Conclusions and recommendations
Trust and political relations
1.The relationship between the UK and Scottish Governments has come under renewed strain at a time when cooperation and trust is needed most. The current system of intergovernmental relations is not able to cope with the pressure being placed on it. Whilst we recognise that disagreement between the UK and Scottish Governments is inevitable and legitimate, we believe that the frequency and nature of the disputes we have seen in recent years have been exacerbated by a fundamental—and avoidable—deficit of trust in the relationship. The two governments need to have a relationship that is strong enough to survive disagreement. In the remainder of this Report we recommend reforms which could be made to improve machinery and governance arrangements which support intergovernmental relations. However, none of these reforms will be successful unless trust is rebuilt through a fundamental change in the approaches of both governments. (Paragraph 18)
2.We are encouraged by both governments’ expressions of willingness to improve intergovernmental relations and welcome the Secretary of State’s commitment to a “new era of intergovernmental relations” after Brexit. We call on both Governments to work to rebuild trust and recognise the need for a cooperative and constructive relationship underpinned by the principle of parity of esteem. This would ensure that both governments are treated as equals in their respective areas of competence, and ensure mutual respect for each other’s authority, even in the face of disagreement. Unless both governments summon the political will to work to rebuild trust the relationship will only deteriorate further. (Paragraph 19)
Joint Ministerial Committee
3.We believe that, as the UK’s highest–level intergovernmental forum, the JMC should be a productive forum which is robust enough to cope with different governments with divergent policy objectives. The existing set up and organisation of the JMC has resulted in it being predominantly controlled by the UK Government. This has limited its effectiveness as a forum for meaningful engagement between the UK’s four governments. The JMC therefore urgently requires reform. (Paragraph 31)
4.The effectiveness of the JMC will hinge on how it works in practice, rather than what it is called. We were not persuaded by the any of the alternatives to the current JMC format. Although proponents of more fundamental reform tended to coalesce around the idea of a UK Council of Ministers, we are not convinced that this proposal offers benefits which cannot be delivered through the reforms to the JMC. (Paragraph 32)
5.Instead there are several reforms we think that the Government could make to the JMC to ensure it embodies the principle of parity of esteem and becomes a forum where all four governments can engage as equals. We recommend that:
a)JMC meetings should be hosted and chaired by each of the UK’s administrations on a rotating basis.
b)JMC meetings should be held frequently, and to a set schedule.
c)JMC agendas should be agreed in advance between all parties. (Paragraph 33)
6.The level of transparency in the UK’s intergovernmental relations is poor. This lack of transparency has made it less likely that governments will engage cooperatively, because it is difficult for the public and the respective parliaments to hold their governments to account for the quality of their engagement without clear information about meetings and their outcomes. (Paragraph 38)
7.We recommend that the UK Government provides the UK Parliament with advance notice of meetings and agendas for JMC meetings and maintains a formal and publicly accessible record of JMC discussions and outcomes. We also recommend that after every meeting of the JMC (Plenary), an oral statement be made in Parliament by the responsible minister, to allow for proper parliamentary scrutiny of intergovernmental relations. (Paragraph 39)
8.The current dispute resolution process does not command the confidence of the Scottish Government and is not fit for purpose. We believe that adoption of our earlier recommendations regarding early engagement, trust–building, and cooperation would help mitigate the need to seek recourse to dispute resolution processes in the first instance. However, some disputes are inevitable. We therefore believe there is a clear need to reform the JMC dispute resolution process to ensure that it is trusted by all parties, and that it is robust enough to deal with the calibre of disagreements which have arisen in recent years. (Paragraph 47)
9.We do not believe the UK Government should have the unilateral right to prevent the devolved administrations from invoking dispute resolution proceedings, as it has done recently. If a reformed dispute resolution process is to be fair and trusted, it must be unconditionally accessible to both parties to a disagreement. We therefore recommend that the UK Government seeks to amend the dispute resolution protocol to ensure all governments have the right to unilaterally initiate dispute resolution proceedings. (Paragraph 48)
10.We were interested to hear of how independent third parties are involved in efforts to resolve intergovernmental disputes in other countries. We recommend that the UK Government explores with the devolved governments how a form of independent mediation might be introduced in the UK. One approach it may wish to consider is referral of a dispute to a third party for mediation—at the penultimate stage of the dispute resolution process. We believe it would be beneficial if, at the end of the mediation process, the mediator could be required to publish some non–binding recommendations outlining possible ways forward. This would help both parties progress towards a resolution, whilst maintaining the UK Government’s final say over the dispute. (Paragraph 49)
11.We agree with our witnesses and the Public Administration and Constitutional Affairs Committee that the JMC would benefit from being supported by an independent secretariat with staff drawn from all four administrations of the UK. This would help ensure meetings are regularly arranged, agendas are agreed and shared in advance, and that the outcomes are communicated in a timely and transparent manner. This would reflect the principle of parity of esteem by ending the situation whereby one government has complete control over the resources that support the JMC. (Paragraph 54)
12.We believe that setting out the basic requirements of the JMC in statute would ensure that it operates in the way envisaged by the Memorandum of Understanding. We therefore recommend that the JMC format, the frequency of JMC meetings, and the right to seek recourse through the dispute resolution process, are set out in statute. This would ensure that a minimum number of JMC meetings are held each year and that the right to invoke dispute resolution proceedings is inalienable. We are not convinced by the UK Government’s argument that placing these requirements on statutory footing would reduce flexibility, as there would be nothing to stop the Government going beyond those minimum requirements, and this would not place any obligation on the UK Government which it has not already signed up to in existing intergovernmental agreements. (Paragraph 59)
