The United Kingdom needs a Grand Strategy of audacious investment, engaged partnership and renewed confidence. So argued Policy Exchange in its breakthrough paper, Modernising the United Kingdom, in late 2019. That paper was concerned with “unleashing the power of the Union”. Andrew Dunlop’s review of Union capability, prepared in the summer and autumn of 2019 but published only this month, is concerned with much the same thing.
Lord Dunlop’s core recommendations comprise three broad themes—funding, government structure, and intergovernmental relations. All featured prominently in Modernising the United Kingdom. Boris Johnson’s government has already delivered much of what was recommended about funding. On the machinery of government there is plenty of work in progress—albeit, as yet, unfinished work in progress. But reforming intergovernmental relations remains, for the time being, stubbornly on the government’s To Do list.
Devolution means that Westminster does not make laws in devolved areas for the devolved nations. Likewise, it means that Whitehall does not govern in devolved areas in the devolved nations. But it should never have meant that the United Kingdom does not spend in Scotland, Wales and Northern Ireland in areas that are devolved there. The US Congress does not make law in areas of policy that are for the States, but the federal government routinely spends for what the US Constitution calls the “general welfare” of the United States. This is the norm in all countries where there is more than one level of government. Federal constitutions or devolution statutes set out who has lawmaking and taxation competences over which areas, but spending rules are different.
Yet, somehow, after the 1998 devolution legislation was passed in the United Kingdom, the Treasury managed to convince itself that it did not have the power to spend UK taxpayers’ money in the devolved nations in areas that fell within the legislative competence of the devolved administrations. There was nothing in the 1998 devolution legislation to require this conclusion—it was a self-denying ordinance. And it was badly misconceived.
Both Policy Exchange and Andrew Dunlop argued that it should be reversed and, under Boris Johnson, legislation has now been passed and policy introduced to exactly this effect. The UK Internal Market Act 2020, section 50 expressly enables UK ministers to spend in the promotion of economic development in any part of the United Kingdom. Spending on infrastructure, or in support of cultural activities, is likewise permitted under the same provision. Section 50 is hugely important and, used wisely, it has the potential to transform the way the UK state is perceived in the devolved nations. Strategic infrastructure investment that better connects (for example), Edinburgh with Newcastle, Glasgow with Belfast, or Cardiff with Bristol, should never have been allowed to be held back over Treasury fears that these areas, being devolved, were somehow beyond the UK’s reach. Likewise major cultural, educational or sports events—if the UK government wants to use the heft of the UK state to bring such events to Scotland, Wales or Northern Ireland, it should not hesitate.
An immediate priority for the UK now should be to draw up a coherent, targeted and effective plan to ensure that the new section 50 power is used to maximum effect. Unionists often talk of the Union dividend. Let’s supercharge it. But let’s also be canny. If section 50 funding were to be built on the foundations laid by City and Growth Deals it would go directly to clusters of local authorities, allowing them to develop into more powerful entities and—potentially—into political bodies that had not only the resources but also the confidence to start to take on (or, at least, to stand up to) the devolved administrations themselves. Scotland is a much over-centralised place. Devolution within Scotland is something which careful, targeted spending by the UK Government could—and should—encourage.
Machinery of government
Argument has raged since the dawn of devolution about whether the UK government still needs the Scotland Office, the Wales Office and the Northern Ireland Office, each with its own bespoke Secretary of State sitting at the Cabinet table. On the one hand, demoting (for example) the Secretary of State for Scotland from the Cabinet at a time when the UK faces the ongoing threat of Scottish separation would seem foolhardy (Sir Humphrey would have described it as courageous). But on the other hand, the post-devolution Scotland, Wales and NI Offices are so small that they carry little weight in Whitehall. In a dispute with the giant DWP over welfare devolution in Scotland, or in a fight with the muscular Ministry of Justice over the emergence of a distinct Welsh jurisdiction, the Scotland and Wales Offices lack heft and are too easily out-gunned. The Union needs a mightier champion.
To meet that challenge, yet without abandoning or downgrading the three territorial departments of state, the Dunlop review suggests creating a new senior Cabinet position—a Secretary of State for Intergovernmental and Constitutional Affairs—to sit alongside the Chancellor, the Foreign Secretary and the Home Secretary in rank. This is a neat idea but, in my view, it would be neater still if we called the holder of this great office the Lord Chancellor. The Dunlop review sets out much of the thinking that leads to this conclusion. The Ministry of Justice is a spending department (it runs the prison service in England and Wales, among other matters) and, as such, its Secretary of State should be an MP. But the Lord Chancellor’s historic roles in maintaining and upholding the rule of law, and speaking up for the independence of the judiciary, are constitutional roles better suited, it might be thought, for a Peer. To these responsibilities I would add those of maintaining oversight of the territorial constitution. Remodelled as such it’s a job that requires half a step remove from party politics (and, on this view, should be severed from the ongoing role of the Secretary of State for Justice). In the pre-devolution era Lord Hailsham and Lord Mackay of Clashfern undertook it brilliantly, as did Lord Irvine of Lairg under Tony Blair. We need a Lord Chancellor with their level of gravitas, statesmanship and political skill sitting at the heart of the Cabinet, and chairing the key Cabinet committees on devolution and the Union.
