Inter-institutional relations in the UK inquiry

The UK’s exit from the European Union will require not just diplomacy and effective intergovernmental relations at the EU level, but also within the UK. It offers both risk and a fresh opportunity, and, therefore, an incentive, to develop more effective intergovernmental relations in the UK.

The Joint Ministerial Council should be at the heart of the UK’s intergovernmental relations, playing an important coordinating role and facilitating effective government. With devolution of power to Edinburgh, Cardiff and Belfast having increased, and following the outcome of the EU referendum, having an effective mechanism for intergovernmental cooperation and discussion for all four UK administrations is more important than ever before. Unfortunately, however, it is clear that the JMC, while not without its merits, is not, as it is currently organised, set up to cope with this increasingly significant responsibility.

If it is to be fully effective, the JMC needs to enjoy the confidence of all four Governments. It is clear from the evidence received that the Scottish and Welsh Governments have had different experiences of both the JMC specifically and, of intergovernmental relations more generally. While this arguably reflects the respective importance attached by the UK Government to the different devolved administrations, it is crucial that a multilateral forum such as the JMC engages with, and treats, the three devolved administrations with respect and as valued partners.

Bilateralism is a prominent aspect of intergovernmental relations in the UK. With substantial new fiscal and welfare responsibilities flowing to the Scottish devolved institutions, this will only grow in importance in the future. We are therefore heartened at the evidence of constructive cooperation between the Scottish and UK Governments in relation to both the Scotland Act 2016 and the fiscal framework which will underpin the practical operation of this important constitutional legislation. The UK Government must maintain and strengthen this practical and pragmatic approach to intergovernmental relations. This is essential if the full potential of the new powers contained in the Scotland Act 2016, particularly those in areas where competency is shared between the two Governments, are to be realised. It will be all the more important as an underpinning to the discussions about exiting the European Union which are currently taking place.

However, the starkly different evidence provided by the Scottish and Welsh Governments does suggest that intergovernmental relations in the UK are still overly dependent on factors such as the respective influence of the different administrations. Although PACAC is aware of reports that the UK Government has, at times, been unreceptive to concerns expressed by the Scottish Government, the Scottish Government appears to have experienced a more effective and responsive relationship with Whitehall than can be said of the Welsh Government. The Future of the Union, part two: Inter-institutional relations in the UK 37 It is to be expected that the UK Government will have to, at times, prioritise certain relationships. However, the UK Government must do all it can to promote goodwill and to develop a system of effective intergovernmental relations which ensures that devolved administrations with less nominal influence are treated with respect, so that meetings and discussions are trusting and sincere, and that the matters being decided are substantive rather than tokenistic.

There is longstanding criticism of the ineffectiveness of the existing JMC. It is clear that while the JMC plenary (JMC (P)) offers scope for the different devolved administrations to air their views to the UK Government, this potential is limited. The failure of the JMC Domestic committee has rendered the JMC (P) the sole forum for Heads of Government meetings. At best, these plenaries take place annually and the tight timetables for plenary meetings mean that there is little opportunity for issues of concern to be discussed in detail and undermine the ability of the JMC to be a vehicle for constructive engagement and collaboration.

In the absence of new Heads of Government meetings or the revitalisation of the JMC Domestic, the format of JMC plenaries needs some reform. While it is not realistic to expect plenaries to end up with points of agreement on all issues, plenaries should enable the devolved administrations to raise, and discuss in satisfactory depth, issues of concern. This would add a greater sense of purpose, and value, to the JMC. The continuing discussions on the new Memorandum of Understanding should therefore look at international examples of IGR best practice.

PACAC recommends that the ongoing review into the MoU should examine the idea of evolving the JMC (P) into an annual Heads of Government Summit, analogous to meetings of the Council of the European Union. Under this model, responsibility for hosting the JMC would rotate among the four administrations, with the host Government given the responsibility for setting the agenda for the plenaries. The four Heads of Government would meet in this consultative body and the communiqué should, wherever possible, be agreed unanimously. This would provide the devolved administrations with greater opportunity for involvement, and responsibility, in the JMC.

Adopting a ‘summit’ approach could facilitate an extension of the length of time spent on JMC/Heads of Government business. For example, they could include informal as well as formal meetings, to facilitate greater interaction and, hopefully, to strengthen trust and relationships between the people who make up the different administrations. Rotating the responsibility for hosting, and setting the agenda would help meet the demands of the devolved administrations and would provide a greater guarantee that the interests of all four of the Governments are heard and better understood.

