Introduction

In July 2019, the UK government announced a review into how it could govern the Union more effectively. It was led by Lord Dunlop, formerly a government adviser and then Conservative minister. The review produced a report dated November 2019, though the government did not publish it until March 2021. It identified a need for:

‘machinery and arrangements which enable the UK Government to discharge sensitively its own unique duties to people across all parts of the country, and to work constructively with devolved governments where responsibilities overlap.’ (Lord Dunlop, 2021: 7)

To achieve this goal, the Review proposed the creation of a senior Cabinet-level ‘Secretary Of State for Intergovernmental and Constitutional Affairs’, who would have support from a specially created Cabinet committee (see: chapter 2). It also advocated the instigation of a fund set aside for projects intended to benefit the whole of the UK. The UK Civil Service, Dunlop found, should become more focused on the devolved territories in its work (see: chapter 2). The report argued that the Joint Ministerial Committee, intended as a vehicle for cooperation between the devolved and UK executives, was ‘not fit for purpose’. It did not work in a sufficiently structured or rigorous fashion, Dunlop found, and it failed to address important issues. It had become an arena for discussing grievances and disputes rather than constructive collaboration. Dunlop recommended, in place of the Committee, the introduction of a ‘UK Intergovernmental Council’ that would provide ‘a forum for co-operation and joint working on both opportunities and challenges’ (Dunlop, 2021: 10).

Diving Deeper

A fragmenting Union?

Dunlop was commissioned, and the report published, in the context of the UK appearing to be under pressure and divided as a state. Different parties held power in each of the devolved governments and at UK level. The decision to leave the EU opened up further disputes between them. Majorities in Scotland and Northern Ireland had supported ‘remain’. Devolution had partly been designed to reduce the potential appeal of independence movements, but in Wales and Scotland, they appeared to be gaining in force. One cause of this resurgence appeared to be Brexit, which also created doubts about the constitutional status of Northern Ireland. During the coronavirus emergency, after initial cooperation, the governments of the different territories had come to pursue consciously divergent approaches. The UK government had responded to these tendencies by choosing forcefully to promote the idea of a unified state, for instance through the dispersal of civil servants and seeking to compel the more frequent flying of the Union flag on public buildings.

The wider impact of devolution

The commissioning of the Dunlop review, and the issues it identified, draw attention to aspects of devolution and its overall impact upon the UK system of government. Though the current set of devolved institutions are relatively recent, starting to function in 1999, they have become an established part of the UK constitution. Their importance extends beyond the specific territories in which they operate. This tendency is an example of how constitutional change can take place in the UK. It can be easier to bring about changes of this type in the UK than it might be in other countries that had ‘written’ or ‘codified’ constitutions (see: chapter 1). Furthermore, new institutions, such as those established to bring about the devolution of power, can continue to change over time following their initial introduction. For instance, the Welsh legislature has acquired substantially more powers than it first possessed, and transformed from an Assembly into a Senedd or Parliament.

An argument in favour of the type of constitutional development that takes place in the UK is that it allows for flexibility and adaptation to the needs of the time. Under a ‘written’ or ‘codified’ constitution, some would argue, devolution might not have happened at all. The requirements of a constitutional amendment procedure might have been too demanding to meet. If you think devolution is a good thing, you might regard the UKs constitutional flexibility as valuable. A possible argument against the ‘unwritten’ or ‘uncodified’ system is that it leads to reform that is not as well thought through as it might be; and that sufficient consideration is not given to the wider results of change. In the case of devolution, for instance, there have been impacts upon the governance of the Union as a whole that were not given full attention, and which you might see as a problem.

Consequences for UK governance

The focus of devolution has been on transferring powers away from UK level and to territorial institutions. From the outset, less consideration was given to what this dispersal of political and legal authority would mean for the overall governance of the UK. As the Dunlop review highlighted, relatively little attention was given to matters such as how potential areas of overlap between the UK and devolved tiers could be managed; or how to manage disagreements over matters that technically fell within the remit of the UK government. A mechanism was established, in the form of the Joint Ministerial Council, for the UK and devolved executives to consult with each-other. But it was widely judged not to be effective (see: chapter 12). Devolution could therefore be seen as having a fragmenting effect upon the UK. It allowed for greater divergence in the way the state was governed, while not counterbalancing it with a means of bringing together those diverse aspects of the UK. The advent of UK departure from the EU has served to heighten the need for the different tiers to work together, since powers previously held at EU had now been transferred to the UK. The pandemic also highlighted a divergence that was perhaps problematic.

Not fully federal

Another important observation regarding the impact of devolution on the UK is its relationship with federalism. Through devolution, the UK increasingly took on some aspects of a federal system. It introduced a new tier of territorial governance below the UK level. In this sense, the UK institutions might be seen as comparable to federal institutions, and the devolved institutions as comprising the equivalent to states. It became harder to describe the UK simply as a unitary state, in as far as such a label was ever applicable to it (see: chapter 12). But in key respects devolution did not fully equate with federalism. Importantly, it was asymmetrical – that is to say, there was not a uniform model introduced across the whole of the UK. Devolution with full law-making powers was established in Wales, Scotland and Northern Ireland, but not in England. More limited forms of devolution were introduced to parts of England, but not all. Consequently England did not have a set of institutions that were clearly its own in the way the other territories of the UK did.

This position led to anomalies, including that, in discussions between UK and devolved executives, at times UK ministers were in effect representatives of England, and at other times of the whole UK. Another important difference between the UK in the era of devolution and a federal system was that, in the UK, there was no mechanism for the different territories of the UK to take part in legally binding decision-making. For instance, there was no chamber in the UK Parliament incorporating the devolved territories into it. The Joint Ministerial Committee was a consultative body only, and lacked a basis in law. Finally, in the UK there is no written or codified constitution, as there would be in a federal state, attaching powers to the federal and state tiers, with the courts able to resolve disputes between them. Instead, ultimate legally authority is vested in the UK Parliament.

Would the proposals achieve their objective?

Whether Dunlop would address these various problems was a subject of debate. For instance, Philip Rycroft, a former senior civil servant who had worked in related policy areas, held that the report contained sensible proposals. But, Rycroft went on:

• ‘Lord Dunlop’s review was never going to answer all questions about the sustainability of the UK Union. What he proposes is certainly necessary, but not sufficient to halt the fragmentation of the United Kingdom. That will require bold and radical thinking, responsive to the exigencies of a fraught post-Brexit world. Is this UK government big enough for that? The signs are not promising.’ (Rycroft, 2021)

Summary

The Dunlop review published in March 2021 made a series of recommendations intended to ensure that the UK government was better equipped to manage its relations with the devolved territories and make policy for the whole country.

The issues engaged with in the report showed how devolution could impact upon the wider system of UK governance.

Changes in the unwritten or uncodified constitution were relatively easy to bring about, potentially with unforeseen outcomes.

Devolution had focused upon the transfer of powers away from UK level, less on how the new set of institutions might come together.

Devolution represented a shift towards federal type features, but did not amount to a full adoption of this system.

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