Memorandum submitted by the Cabinet Office
ADAPTING THE
MACHINERY OF
GOVERNMENT TO
DEVOLUTION
1. The Justice Committee has invited evidence
on how government has adapted in order to deal with devolution,
and how it might need to adapt in the future,
2. The establishment of devolution in 1999
was inevitably accompanied by the creation of a certain amount
of new machinery, both within the UK government system, and between
the administrations. Unsurprisingly also, the machinery has in
various ways evolved in the light of experience of devolution
in practice, and the process of development is continuing.
Arrangements in 1999
3. Secretaries of State. A key element
of the devolution settlement was the retention of a Secretary
of State for each part of the United Kingdom with devolved government.
The Secretary of State's functions would include representing
the interests of that area in the Cabinet, and representing the
Government in their area; in particular monitoring and coordinating
UK government responsibilities to ensure that they reflect those
interests; and ensuring the smooth operation of the devolution
settlement concerned.
4. Territorial offices. Hence once
power passed from the old Scottish and Welsh offices to the devolved
executives, a Scotland Office and a Wales Office were a key feature
of the landscape, established as independent Departments of State,
each headed by a full-time Secretary of State. In Northern Ireland,
the Government machinery dealing with economic and social issues,
which was already administratively separate, passed from the control
of the Secretary of State for Northern Ireland to the Executive
there. The Northern Ireland Office however retained, in addition
to the functions of the other two territorial offices, significant
functional responsibilities, including policing and justice, as
well as security matters and the pursuit of further political
progress.
5. Central departmental responsibility.
Overall responsibility for devolution strategy, and for coordination
of business relating to it, initially rested within the Cabinet
Office.
6. Inter-administration relations. Machinery
was also set up in 1999 for the conduct of relations between Whitehall
and the three devolved administrations, essentially seeking to
maintain as far as possible the open and constructive relationships
that existed while they had been part of a single government.
These arrangements were set out in a Memorandum of Understanding
("the MoU": an extra-legal document, making clear
that it was a statement of political intent, not a binding agreement).
It laid emphasis on the principles of good communication, consultation
and co-operation. Concordats between the Government and the devolved
administrations recognised the interest of the latter in aspects
of international and EU relations, matters which remained the
responsibility of Whitehall, and set out working arrangements
to deal with them. A large number of further concordats were agreed
between UK departments and the devolved administrations. Further
provision was made about working practices in Devolution Guidance
Notes for officials, some of them agreed with the devolved
administrations.
7. It was always understood that most contact
between administrations would be on a bilateral or multilateral
basis, but a need was also foreseen for central coordination of
the overall relationship. Hence the Joint Ministerial Committee
was established by the Memorandum of Understanding. Its
terms of reference covered issues straddling the devolved/non-devolved
boundaries; by agreement, the treatment of devolved matters in
different parts of the UK; reviewing liaison arrangements between
the Government and the devolved administrations; and considering
disputes between administrations. It was made clear JMC was a
consultative, rather than an executive body.
8. The JMC was envisaged as meeting in a
range of formats, including plenary meetings at least once a year,
chaired by the Prime Minister or his representative. There might
also be functional formats, covering subject areas, with ministerial
attendance at a lower level; special formats to resolve differences
between administrations; and official level meetings to "shadow"
proceedings.
9. The devolved administrations in Scotland
and Wales continued to be served by members of the Home Civil
Service. These arrangements have worked well, bringing the benefits
of the wider structure—innovation and reform, established
arrangements for safeguarding independence—whilst also offering
to devolved administrations of whatever political identity wholly
loyal and committed support. Separate versions of the Civil Service
Code (2006) for the Scottish and Welsh administrations make clear
that civil servants in those administrations are accountable to
the Ministers in those administrations, rather than the UK Government.
Evolution of the arrangements
10. These arrangements have evolved,
11. Changes in responsibility and organisation.
Responsibility for devolution strategy moved to the Office
of the Deputy Prime Minister and then in 2003 to the Department
of Constitutional Affairs, which itself last year was subsumed
within the Ministry of Justice. The Cabinet Office retained its
responsibilities for co-ordination of Government business, including
co-ordination in respect of devolution. After June 2003, the Scotland
and Wales Offices remained independent Offices, politically accountable
to their own Secretaries of State, and separately financed from
the respective grants to the Devolved Administrations. But for
a range of administrative purposes they were brought within the
DCA, and so on to the MoJ. At times since 2003, the holders of
all three Secretary of State posts have borne other Ministerial
responsibilities.
12. In Wales, the Government of Wales Act
2006, which made substantial changes to the structure of devolution
in Wales and opened the way to incremental devolution of primary
legislative powers to the Welsh Assembly brought significant changes
to the functions of the Welsh Secretary and of the Wales Office.
The Act provides for law making powers to be conferred on the
National Assembly in specified matters, which may be by Order
in Council, or by framework clause in an England and Wales Bill.
An Order may be made only if approved in draft by the National
Assembly and both Houses of Parliament. Proposals for Orders are
subject to pre-legislative scrutiny, by Committees of these three
bodies. The Secretary of State for Wales and his Office lead preliminary
discussions between UK and Welsh Assembly Governments on possible
Orders, and on possible framework clauses in Bills, and present
proposed and draft Orders to Parliament, for scrutiny or approval
respectively.
