CHAPTER 5: TRANSPARENCY AND PARLIAMENTARY
SCRUTINY
172. At present, parliamentary scrutiny of inter-governmental
relations is sporadic and ineffective. This is concerning. As
Professor Michael Keating told us, inter-governmental relations
"tends to downgrade the role of parliaments and enhance the
power of the executive."[233]
This makes it all the more important that there is effective,
and consistent, scrutiny of the interactions between governments
in the UK. As the Commons Scottish Affairs Committee noted before
the 2010 general election, "it is of great importance for
the wellbeing of the people of Scotland that there is constructive
and effective communication between the Scottish Executive and
the United Kingdom Government"; they recommended "that
our successor Committee in the new Parliament continue to scrutinise
relations between the two governments".[234]
173. Effective scrutiny of inter-governmental
relations requires both greater transparency than currently exists,
and the necessary structures and desire in Parliament and the
devolved legislatures to scrutinise those relationships.
Transparency
174. The greatest challenge faced by parliamentarians
wishing to scrutinise inter-governmental relations is a lack of
transparency. As Professor Page told us, "intergovernmental
relations are typically conducted behind a veil of secrecy which
is inimical to effective parliamentary scrutiny."[235]
This view was echoed by other witnesses: Mr Crawford said, "Another
question is whether the current system of intergovernmental relations
is transparent. Does it allow people to understand what is going
on? I do not think it does."[236]
Mr Melding agreed that the system was "fairly murky",[237]
while Professor McEwen stated that the system was "so hidden
and lacking in transparency just now that it will be very difficult
for the parliaments and the electorate to be able to understand
who is responsible for what."[238]
175. Alan Trench argued:
"Accountability when it comes to intergovernmental
relations remains problematic. Legislators know little about what
goes on between governments, and their limited knowledge makes
it hard if not impossible for them to scrutinise their government
effectively or hold it to account."[239]
176. If parliaments and assemblies across the
UK are to scrutinise inter-governmental relations effectively,
there needs to be greater transparency of interactions at both
ministerial and official level.
JOINT MINISTERIAL COMMITTEE AND
FORMAL BILATERAL MEETINGS
177. Little is currently made public about the
meetings of the JMC or reported to Parliament. There is little
information made available ahead of JMC meetings, even at the
plenary level. The date of the next meeting is not announced after
a plenary JMC meeting, although there seems to be a convention
that they are held in the last quarter of the year, while JMC(E)
meets prior to European Council meetings. When a JMC plenary meeting
is announced, usually shortly before the meeting, very little
is officially announced about what is on the agenda.
178. The Secretary of State for Scotland told
us that "if I really want to know what is going to be discussed
at a Joint Ministerial Committee I make sure that I listen to
'Good Morning Scotland' at eight o'clock on the day of the meeting.
That is where I will generally find out."[240]
The absence of any official notice of the agenda is concerning
and this lack of transparency makes subsequent scrutiny of the
meeting difficult. Mr Carmichael acknowledged that "some
of the structures need to catch up with the reality".[241]
179. Once the meeting is over, openness is still
lacking.[242] The communiqués
published after plenary JMC meetings are bland and uninformative,[243]
giving headline topics of discussion and broad agreements on the
benefits of co-operation. The JMC's annual reports similarly contain
relatively little information, comprising "about a page and
a half of very generously spaced text that says nothing at all,
other than the items that were on the agenda."[244]
For example, the 2013-14 annual report tells us that, "Major
cultural and sporting events were reviewed with Ministers acknowledging
the benefits of joint working to ensure the continued success
of such events."[245]
The reports also give the dates of European and Domestic sub-committee
meetings and the Finance Ministers' Quadrilaterals held since
the last plenary meeting. Similarly bland communiqués are
published after meetings of formal bilateral forums, although
the minutes of the first UK-Scottish Joint Exchequer Committee,
and the agenda of the second, were published through a Scottish
Parliament committee.[246]
180. These reports do very little to improve
the openness, transparency and accountability of inter-governmental
relations. There is a balance to be struck between openness and
the confidentiality required to undertake effective inter-governmental
discussions. Indeed, while the First Minister of Wales agreed
that the communiqués were "bland", he noted that
"the reality is, of course, that once all of us leave JMC
(Plenary) we tell people what was discussed in there anyway".
