CHAPTER 4: THE CIVIL SERVICE AND DEPARTMENTAL
INTERACTIONS
135. The majority of inter-governmental interactions
take place between ministers and officials in UK Government departments
and devolved administrations, outside the formal structures of
the JMC and other bodies addressed above. Relations between officials
and ministers in UK Government departments and in the devolved
administrations are thus a vital part of the inter-governmental
relations in the UK.
136. The UK, Welsh and Scottish Governments are
all supported by a unified Home Civil Service. The Northern Ireland
Civil Service has been separate since 1921 but closely resembles
the Home Civil Service in its organisation and principles. Concerns
have been expressed over the impartiality of civil servants during
the Scottish independence referendum, which is currently the subject
of an inquiry by the House of Commons Public Administration Select
Committee.[184] We
did not address the issue of the structure of the Civil Service
for this inquiry, but note that the Silk and Calman Commissions
echoed our 2002 conclusion that the unified Home Civil Service
should be retained.[185]
137. Professor McEwen, from the University of
Edinburgh, told us that, "a crucial component of intergovernmental
relations takes place informally, in regular ad hoc communication
between ministers and officials at all levels of responsibility."[186]
Dr Philip Rycroft, Director General in the Deputy Prime Minister's
Office and the UK Government's lead official on inter-governmental
relations, stressed the importance of "the quality of the
relationships" between officials and ministers, a sentiment
echoed by the Institute for Government.[187]
It is worth noting that these relationships and the day-to-day
interactions were maintained through the Scottish independence
referendum campaign and the political tensions that it aroused.[188]
138. The experience of inter-governmental relations
for officials varies considerably between and within departments,
depending on whether a policy area is entirely devolved, entirely
reserved or somewhere between the two.[189]
With the implementation of Smith Commission's recommendations,
there will be an increasing number of policy areas where the boundary
between devolved and reserved matters will become harder to define.
139. Dr Rycroft described a "hierarchy"
of communication with the devolved administrations. The "vast
majority of communication and interaction between the UK Government
departments and the devolved administrations takes place without
direct Cabinet Office or territorial office oversight or involvement".[190]
The advantages of the majority of inter-governmental interactions
being conducted at this level were stressed by the Scottish Government
and by former Scottish Minister Bruce Crawford MSP.[191]
Professor Richard Wyn Jones, from the University of Cardiff, told
us that, at some points, the Welsh Government had sought to by-pass
the Wales Office in order to get things done.[192]
140. These direct interactions between departments
and devolved administrations are predominantly between policy
teams at a working level: Graham Pendlebury told us that, speaking
as the head of a devolution unit in the Department for Transport
(DfT), he "would very much expect the individual policy and
modal teams within the department to have their own bilateral
relations with their counterparts in the different devolved administrations.
Indeed, I would see it as a failure if everything came through
me, because that would suggest that the bilateral relationship
was not really working".[193]
141. Dr Rycroft told us that, above the individual
departments, the territorial offices are involved on specific
issues—such as on the industrial dispute at Grangemouth
oil refinery or over the electrification of the Welsh Valley railways—particularly
if they were cross-cutting or involved legislation. Finally, the
Cabinet Office "would usually only get involved if there
was a particular need to do so—for example, if an issue
was proving particularly difficult to resolve and get a common
position on in Whitehall, or if it had implications for the wider
constitutional settlement."[194]
Formal and informal arrangements
142. As with the higher-level, more political
structures of the JMC, a balance needs to be found between informal
interactions and formal structures at the level of the civil service.
Lindsey Whyte, Deputy Director in charge of Devolution at HM Treasury,
said that: "I would characterise the current situation by
saying that the vast majority of our interaction is informal,
and also bilateral with individual devolved administrations."[195]
143. This echoes what we found in our 2002 report:
that inter-governmental interactions at all levels were frequent,
bilateral and "highly informal", and that they relied
on goodwill between administrations.[196]
144. As with ministerial and head-of-government
relationships, contact between civil servants through formal forums
can help to foster and maintain good inter-personal relationships.
The Institute for Government told us that:
"while good relationships are vital, our
research also found that the existence of regular forums for discussion
of particular policy issues can be a useful way to build such
relationships. … So our conclusion is that well-designed
formal mechanisms in areas where there is a clear need for intergovernmental
cooperation or consultation can help to build the informal relationships
and networks that bring wider benefits."[197]
145. Mr Pendlebury gave an example of the form
such formal structures could take, and the extent to which the
UK Government and devolved administrations also work with regional
and local authorities for effective delivery:
"I chair the UK Roads Liaison Group, which
sounds a bit boring but it sets common standards of best practice
for maintaining bridges, dealing with winter resilience and so
forth. That has a series of structures and involves not just the
devolved administrations but Scottish, Welsh and English local
government, Transport for London, the Highways Agency et cetera.