13. Devolved government in Northern Ireland
gave way to renewed direct rule in 2002, with the formerly devolved
administration reporting to the Secretary of State.
14. Inter-administration relations. These
also saw significant evolution. Plenary meetings of the Joint
Ministerial Committee were held annually from 1999 to 2002 in
different parts of the UK, and functional strands were established
to deal with Health, Poverty, the Knowledge Economy and EU matters.
But in most of these cases Ministers concluded that, against the
pattern of close bilateral working and ready ministerial contact
that had been established, formal meetings of the Committee added
insufficient value to justify the heavy burden of work that (especially
because of the need to travel) they created.
15. Hence much JMC activity ceased after
a few years. The exception was the functional format on European
issues, JMC (Europe): this has continued to meet consistently,
at roughly quarterly intervals, with the Foreign Secretary in
the chair, to discuss business with a devolved angle arising in
the European institutions.
16. Despite the reduction in JMC activity,
Ministers of the four administrations often continued to meet
in formal structures. Multilateral meetings have been held in
particular fields, for example the Finance Ministers' quadrilateral
which meets from time to time with the Chief Secretary to the
Treasury in the chair and devolved finance ministers in attendance,
along with Ministers from the territorial offices. There have
also been regular meetings of Ministers in the Agriculture field,
and elsewhere; in some areas there are regular meetings of senior
officials.
Recent developments
17. The elections last year to devolved
legislatures brought a greater degree of political divergence
to relations, and 2007 also saw the resumption of devolved government
in Northern Ireland. These developments were, inevitably, likely
to affect the operation of the institutions.
18. Joint Ministerial Committee. The
clearest instance of this has been in respect of the Joint Ministerial
Committee, where it has been clear that more formal arrangements
for Ministerial contact between the administrations might have
a greater contribution to make. The devolved administrations themselves
have favoured such arrangements.
19. The Prime Minister accordingly asked
the Rt Hon Paul Murphy MP, in addition to his responsibilities
as Welsh Secretary, to take on responsibility for the JMC. In
cooperation between the administrations (involving visits by Mr
Murphy to the First Ministers in Scotland and Wales, and the First
Minister and deputy First Minister in Northern Ireland) plans
were developed for resuming JMC activity.
20. A plenary meeting, the first since 2002,
was held in London on 25 June, chaired by the Justice Secretary
representing the Prime Minister. The Joint Statement issued afterwards
is at http;//www.scotlandoffice.gov.uk/our-communications/release.php?id=3676.
It considered issues related to renewable energy (where agreement
was reached on collaborative work to achieve the UK's target for
use, of such energy by 2020) and the Marine Bill shortly to go
before Parliament (where a measure of agreement was reached, to
be followed up in work between officials).
21. The meeting also took stock of the state
of relations between the administrations and agreed that, though
there was much contact already, good government across the UK
could be improved by still closer working. They agreed to a meeting
later in the year which might be in a new format, JMC (Domestic),
to be chaired by Paul Murphy, with other ministers participating
as appropriate. Such a format would parallel JMC (Europe), which
would continue as before.
22. The Committee also reaffirmed that it
should have a role, as set out in the MoU, in helping resolve
differences between administrations. It asked officials to investigate
ways in which, consistently with the principles in the MoU, it
could best do this—the provisions in the MoU about this
have never so far been invoked. It also asked officials to look
at the updating of the MoU, which has not been done since 2001.
The resulting work will be considered at the forthcoming JMC meeting.
A number of individual issues relating to finance were also raised.
23. Whitehall changes. At the same
time as these developments, there has been some strengthening
of capacity in parts of Whitehall dealing with devolution: the
Scotland and Wales Offices, the part of the Ministry of Justice
dealing with devolution, and the Cabinet Office (which leads the
joint Secretariat of the Joint Ministerial Committee).
24. New emphasis has also been given to
the efforts that have continued over the years to remind civil
servants of the implications of devolution for their work, and
the sensitivities associated with it. This effort has, for example,
given rise to "road shows" touring departments to increase
awareness and capability, and intensification of committee structures
within Whitehall to address devolution issues.
25. There has also been renewed emphasis
on the dissemination of key messages to civil servants in Whitehall
about the need, despite political differences, to maintain the
fullest contact and co-operation between administrations In the
interests of good government, whilst respecting the sensitivities
arising from the fact that they are distinct organisations.
The future
26. The effort to adapt will continue, reflecting
changing circumstances. Ensuring that happens sensitively and
promptly will be a key challenge for the Cabinet Office and all
in central government.
27. Further development of the JMC may work
to the benefit of relations between administrations—but
how far and in what configurations needs to be established in
the light of experience. It will need sustained efforts to ensure
that devolution issues continue to get the priority they need
in the policy-making process.
28. The further devolution that the Government
hopes for in Northern Ireland will bring about changes in machinery.
The Northern Ireland Office, having passed on to the devolved
administration its responsibilities for policing and justice,
is likely to move for administrative purposes within the Ministry
of Justice, alongside the other two territorial offices.
29. Meanwhile in Wales the legislative competence
of the Assembly continues to grow, which will have consequences
for the Wales Office. In Scotland, the Calman Commission on the
operation of the Scotland Act 1998 may have recommendations that
bear on Whitehall organisation and inter-administration relations.
Sir Gus O'Donnell KCB
Secretary of the Cabinet and Head of the Home
Civil Service
November 2008
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