House of Commons - Devolution: A Decade on

Devolution: A Decade on - Justice Committee Contents

3 Inter-governmental Relations

88. The devolution of responsibilities from UK central Government to new devolved institutions with their own electoral mandates transformed the territorial politics of the UK from a set of relationships between departments of a single UK Government into a set of relationships between different governments. The Memorandum of Understanding and its underpinning Concordats are the basis of inter-governmental relations in the UK following devolution.

89. During our inquiry, we identified a broad consensus that these arrangements were no longer necessarily fit for purpose given the current political and economic climate within the United Kingdom. Bruce Crawford MSP, Minister for Parliamentary Business, Scottish Government, suggested that after almost a decade of devolution, it was necessary to "undertake a review of the Memorandum of Understanding and Concordats". He continued "the whole thing needs to be done as a package to look at everything properly".[147] Professor Jeffery described the arrangements as "unfit for purpose", while Rt Hon Paul Murphy MP agreed that the "machinery constantly needs looking at" because the landscape was "changing all the time".[148]

The framework for inter-governmental relations

90. The Memorandum of Understanding set out high-level principles for inter-governmental relations, largely designed to preserve ways of working that had grown up before devolution.[149] It also provided for the Joint Ministerial Committee, an over-arching body to include ministers of the UK Government and ministers of each of the devolved administrations.[150] It is described as "a statement of political intent, and should not be interpreted as a binding agreement … it does not create legal obligations … it is intended to be binding in honour only".[151] It was based on principles of "communication and consultation, co-operation … exchange of information, statistics and research and confidentiality".[152]

91. The Memorandum of Understanding also provided for the four administrations to "prepare concordats … to deal with the handling of procedural, practical or policy matters between them".[153] Those Concordats were intended to "govern the detailed administrative relationship … on matters of mutual interest and where the parties have executive functions which overlap or bear on each other",[154] and largely repeat the principles set out in the Memorandum of Understanding.

92. The Ministry of Justice indicated that neither the Memorandum of Understanding nor the Concordats had been changed significantly since they were established in 1999:[155] "The broad principles set out in departmental Concordats and the Memorandum of Understanding between the UK Government and the devolved administrations have remained consistent, with a strong emphasis on communication and early information sharing".[156] It added that these structures have been successful: "Over the last eight years the Concordats and the Memorandum of Understanding, and the processes behind these agreements, have been shown to work. These documents act as a useful reference tool to guide departmental interactions with the devolved administrations and continue to provide an important expression of the principles which underpin inter-governmental relations. Those inter-governmental relations remain strong".[157]

93. Rt Hon Des Browne MP told the Committee: "there is plenty of structure there and, frankly, it works. It is tested on occasions … it has stood the test of the involvement of different parties in Government here and it works".[158] Professor James Mitchell, Head of Department of Government, University of Strathclyde, agreed that "inter-governmental relations work very well in the UK between Scotland and London".[159] Alan Trench described "relations between the UK Government and the devolved administrations as being "remarkably harmonious since 1999". He explained that there had been no inter-governmental litigation before the Judicial Committee of the Privy Council (and few cases initiated by third parties involving devolution issues), no disputes have been referred to the Joint Ministerial Committee, and that "even behind the scenes there have been relatively few spats".[160]

Fit for purpose?

94. There was some disagreement as to how well the structures of inter-governmental relations have worked. While emphasising that his was an external view, Nick Bourne AM, described them as "a bit ad hoc and sometimes ex post facto". He added that relations could be a "little more cohesive".[161] Some witnesses also criticised the underpinning documents and the non-transparent nature of relations and the non-statutory nature of the framework for inter-governmental relations.

Out of date?

95. When asked whether the Concordats worked, Sir John Elvidge responded that it depended what was meant by "worked". He explained that they had "worked in that almost no-one refers to them as documents. They set a climate of expectation … they have worked in the sense that they have set the right set of expectations about the standards that the relationship should reach. They do not stop things going wrong …"[162] Dr Rawlings concurred that "they [the Concordats] are very rarely referred to—certainly not on a daily basis for the conduct of relations".[163] While Alan Trench claimed that the drafting of the Concordats was a useful exercise between 1998 and 2000, for making Whitehall departments think about how devolution would work and what it would mean for them, he said that since then "they have largely gathered dust".[164] Sir John Elvidge concurred that "it is an observable fact that there are cobwebs on some of them".[165] Dr Rawlings told us that in Wales, the Concordats were being updated in light of the 2006 Government of Wales Act.[166]

96. We welcome the fact that the Concordats between relevant Whitehall Departments and the Welsh Assembly Government are being revised in order to reflect the changes brought about by the Government of Wales Act 2006.

