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".
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
20. Witnesses differed in their opinion on the importance
of the "formality of the machinery" relating to inter-governmental
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...
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.
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.
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",
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.
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".
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".
While Alan Trench felt it would be "constitutionally impossible"
to have a "more detailed, quasi-legal document",
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.
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. 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.
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. Alan
Trench commented that they were "often the only place in
which key principles of devolution are noted or articulated".
26. In our report on the Legal Services Commission
Cardiff Office, 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.
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
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".
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.
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
34. Rhodri Morgan AM described the JMC as a "problem
solving body, not a disputes arbitration body".
He commented that a "huge fuss was made"
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'.
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".
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;
iv) to consider disputes between the administrations.
36. Rhodri Morgan AM welcomed the re-establishment
of the JMC, particularly following the arrival of a SNP government
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
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.
Sir Jon Shortridge welcomed it as a "way of leading and driving
the operationalism of the settlement".
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.
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.
38. The Joint Ministerial Committee has already achieved
some "tangible success" since it was re-convened.
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".
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.
With four fully devolved services, she questioned the need for
the UK civil service to "always lead the work at times of
contrasted the situation within the JMC with the British-Irish
Council, 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.
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
13 http://www.justice.gov.uk/guidance/docs/odpm-dev-600629.pdf Back
Q 57 Back
Q 57 Back
Q 604 Back
Ev 146 Back
Q 524 Back
Q 573 Back
Q 239 Back
Qq 61- 63 Translation: Having a private word. Back
Q 344 Back
Q 344 Back
Q 345 Back
Ev 127 Back
Seventh Report of the Welsh Affairs Committee, Session 2008-09,
Legal Services Commission Cardiff Office, HC 374 Back
Ev 127 Back
Q 362 Back
Ev 146 Back
Ev 129 Back
Ev 129 Back
Q 80 Back
Q 65 Back
Q 65 Back
Qq 582-583 Back
Q 64 Back
Q 444 Back
Q 52 Back
Q 346 Back
Q 346 Back
Q 584 Back
Q 584 Back
Q 524 Back
Q 524 Back
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
Q 525 Back