He thought that "a balance can be struck
I think that
transparency would be helpful certainly not just for the legislatures
but for the public understanding of what happens in JMC."[247]
181. One improvement would be to publish more
detail about the discussions in JMC meetings. The balance of openness
and confidentiality is most pertinent here, with greater reporting
potentially risking either greater grandstanding in order to get
an administration's position on the record or a reluctance to
put forward potentially controversial views or information.[248]
The First Minister of Wales suggested that minutes of meetings
of the JMC could be published, along the lines of Welsh Cabinet
minutes, which are made publicly available.[249]
These minutes list the topics and key points of Cabinet discussions
and, where relevant, occasionally include papers considered in
those meetings.[250]
182. Even in its current form, the JMC annual
report does not appear to be a priority for publication: the 2013-14
annual report was agreed at the December 2014 plenary meeting
but appears to have only been published in February 2015.[251]
At the time of writing it was not available through the UK Government
website.[252] Annual
reports are not placed before Parliament as a matter of course;
any information given to Parliament about JMC meetings tends to
come as a result of questions from MPs and peers. While the annual
report for 2011-12 was deposited in the House of Commons library
at the time,[253] the
2009-10 and 2012-13 reports were not deposited until December
2014, and then only in response to a written question; the 2010-11
report was omitted without any reason given.[254]
183. The communiqué for the December 2014
meeting of the JMC notes that "Ministers also discussed ways
in which their respective Parliaments and Assemblies could be
kept informed of the work of the Joint Ministerial Committee".
That there are no details of any practical measures discussed
or agreed is indicative of the paucity of information made available
from these meetings, but we welcome this sign that the issue is
receiving the consideration it deserves.
184. Greater transparency around the Joint
Ministerial Committee is vital. A balance needs to be maintained
between confidentiality and openness, but the current lack of
information is not acceptable. We recommend that the dates, venues
and headline agenda items of Joint Ministerial Committee meetings
be announced further in advance.
185. We recommend that the Government consider
what additional information could be published following Joint
Ministerial Committee meetings and meetings of bilateral forums
such as the Joint Exchequer Committee, and in the Joint Ministerial
Committee annual report. This information should, at the very
least, be published promptly and laid in the libraries of both
Houses of Parliament.
186. Were the Joint Ministerial Committee
framework to be placed on a statutory footing, Parliament should
ensure that the legislation requires adequate information to be
published to enable effective parliamentary scrutiny of inter-governmental
relations.
CIVIL SERVICE
187. We have already recommended that government
departments regularly update their guidance for dealing with the
devolved administrations. As the Institute for Government noted,
this would "enable external scrutiny".[255]
Yet appropriate guidance is only part of what is necessary. If
Parliament is to scrutinise the effectiveness of inter-governmental
relations at a departmental level, departments must in addition
be clear about their performance and report at regular intervals
on their interactions with the devolved administrations.
188. In addition to ensuring that formal guidance
notes are regularly updated, we recommend that UK Government departments
detail in their annual reports which areas of their work are devolved
and which are reserved. They should also set out the forums and
bodies through which they engage with the devolved administrations,
reporting at a high level on their activity over the past year.
This would provide a solid base on which parliamentary scrutiny
of bilateral relations between government departments and the
devolved administrations might take place.
Committee scrutiny
CURRENT COMMITTEE STRUCTURES
189. There does not appear to be any consistent
scrutiny of inter-governmental relations by the committees of
the UK Parliament.[256]
Mr Davies told us that although the Welsh Affairs Committee "will
try to scrutinise how well the relationships are working, it is
something that often tends to come out in the course of other
inquiries that we are doing."[257]
While the Welsh Affairs and Scottish Affairs Committees both scrutinised
inter-governmental relations in reports published in early 2010,[258]
Mr Davidson told us the Scottish Affairs Committee, which he chairs,
was "focused on outputs and outcomes and particular issues
rather than examining the entrails of the machinery just for its
own sake".[259]
Meanwhile the Northern Ireland Affairs Committee's chair, Laurence
Robertson MP, told us they had "never scrutinised the process,
we have never scrutinised inter-governmental relations",
but that other scrutiny had "detected questionable relations"
between the UK Government and the Northern Ireland Executive and
Assembly.[260]
190. As we have previously noted, the vast majority
of inter-governmental relations take place between individual
governments departments and the devolved administrations, so any
process of scrutiny also needs to focus on UK Government departments
other than the territorial offices. Mr Davies told us that his
committee sometimes struggled to scrutinise those interactions:
"there are some Ministers who, as the chair of the Welsh
Affairs Select Committee, we can go and talk to about issues that
might be partially devolved. There are others who will have absolutely
nothing to do with us at all and, in fact, will routinely refuse
to appear before Select Committees".[261]
191. It may be that departmental select committees
in the House of Commons are best placed to ensure regular scrutiny
of these relationships, complementing the work of their colleagues
scrutinising the territorial offices.[262]
Earlier recommendations in this report should help increase the
transparency of those relationships to aid that scrutiny.
