute for Public Policy published their joint report examining the UK constitution.^[33]The project had commenced in 2022, to “take stock of the constitution after a tumultuous period in UK politics” involving, it said, prolonged battles over Brexit, repeated questions regarding the ethics and integrity in government and restrictions on personal freedoms necessitated by the pandemic.^[34] It sought to do this through a non-partisan and evidence-based approach and the project was guided by an expert advisory panel whose members included Baroness Hale, Lord Anderson of Ipswich, Baroness Smith of Basildon, Robert Buckland and Sir David Lidington.

The September 2023 report was the final in a series of papers published over the previous 18 months, it highlighted what it described as “particularly acute problems” with the UK constitution, namely:^[35]

• weaknesses in the system of checks and balances which were shown by “repeatedly passing legislation on devolved matters without consent from their respective legislatures”
• existing processes for constitutional change which do not recognise the constitution’s special character leading to important decisions being taken “without adequate consideration of their knock-on implications for other parts of the constitution and, 25 years on, Westminster and Whitehall are still adjusting to the realities of devolution to Scotland, Wales and Northern Ireland”
• the problematic lack of clarity with the UK constitution leading to “legitimately held but differing views of the constitution, between political parties, Parliament and government, the UK government and devolved administrations”

Recommendations from the final report included:^[36]

• Establishing a new parliamentary committee on the constitution (PCC) to “express an authoritative view on constitutional matters independent from the government of the day”. This would include members of both the Lords and Commons and would take on responsibilities of the House of Lords Constitution Committee and the constitutional elements of the House of Commons Public Administration and Constitutional Affairs Committee.
• Creating an independent office of the constitution to support the new parliamentary committee, conduct detailed research and provide analysis, having a similar relationship to that between the National Audit Office and House of Commons Public Accounts Committee.
• Creating a new category of constitutional act to formally recognise the importance of key pieces of legislation that underpin our political system. These would be identified by the parliamentary committee and would be protected from implied repeal and only amendable by primary legislation.
• Giving Parliament a more extensive scrutiny process for new constitutional bills; for example constitutional bills should be published in draft and subject to pre-legislative scrutiny by the parliamentary committee on the constitution. The report noted that the parliamentary committee scrutinising bills which related to devolution could include greater representation from the devolved nations.
• Updating the ‘Cabinet manual’, clarifying the role and strengthening the capacity of the civil service to give constitutional advice, putting the civil service on a statutory footing and making the role of the cabinet secretary as the primary constitutional adviser more explicit.
• Guidance on how the four governments of the UK relate to each other. This devolution guidance should be owned by the four governments and the product of agreement between them.
• Establishing a permanent centre for constitutional expertise within the Cabinet Office.
• Increasing constitutional understanding and integrating public engagement, through citizens’ juries and assemblies, into the processes of constitutional change.

The report argued that its recommendations would “help renew the devolution settlement in the UK”, stating:

One role for the parliamentary committee on the constitution will be to mediate between the UK government and devolved governments, finding a middle ground between them on specific issues and wider questions concerning devolution. Where the devolved governments are seeking to challenge the UK government for acting outside established constitutional practice—for example, by passing legislation without legislative consent as normally required by the Sewel convention—an authoritative judgment from the committee will take a position on the legitimacy of their concerns. Equally, if the devolved governments make demands and manufacture grievances for political purposes, the committee will also be able impartially to assess the grounds for their challenge in a way that is much harder for the UK government to do.

In addition, creating a category of constitutional acts will provide greater protection for the devolution statutes. It will create more robust protections for the foundational underpinnings of devolution. Enhanced parliamentary scrutiny will ensure that changes to the system of devolved government—including in England—will be subject to full consideration and robust scrutiny.

Moreover, establishing a permanent centre for constitutional expertise in government should improve the calibre of advice given to ministers on issues relating to devolution and intergovernmental relations, and improve understanding among the civil service more widely. It will help ensure that the implications of UK government policy for devolution and the devolved institutions are fully considered in the policy making process, providing a source of constitutional advice and resource on best practice to officials who may be expert in other policy areas. Bringing together devolution related guidance under the auspices of the Intergovernmental Relations Secretariat will provide greater transparency and accessibility to existing agreements about ways of working. All of this should help prevent unnecessary disputes between the governments of the UK, and embed greater respect for, and understanding of, devolution within Whitehall.

