The Centre on Constitutional Change, along with the Bennett Institute for Public Policy, has issued a report on the state of intergovernmental relations in the UK. We will be issuing blogs and other resources relating to this report over the coming weeks but this post outlines our key recommendations.
Principles of IGR
1. We are of the view that IGR in the UK would benefit from a review of its underlying principles. We suggest that the following principles may offer a useful starting point for discussion:
- Respect for the authority of different governments across the UK. This includes respecting the devolution settlements; respecting the UK parliament’s legislative authority in reserved matters; and respecting the authority and democratic legitimacy of each government to determine their own policy priorities in their respective spheres of competence, recognising that these may generate divergent policy preferences.
- Recognising that the reality of modern government in a multi-level political system requires some degree of intergovernmental cooperation. As Lord McConnell of Glenscorrodale put it, ‘the modern, 21st-century UK is, even more than it was before, a shared sovereignty operation’. The interdependence between reserved and devolved matters points to the benefits of intergovernmental cooperation in areas of shared interest. These may be in fields designated in law as either devolved or reserved matters.
- Proportionality. Respecting the autonomy and authority of each legislature involves adopting a proportionate approach to the development of inter-governmental processes or regulatory bodies. Such a proportionality principle should help to ensure that intergovernmental mechanisms and forums are established only when required to serve a mutually agreed purpose.
- Transparency. While we recognise the importance of confidentiality and a safe space for the exchange of ideas and frank opinions between governments, the effective functioning of IGR in a democracy requires that governments ultimately be accountable for their actions. A commitment to greater transparency where appropriate should serve as a guiding principle in IGR.
Reforming the machinery of IGR
1. We see no particular benefit to replacing the Joint Ministerial Committee in its plenary format with a new ‘heads of government’ forum, but we recommend making changes to its function and operation, including incorporating a decision-making function and a more robust system of dispute resolution.
2. We recommend limiting any statutory underpinning to the existence and membership of the JMC, the expectation of (at least) annual meetings, and a requirement to report to parliaments. Whilst we recognise the arguments for placing elements of the JMC and IGR more generally in statute, we believe these should be balanced against the advantages associated with maintaining a flexible approach which can allow governments to adapt intergovernmental forums to new challenges as they arise.
3. We recommend that the JMC in all its formats follow a regular schedule of annual or biannual meetings, according to need, with member governments given the opportunity to call extraordinary meetings where necessary. Routine meetings can ease scheduling challenges and contribute to building trust and empathy among ministerial representatives, as well as the officials who support them.
4. We also recommend a renewed commitment to rotating the location of meetings between London, Cardiff, Belfast and Edinburgh, with consideration giving to rotating the chair accordingly, or operating a co-chair system.
5. In our view, regardless of the outcome of Brexit negotiations, there will be an ongoing need to maintain a relationship with the EU, with the potential for shared, or aligned, regulations, and shared governance arrangements. Given the strong likelihood that the affected policy fields will span areas of reserved and devolved competence, we believe there is a strong case for maintaining the JMC (E) after the UK leaves the EU.
6. To address potential barriers to the UK’s internal market, we recommend the creation of a JMC (Internal Market), providing strategic focus and direction and ensuring a coherent approach. As well as being guided by the general (revised) principles of the JMC, the governments may wish to agree specific principles when developing the purpose and remit of such a committee.
7. We are also persuaded by the case for a JMC (Trade) as a mechanism for informing the UK’s position in international trade negotiations. This would ensure that the devolution dimension of trade deals is recognised and considered when developing negotiating positions, thus helping to identify and address any issues that could potentially present barriers to the implementation of subsequent agreements.
8. In our view, Brexit provides an opportune moment to review the functioning of the concordats on international relations, and to consider whether the degree of inter-ministerial cooperation these envisaged between the UK Government and each of the devolved administrations may be better served by a more formal vehicle such as a JMC (International Agreements).
9. We recommend that a standing secretariat be set up to service the organisation and administration of JMCs and other formal intergovernmental forums, and to help promote transparency. A standing secretariat would not replace the critical role of officials within each government but would be designed to relieve them of a growing organisational burden and help serve the demand for greater transparency.
10. We recommend that a decision-making function be added to the remit of the JMC. Successful co-decision is more likely to occur if common objectives on the purpose and extent of agreements, and the principles underpinning the negotiation, are established at the outset, and all administrations are actively engaged from an early stage in the process.
11. In line with normal practice in other multi-level systems, we recommend that decision-making within the JMC and other intergovernmental forums be made by consensus. Comparative examples suggest that co-decision by consensus is not an impediment to agreements being successfully concluded, even among governments with opposing interests.
