Devolution tensions exposed

The government spent nearly five years fighting the release of papers which illuminate tensions within Whitehall over the introduction of Scottish devolution and which have now been disclosed.

Last month, the information commissioner ordered the Scotland Office [129Kb PDF] to release hundreds of pages of material which was originally requested under freedom of information in February 2005. The commissioner's office took over four years to assess the case before reaching this decision.

The documents relate to the Sewel Convention, the commitment made when the devolution law was being passed that Westminster would not normally legislate on devolved matters in Scotland without the consent of the Scottish Parliament. It is named after the junior Scottish Office minister Lord Sewel, who announced the policy.

It is clear from the papers that the early workings of this convention were the subject of much tricky negotiation between the Scottish Office and other parts of the British government. The disclosures reveal the concerns within the Scottish Office over the attitudes of officials in other departments.

In one memo from November 1998, Iain Jamieson of the Scottish Office legal team wrote:

"These problems simply demonstrate just how unsatisfactory it is to allow Westminster to continue to legislate on devolved matters, other than quite exceptionally. Some Departments simply do not appear to have woken up to the fact of devolution."

In June 1999, another official, David Rogers wrote:

"I can see the difficulties but we're in a weak position re Whitehall. If we make it too difficult for them the buggers will just run roughshod over our convention on the basis that these Bills should be regarded as part of inherited landscape - Scottish offoce [sic] Ministers were consulted etc."

And in the same month, John Elvidge, who had been temporarily seconded from the Scottish Office to the Cabinet Office, wrote:

"I'm not surprised that this has proved problematic. The reason I didn't reply from Cabinet Office to the March letter was that settling procedures with the Welsh raised Whitehall hackles so much that I saw no prospect of a reasonable discussion if the issues about the Scottish Parliament were opened up simultaneously."

Sir John Eldridge is now the Scottish Government's top civil servant.

Lord Sewel himself soon became worried about the way the convention had started to operate in practice. In June 1999, his office circulated a memo saying that he was:

"greatly concerned about the procedure that is being adopted in relation to the Bills other than the FSA [Food Standards Agency] Bill. He feels we are taking the 'Sewel Convention' too far. He registered his concern at yesterday's Cabinet Committtee."

Since leaving government, Lord Sewel has repeated his view in public remarks that the convention had been used too widely.

I asked the Scotland Office for this material after the commissioner's judgment was announced. They only agreed to send me hard copies, but someone else has managed to get them to post electronic versions at the FOI site What Do They Know.

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