NON-STATUTORY

97. The informal, non-binding, non-statutory nature of inter-governmental relations has been bought into focus by changes in both the political and economic climate within the UK. Sir John Elvidge reminded the Committee that "we have to reflect on the fact that they were written and tested in one era of political relationships and it is an open question whether they will prove as robust in a changing era of political relationships".[167] Alan Trench noted that while the arrangements appeared to have survived the differences between governments so far "this would appear to be due more to a combination of particularly favourable circumstances rather than because a robust and effective structure is already in place".[168]

98. Alan Trench explained that comparative experience suggests that we can expect many more disputes between the UK's various governments to arise in due course. He explained that the practice of multi-level government in countries such as Spain or Canada typically involves regular and routine differences between governments, "which manifest themselves in political disputes and arguments, large inter-governmental conferences, protracted constitutional debates, and litigation before the highest courts. The absence of many of these features is highly unusual, and the reasons why they have not materialised yet are unlikely to persist for long".[169] He subsequently thought that it was hard to resist the conclusion that the Memorandum of Understanding was no longer fit for purpose, and that "neither it nor the existing bilateral concordats will be effective instruments when real differences between governments emerge".[170]

99. Professor Charlie Jeffery agreed. He explained that "the UK's arrangements for reconciling different territorial interests, inherited from the pre-devolution era and attuned to co-ordination within a single central government, appear unfit for purpose now that they connect governments led by different political parties".[171] Professor Jeffery claimed that the implications of this new set of inter-governmental relationships were disguised between 1999 and 2007 when the Labour Party led governments at the UK level and in Scotland and Wales (and in which devolution in Northern Ireland was suspended or unstable). There was, it should be noted, significant policy differences between devolved administrations and the UK Government, for example on student tuition fees and free personal care for the elderly. Since the round of devolved elections in Spring 2007 these implications have become clear, especially in "a number of public disputes between the UK and the Scottish Governments".[172] Rt Hon Lord Steel of Aikwood commented that "we always said the test of devolution would come when there were political differences between the Government at Westminster and the Government in Scotland and that, of course, has now happened".[173]

100. These mechanisms have not yet been fully tested by the presence of different political administrations, and they have also, until recently, operated within a context of record levels of public expenditure within the United Kingdom. Current economic realities may sharpen different territorial interests, and this has the potential to increase the levels of tension and dispute between governments.[174] Professor Jeffery argued that "arrangements for expressing and reconciling different territorial interests were largely projected forward from the pre-devolution era: collegial problem-solving by civil servants (though these are now responsible to different governments), supplemented where necessary by brokerage by ministers (though these are now members of different governments)".[175] In these circumstances, the Calman Commission interim report concluded that "we do not think that the lack of use of formal mechanisms for discussion and dispute resolution is sustainable over the years ahead as new challenges emerge".[176]

NON-TRANSPARENT

101. Professor Jeffery said that one of the consequences of the lack of a formal structure or mechanisms was "the lack of transparency." He said: "We really ought to know what positions were brought in to discussions, where the differences lay, because differences are legitimate, and what was done to address them. We just do not know what is happening in our name".[177] He suggested that this was indicative of a "problematic attitude towards differences of opinion", which were a "natural condition" of decentralised politics.[178]

102. Rt Hon Des Browne MP acknowledged there was "creative tension" inside the Government at Westminster, but that there was a "convention that we do not surface that disagreement because people concentrate on that".[179] He added "it does not seem to me necessarily that governance would be improved by having all of this out in the public domain".[180] However, the point is that these structures facilitate relationships between governments, who may have different legitimate positions, different political mandates, and who are accountable to different parts of the electorate. They are not conversations within a single government, but between separate governments. Rt Hon Jack McConnell MSP identified the need for a "culture change" in Whitehall so that it may "welcome that diversity rather than be threatened by it".[181]

103. As a result of the problems outlined above, the Scottish Government identified the absence of a proper constitutional structure to allow co-ordination of action in areas of joint interest and an effective means of dealing with the consequential effects of decisions taken in the respective jurisdictions as "one of the major weaknesses of the current devolution arrangement".[182]They concluded that the time was now right "to review the terms of this framework to ensure they provide a sound footing for formal engagement between the four governments in future".[183]

104. We recognise that the structures for the co-ordination of inter-governmental relations designed between 1997 and 1999 grew out of relationships between departments of the same government, rather than between different governments of different party political complexions.

105. The system of devolved government, including governments of different political complexions, requires a set of arrangements which provide opportunity for the expression of legitimate political and territorial differences, negotiation, dialogue and dispute resolution. These arrangements also need to facilitate the co-ordination of action in areas of joint interest, the promotion of common interests and good relations and an effective means of dealing with the consequential effects of decisions taken in the respective jurisdictions. The absence of such a structure is one of the weaknesses of the current devolution settlement.

