Wales and Whitehall - Welsh Affairs Committee Contents


2  Inter-Governmental Relations

Memorandum of Understanding

18. Following devolution, a Memorandum of Understanding and its accompanying Concordats are the basis of inter-governmental relations between the Welsh Assembly Government (and the other devolved administrations) and the United Kingdom Government. The Memorandum of Understanding sets out high-level principles for inter-governmental relations. It also provides for a Joint Ministerial Committee (JMC), an over-arching body that involves ministers of the UK Government and ministers of each of the devolved administrations. It is described as a "statement of political intent, and should not be interpreted as a binding agreement […] it does not create obligations […] it is intended to be binding in honour only". It is based on principles of "communication and consultation, co-operation […] exchange of information, statistics and research and confidentiality".[13]

19. The Memorandum of Understanding also provides for the four administrations to "prepare Concordats […] to deal with the handling of procedural, practical or policy matters between them". These bilateral Concordats are 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", and are intended to give detailed effect to the principles set out in the Memorandum of Understanding.

20. Witnesses differed in their opinion on the importance of the "formality of the machinery" relating to inter-governmental relations.[14] Rhodri Morgan AM commented:

    … I do not think the JMC and the Memorandum of Understanding and Concordats are the key thing. The key thing is whether a relationship is warm or cold […] It is a matter of attitude rather than the formality of the machinery...[15]

The Secretary of State for Wales agreed that the success of inter-governmental working did not depend solely on the formal structures in place:

    … you can design the most beautifully geometric relationship and processes and guidance notes, structures and committees and goodness know what, but actually what it depends on is human relationships and the warmth of these human relationships.[16]

21. The Welsh Assembly Government, however, stressed that it was essential to have clear ground rules in order to promote the functioning of inter-governmental relationships.[17] Dame Gillian Morgan, Permanent Secretary to the Welsh Assembly Government expanded on this point in oral evidence to the Committee: "good strong governance and good clear arrangements are at the heart of solving problems […] the things you write down for governance are not for times of peace but for times of trouble",[18] and Sir Gus O'Donnell, Cabinet Secretary and Head of the UK Civil Service, commented that:

    If the formal structures get in the way then, no matter what the strength of the relationships, it is going to be difficult. If you have a set of formal structures which allow you to operate effectively together then, again, I would say that is necessary but by no means sufficient for things to work. If you have good structures and people do not try and make them work and the relationships are poor, then I think you will come up with poorer outcomes [...] if the structures are poor you will still try and do the best within poor structures; but if you have poor relationships, whatever the structures, it is not going to work.[19]

NON-STATUTORY STATUS

22. The informal, non-statutory nature of inter-governmental relations has not yet been tested by political administrations from wholly different parties in Whitehall and Wales. Sir Emyr Jones Parry, Chairman of the All-Wales Convention reminded the Committee that "there has been this privileged position that it has been the same party in power predominantly in Cardiff and that has facilitated things".[20]

23. Rhodri Morgan AM commented that "it is a very British way of doing things to try to operate in an informal capacity", which in Welsh terms is the equivalent of "a gair bach yn y set fawr".[21] While Alan Trench felt it would be "constitutionally impossible" to have a "more detailed, quasi-legal document",[22] he was clear that the principles of the Memorandum of Understanding had to be respected and was not convinced that they always were:

    … if you are going to have an agreement that is binding in honour only it must be binding in honour; and, frankly, that seems not always to be the case.[23]

He also felt it was important it was reviewed regularly "because it would focus the minds of politicians and civil servants on how those relationships were meant to work, and would mean that they would have to revisit and understand these things in a current context rather than simply having what was put on the table many years before".[24]

24. Since the completion of our evidence sessions, a revised and updated Memorandum of Understanding has been agreed by all four administrations at a meeting of the Joint Ministerial Committee (Domestic) on 10 March.[25] It must now be ratified by each administration.

DEVOLUTION GUIDANCE NOTES

25. The Devolution Guidance Notes, issued by the Ministry of Justice and made publicly available, set out advice on working arrangements between the UK Government and the devolved administrations. They are an introduction to the main principles involved in the managing of the devolution settlements, bilateral relations, correspondence, parliamentary business, legislation and concordats.[26] Alan Trench commented that they were "often the only place in which key principles of devolution are noted or articulated".[27]

26. In our report on the Legal Services Commission Cardiff Office,[28] published on 1 May 2009, we recommended that Devolution Guidance Note 4 be amended in order to clarify and strengthen references to the key role of the Secretary of State for Wales and the Wales Office regarding the principle of timely consultation on policy matters that might affect Wales. While we received assurances from the Secretary of State that it was in the process of being revised and Cabinet clearance was being sought, we are disappointed that this has still not been published by the time of this Report.