Two of the four boards are chaired by devolved administration
personnel. Our delegate to the World Road Association is from
Transport Scotland, and we meet about quarterly. That is a very
fertile exchange. We say, 'This is what we are doing in our different
areas'."[198]
146. We welcome this and other examples of
formal structures[199]
which lead to regular and defined engagement between UK government
departments and the devolved administrations. These are useful
means by which to build relationships between departments which
are not dependent on individuals who may move jobs or retire.
147. As we have previously noted, the changing
devolution settlements will result in a more complex arrangement
of devolved and reserved policy areas, particularly in areas such
as welfare and tax policy. In the light of these changes, we recommend
that the Government consider whether more formal structures are
needed at a civil service level to manage these increasingly complex
inter-governmental relations—particularly in the context
of those departments which are most affected by the changes.
An inconsistent approach
148. One of the common concerns we heard was
that UK Government departments were inconsistent in their knowledge
of, and interactions with, the devolved administrations.[200]
Professor Alan Page told us that:
"The essential weakness of the current arrangements
lies not so much in the framework within which intergovernmental
relations are conducted, although that stands in need of revision,
as in the fact intergovernmental relations are for the most part
left to the uncoordinated efforts of Whitehall departments."[201]
149. The Institute for Government told us that
"There is also a wider frustration at the devolved level
about the variable performance of Whitehall in consulting and
engaging the devolved governments when developing policy that
affects devolved areas."[202]
Professor Nicola McEwen described the variation between departments
as "probably the biggest hindrance to positive working relations".[203]
150. The First Minister of Wales told us that
his experience of UK government departments was "variable".
He explained:
"With some departments the relationship
is very good and we are able to have open communications without
difficulty. With others, we are not. The Department of Health
is the biggest problem from our point of view. We have been the
subject of leaks from that department on more than one occasion.
I think it is fair to say that there is no level of trust at all
with it at the moment. It would not be fair to say that about
other Whitehall departments at all. They take an entirely different
and professional view on this."[204]
151. He added that UK departments sometimes failed
to recognise the differences between the devolved administrations:
"There is also a difference in the perception
of devolution in Scotland and in Northern Ireland as compared
to Wales. It is not always case—and the Home Office …
is an example of this—that there are different devolved
structures in Wales. Again, it is not a Whitehall failing collectively;
it is an issue with some departments, not so much with others.
Their awareness of Scottish devolution and its structures tends
to be far better than their awareness of Wales."[205]
152. This inconsistency was recognised by Dr
Rycroft, who noted that "The referendum campaign shone a
very harsh light, if you like, on the understanding of devolution
and the relationship between different parts of the UK and Whitehall."[206]
He said:
"For a lot of departments, doing devolved
business is absolutely essential and mainstream for operations,
and you will find there is a very good, deep understanding across
those departments of how to manage that business with the devolved
administrations. For other departments and for bits of other departments,
their interaction with the devolved administrations may be more
ad hoc and more infrequent."[207]
153. Amongst the general inconsistency of knowledge
and behaviour of UK departments, the First Ministers of Wales
and Northern Ireland both highlighted the lack of consultation
around reforms to secondary-school qualifications. The First Minister
of Northern Ireland also told us that his administration had first
heard about the changes to GCSEs when they were reported in the
press;[208] while Mr
Jones referred to it as one example of "where we have had
to adapt our policies as a result of a sudden announcement that
is made in England."[209]
154. There are a number of factors that may influence
the spread of knowledge and experience across Whitehall. We take
these in turn.
GUIDANCE
155. The day-to-day relationships between individual
government departments and agencies and the devolved administrations
are governed by the Memorandum of Understanding, an array of concordats
and a series of UK Government 'devolution guidance notes'.[210]
As described above, the MOU is the key inter-governmental relationship
agreement between the UK Government and the three devolved administrations
and has been updated several times since the resumption of JMC
plenary meetings in 2008.
156. At a departmental level, the concordats
serve a similar purpose, setting out in a non-legally-binding
way how the signatory UK Government department and devolved administration
will interact. This Committee, in our 2002 report, recommended
that "concordats be made for a fixed term only" and
should be renegotiated at the end of that term.[211]
The then Government stated that the concordats were "already
reviewed on a regular basis".[212]
This assertion has not been borne out in the long term.