106. Such arrangements would not in any way detract from the importance of ensuring that there is a need for a proper understanding of the devolution settlement(s) to permeate every aspect of the work of Whitehall departments and their agencies and an equivalent need for understanding and sensitivity within each of the devolved administrations and their agencies.

Joint Ministerial Committee

107. While the Memorandum of Understanding provided for a Joint Ministerial Committee (JMC), this Committee did not meet in plenary form between 2002 and 2008.[184] Professor Jeffery argued, that as a result "legitimate devolved interests have not been considered adequately by the UK Government because there are no regularised forums of communication which would make the UK Government aware of those concerns".[185] Professor Hazell called on the Government to "to adopt a more structured approach to inter-governmental communication, in order to defuse disagreements before they deteriorate into open political conflict; to co-ordinate legislative, executive and other action where necessary; and to demonstrate a commitment to building a constructive relationship with all administrations in the UK no matter what parties they comprise". He identified a pressing need to revive the full JMC machinery (summit meetings, and functional meetings of specialist ministers), and for it to become more transparent and accountable".[186]

108. Rt Hon Jack McConnell MSP explained that the JMC machinery "did not just wither on the vine; a conscious decision was made to stop the JMCs meeting in order to facilitate and encourage a much stronger bilateral relationship".[187] However, he recognised that there would be a purpose in some kind of mechanism that allows discussion between all four in a formal committee-type session: "I would not be against the re-establishment of some JMC type format".[188]

109. The Scottish Government argued that "there is a strong case to reconvene the Joint Ministerial Committee … not only to review how inter-governmental relations are conducted, but in the context of specific issues of mutual concern". They suggested therefore that it was "desirable to have a forum to discuss occasions when an administration considers the obligations of the Memorandum or Concordats have been overlooked. The Joint Ministerial Committee, once reconvened, could, as one of its roles, monitor the implementation of the Memorandum of Understanding and Concordats".[189]

110. Rt Hon Alex Salmond MP, MSP, First Minister, Scottish Government, speaking at Westminster on 25 July 2007 said:

"Those joint ministerial committees, certainly in plenary session, have not met since 2002. In terms of the sub-committees, which are part of that process, only one strand of four sub-committees has met over the past five years, and that is the sub-committee on Europe. An arrangement that was brought into being—presumably, because it envisaged a situation in which the same party would not be in government in Westminster as was in government in Scotland or Wales—has fallen into total disrepair. It is important that that instrument, or something like it, is brought back into being very quickly".[190]

111. The First Minister wrote to the Prime Minister to request formally the reconvening of the Joint Ministerial Committee and made the same proposal to the Secretary of State for Scotland. The Government agreed to reconvene the Joint Ministerial Committee under the chairmanship of Rt Hon Paul Murphy MP, Secretary of State for Wales.[191] A full plenary of the Joint Ministerial Committee was convened on 25 June 2008.

112. The newly re-convened Joint Ministerial Committee has already achieved some success. On 27 November 2008, it was announced that following a plenary meeting of the JMC and further negotiations, an agreement had been reached on a UK wide approach to marine planning. The agreement was based on the further devolution of powers to Scottish and Welsh ministers, which would enable the delivery of a UK Marine and Coastal Access Bill.[192] Ministers from the UK Government welcomed this agreement. Rt Hon Paul Murphy MP said that this "shows that good work can be achieved through the vehicle of the Joint Ministerial Committee", while Richard Lochhead MSP, Scottish Cabinet Secretary for Rural Affairs and the Environment, said "this is a clear demonstration that the JMC process is working". Jane Davidson AM, Housing Minister for Wales, wanted to see this "close dialogue continue" and Peter Robinson MP, MLA, First Minister in the Northern Ireland Executive welcomed "the role that the JMC played in reaching this agreement".[193] The Joint Ministerial Committee (domestic) has since met on 11 March 2009, and the finance ministers of the devolved administrations and the Chief Secretary to the Treasury took part in a quadrilateral meeting on 12March 2009.[194]

113. We welcome the re-convening of the Joint Ministerial Committee and note that its usefulness has been demonstrated in securing agreement between the territorial jurisdictions on the UK Marine and Coastal Access Bill. We recommend that the Joint Ministerial Committee continues to meet on a regular basis.

A NEW ROLE FOR THE JOINT MINISTERIAL COMMITTEE?