PROPOSED NEW COMMITTEE
192. Other suggestions have been made to improve
parliamentary scrutiny of inter-governmental relations. The Commission
on the consequences of devolution for the House of Commons, also
known as the McKay Commission, concluded that a Devolution Committee
of the House of Commons could hold "UK ministers to account
for their responsibilities in connection with devolution and their
relations with the devolved administrations."[263]
Some of our witnesses supported such a proposal,[264]
while Mr Davies told us that "I am slightly going to come
down against it, but if it were set up I have no doubt that I
would be first in the queue to try to get involved and take part
in it. It could have some advantages, I will say that."[265]
Professor Nicola McEwen was sceptical of such a move, suggesting
that the creation of a single specialist committee looking at
devolution could mean that other committees were less inclined
to scrutinise inter-governmental relations as part of their work.[266]
CROSS-PARLIAMENTARY CO-OPERATION
193. Inter-governmental relations do not, of
course, only involve the UK Government and Parliament. The committees
and commissions which have scrutinised devolution and inter-governmental
relations in recent years have promoted increased co-operation
between the UK's legislatures. The Calman Commission recommended
that, "A standing joint liaison committee of the UK Parliament
and Scottish Parliament should be established to oversee relations
and to consider the establishment of subject-specific ad hoc joint
committees." The Commission also recommended measures to
improve the capacity for committees in the two parliaments to
work together.[267]
194. We note that House of Commons Standing Orders
already allow the Welsh Affairs Committee to have "members
of any specified committee of the National Assembly for Wales
attend and participate in its proceedings".[268]
This has resulted in some co-operative working but no regular
use is made of this facility.[269]
There is no such provision for the Scottish Affairs or Northern
Ireland Affairs Committees.
195. In addition to increasing bilateral co-operation,
a committee comprising members of all four legislatures could
also be considered as a mechanism for scrutinising the quadrilateral
elements of the current devolution settlements.[270]
196. There may be ways to do something similar
without creating new formal structures. Mr Robertson told us that
he was already hoping to make the British-Irish Parliamentary
Assembly, which he chairs, more "analytical and politically
active".[271]
In the absence of a full joint committee, there may be room for
multilateral engagement by the chairs and convenors of the existing
committees concerned with devolution and inter-governmental relations.
Mr Melding suggested the cross-parliamentary European Chairs of
the United Kingdom as a precedent; this is a "very effective"
biannual meeting of chairs of European Union scrutiny committees
from across the UK.[272]
197. We recognise that relations between UK parliamentary
committees and the devolved legislatures vary; like inter-governmental
relations the level of co-operation depends on personal and institutional
goodwill. Mr Davies and Mr Melding were clear that they felt they
could "work together" to perform a joint scrutiny role,
and Mr Davies said he found it "perfectly easy enough to
go and visit the Welsh Assembly and do so on a regular basis."[273]
Mr Davidson, in contrast, told us that while on a committee visit
to Scotland, "The Scottish Parliament would not allow us
[the Scottish Affairs Committee] in the building".[274]
The committee chairmen to whom we spoke told us that the staff
of committees in the UK Parliament and devolved legislatures work
well together.[275]
Despite the different relationships, however, all parliaments
and assemblies in the UK share a common need to ensure that there
are effective relations between the different administrations
across of the UK.
198. We hope that common ground can be found
on which to base some form of cross-parliamentary scrutiny of
inter-governmental relations, although we make no specific recommendations
as to how this might best be achieved. That is a matter for each
parliament or assembly and its relevant committees.
