Devolution and Exiting the EU: reconciling differences and building strong relationships Contents

8Inter-governmental relations: the missing part of devolution?

122.There is a growing consensus that the current UK inter-governmental relations mechanisms are not fit for purpose. We have expressed this view in a previous report, but similar views have been expressed by the House of Lords Constitution Committee; the House of Lords EU Committee; the Constitutional and Legislative Affairs Committee of the National Assembly for Wales; and the Finance and Constitution Committee of the Scottish Parliament.188 The Interparliamentary Forum on Brexit, where the Chairs of Committees from the UK and devolved legislatures meet to share and coordinate their work on Brexit related issues, has also stated that the current inter-governmental mechanisms are “not fit for purpose”.189 Now even the UK and devolved Governments appear to have accepted that the current mechanisms need an overhaul after agreeing to a review of “existing inter-governmental structures and the MoU, to ensure that they are fit for purpose”.190

123.The evidence to this inquiry has overwhelmingly called for extensive reform or replacement of the current inter-governmental relations mechanisms as the UK leaves the EU. Nigel Smith, former chairman of Scotland FORward, which led the ‘Yes Yes’ campaign in the 1997 Scottish devolution referendum, told us that a major weakness of the devolution settlement since its establishment in 1998 had been the lack of attention given to inter-governmental relations.191

124.Professor Page identified one of the main weaknesses of the current inter-governmental machinery as being that “too much is left to the uncoordinated activities of individual departments” and there is a lack of central coordination and control.192 He considered that a completely new structure might be a step too far, but a “fresh start” was required and a “recognition that inter-governmental relations is every bit as important a part of the devolution settlements as the powers possessed by the individual devolved Administrations.”193 He argued that, in order for these relations not to be based on “happenstance, chance or the inclination and instinct of individual administrations … the basic machinery needs to be put on a statutory footing”.194 Professor Rawlings agreed that inter-governmental machinery should be set out in statute, adding that it should also be given an independent secretariat that could take over some of the functions which currently rest with the Cabinet Office for setting and organising meetings.195

125.Both Professor Nicola McEwen, Professor of Politics at Edinburgh University and Professor James Mitchell, Professor of Politics at Edinburgh University, agreed that by far the most successful iteration of the Joint Ministerial Committee (JMC) is JMC (Europe) (JMC(E)), which is, coincidentally, about to become redundant.196 Professor McEwen argued that the JMC(E) worked well because it had a regular timetable dictated by the meetings of the European Council and Council of the European Union; and its role necessitated a high degree of communication and cooperation between its members to deal with overlapping competences to produce an agreed UK negotiating position.197 Professor McEwen noted that a clear common focus and purpose are essential to successful inter-governmental relations, as this then takes the political heat out of some of the more contentious issues.198

126.The Welsh Government has been at the forefront of raising concerns about the JMC system and inter-governmental relations in the UK in general. In its 2017 Brexit and Devolution paper, the Welsh Government called for deeper cooperation between the Governments of the UK, Scotland, Wales and Northern Ireland; and significant constitutional changes to deal with the challenges brought about by Brexit.199 The paper branded the current JMC arrangements a “talking shop” and argued for a structure capable of taking forward negotiations and reaching binding decisions, supported by a “dispute resolution mechanism”.200 In order to provide this, the Welsh Government proposed a UK Council of Ministers run along the same lines as the EU Council of Ministers, with an independent secretariat drawn from all four administrations but independent of any ties to those administrations. On matters within devolved competence, where necessary, binding UK frameworks should be drawn up and agreed by all four administrations.201 Rt Hon Carwyn Jones, First Minister of Wales, argued that while these proposals would involve significant change, they are not as radical as they seem and reflect his experience of being in JMC(E), with the four agriculture Ministers getting together and agreeing a position.202

127.Michael Russell MSP, Scottish Government Minister for UK Negotiations on Scotland’s Place in Europe, praised the Welsh proposals, and called for reform of the JMC process. He told us that, although both the Welsh and Scottish Governments wanted reform, he had not yet seen an equivalent desire from the UK Government.203