27. Some witnesses argued that the status of devolution guidance notes was not clear, as they were regarded by the UK government as internal guidance notes that, although published, were issued by one government for the benefit of its own officials. Alan Trench felt that their status was higher than this:

    These are not simply internal matters relating to the affairs of one government, but record important principles of how devolution works more generally.[29]

In oral evidence to the Committee he elaborated on this point and stated that he wanted to see:

    ... some of the material that is presently set out in Devolution Guidance Notes in a successor intergovernmental agreement, a sort of manual for managing intergovernmental relations ...[30]

28. The Welsh Assembly Government agreed with attempts to raise the profile of the Devolution Guidance Notes but noted that "it is important that the results are acceptable to the devolved administrations," and that "Guidance to officials in Whitehall and in Wales has to be mutually compatible".[31]

29. The structures for inter-governmental relations with Wales were developed during a period when the same political party was in power in both Wales and Whitehall. There will be times when relationships between the Government and devolved administrations come under strain, and during periods of "cohabitation" between different parties in government at the two levels they can be at greater risk. Adequate machinery must be in place to enable extensive negotiation and conciliation to occur between the Government and the devolved administrations. It is not enough to rely solely on the strength of informal relationships.

30. Formal machinery is necessary but not sufficient. Often its effectiveness lies in the informal relationships it allows to develop underneath it. Strong relationships develop if there is the political will to make them work. It is important that arrangements exist to promote and maintain strong relationships between Members of Parliament and Welsh Assembly Members. This will ensure that we learn about and understand each other's priorities.

31. We believe that a broad review of the machinery for co-ordinating inter-governmental relationships is necessary. An updated Memorandum of Understanding between the Government and devolved administrations is long overdue. We urge the Government to publish the agreed revised version as soon as possible. We recommend that the Memorandum of Understanding be reviewed at the start of every Parliament. The status of Devolution Guidance Notes should be strengthened after appropriate consultation.

Joint Ministerial Committee

32. The Memorandum of Understanding provides for a Joint Ministerial Committee (JMC). It provides a formal consultation role with Ministers from devolved administrations on a wide range of matters where there is an interaction between reserved and devolved policy matters.[32] The Joint Ministerial Committee did not meet at ministerial level between 2002 and 2008, but was re-convened on 25 June 2008.

33. There are two sub-committees of the Joint Ministerial Committee, on Europe and on domestic affairs. The Joint Ministerial Committee (Europe) (JMC(E)) has operated successfully from the outset of devolution. It meets four times a year, prior to each European Council. The Joint Ministerial Council (Domestic) (JMC(D) is chaired by the Secretary of State for Wales, in his capacity of senior Minister for inter-administration relations, and discusses issues of mutual interest to the devolved administrations and the Government. Its inaugural meeting was held in March 2009, to discuss welfare reform, and met again in May 2009 to discuss managed migration.[33]

34. Rhodri Morgan AM described the JMC as a "problem solving body, not a disputes arbitration body".[34] He commented that a "huge fuss was made"[35] about the Joint Ministerial Committee when it was first established:

    The Prime Minister always attended. Then Robin Cook or John Prescott chaired it and then it stopped meeting altogether. […] in the first couple of years it was a very good thing to have these rotating meetings in Scotland and Wales […] it never did meet in Belfast; but having the meetings here and in Scotland, with the Prime Minister chairing them, probably was a good kick-off for devolution. In a way the downgrading then of the Prime Minister's attendance to Robin Cook's attendance or John Prescott's attendance was taken as a sign, 'Things are going fairly well; we do not really need the Prime Minister to be devoting his time to this question'.[36]

Both Mr Morgan and the Secretary of State for Wales told us that they saw the absence of plenary sessions of the JMC as a measure of the success of the devolution process. The Secretary of State for Wales commented that there was "no particular imperative for it to meet," with "no clamour from either Cardiff or Edinburgh […] for it to meet in order to solve a problem that could not otherwise be solved".[37]

35. The newly re-convened Joint Ministerial Committee's terms of reference are:

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.[38]

36. Rhodri Morgan AM welcomed the re-establishment of the JMC, particularly following the arrival of a SNP government in Scotland:

    I thought that was a good thing because you now have an SNP administration in Scotland, and I thought it helped to warm up again relationships which had got pretty frosty, particularly between the Scottish administration and the Westminster and Whitehall Government.[39]