Making greater use of deliberative exercises to engage the public in constitutional decision making will enable the government to find consensus-based solutions on devolution—in Scotland, Wales, Northern Ireland and England—where referendums have entrenched divisions and led to polarised debates.

These recommendations would address concerns about the vulnerability of the devolution settlement in the UK constitution, stabilising relationships and improving government across the UK.^[37]

Rebuilding and renewing the constitution: Constitution Unit and Institute for Government

In July 2023, the Constitution Unit and Institute for Government published a joint report entitled ‘Rebuilding and renewing the constitution: Options for reform’. The authors said that the report was designed to inform the deliberations of political parties as they started manifesto preparation for the general election expected in 2024.

The report was broken into five sections: the executive, Parliament, the territorial constitution, courts and rule of law, and elections and public participation. Within these areas options were broken down into quick wins, moderate changes and larger more controversial reforms. The report notes that in terms of the larger more controversial reforms:

Proposals in these sections are included in each chapter without particular endorsement, but to present a complete picture. Adopting such measures could take up considerable time and political capital, and different parties may judge such measures quite differently. In terms of implementation they should be approached with care, and a limited number of such changes is likely to be possible overall.^[38]

Options in each area included:

• Quick wins: a public commitment to uphold the Sewel convention and for the UK government to explicitly restate its determination to respect the devolved institutions and to uphold the agreed principles of intergovernmental relations, giving the independent adviser on ministers’ interests the powers to open his or her own investigations; a commitment to scaling back the use of delegated legislation; a commitment to respecting and upholding international law; and not proceeding any further with designating a strategy and policy statement for the Electoral Commission
• Moderate changes: implement the outstanding elements of the intergovernmental relations review; establish a secretary of state for intergovernmental relations; far greater transparency regarding the operation of the Sewel convention; commitment to UK government seeking consent before pursuing secondary legislation in devolved areas of competence; greater transparency in devolution finance and commissioning an annual report into how the Barnett formula has been used; a review of how deliberative processes such as legislative assemblies could be embedded most effectively; a new civil service act with a civil service board reporting directly to Parliament; commitment to streamline and more tightly regulate public appointments; the creation of a legislative standards committee in Parliament and more legislation published in draft form for pre-legislative scrutiny; the House of Lords Appointments Commission to be put on a statutory footing; developing a programme of civic and constitutional education for schools, universities and adult education
• Larger more controversial reforms: consider the case for further devolution to Scotland; a new assessment of the relative spending needs of each part of the UK; a British Bill of Rights; reconfiguration of the Ministry of Justice; replacing the first past the post voting system in Westminster with a more proportional alternative; introduction of caps on donations to political causes; reform of the House of Lords

1.5 Government position

The Conservative manifesto for the 2019 general election identified “strengthening the great union between the United Kingdom’s four nations” as one of the ways it intended to “unleash our country’s great potential”.^[39]

More recently, Prime Minister Rishi Sunak has said “strengthening the union and delivering for all people and communities across the UK” is a “priority” for the UK government. Mr Sunak said his government’s approach to devolution was to “drive forward cross-government efforts towards delivering tangible improvements”.^[40]

2. Northern Ireland

2.1 Restoring the Northern Ireland Assembly

On 3 February 2024, the Northern Ireland Assembly met to elect a new speaker. Northern Ireland had been without a fully functioning executive or assembly since February 2022, following the collapse of power sharing over the DUP’s objections to the Northern Ireland Protocol.^[41]

Northern Ireland Assembly elections took place in May 2022. However, the statutory period for forming a new executive after the May election ended with no executive being formed. In response to this situation, the UK Parliament has legislated several times to extend the time allowed for forming a new executive before another assembly election must be held.