128.During this inquiry, we also heard calls from party leaders and spokespersons in both Cardiff Bay and Holyrood for improved inter-governmental relations mechanisms and several ideas were put forward.204 Andrew RT Davies AM, Leader of the Welsh Conservatives, argued that inter-governmental structures should reflect the constitutional shape of modern Britain.205 Leanne Wood AM, Leader of Plaid Cymru, declared herself in favour of a UK Council of Minsters where sessions would rotate around the capital cities.206 Willie Rennie MSP, Leader of Scottish Liberal Democrats, advocated a statutory footing and a more central role for inter-governmental relations.207 Richard Leonard MSP, leader of Scottish Labour, proposed a council of ministers similar to that advocated by Wales, but with qualified majority voting.208 Professor Adam Tomkins MSP, Shadow Cabinet Secretary for the Constitution, Communities, Social Security and Equalities, supported reform, but argued that the key point was not whether inter-governmental relations were given a statutory footing, but whether any new arrangements were effective. After all, he said, some informal mechanisms might work brilliantly, while other formal mechanisms might miss the mark and not work at all.209

129.The Minister told us that, in his experience, the JMCs are useful but only work if there are other mechanisms for consultation and discussion to support them. He argued that, regardless of precise format, the JMCs work best when underpinned by regular professional contact between officials to support the work of the ministers; and when there is a “culture of consultation and working together across the United Kingdom”.210 The Minister considered that it would be a mistake to focus entirely on formal JMCs as the way forward, as JMCs can only work well when there is constant contact between the different administrations at ministerial and official level to deal with issues as they arise, rather than waiting for the next JMC meeting.211

130.Lucy Smith told the Committee about the detailed work that had been carried out between officials to identify areas for common frameworks to support the work of ministers at the JMC(EN) meetings.212 She detailed 25 areas where deep dive workshops had taken place between since the beginning of 2018.213 Following the agreement of the 24 areas that may require legislative common frameworks, she said that under a mandate from the JMC(EN) further work on these 24 areas will be done by officials over the Summer of 2018.214 These proposals will then be presented for consideration by Ministers of the UK Government and devolved administrations.215

131.We asked the Minister about representation of the different interests within England through the JMC system. The Minister told us that the JMC was set up for a clearly defined purpose, to “provide a mechanism for formal engagement at ministerial level between the Government of the United Kingdom and the Government of the three devolved areas”.216 He argued that, outside the JMC mechanism, the LGA had been consulted through the Department for Housing, Communities and Local Government and the Department for Exiting the EU; and that there had been “regional sounding boards” around England, as well as meetings with mayors and regional leaders.217 The Minister further stated that, when dealing with Scotland, Wales and Northern Ireland, there were properly constituted authorities to deal with. On the other hand, the interests of the English regions may be more divergent. The Minister said

For example, in looking at what we do about the future of agricultural policy, it is quite conceivable that, in some respects, the interests of upland areas, the Lake District, parts of the south-west in England, may align more closely with some of the interests expressed in Scotland and Wales than with those interests of, say, East Anglia.218

He argued that it was the responsibility of the individual Secretaries of State to make sure that English interests are factored into “their consideration of what the overall balance of the UK approach ought to be”.219

132.The absence of formal and effective inter-governmental relations mechanisms has been the missing part of the devolution settlement ever since devolution was established in 1998. The process of the UK leaving the EU has provided the opportunity for the Government to re-think and redesign inter-governmental relations in order to put them on a better footing. Once the UK has left the EU, and UK Common Frameworks are established, the present lack of intergovernmental institutions for the underpinning of trusting relationships and consent will no longer be sustainable. We recommend that the Government take the opportunity provided by Brexit to seek to develop, in conjunction with the devolved Administrations, a new system of inter-governmental machinery and ensure it is given a statutory footing. Doing this will make clear that inter-governmental relations are as important a part of the devolution settlement as the powers held by the devolved institutions.

133.We agree with those who gave evidence to the inquiry recommending that the JMC must be reformed. The new inter-governmental apparatus that emerges from this reform should ideally have an independent secretariat to schedule and organise inter-governmental meetings. The secretariat should also provide an independent conduit for discussions among administrations at official and ministerial level in between formal inter-governmental meetings.

