Devolution: A Decade On - Justice Committee Contents

Memorandum submitted by the Cabinet Office


  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;// 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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