The most recent efforts aimed at restoring Stormont included a UK government offer of a £3bn financial package for Northern Ireland to be made available to an incoming executive. On 11 December 2023 the secretary of state for Northern Ireland met the five largest Northern Ireland parties to discuss public finances. Secretary of State for Northern Ireland Chris Heaton-Harris subsequently outlined the detail of the proposals, stating:

Following a lot of discussions over the weekend and over the last few days this morning I brought forward a new plan that reasonably and generously responds to the parties’ concerns and provides Northern Ireland ministers with an offer for a restored executive worth in excess of £3bn […]

It is disappointing that there will not be a new executive up and running to take up this offer and deliver it for the people of Northern Ireland before Christmas. However, this package is on the table and will remain there, available on day one of an incoming Northern Ireland Executive to take up. […]

The UK government has also held extensive talks with the Democratic Unionist Party on the Windsor Framework over the last eight months. I’d like to thank the DUP and its leadership for the way they’ve engaged constructively in those talks. In particular, the government has sought to address the specific concerns raised by the DUP prior to and during these negotiations.

From our perspective, those talks on all the issues of substance have reached a conclusion. We stand ready to introduce a package of measures that have been worked on together should the DUP reach a decision to proceed.^[42]

On 30 January 2024, the leader of the DUP, Sir Jeffrey Donaldson, announced that his party had endorsed a deal to restore the devolved Northern Ireland Assembly and executive.

The UK government published its command paper ‘Safeguarding the union’ on 31 January 2024. The paper included a range of measures which the government argued would strengthen Northern Ireland’s place in the union, stating:

A prosperous Northern Ireland, with stable and effective devolved government, taking the opportunities posed by full access to the UK and EU markets remains the surest way to persuade the majority of the people of Northern Ireland that its best future remains within the union. All polling and other evidence suggests a strong majority in Northern Ireland would regard such arrangements as an enduring basis for stability and prosperity […]

This paper sets out a range of measures that, in the event of the restoration and ongoing functioning of the institutions, would copper-fasten Northern Ireland’s political and constitutional place in the union, strengthen the operation of the UK internal market, and support ever greater opportunities for trade within it—responding to the deeply held concerns that have been expressed.

The package of measures set out in this paper is specifically designed to:

• strengthen the union in the broadest sense
• reassert and strengthen Northern Ireland’s place in the United Kingdom and its internal market
• future-proof the constitutional status of Northern Ireland against any future agreements that create new EU law alignment for Northern Ireland and undermine its place in the UK’s internal market
• guarantee the smooth flow of Great Britain to Northern Ireland trade
• guarantee unfettered access for Northern Ireland goods to the rest of the UK, on a permanent basis
• ensure, alongside existing framework protections, that the primacy of UK internal market rules in key areas is properly enshrined
• provide clear statutory protections that go further than ever before to provide reassurance that there will be no diminution in Northern Ireland’s place in the union without consent;
• strengthen the operation of the Stormont brake
• deliver the right structures to maintain those protections for the long-term—meaning that we have the mechanisms not only to address the issues we see now, but to ensure that the arrangements provide resilient protections for the UK internal market for the long-term.^[43]

Detailed background from the collapse of the assembly and executive in 2022 and analysis of the deal are provided in the House of Commons Library briefing ‘Northern Ireland devolution: Safeguarding the union’ (19 February 2024).

3. Scotland

In evidence to the House of Commons Scottish Affairs Committee in September 2023, the Scottish government said that it was “very concerned by developments since 2016” in intergovernmental relations.^[44] While there had been some recent examples of “practical and constructive engagement” between the Scottish and UK governments, such as engagement on Covid-19, it argued that since Brexit, the UK government had been increasingly intervening in devolved policy matters and there had been an “erosion of the protections provided to devolved institutions, especially the Sewel convention”.

The themes were also picked up in the June 2023 report by the Scottish government which sought to set out the impact on the devolution settlement and the Scottish Parliament of key UK government decisions since the referendum on EU withdrawal in 2016. The report cited what it described as 12 instances of where the UK government had proceeded with legislation having been refused the consent of the Scottish Parliament, “most significantly” with the UKIM Act 2020. The report concluded:

The current actions of the UK government are changing its relationship with the elected Scottish Parliament, allowing it to intervene with its views in areas for which responsibility was transferred to the Scottish Parliament through a choice made by the people of Scotland.

The risk for the devolution settlement is that, instead of the Scottish Parliament making decisions that reflect the views of the people of Scotland, it is increasingly bypassed or obliged to implement decisions taken, without the Parliament’s agreement, towards outcomes set by the UK government in line with its priorities—contrary to the purpose of devolution.

