Chapter 7: Engagement with the devolved institutions
The Joint Ministerial Committee
274.Under the memorandum of understanding between the UK and the devolved Governments, which was reissued in 2013, a Joint Ministerial Committee (JMC) was established, to provide “central co-ordination” of relations between the UK Government and the devolved Governments.283 Plenary meetings of the JMC, chaired by the Prime Minister, and attended by the First Ministers (and deputy First Minister of Northern Ireland), are to be held at least once a year. Two meetings have been held since the referendum, on 24 October 2016 (after a two-year gap) and 30 January 2017. The JMC may also meet in “other ‘functional’ formats”,284 chaired and attended by responsible Ministers. At the October meeting of the JMC, a Joint Ministerial Committee (EU Negotiations)—JMC (EN)—was established, chaired by the Secretary of State for Exiting the EU. The JMC (EN) first met on 9 November 2016, and agreed to meet monthly. It met a second time on 7 December, and has met twice since, most recently in February 2017. The terms of reference of the JMC (EN) are:
“Through the JMC (EN) the governments will work collaboratively to:
- discuss each government‘s requirements of the future relationship with the EU;
- seek to agree a UK approach to, and objectives for, Article 50 negotiations; and
- provide oversight of negotiations with the EU, to ensure, as far as possible, that outcomes agreed by all four governments are secured from these negotiations; and,
- discuss issues stemming from the negotiation process which may impact upon or have consequences for the UK Government, the Scottish Government, the Welsh Government or the Northern Ireland Executive.”285
275.The JMC is not a decision-making body: it is appointed “to consider non-devolved matters which impinge on devolved responsibilities, and devolved matters which impinge on non-devolved responsibilities”, along with other matters, such as disputes between the administrations. Sir Emyr Jones Parry told us that “It was conceived to have exchanges of view, to be a talking shop if you like”,286 while Lord Hain described it as “pretty ineffectual and useless”.287 On the other hand, Dr Rachel Minto told us that the prospect of Brexit had led to “a re-ignition of the JMC Plenary”,288 while Ben Cottam, Head of External Affairs, FSB Wales, felt that there was “a key role for it as an entity that brings together the different political and governmental interests across the UK”.289
276.The JMC (EN) is more directly relevant to Brexit. Its establishment was widely welcomed by witnesses, as a sign of the UK Government’s intention to involve devolved governments in the development of its thinking on Brexit. Lord Hain, for instance, despite his negative view of the JMC, hoped that the new body could be “really central in a positive way”,290 and it was also welcomed by Lord Hunt of Wirral and Lord Trimble.291
277.On 8 February Michael Russell MSP, giving evidence to the House of Commons Exiting the European Union Committee, was asked how often it had met. His response was scathing:
“Today’s is the fourth. It meets this afternoon, though I am afraid I could not tell you where, because such is the process of setting these meetings that I do not even know, at this moment, where that meeting is taking place. I think it is somewhere within the environs of this building, but we do not know.”
The JMC (EN) has not met since. Asked whether the JMC (EN) had discussed a draft of the Government’s letter formally triggering Article 50, Mr Russell replied that it had not:
“We have not seen a draft letter. We do not know the date of submission of that letter. We have not seen a paper that proposes content for that letter, and indeed the forward work programme for the committee, which we received this morning at about 8.30, which does not give an awful lot of time to consider it, does not have the formal consideration of that draft letter on it as yet.”292
278.Mr Russell’s criticisms were borne out by another member of the JMC (EN), Mark Drakeford AM, who offered a detailed and thoughtful critique:
“It needs to be better run. It is not encouraging when agendas arrive less than 24 hours before the meeting takes place. When you leave Cardiff to attend a meeting, there is not even a room identified where the meeting is going to happen. Minutes are not produced, so we are unable to track progress against things that have been agreed. So there is the basic business about putting more effort into giving these meetings the sort of administrative back-up that they need if they are going to be able to do the job. It needs a proper work programme. There is a constant frustration at the JMC (EN) that we never seem to manage to get a clear sense of what that forum needs to tackle next. We have never had on our agenda an item that is actually about triggering Article 50. That seems fairly extraordinary, really.”293
279.Describing the Welsh Government’s experience as “disappointing”, Mr Drakeford offered the following reasons:
- There was a gap between the ambition set for the JMC (EN), namely to come to an agreement on the UK Government’s negotiating objectives, and the reality.