Carwyn Jones AM, First Minister of Wales, recognised the JMC's role as "exceptionally important" as a forum where devolved issues could be raised and dealt with effectively.[40] Sir Jon Shortridge welcomed it as a "way of leading and driving the operationalism of the settlement".[41]

37. In explaining the value of the Joint Ministerial Committee, Alan Trench said:

    The particular value that I have always seen to the Joint Ministerial Committee is that it signals the engagement of the UK Prime Minister, the highest political levels of UK Government, in understanding what devolution is about and in managing the territorial structure of the UK. That then sends a very powerful signal across Whitehall that this is something that matters to the Prime Minister; that if something goes wrong someone as important as the Prime Minister will be paying attention to it.[42]

He further noted:

    I think the engagement of the JMC at the highest level is a very powerful way of indicating to Whitehall that it needs to pay attention to devolution matters that will cascade throughout Whitehall and hit everybody who has got a routine devolution issue sitting on their desk; that they do not put the devolution side of that as the last and least of the things that they worry about just before they tie up the final loose ends.[43]

38. The Joint Ministerial Committee has already achieved some "tangible success" since it was re-convened.[44] 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 Secretary of State for Wales commented that the JMC had "helped to bring all the parties together to secure a framework power for marine planning in what was a very good example of joined-up working".[45]

39. While welcoming the work of the Joint Ministerial Committee, Dame Gillian Morgan spoke of the need for "parity of esteem" between the UK Government and the devolved administrations.[46] With four fully devolved services, she questioned the need for the UK civil service to "always lead the work at times of trouble".[47] She contrasted the situation within the JMC with the British-Irish Council,[48] which had a shared secretariat, and where each country takes the lead on issues of particular relevance or interest:

    … Wales has provided a lead on language because of the challenge. […] There is a lot of mutual understanding that comes out of that shared work which happens by officials on behalf of ministers. It is the type of equality where you are sharing out things because you are all equal, you all have the same sort of view, I would like to see that become a characteristic of the JMC rather than the assumption that on fully devolved matters the UK should automatically lead. […] it should be based within the concept that our view and our opinion on current devolved matters is equally as important and valuable as the view of any of the other countries.[49]

40. We welcome the re-convening of the Joint Ministerial Committee and recommend that it continues to meet on a regular basis. We believe that as well as practical, problem-solving work the Joint Ministerial Committee has symbolic value in embedding the principle of mutual respect and the expectation of proper consultation across Whitehall and with the Welsh Assembly Government. This should not be regarded as an alternative to direct relationships between Assembly and Whitehall departments, in which best practice should be pursued.

41. Whilst we recognise that the relationship between the UK Government and the Welsh Assembly Government is not one of constitutional equals, we urge the Cabinet Office to look at the British-Irish Council as an example of effective joint working. On appropriate occasions, consideration should be given to inviting a devolved administration to take the lead on a particular issue.


13   http://www.justice.gov.uk/guidance/docs/odpm-dev-600629.pdf Back

14   Q 57 Back

15   Q 57 Back

16   Q 604 Back

17   Ev 146 Back

18   Q 524 Back

19   Q 573 Back

20   Q 239 Back

21   Qq 61- 63 Translation: Having a private word.  Back

22   Q 344 Back

23   Q 344 Back

24   Q 345 Back

25   http://www.cabinetoffice.gov.uk/newsroom/news_releases/2010/100310-devolution.aspx  Back

26   http://www.justice.gov.uk/guidance/devolutionguidancenotes.htm#five  Back

27   Ev 127 Back

28   Seventh Report of the Welsh Affairs Committee, Session 2008-09, Legal Services Commission Cardiff Office, HC 374 Back

29   Ev 127 Back

30   Q 362 Back

31   Ev 146 Back

32   Ev 129 Back

33   Ev 129 Back

34   Q 80 Back

35   Q 65 Back

36   Q 65 Back

37   Qq 582-583 Back

38   http://www.cabinetoffice.gov.uk/newsroom/news_releases/2008/080619_joint_committee.aspx Back

39   Q 64 Back

40   Q 444 Back

41   Q 52 Back

42   Q 346 Back

43   Q 346 Back

44   Q 584 Back

45   Q 584 Back

46   Q 524 Back

47   Q 524 Back

48   The Council was created under the Agreement reached in the Multi-Party Negotiations in Belfast in 1998 to promote positive, practical relationships among its Members, which are the British and Irish Governments, the devolved administrations of Northern Ireland, Scotland, Wales and Jersey, Guernsey and the Isle of Man Back

49   Q 525 Back


 
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