157. Many of the concordats with the Scottish
Government date from the early years of devolution, despite departmental
restructuring and the passage of the Scotland Act 2012.[213]
The Welsh Government's concordats, by contrast, have been updated
since the passage of the Government of Wales Act 2006.[214]
158. Professor Page, from the University of Dundee,
was concerned about how the lack of attention to the Scottish
concordats reflected on inter-governmental relations more generally:
"The revision of the framework needs to
extend to bilateral concordats between individual Whitehall departments
and the devolved administrations, which in the Scottish case are
seriously out of date, many of them not having been revised since
they were first entered into. … The fact that they have not
been 'regularly reviewed' … speaks to a more general neglect
of intergovernmental relations since the current arrangements
were first put in place."[215]
159. Mr Pendlebury told us that:
"the DfT concordats are a bit long in the
tooth … we ought to engage with our colleagues around the
UK, particularly in the light of the changes that are happening,
and refresh them a little. The fact that they have not been refreshed
probably signifies that there is quite a bit of dust gathering
on them."[216]
160. Concordats should be kept up to date in
case they are needed to facilitate good relations.[217]
Moreover, the act of reviewing them can be constructive in itself.
As Defra official John Robbs told us,
"The process of clarifying areas of different
interpretation can be very useful, and every now and again they
need to be reviewed to make sure that they are working. Once you
have written them and got that in your head, the vital thing,
of course, is the working relationships and practice, not constantly
referring to what is written down on paper."[218]
161. The same principle applies to the UK Government's
devolution guidance notes. These have been referred to as "rather
important parts of the knitting that make the devolved UK work".[219]
Mr Pendlebury told us that, for an official looking to understand
his or her department's relationships with devolved administrations:
"the Cabinet Office devolution guidance
is better [than the concordats]. It is written in plain English
and has handy hints on how to do some fairly common-sense things,
so I would guide people towards that. In DfT, we have on our own
departmental intranet guidance on relations with the devolved
administrations".[220]
Mr Robbs also told us that Defra have their own guidance
available to staff.[221]
162. We recommend that the concordats setting
out relations between UK government departments and the devolved
administrations be reviewed at least once during each Parliament
and, in particular, each time there is a change in the devolution
settlements. Devolution guidance notes should also be reviewed
and updated regularly.[222]
163. As noted above (paragraph 153), the
devolved administrations have expressed concerns about occasions
on which there was no previous consultation or advance warning
of UK Government policy changes which had an impact on the devolved
administrations. Departmental concordats should set out clearly
how the devolved administrations should be consulted on, and alerted
to, forthcoming changes to UK Government policy that might have
an effect on the devolved administrations.
EXPERIENCE AND EXPERTISE AMONG CIVIL
SERVANTS
164. While experience and expertise is liable
to vary among civil servants depending on whether their policy
or delivery areas are devolved or reserved, we also heard from
Professor Wyn Jones that there was a "quite striking lack
of expertise at a senior level in Whitehall in terms of the devolved
territories."[223]
The First Minister of Wales agreed that this was a problem: the
situation was not as bad as it once was, he said, but was "still
far from perfect". He also felt that awareness in Whitehall
of Scottish devolution was better than of the Welsh settlement
and institutions.[224]
This expertise may come from day-to-day working with devolved
administrations, but direct experience of working in those administrations
can be invaluable.
165. We heard that direct experience of working
in devolved administrations is rare among Whitehall civil servants:
Dr Rycroft (who previously worked in the then Scottish Executive)
told us that it had decreased in the years since 1999.[225]
The First Minister of Wales agreed,[226]
while the First Minister of Northern Ireland noted that "it
is true that there will be relatively few of those in officialdom
who have sojourned in Northern Ireland or other devolved regions,
so their knowledge comes from reading a brief, which can never
pick up the nuances of issues in the same way."[227]
166. Officials from other UK Government departments
described a varied picture. Mr Pendlebury said that none of his
director-level colleagues at the Department for Transport had
worked in the devolved administrations, but there were secondments
for specific projects. Similarly Mr Robbs told us that there were
a "relatively small number" of secondments in Defra
and its arm's length bodies, primarily at a working level. Lindsey
Whyte told us that secondments out of HM Treasury to devolved
administrations, as well as to other departments, the private
sector and international institutions, were encouraged.[228]
167. Dr Rycroft told that the benefits of this
kind of experience went beyond an understanding of the interactions
of devolved and central government:
"there is enormous value in people understanding
how work is transacted in those different environments [the devolved
administrations]. … Whitehall has a huge amount to learn
from how the devolved administrations operate. It is a different
sort of challenge. Par for par, officials in devolved administrations
are dealing with a far wider span of policy than their counterparts
in Whitehall, and that has enormous benefits for the way they
think and deal with policy and relate to the world out there.
