Table of contents

On 9 June 2022, the House of Lords is scheduled to debate the following question for short debate:

Lord Wigley (Plaid Cymru) to ask Her Majesty’s Government, further to the recent (1) local elections, and (2) Northern Ireland Assembly elections, what plans they have to set up a commission to consider options for a new constitutional relationship for the four nations of the United Kingdom.

On 5 May 2022, elections took place in 200 councils across Great Britain, and Assembly elections took place in Northern Ireland (NI). Analysis of the local elections can be found in the House of Commons Library briefing ‘Local elections 2022: Results and analysis’ (13 May 2022) and an overview of the NI Assembly elections can be found the Commons Library briefing ‘Northern Ireland Assembly Elections: 2022’ (18 May 2022).

This article focuses on recent reforms to the UK’s intergovernmental structures, and on current proposals for establishing a UK-wide commission to consider the constitutional relationships and future arrangements between the four nations.

1. Reforms to intergovernmental structures

Most of the current structures that underpin intergovernmental relations (IGR) between the UK nations developed after devolution in 1998. Since then, IGR have been necessary for joint decision-making, where two or more administrations share responsibility, and for resolving disputes between the UK government and the three devolved administrations.

Two reviews on the political and institutional structures supporting IGR have been published recently. As a result of their recommendations, reforms have been made to the system.

1.1 Dunlop review

On 4 July 2019, the UK government commissioned Lord Dunlop to conduct an independent assessment of the UK government’s operations in the areas of devolution and IGR. The report was published on 24 March 2021. It made recommendations in six different areas: the machinery of government; civil service capability; spending; intergovernmental relations; public appointments; and communications.

The Dunlop review recommended the creation of a new cabinet post, with the suggested title ‘Secretary of State for Intergovernmental and Constitutional Affairs’. The review stated the new secretary of state should have the same status as the chancellor of the exchequer, foreign secretary or home secretary. The review recommended the remit of the role holder should be to speak in cabinet for the constitution and take a “holistic view across the UK, arbitrating between other ministers”.

The review suggested the secretary of state for intergovernmental and constitutional affairs should be supported by a new cabinet sub-committee tasked with “preparing cross-government strategic priorities to enhance the union and ensure their effective delivery”. It also suggested the new secretary of state should oversee a communications strategy for Scotland, Wales and Northern Ireland.

In response to the recommendations made in the review, Michael Gove, then chancellor of the Duchy of Lancaster, stated the UK government was “keen” to implement policies in line with the review’s proposals. He outlined some of the initial reforms that the government had introduced, including the creation of the Union Strategy Committee.

The committee is chaired by the prime minister, with the secretary of state for levelling up, housing and communities and minister for intergovernmental relations as deputy chair. The secretary of state is currently Michael Gove. The committee’s terms of reference are to consider matters relating to strengthening the union of the UK.

The secretary of state for levelling up, housing and communities and minister for intergovernmental relations also chairs the Union Policy Implementation cabinet committee. Its remit is to support the delivery of the government’s priorities in relation to the union of the UK. The secretary of state has responsibility for leading coordination with the devolved administrations on the prime minister’s behalf.

1.2 Review of intergovernmental relations

A joint review, undertaken by the UK government and the devolved administrations to update intergovernmental structures and ways of working, reported in January 2022. The ‘Review of intergovernmental relations’ set out new working arrangements for IGR, to which all four administrations agreed. The review stated that the new structures were built on:

[…] principles of mutual respect and trust, respecting the reserved powers of the UK government and Parliament and the devolved competences of the Scottish government, Welsh government, Northern Ireland executive and their legislatures.

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”.

The new IGR structure is made up of three tiers:

  • Lowest tier: Interministerial groups (IMGs) on specific policy areas.
  • Middle tier: The Interministerial Standing Committee (IMSC) which considers cross-cutting issues; the Finance Interministerial Standing Committee (F:ISC); and additional time-limited committees.
  • Top tier: The Prime Minister and Heads of Devolved Governments Council (the ‘council’). IGR will be overseen by the council, with the other two tiers accountable to this forum.

A standing secretariat provides administrative support. It facilitates the process of dispute resolution.

Further information on the Dunlop review and the review of intergovernmental relations can be found in the House of Lords Library briefings:

2. UK government commitments on a constitutional commission

2.1 What has the UK government said about a UK-wide constitutional commission?

The Conservative Party’s 2019 general election manifesto contained a commitment to establish a Constitution, Democracy and Rights Commission to come up with proposals to “restore trust in our institutions and in how our democracy operates”. The manifesto said the commission would examine issues such as: the relationship between the government, Parliament and the courts; the functioning of the royal prerogative; the role of the House of Lords; the Human Rights Act; and the process of judicial review.

In December 2021, Parliamentary Under Secretary of State at the Ministry of Justice James Cartlidge confirmed to the House of Commons that the government was “committed to the broader aspects of the constitution” as pledged in the manifesto.

However, Mr Cartlidge said given the broad range of areas involved, the government was taking the work forward through a range of workstreams rather than a single commission, to “ensure all policy development is given the utmost consideration”.

On 17 November 2021, speaking on behalf of the government, Baroness Bloomfield of Hinton Waldrist told the House of Lords there were no plans for a UK-wide constitutional convention. However, she stated the government was committed to ensuring the constitutional relationships between the UK nations were effective:

This Parliament remains in charge of the balance between reserved and devolved competences, and we will continue to make sure that our constitutional arrangements remain fit for purpose and enable our institutions to work effectively together to deliver for citizens in every part of the UK.