Bilateralism and informality have been a defining feature of intergovernmental relations in the UK post-devolution and while these tendencies may reflect the asymmetry of the different devolution settlements and the uncodified nature of the UK Constitution, the deepening asymmetry and growth of concurrent policy responsibilities requires a more rigorous and formal approach to bilateral intergovernmental relations. PACAC recommends that the revised Memorandum of Understanding should recognise the Scottish and Welsh Joint Exchequer Committees as permanent standing bodies in 38 The Future of the Union, part two: Inter-institutional relations in the UK recognition of the interdependencies that will continue to mark tax policy in the future. Similar provision should be made for the Joint Ministerial Working Group on Welfare.

Since all of the devolved legislatures are now responsible for some aspects of tax policy and Holyrood and Stormont both have welfare responsibilities, the four administrations should establish new sub-committees of the Joint Ministerial Committee focused on tax, welfare and the financial settlements between the four Governments of the UK. This would allow areas of mutual concern among the four administrations to be discussed, models of best practice in these areas to be more effectively shared and would be another step towards the establishment of a more purposeful and policy relevant model of intergovernmental relations. To support this, there should be a formal mechanism for representatives of Departments of State and their counterparts in the devolved administrations to meet at least once a year, to discuss policy matters. Additionally, within each Department of State there should be a minister acting as a designated contact point for the devolved administrations.

PACAC welcomes the UK Government’s commitment to engage the devolved institutions throughout the process of negotiating the UK’s withdrawal from the EU and the agreement, at the last JMC (P), of a new Joint Ministerial Committee on the EU negotiations. The onus for facilitating constructive dialogue between the devolved administrations, while negotiating the process of leaving the EU, is on the UK Government. It is, therefore, vital that the UK Government’s commitment to engage with the devolved administrations is meaningful and is not simply a tool to allay the concerns of the Scottish and Welsh Governments and the Northern Ireland Executive.

PACAC welcomes the opportunity provided by the decision, taken at the most recent JMC (P), to defer consideration of a revised Memorandum of Understanding, in light of the changing political and constitutional landscape since the EU referendum.

There now exists an ideal opportunity for the formal machinery of intergovernmental relations in the UK to be imbued with a sense of purpose, with a revitalised and reformed JMC. While PACAC supports the decision to establish a new Joint Ministerial Committee on EU negotiations, this should not preclude further consideration by the four administrations as to how the JMC and its sub-committees can be best structured so as to assist the UK Government to develop a truly UK-wide approach in a range of areas where all four administrations have policy interests in the outcome of the negotiations to leave the EU.

PACAC sees merit, for example, in the idea of creating agriculture and fisheries and economic affairs sub-committees. Such committees could either be formal sub­ committees, under the general coordination of JMC (EN) and JMC (P), or could be meetings of the JMC (EN) in a functional, sector-specific, format (in a fashion similar to Council of Ministers meetings at the EU level). Additionally, the JMC secretariat’s capacity should be enhanced so that the JMC (EN) can call upon the advice and support of ‘shared’ technical staff, with expertise in key policy areas.

However, it is important to have realistic expectations about the limits of IGR machinery. The response to the recent JMC (P) has indicated that the JMC cannot, by itself, be expected to resolve issues which remain politically contentious between the four administrations. Instead, the effectiveness of any model of IGR rests on the ability of the four administrations to collectively develop an atmosphere of trust and goodwill. In order to develop such an atmosphere of trust and goodwill, the UK Government must show a genuine receptiveness to the concerns and suggestions put forward by the devolved administrations.

The existing level of transparency regarding intergovernmental relations is insufficient and, as demonstrated by the example of the fiscal framework negotiations, has acted as a barrier to effective parliamentary scrutiny of both intergovernmental discussions and, as in that example, significant reform to the UK’s constitutional arrangements.

In light of the development of devolution of powers to Edinburgh, Cardiff Bay and Stormont, and the growth of concurrent responsibilities shared between the UK Government and the different devolved administrations, as well as the impact of the UK’s exit from the European Union, intergovernmental relations will only grow in significance in future years. PACAC therefore welcomes the written agreement between the Scottish Government and Parliament, which offers the prospect of a more open and accountable model of intergovernmental relations and a model of best practice from which the Welsh Government and the Northern Ireland Executive, and Westminster and Whitehall can learn.