Common Frameworks
13.We are encouraged that the two governments have cooperated well on developing common frameworks, and that there currently appears to be little prospect of the UK Government using its powers to “freeze” the powers of the devolved administrations. This demonstrates that both Governments can reach agreement through discussion and consultation. (Paragraph 65)
14.We believe that common frameworks must be agreed through co–decision and by consensus and that disagreements over common frameworks are less likely to arise if a culture of cooperation and trust between the two governments is developed. However, should disagreements arise, we believe recourse to a reformed dispute resolution process of the type we have recommended would help reduce the risk of common frameworks being imposed. (Paragraph 73)
15.We recommend that a new JMC sub–committee on Common Frameworks is established to facilitate the agreement of common frameworks. Within the JMC sub-committee, common frameworks must be co–owned, and decisions in relation to them must be reached by co–decision and by consensus. Where disagreements prove irreconcilable, recourse to the reformed dispute resolution process should be available. (Paragraph 74)
Devolution understanding and relations in Whitehall
16.Strong official–level relationships are as important to effective intergovernmental relations as strong political relationships. However, the relationships between civil servants that were established at the time of devolution are no longer in place, and while the Brexit process is requiring more Whitehall departments to work collaboratively with the devolved institutions, it is also reducing their capacity to do so effectively. (Paragraph 78)
17.Guidance for Whitehall civil servants encourages them to think about devolution. However, it is clear from our evidence that the effectiveness of this approach has been limited as UK Government officials regularly produce policy changes which have failed to properly think through the implications their policies could have on the devolved administrations. (Paragraph 86)
18.We recommend that Whitehall departments should publish devolution impact assessments on UK Government policies could impact the devolved institutions. This should be a two–stage process, with a full impact assessment only being undertaken when a preliminary assessment suggests a policy change touches on devolved competence. As policy officials should already be thinking through devolution implications, this process should not pose a significant additional burden. We believe routinely publishing these assessments would ensure they are completed to a high standard and encourage civil servants to engage with their devolved counterparts at an early stage in the process, thereby helping to identify potential conflicts before they become politicised disputes. (Paragraph 87)
19.We were alarmed that only a third of civil servants feel they have a good level of knowledge about devolution. These figures show that much more needs to be done to train officials. Effective training will be particularly important in the coming years as Brexit requires departments and officials with little previous experience of devolution engage with their devolved counterparts much more frequently, and in a more complex devolution setting. (Paragraph 90)
20.We recommend that the UK Government reviews the content of training, to ensure that it keeps up with the rapidly changing devolution landscape, and that it provides officials with the skills and knowledge needed to work effectively with the devolved administrations. We also recommend the UK Government reviews the uptake of training across departments, to identify potential gaps in coverage, and call on it to publish the findings of this review. (Paragraph 91)
21.We believe that interchange, secondment and exchange opportunities between the UK and Scottish Governments are an effective means of improving devolution knowledge and understanding. However, despite gradually expanding the availability of secondment, exchange and interchange opportunities, the number of officials participating in these programmes remains relatively small—at around 400 officials over 3 years. We are concerned that the number of secondment opportunities are insufficient compared to the scale of the devolution knowledge deficit. (Paragraph 96)
22.We therefore recommend that the UK Government expands interchange opportunities for policy officials. Civil servants in policy areas which deal with devolved issues should be given priority access to intergovernmental exchange or secondment programmes. We further recommend that all senior civil servants, and those on fast-tracked development pathways, such as those on the Fast-Stream and apprenticeship schemes, should be offered exchange or secondment opportunities. (Paragraph 97)
23.Devolution Guidance Notes, which are the fundamental and authoritative devolution guidance documents, are acutely out of date. It is unacceptable that some Devolution Guidance Notes have not been updated since 2005 and do not reflect the passage of the last two Scotland Acts. This is inadequate and undermines the UK Government’s commitment to fostering effective working relationships between officials. We therefore recommend that Devolution Guidance Notes are updated as a matter of urgency. We believe the UK Government should therefore take this task forward independently of its ongoing review into intergovernmental relations. (Paragraph 101)
The Scotland Office
24.The Scotland Office has played an important role during high profile, Scotland-specific political developments in recent years—such as the passage of Scotland Acts. However, outside of these major events it is clear that the majority of most intergovernmental relations are conducted directly between the Scottish Government and the relevant Whitehall departments. The Scotland Office needs to adapt to the reality of how devolution is working on the ground. We do, however, recognise that there is a legitimate role to be played in terms of the Office representing the work of the UK Government in Edinburgh. (Paragraph 110)
25.We have not heard any evidence to suggest that the Scotland Office’s representative role, or its handling of devolution matters, could not be dealt with by an altogether different model of devolved representation in Whitehall, such as a single department responsible for devolution and constitutional affairs. We recommend that the UK Government reviews the role of the Scotland Office and the Secretary of State for Scotland. As part of this review, the UK Government should explore options including replacing the territorial offices of state with a single department responsible for managing constitutional affairs and intergovernmental relations. The review must ensure that any changes do not reduce the quality of how Scotland is represented in the UK Government nor reduce the ability of the UK and Scottish Governments to work together. (Paragraph 111)
Published: 7 June 2019