2.2 What are the UK government’s plans for a bill of rights?

One of the government’s workstreams examining the constitution was an independent review into the Human Rights Act (HRA) 1998. Parliamentarians have argued this workstream raises issues about the role of human rights in the constitutional arrangements of the devolved nations.

The government established the independent review in December 2020 to examine the framework of the HRA, how it was operating in practice, and whether any change was required. The panel submitted its report to Deputy Prime Minister Dominic Raab in October 2021. The report has now been published.

The government responded to the report by setting out its proposals to reform the HRA and replace it with a bill of rights, in a consultation paper published in December 2021. The consultation closed on 19 April 2022.

In the 2022 Queen’s Speech, the government confirmed its plans to introduce a bill of rights:

My government will ensure the constitution is defended. My ministers will restore the balance of power between the legislature and the courts by introducing a bill of rights.

The government said the purpose of the intended bill would be to:

  • introduce a bill of rights which will ensure our human rights framework meets the needs of the society it serves and commands public confidence
  • end the abuse of the human rights framework and restore some common sense to our justice system

During the debate on the Queen’s Speech in the House of Lords, the government was asked how the potential legislation would affect the devolved governments, and to what degree they would be consulted. For instance, Baroness Bryan of Partick (Labour) inquired:

Because the business of devolution has not yet been completed, the role of the devolved parliaments is not acknowledged in making fundamental changes to our constitutions […] Does the minister recognise that drafting a bill of rights should be done jointly with the devolved administrations and, of course, consulting much more widely in civic society?

Baroness Bryan reported the Welsh government had stated that since the bill’s provisions would impact on the operation of devolved responsibilities, it would bring forward a legislative consent motion. In March 2022, the Welsh and Scottish governments wrote to the UK government on this issue. They stated the HRA was “fundamental” to each of the devolution settlements in the UK, and that it would be a “matter of the gravest concern” if the UK government contemplated “acting in this area without the agreement of all of the UK’s national legislatures”. The letter said the UK government’s proposal for a “modern bill of rights” was “unwelcome and unnecessary”.

Closing the debate in the House of Lords for the government, Lord Parkinson of Whitley Bay said it would continue to work constructively with the devolved administrations to secure their legislative consent “where that is achievable and appropriate”.

The Joint Committee on Human Rights argued the government must work closely with the devolved nations on this issue, in a report examining the government’s proposals to replace the HRA. The committee said the HRA “plays a unique role” in the constitutional arrangements of the devolved nations. In particular, it found the HRA and the European Convention on Human Rights play an important role in the peace settlement in Northern Ireland. The committee concluded that:

Any proposals to amend the HRA must take account of its unique role in the constitutional arrangements of the devolved nations, the implications for the future of the union and the impact of any differing standards of human rights protection across the devolved nations.

The committee said the government must engage closely with Northern Irish, Scottish and Welsh stakeholders before putting forward proposals to reform the HRA.

3. Other commissions on the constitutional relationships in the UK

3.1 Independent Commission on the Constitutional Future of Wales

In October 2019, the Welsh government advocated a UK-wide constitutional convention in its policy document ‘Reforming our union: Shared governance in the UK’. It argued constitutional developments in the UK should be considered on a “holistic basis and on the basis of constitutional principle”, rather than by way of ad hoc reforms to particular constitutional settlements.

However, in the second edition of the document, published in June 2021, the Welsh government said that in the absence of a “commitment from the UK Government for the national debate across the UK”, it would establish a commission to consider the constitutional future of Wales. Nevertheless, the document stated it continued to be the Welsh government’s view that future constitutional reform needed to be considered from a UK-wide perspective.

In July 2021, the Welsh Government set out plans for an Independent Commission on the Constitutional Future of Wales. On 16 November 2021, the Welsh counsel general, Mick Antoniw, announced the membership of the commission and set out the objectives for the commission. The commission has two broad objectives:

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

In January 2022, the co-chair of the commission, Professor Laura McAllister, wrote that its work has “a licence to be radical”, and would “explore options for governing Wales as a distinct nation within the existing UK, and also the options for a future for Wales outside the union”.

The commission launched a public consultation on 31 March 2022, citing “an opportunity to tell us what is working well with the way Wales is governed at the moment, and what needs to change”. The consultation will run until 31 July 2022, with an interim report expected in the autumn/winter. The commission’s final report is expected to be published by the end of 2023.

On 16 March 2022, Secretary of State for Wales Simon Hart and Minister for Levelling Up, the Union and Constitution Neil O’Brien gave evidence to the commission.

3.2 Labour Party constitutional commission

In December 2020, Leader of the Labour Party Keir Starmer announced Labour intended to launch a UK-wide constitutional commission to “consider how power, wealth and opportunity could be devolved to the most local level”. Former prime minister Gordon Brown was appointed to lead the commission.

In his 2022 speech at the Scottish Labour annual conference, Mr Starmer said the commission would “create a new blueprint for a new Britain”:

Not just to acknowledge or accommodate devolution, but to give it proper respect and unleash the true power of the idea. Not the devolution of grievance, or one-upmanship […] pushing power away from parliaments and towards people—and towards great cities like Glasgow […]

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Cover image from Wikimedia.