Wider parliamentary scrutiny
199. Earlier in this report we referred to the
importance of inter-governmental relations to strengthening and
providing constitutional stability to the Union. As part of this
process, it is essential that Parliament scrutinise these relationships
on a regular basis. Mr Melding told us that:
"I think at Westminster you need to take
control again of where the UK constitution is going.
We
need a vision for a reformed, decentralised UK constitution for
a multinational union. We have always been that, but it has now
become political as well as cultural."[276]
To take on this role, Parliament should be prepared
to discuss devolution and inter-governmental relations on a UK-wide
scale, beyond the scrutiny of individual committees.
REGULAR STATEMENTS AND DEBATES
200. There have been a number of suggestions
to improve parliamentary scrutiny. The Calman Commission recommended
an annual 'State of Scotland' debate.[277]
Alternatively a single debate could be held on the Union and relations
between the four administrations.[278]
Mr Davies felt "there is an argument for perhaps having one
session per year for Wales, Scotland and Northern Ireland, perhaps
even for England as well, or one session just to discuss relationships
overall, or all four regions together".[279]
201. Improved reporting of the JMC and other
formal structures of inter-governmental relations would assist
Parliament in holding any such debate. The publication of a more
substantial JMC annual report following its plenary meeting would
provide a suitable time and related material for an annual debate.
In our previous report on the subject, we recommended a statement
by the Prime Minister after each JMC plenary meeting. The then
Government felt this was unnecessary because a press release was
issuedthey did, however, commit to written statements after
plenary meetings.[280]
202. We repeat the recommendation we made
in 2002: the Prime Minister should make an annual statement to
the House of Commons after the plenary meeting of the Joint Ministerial
Committee regarding that meeting and the conduct of inter-governmental
relations in the United Kingdom generally over the previous 12
months.
203. Another innovation that could aid scrutiny
and debate is an annual 'audit' of inter-governmental relations.
The Silk Commission recommended that the National Audit Office
and the Wales Audit Office jointly produce an audit on relations
between the UK and Welsh governments.[281]
This idea was welcomed by some of our witnesses: Professor Wyn
Jones thought it was "a very simple suggestion that I think
has a lot of merit".[282]
Similarly, Mr Melding thought this might be a helpful way "of
getting information that does not necessarily come from one of
the Governments," since "nearly all the information
comes from one of the Governments, and it is not in their interest
to present things that shed light on some things that have not
perhaps been satisfactorily dealt with."[283]
We support proposals for an independent annual audit of inter-governmental
relations.
PARLIAMENTARY DEBATES AND DEVOLVED
MATTERS
204. In order to enable Parliament to hold a
wide-ranging debate on inter-governmental relations, it may be
necessary for it to reconsider its self-denying ordinance not
to debate matters within the competence of the devolved administrations.[284]
This was recommended by the Calman Commission, alongside the holding
of an annual Scotland debate.[285]
205. Several of our witnesses supported ending
the ordinance. Mr Davidson told us that:
"Now, in Westminster, we should move away
from our self-denying ordinance, which arose for understandable
reasons. There was a feeling at the beginning that if Westminster
continued to debate devolved issues, we would perhaps subordinate
or undermine the Scottish Parliament
Therefore we had to
allow the Scottish Parliament to grow and develop free of advice
from what would be seen as big brother or sister. I think that
day is passed."[286]
206. Mr Robertson concurred: Parliament, he said
"should debate devolved issues, because they affect the whole
of the United Kingdom."[287]
Mr Davies told us that "within Parliament itself I am absolutely
unable to raise issues about the health service or education or
anything that is devolved. I feel that that sometimes lets down
my constituents".[288]
207. Former Northern Ireland Executive minister
the Rt Hon the Lord Empey noted that the devolved administrations
were not held accountable by the UK Parliament for their funding:
"There seems to me to be no accountability for these funds
and Parliament gets no feedback on where this money goes or what
the outcomes of the expenditures are. This is a mistake."[289]
208. We recognise that removing the self-denying
ordinance may raise other issues, in particular that a debate
on a devolved matter would have to be responded to by a Minister
who had no responsibility for the matter under discussion, or
left without a front-bench response. We recognise these administrative
difficulties, but in view of the increasing range of policy areas
currently devolved and due to be devolved and given the likely
expansion of shared or concurrent powers, the prohibition on debating
matters for which responsibility has been devolved may no longer
be appropriate.