Put simply, the evidence set out in this paper shows there cannot be true self-government under a devolution settlement that retains Westminster’s supremacy over the democratic will of the Scottish Parliament.^[45]

3.1 A second independence referendum?

In November 2022, the Scottish government referred the question of whether it could legislate to hold an independence referendum to the UK Supreme Court. On 23 November 2022, the Supreme Court found that if the UK government and Parliament were unwilling to modify the relevant reserved powers (as they had prior to the 2014 independence referendum) then “the Scottish Parliament does not have the power to legislate for a referendum on Scottish independence”.^[46] Nevertheless, the SNP has restated its intentions to campaign and work towards holding a second independence referendum.

At the SNP’s convention on independence in June 2023, Scotland’s First Minister Humza Yousaf told delegates that the party would “absolutely fight” the next general election with independence “front and centre” of its campaign.^[47] However, Mr Yousaf said that he was “very clear” that the only route was through a “lawful, democratic process”.

At the SNP’s October 2023 party conference, the party voted to seek independence negotiations with the UK government if the party won a majority of Scottish seats at the next general election.^[48] The motion, which was backed by the leadership, proposed making the first line of its next general election manifesto “vote SNP for Scotland to become an independent country”.

More recently, Mr Yousaf gave an interview in which he stated that winning the most seats of any party in Scotland during the coming general election would give the party a mandate for seeking independence. Writing for UK in a Changing Europe, Dr Stephanie Luke argues that this represents a shift in the SNP’s position:

In an interview last week, Yousaf said if the SNP wins the most seats of any party in Scotland at the next general election—as opposed to a majority—the party will “use that as a mandate to begin negotiation with a future UK government on how we give democratic effect to independence”. This dialling down is arguably an acknowledgment by Yousaf that the party is facing losses at the next election […]

With things as they are, the SNP are more likely to win most of Scotland’s Westminster seats rather than a majority. Yousaf’s change in language—even if it was just a slip of the tongue—would allow the SNP to argue that they have a mandate to continue to pursue independence in this instance.^[49]

The Scottish government has published a series of papers called ‘Building a new Scotland’, which set out its proposals on several policy areas for an independent Scotland. This suite of documents includes plans for a written constitution and a model of citizenship.

The UK government has criticised the SNP for being “irresponsible” for using public funds to campaign for independence.^[50] In a letter to Mr Yousaf, Scottish Secretary Alister Jack said that ministers had “a responsibility to spend taxpayers’ money wisely”. Mr Jack criticised the Scottish government for its “obsession with independence ahead of pressing priorities in Scotland”. In response, Mr Yousaf told reporters that he felt “comfortable” using public funds to promote independence. He said that the SNP had been elected on a mandate to deliver a referendum.

The House of Commons Library briefing ‘Devolution in Scotland: “The settled will”?’ (19 November 2023) considers recent developments in the devolution settlement in Scotland, and its briefing ‘Scottish independence referendum: Legal issues’ (10 January 2023) discusses the Scottish government’s reference to the Supreme Court in 2022 on its ability to hold a referendum, and the SNP’s reaction to the court’s decision.

3.2 UK government powers to ‘veto’ devolved legislation

On 18 January 2023, the UK government used section 35 of the Scotland Act 1998 to ‘veto’ the Gender Recognition Reform (Scotland) Bill. This action was challenged in the courts by the Scottish government and has led to wider arguments about the UK government’s constitutional powers to block laws passed in the devolved legislatures.

What is a section 35 order and why did the UK government use it?

Section 35 of the Scotland Act 1998 gives the UK secretary of state for Scotland certain powers to block a Scottish bill from becoming law. It can only be used if the Scottish secretary has “reasonable grounds to believe” the legislation:

• would be incompatible with the UK’s international obligations or not in the interests of national defence
• would modify the law on reserved matters in such a way as to have an “adverse effect” on the operation of the law as it applies to reserved matters

Reserved matters are policy areas, such as defence and foreign policy, which are the responsibility of the UK government and UK Parliament.