PACAC therefore recommends that the UK Government agrees to provide the House of Commons and House of Lords with similar transparency to that found between the Scottish Government and Parliament.

PACAC and the House of Lords Constitution Committee should have advanced written notice, and written summaries, of intergovernmental meetings. This commitment should replicate the lines of the agreement reached between the Scottish Government and Scottish Parliament. This agreement should be guaranteed by making reference to minimum standards of transparency that future Governments will be expected to meet.

It is clear that, while the principle of closer inter-parliamentary cooperation commands much support, there is no consensus on any particular model of enhanced inter-parliamentary relations. Any reform of inter-parliamentary relations must acknowledge the practical difficulties mentioned by a number of witnesses to our inquiry, not least the difficulty of finding time for these meetings in the already full diaries of parliamentarians from across all four legislatures.

However, PACAC recommends that a number of modest, yet in some cases symbolically significant, steps be taken to enhance inter-parliamentary relations in the United Kingdom.

First, the provisions of Standing Order No. 137A(3) (henceforth referred to as 137A(3)), which enables the Welsh Affairs Committee to hold joint evidence sessions with committees of the National Assembly for Wales, should be extended to enable all committees of the House of Commons to meet jointly with any specified committee of any of the three devolved legislatures. It makes little sense, given the increasing number of concurrent responsibilities, for 137A(3) to continue to be limited to the Welsh Affairs Committee. Amending 137A(3) will provide for inter-parliamentary collaboration ‘on demand’, allowing Committees of the House that wish to undertake joint evidence sessions with the Committees of the other legislatures to do so at a time of their (and, of course, the relevant Committee of the other legislature) choosing. However, for such a reform to be meaningful, PACAC calls upon the other three UK legislatures to examine where their Standing Orders, or relevant statutory provisions, inhibit greater inter-parliamentary collaboration and, where possible, to eliminate these barriers. This collaboration would not undermine the right of the devolved legislatures to form legislation independently of UK Parliament influence.

Secondly, while PACAC welcomes the continued inter-parliamentary collaboration at Speaker and Presiding Officer level, the lack of transparency regarding the agenda and conclusions of these meetings is unsatisfactory. PACAC therefore recommends that the Speakers and Presiding Officers consider providing written notice, and written summaries, of these quadrilaterals.

Finally, while PACAC recognises the role of the House of Commons Library and the Scottish Parliament’s Information Centre in raising awareness of one another’s institutions and is aware of a number of examples of ongoing informal inter- parliamentary cooperation among Clerks and other officials, we recommend that this cooperation be deepened by examining how the training of officials, including the Parliamentary fast stream, can better raise awareness of one another’s institutions. PACAC recommends that at their next meeting, the Speakers and Presiding Officers of the four UK legislatures agree to undertake an audit of their institutional cooperation, including, for example, the level of secondments and placements between each institution.

The continuation of the Home Civil Service has played an important role in facilitating inter-institutional relations post-devolution. The shared Home Civil Service enables interchange between the devolved administrations and Whitehall, facilitates knowledge exchange and, as we heard from Sir Derek Jones and Leslie Evans, it has not resulted in any conflict of obligations and loyalties for those civil servants serving the devolved administrations.

It is unacceptable that 17 years after the advent of devolution Whitehall departments, when considering the effect of UK policy decisions, are not better at involving and consulting the devolved administrations, so that their views and interests are positively engaged at the outset, rather than as an afterthought. While Sir Derek Jones and Ms Evans both emphasized the good collaborative relationships that they have with many Whitehall Departments and with the leadership of the Home Civil Service, it is nonetheless disappointing that it has taken 16 years for sustained The Future of the Union, part two: Inter-institutional relations in the UK 41 efforts to be made at boosting awareness of devolution issues and capabilities across Whitehall. Nonetheless, these efforts are better late than never and PACAC welcomes the work undertaken by the UK Governance Group, including the development of the Devolution Toolkit.

To supplement the progress Whitehall departments have made in engaging relevant officials from devolved administrations in UK policy formation, PACAC recommends that every Whitehall department should implement procedures to ensure such engagement takes place. A senior official should also be appointed within each department to review successful and failed examples of inter-administration engagement at official level. The UK Governance Group should ask departments to report on reviews and lessons learned every year. The UK Governance Group should also undertake an audit of Fast Stream graduate programme and Civil Service Learning to explore how devolution awareness can be enhanced by these programmes.