Whitehall has a huge amount to learn about that."[229]
168. Given the importance of building up good
relationships, Dr Rycroft also stressed the benefits of "finding
opportunities for officials [from UK departments and devolved
administrations] to learn together", such as on training
courses.[230]
169. Each government department has a senior
official responsible for devolution. Dr Rycroft chairs a monthly
meeting of these director-level officials to share best practice
in day-to-day engagement with devolved administrations.[231]
170. It is already the case that a lack of experience
of the devolved administrations is affecting inter-governmental
relations in the UK. This problem will only grow as further powers
are devolved. Over time, the level and breadth of engagement between
government departments and the devolved administrations will continue
to expand. To prepare for this, we recommend that the Government
sets out a strategy for ensuring that senior civil servants have
either experience of, or training in, working with devolved administrations.
Any work to improve exchanges of officials should include
the Northern Ireland Civil Service, as well as taking place within
the Home Civil Service that supports the UK, Welsh and Scottish
Governments.
171. It is important that effective training
on dealing with devolved administrations is available for civil
servants. The National School of Government ran courses for officials
on 'Devolution in action' and 'Working with devolved administrations',[232]
but closed in 2012. We would welcome clarification from the
Government as to how this training is now provided.
184 Civil Service impartiality and referendums inquiry:
http://www.parliament.uk/business/committees/
committees-a-z/commons-select/public-administration-select-committee/inquiries/parliament-2010/civil-service-impartiality-and-referendums
[accessed 11 March 2015] Back
185
Constitution Committee, Devolution, para 169; see Silk
Commission, Empowerment and Responsibility, recommendation
R.57 and Calman Commission, Serving Scotland Better, para
4.91. Back
186
Written evidence from Professor McEwan (IGR0010) Back
187
QQ21, 23 and 27; written evidence from the Institution for
Government (IGR0011) Back
188
Written evidence from Lord Empey (IGR0012); Q11 (Professor
Nicola McEwen) and Q17 (Dr Philip Rycroft) Back
189
Q68 (John Robbs and Lindsey Whyte) Back
190
Q20 (Dr Philip Rycroft) Back
191
Written evidence from the Scottish Government (IGR0015); Q60 Back
192
Q2 and Q4 Back
193
Q68 Back
194
Q20 Back
195
Q70 Back
196
Constitution Committee, Devolution, para 23 Back
197
Written evidence from the Institute for Government (IGR0011);
see also Q57 (Bruce Crawford MSP). Back
198
Q69 Back
199
Q68 (John Robbs) Back
200
See Q1 (Professor Richard Wyn Jones) Back
201
Written evidence from Professor Alan Page (IGR0002) Back
202
Written evidence from the Institute for Government (IGR0011) Back
203
Q11 Back
204
Q51 Back
205
Q51 Back
206
Q24 Back
207
Q20 Back
208
Q88 Back
209
Q43 Back
210
The latter are available on the UK Government website: Devolution
guidance notes, https://www.gov.uk/government/publications/devolution-guidance-notes
[accessed 12 March 2015] Back
211
Constitution Committee, Devolution, para 43 Back
212
Deputy Prime Minister, Government Response, para 8 Back
213
Concordats between Scottish Ministers, United Kingdom Government
and the Cabinet of the National Assembly of Wales: http://www.gov.scot/About/Government/concordats
[accessed 23 February 2015] Back
214
Concordats: http://wales.gov.uk/about/organisationexplained/intergovernmental/concordats/?lang=en
[accessed 23 February 2015] Back
215
Written evidence from Professor Alan Page (IGR0002) Back
216
Q74 Back
217
See Constitution Committee, Devolution, para 39. Back
218
Q74 Back
219
Alan Trench, 'New Welsh Devolution Guidance Notes', Devolution
Matters blog, 11 June 2012: https://devolutionmatters.wordpress.com/2012/06/11/new-welsh-devolution-guidance-notes/
[accessed 23 February 2015] Back
220
Q74 Back
221
Q74 Back
222
See written evidence from the Institute for Government (IGR0011) Back
223
Q3 Back
224
Q51 Back
225
Q25 Back
226
Q51 Back
227
Q93 Back
228
Q75 Back
229
Q25 Back
230
Q25 Back
231
Q24; see also Q74 (Graham Pendlebury) Back
232
Letter from Principal and Chief Executive, National School of
Government, to Lord Norton of Louth, 30 January 2007: http://www.publications.parliament.uk/pa/ld200607/ldlwa/070129wa1.pdf
[accessed 24 February 2015] Back
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