Inter-governmental relations in the United Kingdom - Constitution Committee Contents


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 issued—they 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 UKBack

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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