- It had given the devolved Governments an opportunity to air their views, but “any sense that we have moved beyond that genuinely to try to come to a four-way agreement on the negotiations has not been achieved”.
- It could be seen as “a vehicle for managing and suppressing difficult issues rather than addressing and engaging with them”. As a result, the frustration of members spilled over into arguments about process, rather than substance.294
280.Mr Russell highlighted the imbalance in representation between the UK and devolved Governments, telling us that it was “not a process in which the four nations of the UK sit down together for an equal discussion”. He noted that, in the absence of Ministers from Northern Ireland, he and his Welsh counterpart “could be sitting there facing what looks like a very large and rather distinguished interviewing panel”, and entered a plea for more “equal decision-making”.295 Dr Minto echoed his concern: “it is not a meeting of equal partners. The UK is very much the dominant partner.”296
281.Professor Douglas-Scott told us that “the problem is that it is not an executive body. It is for an exchange of information. What the devolveds want is a much greater participation and, if possible, some sort of legal or political guarantee.” She acknowledged that this raised a broader constitutional question, comparing the role of equivalent bodies in federal states such as Germany, where the Länder are represented in the second chamber, the Bundesrat, and “have the ability to say, ‘This affects our devolved competencies. We want this done’.”297
282.It will be clear from the criticisms we have summarised that the JMC (EN) needs to improve. Mr Drakeford saw an important role for the JMC in the period following the triggering of Article 50, and regretted that the JMC had not yet had such a discussion. He said that the UK Government should be more open in sharing evidence and in discussing the policy choices based on that evidence. He believed that “devolved Administrations ought to be at the table in [Brexit] negotiations when devolved competencies are directly at stake and being discussed”, and saw the JMC facilitating this.298 Lord McConnell of Glenscorrodale also advocated a much more structured approach to the JMC (EN), designed to feed into the negotiations themselves:
“There needs to be direct civil-servant-to-civil-servant and Minister-to-Minister negotiations for each of the three devolved nations in the UK. The papers and agreements from those discussions could then be ratified by a JMC on European negotiations that then went up through the process in Whitehall or wherever, but that bilateral agreement is critical for getting right into the detail of this as opposed to the general process and strategy.”299
283.Following the general election, both the Welsh and Scottish Governments have stressed the urgent need for more effective consultation mechanisms to be established.
284.The First Minister of Wales stated:
“The leaders across Great Britain and Northern Ireland must meet face-to-face to jointly consider how to take forward the Brexit process. This is why we urgently need a meeting of the JMC. I have made repeatedly clear my government’s willingness to work with the UK government and the devolved administrations to agree common approaches—through discussion, not diktat—to prevent friction within our own internal market. If the Prime Minister accepts this approach, she will find us reliable and constructive partners. If she does not—and, instead, attempts to ride roughshod over devolution and impose a more monolithic and centralised UK upon the devolved nations, we will have no choice but to oppose such steps.”300
285.On 15 June, the Welsh Government published a policy paper on Brexit and devolution, which proposed replacing the JMC with a new UK Council of Ministers that would take forward negotiations, reach binding decisions and help resolve disputes. The Council, served by an independent secretariat and a structured work programme, would bring the four governments together to negotiate and agree binding UK frameworks in devolved areas where they are needed, as well as considering non-devolved policies, such as state aid. The paper also proposed a convention on the future of the United Kingdom.301
286.Meanwhile, the First Minister of Scotland wrote to the Prime Minister on 14 June, stating that:
“The Joint Ministerial Committee on EU Negotiations should be re-convened immediately and work to fulfil its original terms of reference to agree a UK approach to and objectives for the negotiations. The Scottish Government stands ready to engage fully and constructively in that committee, which must operate on the basis of trust and a genuine opportunity to influence the UK approach. To broaden support for the negotiating position this should be accompanied by the establishment of a cross-party advisory group, comprising those parties represented at Westminster and parties from both sides of the political debate in Northern Ireland, alongside the UK and devolved governments. Secondly, the negotiating team must include representation from the devolved governments. It will not be possible for the UK to effectively implement the outcome of Brexit negotiations without the co-operation of devolved governments. It is therefore essential that we are part of the negotiating process.”302
287.On 15 June, Michael Russell MSP and Mark Drakeford AM wrote a joint letter to Rt Hon David Davis MP, calling for a “radical reshaping of the UK Government’s approach to building a broad-based consensus on the approach to the Brexit negotiations”. They sought in particular:
- Agreement that the devolved administrations should be represented at the negotiating table when devolved issues are discussed, and that they should be ‘in the room’ for other sessions.