On 22 December 2022, the Scottish Parliament passed the Gender Recognition Reform (Scotland) Bill. The bill would change the process to get a gender recognition certificate (GRC).^[51] Following the vote in the Scottish Parliament to pass the bill, the UK government expressed concerns about its potential impact on how the law operated in reserved policy areas, particularly equal opportunities and the Equality Act 2010.^[52]

On 16 January 2023, Secretary of State for Scotland Alister Jack said he would make a section 35 order to prevent the bill from receiving royal assent.^[53] In an oral statement to the House of Commons the following day, Mr Jack said it was the UK government’s position that the bill met the “adverse effect” test because of the “serious adverse impact, among other things, on the operation of the Equality Act 2010”.^[54] On 17 January 2023, the UK government also published a ‘statement of reasons’ on the decision to use section 35 powers.^[55] The government said it was concerned that having a different system in Scotland from the rest of the UK would impact single sex associations or clubs and the public sector equality duty and equal pay, while leading to an increase in fraudulent applications for GRCs.

The secretary of state laid the Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 (a section 35 order) on 17 January 2023, and it came into force on 18 January 2023. A section 35 order is subject to the parliamentary negative procedure, which meant it would immediately become and remain law unless rejected by either House of Parliament within 40 sitting days. On 24 January 2023, an early day motion was submitted to formally object to the order.^[56] It was supported by 52 MPs. As well as SNP MPs, Scottish Liberal Democrats, Green, Plaid Cymru, Social Democratic and Labour Party MPs also signed the motion. Time was not made for it to be debated within the objection period, which ended on 7 March 2023. Therefore, the order remained in force.

This is the only time a section 35 order has been used.

How has the Scottish government responded to the section 35 order?

A section 35 order cannot be overturned by the Scottish Parliament. The Scottish government could amend and reconsider the bill or it could challenge the order either by referring the matter to the UK Supreme Court under schedule 6 of the Scotland Act 1998 or through judicial review.^[57]

On 19 April 2023, the Scottish government lodged a petition for judicial review with the Court of Session in Scotland. The case, which was heard by Lady Haldane, began on 19 September 2023.^[58]

The Scottish government has argued that the conditions for a section 35 order have not been met. It said the UK government had “not used the power in line” with the 2013 memorandum of understanding between the UK and devolved governments, or as “envisaged” when the Scotland Act 1998 was passed.^[59]

The Outer House of the Court of Session delivered its judgment on the petition for judicial review on 8 December 2023.^[60] In her opinion, Lady Haldane ruled that “the challenge to the order pronounced under section 35 of the 1998 act, laid on 17 January 2023, fails” whilst recognising “the novelty and complexity of the arguments”.

Further analysis of the court case judgment can be found in the Scottish Parliament Information Centre’s blog post ‘Court of Session decision on the use of section 35 of the Scotland Act 1998 in relation to the Gender Recognition Reform (Scotland) Bill’, (13 December 2023).

On 20 December 2023, the Scottish government’s cabinet secretary for social justice, Shirley-Anne Somerville, released a statement confirming that Scottish ministers would not seek to appeal the ruling.^[61]

The UK government’s use of its power to veto Scottish legislation has also caused concern among other parties, notably the Welsh government. The UK government has similar powers to block both Welsh and Northern Irish legislation under section 114 of the Government of Wales Act 2006 and section 14 of the Northern Ireland Act 1998 respectively. While neither of these provisions have been used, Welsh First Minister Mark Drakeford has said the UK government’s use of the section 35 order (under the Scotland Act) sets a “very dangerous precedent” for devolution more generally.^[62] Both the counsel general for Wales and the attorney general for Northern Ireland were listed as interested parties on the Scottish Parliament’s petition for a judicial review.^[63]

Further information on the Welsh perspective can be found on the Senedd Research blog post ‘Can the UK government block Welsh legislation?’ (20 January 2023). A detailed overview of the wider political reaction and a summary of the debate on the extent of the UK government’s powers to veto bills under section 35 can be found in the House of Commons Library briefing ‘The secretary of state’s veto and the Gender Recognition Reform (Scotland) Bill’ (11 December 2023).

4. Wales

4.1 Current constitutional position

The 2023 House of Commons Library briefing ‘Devolution in Wales: “A process, not an event”’ (31 July 2023) provides a detailed analysis of the developments in Wales since the Government of Wales Act 1998.