114. The newly re-convened joint Ministerial Committee's terms of reference are as follows:

i. to consider non-devolved matters which impinge on devolved responsibilities and devolved matters which impinge on non-devolved responsibilities;

ii. where the UK Government and the Devolved Administrations so agree, to consider devolved matters if it is beneficial to discuss their respective treatment in the different parts of the United Kingdom;

iii. to keep the arrangements for liaison between the UK Government and the Devolved Administrations under review; and

iv. to consider disputes between the administrations.[195]

115. Rt Hon Rhodri Morgan AM, welcomed its rejuvenation and identified its role as being one of "dispute resolution, best practice sharing, generally keeping the United Kingdom together regardless of the fact that different parties now have an involvement in the government everywhere in the Celtic parts of the United Kingdom".[196] He added, "we have got to give it a full airing and testing".[197] The Scottish Government said that the Joint Ministerial Committee "could ensure that the Memorandum of Understanding and bi-lateral Concordats provide a sound framework for joint working within the United Kingdom".[198]

116. Sir Gus O'Donnell wrote to us saying that during the plenary meeting on 25 June 2008, it had been agreed that "good government across the UK could be improved by still closer working".[199] The Joint Ministerial Committee also reaffirmed that it should have a role "as set out in the MOU, in helping resolve differences between administrations … [and] asked officials to look at the updating of the Memorandum of Understanding, which has not been done since 2001".[200]

117. Professor Hazell also said that there should be "some brief account, be it through formal minutes or issuing a communiqué, as to the main subjects that have been discussed and what has been decided". He noted that for a time, in the early years of the Joint Ministerial Committee, such communiqués were posted on the DCA website but that this was no longer the case; he cited this as an example of the requirement on all government departments in publishing information under the Freedom of Information Act as taking "a step backwards rather than forwards".[201]

118. We welcome a more active and systematic role for the Joint Ministerial Committee as the central apparatus for inter-governmental relations within the United Kingdom. We welcome the new terms of reference, which emphasise its role in promoting dialogue and negotiation and also in dispute resolution.

119. We welcome the fact that the Joint Ministerial Committee has invited officials to review the Memorandum of Understanding. However, ten years on, we believe that a broad review is necessary: not only of the machinery for co-ordinating inter-governmental relations in the United Kingdom, but of the broader role of central Government in its strategic overview of the United Kingdom post-devolution.

120. We believe that a robust framework for inter-governmental relations, supported by a streamlined centre responsible for devolution policy and strategy across Whitehall, would equip the United Kingdom with a more efficient and effective system for territorial management in the UK post-devolution.

Inter-parliamentary relations

121. In addition to inter-governmental relations, inter-parliamentary relations could also promote the sharing of best practice, and raise awareness of pertinent issues across all the members of legislative Parliaments or Assemblies throughout the UK. The only body that formally allows that to happen is the British-Irish Parliamentary Assembly.[202] Members also convene at a range of conferences and events organized by the Commonwealth Parliamentary Association. Mr Alex Fergusson MSP, Presiding Officer, Scottish Parliament, mentioned periodic meetings between Speaker of the House of Commons and the Presiding Officers of the devolved Parliament/Assemblies.[203] It seems strange that there is no forum for Members of the UK Parliament and the devolved Parliaments and Assemblies formally to convene, other than in the British-Irish Parliamentary Assembly, which also includes representatives of the Republic of Ireland and the Crown Dependencies.

122. Mike German AM identified "a great degree of sharing between the Assembly and the Scottish Parliament",[204] and, (from the Liberal Democrat point of view) "a good relationship with our members in Westminster". He said that Members of Parliament and Members of the Welsh Assembly were not necessarily "getting that level of structural interchange that might be necessary to make a smoother passage".[205] He argued that it "would be very useful to have a body or organization which allows the sharing of best practice".[206] We agree.

123. Indeed, if the Joint Ministerial Committee is to undertake the more active and systematic role that we recommend in this report, its work, deliberations and decisions should be transparent. While individual ministers would be accountable to their respective Parliaments or Assemblies, there is a strong case to made that the Committee should work alongside a new body, consisting of elected representatives from the Parliaments and Assemblies within the United Kingdom. This would not only provide an opportunity for the development of relationships based on mutual respect and the sharing of best practice on an informal level, but would also provide the opportunity for discussion, co-operation and joint working on issues of common interest.

124. One way of securing a greater interchange and understanding would be to develop a format similar to the British-Irish Parliamentary Assembly, bringing together Members of Parliament and of the devolved Parliaments and Assemblies, to hold to account the Joint Ministerial Committee and to share experience and best practice. There needs to be reasonable confidence in the value which could be added by such a body for the idea to be developed, but we consider that it deserves debate.

147 Q 239 Back

148 Q 99 Back

149 Memorandum of Understanding and supplementary agreements between the United Kingdom Government, Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee, Cm 5240 (London: The Stationery Office, 2001). Back

151 Memorandum of Understanding, page 5, available at www.justice.gov.uk/guidance/mou.htm Back

152 Ibid, Page 6-7 Back

153 Ibid, Page 5 Back

154 http://new.wales.gov.uk/about/concordats/ Back

155 Although see Q 635 and paras 95-96 Back

156 Ev 225-226 Back

157 Ev 225-226 Back

158 Q 60 Back

159 Q 266 Back