134.We note the evidence that the JMC(E) has been the most successful and effective form of the JMC. We further note a replication of this success in recent meetings of the JMC(EN) to discuss UK Common Frameworks. It is clear to us that the success of these JMCs is due in large part to the important and well-defined roles that they carry out which focus minds on a common purpose and remove the heat from political debates.

135.It is important that inter-governmental relations mechanisms have a clearly-defined purpose and are not just arrangements for the airing of grievances. Common Frameworks should if possible be agreed by consensus and, if a consensus cannot be reached, each government should report the reasons for the failure to agree to their respective legislatures.

136.The UK Government exhibits a lack of engagement with the issue of England’s representation at inter-governmental level. As the UK leaves the EU, this lack of engagement is increasingly unacceptable and must be addressed. The Minister told us that different parts of England have different and potentially conflicting interests. Yet his answer to this problem was to identify the Secretaries of State as the individuals responsible for both identifying and taking account of the differing views of the English regions; and for establishing the overall balance of the UK-wide approach. This is an excellent example of the problem with the dual role of the UK Government which we set out in Chapter 5. The Minister’s observation that there are properly constituted authorities to deal with in Scotland, Wales and Northern Ireland but not in England only underlines further the need for England and regions of England to be more effectively represented.

137.We agree that England should be better represented at inter-governmental meetings. In the short-term, the Government should develop proposals for including the metropolitan mayors and other local leaders in reformed inter-governmental mechanisms. For the long-term, the Government should consider establishing a committee which would represent English cities and counties and would have representation on JMCs (or their replacement) to advocate the interests of all parts of England.

188 First Report of the Public Administration and Constitutional Affairs Committee Session 2017–19, Devolution and Exiting the EU and Clause 11 of the European Union (Withdrawal) Bill: Issues for Consideration, HC484, 28 November 2017; Sixth Report from the Public Administration and Constitutional Affairs Committee of Session 2016–17, The Future of the Union, part two: Inter-institutional relations in the UK, HC 839, 8 December 2016; Eleventh Report of the House of Lords Constitution Committee Session 2014‒15, Inter-governmental relations in the United Kingdom, HL146, 27 March 2015; Fourth Report of the House of Lords EU Committee session 2017–19, Brexit: devolution ,HL9, 19 July 2017; National Assembly for Wales Constitutional and Legislative Affairs Committee, UK governance post-Brexit, February 2018; Scottish Parliament Finance and Constitution Committee Interim Report on the EU (Withdrawal) Bill LCM, 9 January 2018

189 Press release Interparliamentary forum on Brexit, 21 June 2018

191 Nigel Smith (DEU0007)

193 Q56 [Page]

194 Q56 [Page]

195 Q56 [Rawlings]

196 Q70 [McEwen]; Q136 [Mitchell]

197 Q70 [McEwen]; Q157 [Mitchell]

198 Q71 [McEwen]

201 Securing Wales Future: Brexit and Devolution, Welsh Government, 2017, p 10

205 Q291 [Davies]

206 Plaid Cymru (DEU0028)

207 Q546 [Rennie]

208 Q540 [Leonard

209 Q547 [Tomkins]

213 The deep dive workshops were: Agricultural support (8–9 January), Fisheries (17–18, 23–24 January and 6–7 February), State aid (29 January), Animal health and welfare (29–30 January), Environmental quality - chemicals and pesticides (29–30 January), Environmental quality - ozone depleting substances and F-gases (31 January), Plant health (2 February and 9 March), Public procurement (5 February), Non-CAP agriculture (5–6 February), Food and feed (7–8 February), Air quality (8 February), Mutual recognition of professional qualifications (14 February), Production of statistics (15 February), EU citizens’ voting rights (15 February), Hazardous substances planning (19 February), Environmental quality - waste (20 February) , Radioactive waste management and shipment (20 February), Civil use of explosives (NI only) (21 February), UK internal market (23 February and 13 June), Vehicle standards (NI only) (26 February), Implementation of EU emissions trading system (26 February and 19 June), Trade (6 March), International obligations (6 March), Governance (7 March), Elements of reciprocal healthcare (21 March). Letter to the Chair from Lucy Smith MP regarding Civil Service work on Devolution and Brexit, 10 July 2018

218 Q830 [Lidington]

219 Q830 [Lidington]

Published: 31 July 2018