The briefing includes information on the Richard Commission, Government of Wales Act 2006, Holtham Commission, 2011 referendum on law making powers, Silk Commission, Wales Act 2014, Wales Act 2017 and constitutional debates. Outlining the current constitutional position of Wales, it states:

On 1 April 2018—almost twenty years after the Government of Wales Act 1998 gained royal assent—a new “reserved powers” model of Welsh devolution came into effect. In other words, instead of Senedd Cymru/the Welsh Parliament (generally known as “The Senedd”) only having the power to make law on matters specified in the Government of Wales Act 2006 (the “conferred powers” model), it could now legislate on any matter not expressly “reserved” to the UK Parliament.^[64]

4.2 Independent Commission on the Constitutional Future of Wales

In 2021, the Welsh government established the Independent Commission on the Constitutional Future of Wales.^[65] The commission has two broad objectives:

• to consider and develop durable options for fundamental reform of the constitutional structures of the United Kingdom
• to consider and develop all progressive principal options to strengthen Welsh democracy and deliver improvements for the people of Wales

The commission was co-chaired by Professor Laura McAllister and Lord Williams of Oystermouth, former Archbishop of Canterbury and former member of the House of Lords. In addition, other commissioners included representatives from the four main political parties in Wales: Labour, Plaid Cymru, Conservatives and Liberal Democrats.^[66]

The commission sought to engage the people of Wales in a “national conversation” about how they viewed the future of the nation. In addition, the commission received evidence and held workshops to consider the implications of different forms of devolution. Contributors included members of the UK and Welsh governments and constitutional, legislative and fiscal experts and academics.^[67]

The commission published its interim report in December 2022, concluding that there were three possible options for Wales, which it described as entrenched devolution, federal structures and independence.^[68] These were discussed more in its final report, published in January 2024.

The final report focused on four key issues:^[69]

• addressing challenges to democracy and creating a more robustly democratic culture
• considering the state of inter-governmental relations and the boundaries of the Welsh devolution settlement and calling for urgent steps to strengthen the legal and procedural pillars of the relationship
• Identifying areas where new devolved powers were essential to protect the current settlement, and others where the voice of Wales could and should be strengthened
• presenting in-depth analysis of three options for Wales’ constitutional future: enhanced devolution, Wales in a federal UK, and an independent Wales.

The report included 10 recommendations for reform which focussed both on strengthening devolution and on protecting devolution. The former recommendations included:^[70]

• strengthening the capacity for democratic innovation and inclusive community engagement in Wales, including developing new strategies for civic education
• leading a project to engage citizens in drafting a statement of constitutional and governance principles for Wales
• effectively resourcing a review of proposed Senedd reforms to size and electoral system of the Senedd to ensure “a robust and evidence-based analysis of the changes, including from the perspective of the voter and of democratic accountability”

The commission argued:

Since the referendum on the UK’s membership of the EU, the Westminster Parliament and UK government have overridden the conventions designed to protect devolution several times. The current settlement cannot be taken for granted and is at risk of gradual attrition if steps are not taken to secure it. ^[71]

The report laid out several recommendations which it said would protect devolution, these included:

• UK parliament placing the Sewel convention on a statutory footing “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 defence or national security
• seeking the support of the governments of the UK, Scotland and Northern Ireland for the UK parliament to legislate for inter-governmental mechanisms “so as to secure a duty of co-operation and parity of esteem between the governments of the UK”
• UK government removing constraints of Welsh budget management in most circumstances
• greater devolution for Wales on broadcasting and energy policy
• devolution of legislative and executive responsibility for justice and policing
• devolution of responsibility for rail services and infrastructure to Wales

The report also included an analysis of three options for the constitutional future of Wales: enhanced devolution, Wales in a federal UK, and an independent Wales. It did not recommend any one particular option, noting:

Our conclusion is that each option is viable, each offers strengths and weaknesses, risks and opportunities. We make no recommendation as to which is best for Wales, because choosing between the options depends on:

• the relative weighting given to each of the criteria
• the level of risk and uncertainty people are prepared to accept in reaching for the opportunities each option presents

