138.The prospect of an increase both in the amount and importance of the work carried out at the inter-governmental level, raises the question of how inter-governmental work should be scrutinised and whether there needs to be a parallel mechanism for inter-parliamentary work to perform this scrutiny function.
139.Professor McEwen told us that her research into parliamentary scrutiny and oversight of inter-governmental relations in countries around the world demonstrated a tendency towards executive dominance in the process and a lack of transparency; nowhere in the world were these problems more evident than in the UK.220 Professor McEwen said that there was certainly scope for more formalised arrangements for inter-parliamentary scrutiny of inter-governmental work in the UK. However, she thought that it was important to build into any such scrutiny process an appreciation and respect for the different mandates, interests and perspectives of members of each parliament or assembly.221
140.Professor Wyn Jones noted the success of the joint scrutiny of the Wales Bill in 2015 by the Constitutional and Legislative Affairs Committee of the National Assembly for Wales and the House of Commons Welsh Affairs Committee. He thought that this could provide a model for future inter-parliamentary working.222 However both Professor Wyn Jones and Professor Mitchell cautioned that, without a clear purpose to such relationships, there was a danger that inter-parliamentary working could descend into battles along party lines rather than leading to productive cooperation.223
141.Professor Keating also took the view that, with the anticipated increase in the need for inter-governmental relations after the UK’s exit from the EU, parliamentary scrutiny of these relations should be taken seriously. He told us that, in countries around the world where inter-governmental relations were a major feature, there had been a tendency for parliaments to be marginalised.224 He argued that inter-parliamentary working would be “extremely useful” as it would allow parliamentarians to engage in the common shared interest of scrutinising executives in a way which transcends partisan political divisions.225
142.When asked about a more formalised mechanism for inter-parliamentary scrutiny, the Welsh and Scottish Governments were generally supportive. Rt Hon Carwyn Jones AM told us that the Welsh Government was wrestling with the question of how an inter-governmental structure could be made sufficiently accountable. However, he recognised that this was ultimately a matter for legislatures to resolve.226 Michael Russell MSP said that the Scottish Government had already made a commitment to the Scottish Parliament to report meetings at an inter-governmental level to the relevant Scottish Parliamentary committee; and the Scottish Government is already often questioned on inter-governmental work in the Scottish Parliament. He agreed that scrutiny of this inter-governmental work was important and he would be interested to see how current informal inter-parliamentary working could be formalised and developed.227
143.Michael Russell MSP referred to the Inter-Governmental Relations: Written Agreement between the Scottish Parliament and Scottish Government which sets out a number of commitments from the Scottish Government to provide the Scottish Parliament with a range of information, including:
144.When asked about whether the UK Government would be willing to make a similar commitment to the UK Parliament, the Minister was reluctant. He thought that it was important for ministers to have a safe space to discuss controversial matters, and noted that agendas would often change at short notice.229 However, when we pointed out that there is at least some parliamentary scrutiny in advance of meetings of the EU Council of Ministers, the Minister accepted the analogy and committed to reflect on what the UK Government could usefully offer Parliament.230
145.Within the devolved legislatures there was very strong support for inter-parliamentary working and increased scrutiny of inter-governmental relations. In Wales, Leanne Wood AM, Leader of Plaid Cymru, Andrew RT Davies AM, former Leader of the Welsh Conservatives, and Jane Dodds, Leader of the Welsh Liberal Democrats, all supported a system of inter-parliamentary working.231 The Llywydd (Presiding Officer) of the National Assembly for Wales, Elin Jones AM, also told us that it was important to consider how inter-governmental relations are made accountable, first to individual parliaments, and second to inter-parliamentary scrutiny bodies. This sort of scrutiny had never before been formalised and so a great deal of thought was required in order to decide whether or not such relations should be placed on a statutory footing.232
146.The Presiding Officer of the Scottish Parliament, Ken Macintosh MSP, wrote to us to express his strong support for inter-parliamentary cooperation. He referred to the “shared parliamentary common cause of effective scrutiny, a function which affords every Member the opportunity to expose all views and opinions.”233
147.Support for a greater inter-parliamentary working among the parties in the Scottish Parliament was also very strong. Patrick Harvie MSP, Co-Convenor of the Scottish Green Party, argued that inter-parliamentary relations should become the norm, highlighting his good experiences of informal working taking place on an ad hoc basis.234 Richard Leonard MSP, Leader of Scottish Labour, argued that inter-parliamentary relations and working were important, and thought that the key to it succeeding would be the extent to which inter-parliamentary scrutiny would be able to adapt to hold to account multilateral discussions.235 Professor Tomkins MSP, Scottish Conservative, welcomed the good work that has been done in the Interparliamentary Forum on Brexit, arguing that it was a very useful start. He also noted the importance of committees from the different legislatures being able to meet on one another’s parliamentary estates, and mutual recognition of parliamentary passes was an issue in this context. He argued that the “easier we make it for ourselves to do business with each other, the more likely we are to do business with each other”.236 Professor Tomkins MSP was joined by Richard Leonard MSP, Patrick Harvie MSP and Willie Rennie MSP in suggesting that the mutual recognition of passes would aid interparliamentary working and cooperation.237
148.It is regrettable that the UK Government had previously not considered providing the UK Parliament with the same level of information related to Joint Ministerial Committee meetings as the Scottish Government provides the Scottish Parliament. We note, however, the Minister’s commitment given in evidence to this inquiry to reflect on what information related to JMC meetings the UK Government could usefully offer the UK Parliament. We recommend that the UK Government should consider the merits of replicating the commitment made by the Scottish Government to the Scottish Parliament and, providing notice and advanced sight of agendas for all intergovernmental meetings to the UK Parliament. This is no more than a courtesy to Parliament and its committees. It does not deprive ministers of a safe space for other private meetings or discussions.
149.One of the central constitutional roles of parliaments and assemblies in the UK political system is to scrutinise the work of government. With the increase in the extent of inter-governmental relations which must inevitably follow the UK’s exit from the EU, it is imperative that mechanisms be developed to scrutinise properly the work done at the inter-governmental level. The importance of devolution within the UK’s constitutional architecture should be recognised by developing mechanisms and procedures for the different parliaments and assemblies of the UK to communicate formally with one another. This is essential in order to build understanding and friendships between parliamentarians from all UK legislatures, as well as strengthening public trust and confidence in the way that the four parliaments and assemblies can work together.
150.In order to allow for effective scrutiny, the Governments of the UK should support changes to Standing Orders and, where necessary, bring forward legislation to allow committees of the UK’s parliaments and assemblies to meet jointly and establish inter-parliamentary committees. To help facilitate joint working and the work of inter-parliamentary committees, members of these committees from across the UK should have easy access to one another’s parliamentary estates for the purposes of committee meetings, assured through the mutual recognition of parliamentary passes. For the Houses of Parliament in Westminster we refer this issue to the Administration Committee.
151.As we highlighted above, Common Frameworks will form a key part of the UK constitutional architecture after the UK leaves the EU which will require scrutiny to prevent a democratic deficit. We therefore invite the Clerks of the four parliaments and assemblies to instruct parliamentary officials to work up a joint proposal for an inter-parliamentary body to scrutinise UK Common Frameworks. These proposals should address issues such as the size and composition of the body, how frequently it should meet, what its main objectives and terms of references should be and what the potential cost of the body would be. We suggest the proposals should be presented to the Interparliamentary Forum on Brexit which would then seek the endorsement of the Speakers and Presiding officers of the UK Parliaments.
228 Inter-Governmental Relations: Written Agreement between the Scottish Parliament and Scottish Government
Published: 31 July 2018