- Resumption of meetings of the JMC (EN) at the earliest opportunity, and a forward programme of regular meetings, in line with the cycle of negotiating meetings with the Commission, “so as to ensure that we both have meaningful discussions on the outcome of the most recent session and can collectively shape the UK’s negotiating position in advance of the subsequent session”.
- A clear forward agenda, including the proposed response to the EU Negotiation Guidelines and Directives, and full discussion of: the constitutional basis for any joint framework which may be necessary; any replacement funding for EU funding streams; future immigration policy; and analysis of the economic impact of various scenarios, including ‘no deal’ and reverting to WTO rules, leaving the Single Market and withdrawing from the Customs Union.
- Agreement of JMC (EN) agendas at the previous meeting, circulation of papers at least five days in advance, and significantly reducing the number of attendees from the UK Government.
- Greater trust that the devolved administrations will respect the confidentiality of the JMC (EN) discussions.
- Regular bilateral meetings to complement the JMC (EN) mechanism.
- Improved consultation and engagement in advance of publication of the Repeal Bill and other Brexit-related bills.
288.The opening paragraph of the Queen’s Speech, delivered on 21 June 2017, expressed the Government’s commitment to “working with Parliament, the devolved administrations, business and others to build the widest possible consensus on the country’s future outside the European Union”.303 Mr Davis, giving evidence on 11 July, robustly defended the Government’s record, telling us that “We have bent over backwards … to pay attention to the interests of the people of Scotland, the people of Wales and, of course, particularly the people of Northern Ireland”.304 He did not respond to specific criticisms made in the joint letter, for instance over the failure to circulate agendas for JMC (EN) meetings. It thus remains to be seen whether the Government will engage with the devolved administrations in the ways they have proposed.
Interparliamentary dialogue
289.The JMC and the JMC (EN) are intergovernmental bodies. We also asked about the scope for enhanced interparliamentary dialogue within the UK, to support the work of the JMC. We note that some interparliamentary fora already exist, notably the British-Irish Parliamentary Assembly. There are also less formal bodies, such as the ECUK forum, which involves chairs of committees with responsibility for EU matters from across the legislatures of the UK, and meets on average twice a year. Lord Wallace of Tankerness, though, was clear that interparliamentary relations needed to be closer, citing “simple things like passes for MPs to go into the Scottish Parliament and for MSPs to come to Westminster”.305 Lord Hain agreed that “increased dialogue would be a very positive thing. Especially on a project like Brexit, it would be really important.”306 Lord McConnell of Glenscorrodale envisaged the possibility of “a joint parliamentary committee” on an issue such as agriculture, bringing together members of all the legislatures across the UK.307
Conclusions
290.We have called on all the Governments of the UK to work together to develop a common approach to Brexit. If this is to happen, they will need a forum within which ideas can be shared and common positions agreed.
291.The Joint Ministerial Committee has been re-energised by Brexit, and we also welcome the establishment of the Joint Ministerial Committee (European Negotiations). We note, however, the concerns expressed by the Scottish and Welsh Ministers that the JMC (EN) is not fulfilling its terms of reference, and it is clear that at a basic level its meetings are not being treated with respect or organised efficiently. This needs to change: if the UK Government wishes the JMC (EN) to make a useful contribution, it must give it appropriate support, both in political and resource terms.