233 Written evidence from Professor Michael Keating
(IGR0003) Back
234
Scottish Affairs Committee, Scotland and the UK, para 8 Back
235
Written evidence from Professor Alan Page (IGR0002) Back
236
Q58 Back
237
Q35 Back
238
Q15 Back
239
Alan Trench 'Intergovernmental relations and better devolution',
p. 18 Back
240
Q80 Back
241
Q80 Back
242
See Smith Commission, Report, para 30(2). Back
243
Q50 (Carwyn Jones AM) Back
244
Q15 (Professor Nicola McEwen) Back
245
Joint Ministerial Committee annual report 2013-14, 5 February
2015: http://www.northernireland.gov.uk/
joint-ministerial-committee-annual-report-2013-2014
[accessed 24 February 2015] Back
246
See attachment to letter from John Swinney MSP to Kenneth Gibson
MSP, 4 September 2012: http://www.scottish.parliament.uk/S4_PublicAuditCommittee/Meeting%20Papers/Joint_Exchequer.pdf
[accessed 25 February 2015] Back
247
Q50 Back
248
Q58 (Bruce Crawford MSP) Back
249
Q50 Back
250
See examples at Cabinet Meetings: http://gov.wales/about/cabinet/cabinet-meetings/?lang=en
[accessed 24 February 2015] Back
251
Joint Ministerial Committee annual report 2013-14, 5 February
2015: http://www.northernireland.gov.uk/
joint-ministerial-committee-annual-report-2013-2014
[accessed 24 February 2015] Back
252
As of the date on which this report was ordered to be printed,
18 March 2015 Back
253
House of Commons Deposited Paper (DEP2012-1646) Back
254
House of Commons Written Answer 216858, Session 2014-15 Back
255
Written evidence from the Institute for Government (IGR0011) Back
256
Professor Alan Page told us there was also little scrutiny in
the Scottish Parliament: written evidence (IGR0002) Back
257
Q35 Back
258
Welsh Affairs Committee, Wales and Whitehall; Scottish Affairs
Committee, Scotland and the UK. Back
259
Q57 Back
260
Q57 Back
261
Q32 Back
262
Q15 (Professor Nicola McEwen) Back
263
The McKay Commission, Report of the Commission on the Consequences
of Devolution for the House of Commons, March 2013, para 275:
http://www.futureukandscotland.ac.uk/sites/default/files/papers/
McKay%20Commission.pdf
[15 January 2015] Back
264
Q15 (Professor Alan Page) and Q42 (David Melding AM);
written evidence from the Institute for Government (IGR0011) Back
265
Q42 Back
266
Q15 (Professor Nicola McEwen) Back
267
Calman Commission, Serving Scotland better, recommendations
4.5-4.6; see also Smith Commission, Report, para 29 Back
268
Standing Orders of the House of Commons (2013), standing order 137A(3) Back
269
Q42 Back
270
Justice Committee, Devolution, paragraph 124; see also
written evidence from the Institute for Government (IGR0011) Back
271
Q63 Back
272
Q34 Back
273
QQ41 and 32 Back
274
Q57 Back
275
Q41 (David TC Davies MP and David Melding AM) and Q62
(Bruce Crawford MSP and Laurence Robertson MP) Back
276
Q39 Back
277
Calman Commission, Serving Scotland better, recommendation
4.4 Back
278
Q36 (David Melding AM) Back
279
Q39 Back
280
Constitution Committee, Devolution, para 37; Office of
the Deputy Prime Minister, Government response, para 7 Back
281
Silk Commission, Empowerment and Responsibility, recommendation
R.5 Back
282
Q2 Back
283
Q40 Back
284
House of Lords, Companion to the Standing Orders (2013),
paragraph 6.18; House of Commons Resolution of 25 October 1999,
published in Standing Orders of the House of Commons (2013) Back
285
Calman Commission, Serving Scotland better, recommendation
4.4 Back
286
Q61 Back
287
Q61 Back
288
Q35 Back
289
Written evidence from Lord Empey (IGR0012) Back
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