As well as this high-level architecture, the Dunlop review was absolutely right to observe that, on a rather more quotidian, almost mundane, level, Departments of State of the UK Government need much greater visibility and presence in the devolved nations. As Dunlop put it: “if the UK Government’s activities in Scotland, Wales, and Northern Ireland are not recognised publicly, democratic accountability will be lost”. This can be achieved in a number of ways. By having board members whispering in ministers’ ears about the Union impact of their policies. By having departments establish hubs in the devolved nations. By encouraging civil servants to work for the devolved administrations, as well as for UK government departments, as part of their career progression. And by having UK ministers appear in key Scottish, Welsh and Northern Irish media outlets, both broadcast and press. You would be amazed the positive difference it makes to have Rishi Sunak, Liz Truss or Michael Gove on BBC Scotland’s Good Morning Scotland radio show. Recent weeks have seen a marked rise in the number of such ministerial appearances—and this is much to be welcomed. Indeed, all of these things are happening. A lot of it is under the radar—affecting the hidden wiring of the Union state—but it is making a difference. Small steps, perhaps, but steps in the right direction.
Nobody who has examined the United Kingdom’s arrangements for intergovernmental relations has found them to be fit for purpose. In Modernising the United Kingdom Policy Exchange argued that the Joint Ministerial Committee (JMC) which sits at the apex of the UK’s intergovernmental machinery should be augmented so that it includes metro mayors in England as well as leaders of the devolved administrations. In addition, PX suggested that a Council of UK Civic Leaders should meet regularly with ministers and officials. Lord Dunlop similarly concluded that the UK’s intergovernmental machinery needs to be “recalibrated” and replaced with something more permanent and more formal.
Lord Dunlop is right. The intergovernmental side is the part of devolution we have done worst in the UK since 1999. We have powerful and very well established devolved institutions. We are in the process of devolving more powers to metro mayors in England. But our machinery for joining it all up at the centre is lousy. It’s informal. It’s incomplete. It’s not taken seriously by the centre. And it’s treated with disdain by the devolved administrations. And yet, post-Brexit, it has become more important, not less. So many of the policy areas repatriated to the UK now we have left the European Union are neither fully reserved to Westminster nor fully devolved, but shared. Powers over economic development are just one example (to say nothing of powers over economic regulation within the UK’s internal market).
Lord Dunlop was right to see that the UK’s intergovernmental machinery, post-Brexit, will need to evolve, as he put it, into “a forum for more effective collaboration”. The JMC machinery, he said, “must look and feel like a joint endeavour”.
This is of course correct. That it has not yet happened owes a great deal to the Covid pandemic. Governments across the United Kingdom have been in crisis-management mode for the past twelve months. That crisis has exposed both strengths and real weaknesses in the ways in which the four governments in the United Kingdom work together. There has been broad agreement about the contours of lockdown, even if there have been variations in the speed with which its restrictions are relaxed in each of the four nations. There has been tremendous collaboration over the roll-out of the UK’s magnificent vaccination programme, second in the world only to Israel’s. But there have been tensions, too, over borders, quarantine, and, especially in the early months of the pandemic, over messaging.
Some departments in Whitehall—and not just the Department of Health—have learned more about devolution in the last twelve months than they have in the last twenty years. There is an urgent need to take stock, and pull together the lessons to be learned. Out of this experience needs to come renewed recognition that, in modern Britain, governments share power with each other. To be truly effective, they have no choice but to find ways of working together. Certainly, that is what voters in Scotland overwhelmingly want—for their two governments to pull together in the public interest, not to pull apart over partisan differences.
The pandemic is a dark cloud with precious few silver linings. It has caused human misery, cost society dear, and wreaked havoc with the economy. But if, out of this, fresh impetus can be given in the heart of Whitehall to the commitment that, whatever their political differences, the four administrations of the United Kingdom must work together in the common interest, that is a bonus well worth holding on to.
Adam Tomkins is a Professor of Law at the University of Glasgow and a Senior Fellow at Policy Exchange. He was an MSP from 2016-21.