292.More generally, we note that the JMC and the JMC (EN) are not decision-making bodies, and that there is a perception in some quarters that they are used to manage disagreements, rather than to engage with issues and find solutions. This is exacerbated by the perception that the participants are not doing so on equal terms.
293.We therefore endorse the view of most of our witnesses that the UK Government needs to raise its game to make the JMC (EN) effective. This means better preparation, including bilateral discussions ahead of meetings, a structured work programme, greater transparency, and a willingness to accept that the JMC (EN), even if not a formal decision-making body, is more than a talking-shop—that it should be authorised to agree common positions on key matters affecting devolved competences in time to inform the UK Government’s negotiating position.
294.Given the four-week negotiating cycle structure announced for the Brexit negotiations, we further recommend that a long-term programme of meetings of the JMC (EN) should be adopted, with the meetings coinciding with the fourth week in each cycle. This would enable the Government both to report on progress in the preceding cycle, and to identify and agree common positions on devolved issues arising in the forthcoming cycle.
295.We note the suggestion by the Governments of Wales and Scotland that they should have a seat at the negotiating table with the EU when devolved matters are being discussed, and that they should be ‘in the room’ throughout. We call on the UK Government to respond to this suggestion as a matter of urgency, and at all events before the negotiations turn to the future relationship between the UK and the EU, where issues of strong devolved interest, such as fisheries, are likely to arise.
296.The devolved governments, and some of our witnesses, have also argued that fundamental reform is needed to give the devolved institutions a more formal role in UK decision-making post-Brexit, analogous to that of regions and states in federal systems. While there may be merit in such proposals, this would be a far-reaching constitutional reform, which falls outside the scope of this report and the remit of this Committee.
297.We recommend that the structures for interparliamentary dialogue and cooperation be strengthened, and invite the House to consider how this might be achieved. In the short term, the priority is to engage in closer interparliamentary dialogue regarding the Brexit negotiations themselves and the accompanying domestic legislation. We will therefore seek to develop and broaden our well-established mechanisms for collaboration with our colleagues in the devolved legislatures. Working in conjunction with other Committees of the House, we will propose more regular joint meetings with members of cognate Committees with responsibility for Brexit-related issues in the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly, and in the House of Commons, for the duration of the Brexit negotiations. These joint meetings could provide an opportunity to hear informally from UK and devolved Government Ministers, and to discuss issues of mutual interest and concern.
298.In the longer term, we also see a need for a strengthened forum for interparliamentary dialogue within the post-Brexit United Kingdom. The resourcing of this forum, and its relationship with existing bodies (notably the British-Irish Interparliamentary Assembly) will require careful consideration by the House and more widely. We hope to contribute to that consideration in coming months.
283 Memorandum of Understanding between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee, October 2013, para 23: https://www.gov.uk/government/publications/devolution-memorandum-of-understanding-and-supplementary-agreement [accessed 14 April 2017]
284 Memorandum of Understanding between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee, October 2013, para A1.4: https://www.gov.uk/government/publications/devolution-memorandum-of-understanding-and-supplementary-agreement [accessed 14 April 2017]
285 HM Government, Joint Ministerial Committee communiqué: (24 October 2016): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/562364/joint-ministerial-committee-communique-24-october-2016.pdf [accessed 10 July 2017]
292 Oral evidence taken before House of Commons Exiting the European Union Committee, 8 February 2017 (Session 2016–17), QQ 888–889
300 Welsh Government, ‘The Prime Minister must not gamble with people’s jobs and livelihoods’, (13 June 2017): http://gov.wales/newsroom/firstminister/2017/170613-prime-minister-must-not-gamble-with-livelihoods/?lang=en [accessed 22 June 2017]
301 Welsh Government, ‘First Minister sets out a way forward for devolution post-Brexit’, (15 June 2017): http://gov.wales/newsroom/firstminister/2017/170615-fm-sets-out-way-forward-for-devolution-post-brexit/?lang=en [accessed 22 June 2017]
302 Scottish Government, ‘First Minister writes to Prime Minister ahead of Brexit negotiations’, (14 June 2017): https://news.gov.scot/news/first-minister-writes-to-prime-minister-ahead-of-brexit-negotiations [accessed 11 July 2017]