12. We advise against adopting a voting formula to ensure that decisions could be reached by a majority in the absence of consensus. The logical conclusion of such an approach could be to impose policy or regulatory requirements on one or more governments without their consent, in areas that are within their competence. In our view, this would not be compatible with respecting the devolution settlements and the authority of the devolved institutions. Having the option of majority voting could also weaken the incentive to reach consensus positions and prove counter-productive to the objective of building trust between administrations.
13. Where it is impossible, after negotiation, to reach agreement, those governments who wish to proceed can be permitted to do so, with other parties having the right to opt out. This may in practice result in separate bilateral agreement being negotiated between the UK Government and the ‘opting-out’ government, which could ensure that key underlying principles were not breached, such as the need to prevent regulatory divergence resulting in unacceptable market distortions and unfair competition.
14. Whilst we recognise the appeal of ensuring that intergovernmental agreements are enforceable, we do not recommend attaching legally-binding status to co-decision procedures. In addition to requiring a fundamental shift in the prevailing political culture and practice of the UK, attaching legally-binding status to intergovernmental agreements could result in them coming into effect with limited opportunity for parliamentary input and oversight. Where a legal underpinning is required to give substance to inter-governmental agreements, we recommend that this be achieved through the normal legislative process.
Dispute avoidance and resolution
15. Routine engagement between governments in relation to matters of mutual concern is an essential step to minimising disputes, by creating opportunities to identify and discuss potential barriers to agreement before positions have hardened.
16. In our judgement, much of the existing Protocol for Avoidance and Settlement of Disputes sets out a useful set of steps to be followed in the event of a dispute being identified. However, the final stage of the steps within the Protocol are inadequate. Having the JMC, when in its dispute resolution mode, chaired by a UK Government minister when the UK Government is simultaneously a party to the dispute creates a conflict of interest and is out of step with normal dispute resolution practice.
17. We believe that there is a strong case for a revised Protocol to make provisions for independent intervention in disputes, by agreement of the disputing parties. We regard mediation to be more suitable than arbitration, as it preserves the disputing parties’ autonomy in deciding whether or not to accept any proposed resolution.
18. Where the dispute is between two parties (for example, the UK Government and a devolved government) it may be possible for a government not party to the dispute to perform the role of mediator. Alternatively, a suitably qualified mediator, appointed on a short-term basis and supported by the proposed standing secretariat, could be appointed to help facilitate an agreement between the disputing parties.
19. Disputes often revolve around claim and counter-claim, for example, about the effects of particular policies or decisions. Dispute resolution may thus be aided by having the validity of these claims tested against impartial evidence. The proposed standing secretariat would be well-placed to commission independent research from those with expertise relevant to the dispute at hand. Making this research publicly available can also enhance accountability.
Asymmetries and the representation of England
20. We support calls for the question of how England is represented within IGR to be addressed within the current intergovernmental review, but some of our suggestions are directed at the UK Government alone.
21. We recognise the legitimacy of calls for English sub-national representatives (such as metro mayors) to be included alongside UK and devolved governments in IGR forums, but we are not convinced that this would be appropriate, and regard their direct inclusion as likely to exacerbate, rather than mitigate, the challenges of constitutional asymmetry.
22. We suggest two options which could permit explicitly English interests to be incorporated into the JMC. The first would be for the UK Government to task one or more ministers with the responsibility to represent England within government and intergovernmental forums. This may be a territorial Minister for England or sectoral ministers who have responsibility for England’s interests as part of their brief.
23. A second complementary option would be to establish an English Leaders’ Forum to provide an institutionalised opportunity for English sub-national government to engage with the UK Government. This body would be separate from the JMC structure, with regular meetings to focus on important matters of relevance English regions. Its meetings could be scheduled to align with a more routinised schedule of JMCs, providing an opportunity for regional leaders to input into the representation of English interests within the JMC, much as the devolved governments have used JMC (Europe) to articulate their views to the UK Government ahead of European Council meetings.
24. Convening JMC meetings according to a set schedule will raise awareness of IGR among parliamentarians and the wider public. Governments can further enhance transparency by making agendas available in advance of the meeting and using online platforms to disseminate reports, agreements and other outcomes. We acknowledge the need to maintain confidentiality, but we believe strongly that the publication of agendas, papers (where appropriate) and outcomes can be compatible with this goal.
25. The processes through which individual governments provide information about their activities within the intergovernmental arena is a matter for them, rather than for the joint review. However, we regard the Scottish Government-Scottish Parliament agreement on IGR as a model of good practice in enhancing transparency and scrutiny.
26. In order to enhance transparency and contribute to broader understanding of IGR, we recommend that the UK and devolved governments each create a searchable website, which provides information on the role and remit of IGR forums, details of meetings and agendas, and any agreements reached. In addition, or as an alternative, the proposed standing secretariat can be tasked with maintaining a publicly accessible digital resource of formal intergovernmental meetings and outcomes.