This is not a judgement that the commission can make. Choosing between the criteria and evaluating risk is a choice to be made by political parties and individual citizens.^[72]

Welsh First Minister Mark Drakeford welcomed the report, arguing that it was “wishful thinking” to believe former “constitutional turbulence” was over, and noting:

For anyone who practises on the democratic front line, here are ideas on which we might all draw upon in our constituencies, here in the Senedd and in the Welsh government. The way that our country is organised, the future of the United Kingdom and of Wales, and the amplified voice of citizens in making such determinations, all of that is to be found in the commission’s final report, and it deserves to be taken seriously by all.^[73]

The majority of the recommendations required action from legislation and agreement from the UK Parliament and government. Analysing the possibility of reforms, the Institute for Government argued:

The current government is unlikely to take forward any of the substantive recommendations made by the commission. The secretary of state for Wales has been critical of the commission and its call for further devolution to Cardiff, which the Welsh Conservative leadership also opposes.

The UK Labour Party has emphasised it is ‘committed to reinforcing the status of the Senedd, strengthening intergovernmental working and pushing power out of Westminster’. The shadow secretary of state for Wales responded to the commission by stating that Labour was exploring the potential devolution of youth justice and probation, but was not considering the full devolution of policing and justice.^[74]

4.3 Senedd reform

In October 2021, the Special Purpose Committee on Senedd Reform was created to consider recommendations made by the Committee on Senedd Electoral Reform to increase the size of the Senedd and change the system by which its members are elected.^[75]

The Special Purpose Committee on Senedd Reform published its report in May 2022.^[76] It recommended the Senedd’s current membership of 60 be increased to 96 and be elected by a closed list proportional electoral system. It also recommended gender quotas for candidates standing for election to the Senedd. The Senedd debated the report in plenary on 8 June 2022.^[77] Members voted to approve the recommendations.

The Welsh government’s June 2023 legislative statement included two bills to reform the Senedd.^[78]The Senedd Cymru (Members and Elections) Bill was introduced to the Senedd on 18 September 2023. It includes provisions to increase the size of the Senedd to 96 members and to introduce the closed list proportional electoral system. It would also require candidates to, and members of, the Senedd to be resident in Wales, and would decrease the length of time between Senedd ordinary general elections from five to four years.^[79] A second bill to introduce gender quotas for candidates for election to the Senedd was likely to “be brought forward later [in 2023]”.^[80]

Welsh First Minister Mark Drakeford expressed his confidence that the Senedd had the powers to legislate on gender quotas.^[81] However, he acknowledged that there may be others with an opposing view. He explained that is why the reforms were split in two separate bills:

We are confident that we have the legal scope here in Wales to legislate in this area, and we will bring forward a bill confident of the basis on which we do so. But it is an area in which other views may be possible, and where a challenge might be mounted. In order to make sure that the main reforms are not vulnerable to challenge, we’ve severed the two aspects.^[82]

Conservative Senedd member Darren Millar has argued that the Senedd does not have the power to legislate on gender quotas because equal opportunities is not a devolved area. Mr Millar had been a member of the Special Purpose Committee on Senedd Reform. However, he resigned from the committee shortly before it had reported. Mr Millar has said that the committee had been given “clear” legal advice the Senedd did not have the power to implement mandatory gender quotas.^[83]

In November 2023, the BBC reported that the plans to create a gender-equal Senedd had been postponed, with the Welsh government saying it was “doing further work” on the proposed law.^[84]

5. Read more

• House of Commons Library, ‘Northern Ireland devolution: Safeguarding the Union’, 19 February 2024
• Constitution Unit Blog, ‘Devolution returns to Northern Ireland’, 6 February 2024
• Institute for Government, ‘Explainer: Government deal with DUP to restore power sharing in Northern Ireland’, 1 February 2024
• House of Lords Library, ‘Intergovernmental relations within the UK’, 10 January 2024
• House of Commons Northern Ireland Affairs Committee, ‘The effectiveness of the institutions of the Belfast/Good Friday Agreement’, 4 December 2023, HC 45 of session 2023–24
• House of Lords Library, ‘King’s Speech 2023: Devolved affairs’, 1 November 2023

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Cover image from Wikimedia.

This briefing was updated on 16 April 2024 to correct typographical errors.