Since the Brexit referendum in 2016, the case for an overhaul of the management of intergovernmental relations has become much stronger. Jack Sheldon explains that in a new report, he and his colleagues have advanced the first detailed proposals for reform of the existing arrangements. These include formalising and restructuring the current ad hoc system, implementing a method of consensus decision-making, and increasing the transparency of the system.
It is widely agreed that the ad hoc and under-developed arrangements for relations between the UK government and the devolved governments in Scotland, Wales and Northern Ireland are in urgent need of an overhaul. Even before the vote to leave the EU, several parliamentary committees, leading politicians and a number of constitutional experts called for reform. Since 2016 the case has only become stronger. Brexit-related ‘IGR’ has been marked by sharp disagreement over policy and process, against the background of low trust between governments. And it is envisaged that IGR will assume greater importance in the coming years, given the need to implement, govern and review ‘common frameworks’ in devolved areas currently covered by EU law.
In a new report Professor Nicola McEwen, Professor Michael Kenny, Dr Coree Brown Swan and I advance proposals for reform of the Joint Ministerial Committee (JMC) structure – the primary forum within which formal IGR takes place. While the need to renew the JMC has frequently been recognised in recent years, few detailed proposals have been made. We seek to fill this gap, setting out 27 conclusions and recommendations. Our report is also distinctive in drawing heavily on experience of IGR in five broadly comparable multi-level political systems – Australia, Belgium, Canada, Italy and Spain. We were invited to produce the report by officials in the UK and devolved governments who are currently working on a review of IGR commissioned by the JMC itself, and hope that our conclusions will help to shape thinking as the review proceeds.
Principles of IGR
Existing principles underpinning intergovernmental relations, as articulated in the Memorandum of Understanding on devolution, are broadly stated and prone to being interpreted very differently by the various parties involved. For example, what amounts to ‘good’ communication and what is ‘practicable’ with respect to information exchange are matters of (often diverging) judgement.
We suggest that a review of principles underlying IGR, with the aim of achieving greater clarity, would be desirable. We do not make detailed recommendations about what these principles should be, but draw out four principles that could offer a useful starting point for discussions and which inform the conclusions we reach elsewhere in the report:
- Respect for the authority of different governments across the UK
- Recognising that the reality of modern government in a multi-level political system requires some degree of intergovernmental co-operation
- Taking a proportionate approach to the development of intergovernmental processes, so that mechanisms and forums are established only when necessary to serve a mutually agreed purpose
- The need to commit to greater transparency than at present
Machinery of IGR
We propose several relatively straightforward reforms that we believe could greatly improve the functioning and operation of the JMC. One of these is to establish a regular schedule of annual or biannual meetings of heads of government, rather than arranging meetings on an ad hoc basis. This would give the meetings higher status and help to alleviate diary problems that have sometimes led to long gaps between meetings. We also recommend taking the symbolically important step of routinely rotating the location of JMC plenary meetings between Belfast, Cardiff, Edinburgh and London, instead of meeting in London by default, and suggest that consideration should be given to rotating the chair accordingly.
With the current context firmly in mind, we argue for two additional JMC sub-committees to be established – on the UK’s Internal Market (for strategic oversight of the common framework negotiations) and on Trade (to provide for devolved input into the UK position as it embarks upon international trade negotiations). We also recommend that the existing JMC (Europe) should continue, given that governments will need to maintain close relations with the EU under any Brexit scenario.
We make a further recommendation that consideration be given to establishing a standing joint secretariat for intergovernmental relations, along the lines of Canada’s Intergovernmental Conference Secretariat. This would be staffed by secondees from each government and serve a primarily administrative function in supporting the JMC structure. It would not displace the critical role of senior officials from each government but would be designed to relieve them of the growing organisational burden.
It is a common theme in many of the parliamentary committee reports on IGR to call for a statutory underpinning. We recognise the arguments for placing elements of the JMC in statute but suggest that this must be balanced against the benefits of maintaining flexibility. In our view any statutory underpinning should hence be limited to the existence and membership of the JMC, the expectation of annual or biannual meetings and a requirement to report to legislatures.
The current Memorandum of Understanding on devolution explicitly states that the JMC is ‘not a decision-making body’. The anticipated role for the JMC in agreeing common frameworks suggests that this will need to change post-Brexit.
Drawing heavily on evidence from our five overseas cases, in all of which co-decision is well established, we recommend that any agreements reached in the JMC should be agreed by consensus. We advise against a majority voting formula, as the logical conclusion of such an approach would be to impose policies or regulatory requirements on one or more government without consent in areas within their competence. Where it is impossible to reach consensus we suggest that it should be possible for those governments that wish to proceed to do so, with others ‘opting out’. An ‘opt-out’ system operates among Canadian governments, and there is also experience of this in Australia.
The governments agreed a Protocol for Avoidance and Resolution of Disputes in 2010. However, this has come in for considerable criticism – particularly given the provision that a JMC disputes panel should be chaired by a UK government minister. We suggest this creates a conflict of interest and undermines the devolved governments’ trust in the process.
We propose that a revised Protocol should make provisions for independent intervention in disputes, by agreement of the disputing parties. In some cases it may be possible for the role of mediator to be performed by a government that is not subject to the dispute, or alternatively the role could be filled by a suitably qualified independent individual. The mediator would be able to facilitate discussions and would be empowered to present compromise proposals for the disputing parties to consider.
We additionally suggest that at all stages of a dispute the governments should be able to access independent research from those with expertise on the issue at hand. The standing secretariat that we propose would be well placed to commission such research.
Steps in proposed revised dispute resolution process
As discussed in a previous blog post, attention has recently been drawn to the absence of distinct English representation on the JMC. Some devolved politicians fear that the UK government’s ‘dual hat’ as representative of both England and the UK as a whole will lead to England receiving favourable treatment in framework negotiations, while in England there are some concerns that English interests might be overlooked.
We call for the issue of English representation to be addressed within the current review, and draw out two possible options for reform, noting that these are not mutually exclusive:
- The way the UK government is represented in IGR could be reformed so that the distinction between its UK-wide and English roles is made more overt. This could be achieved by the appointment of a Minister for England, with responsibility for representing English interests in IGR, or by tasking a relevant sectoral minister with representing English interests in JMC forums where appropriate.
- A new English Leaders’ Forum could be established to provide an institutionalised opportunity for English sub-national leaders to engage with the UK government. The meetings of this body could be arranged to align with a more routinised schedule of JMC meetings, so that English views could be fed in before the UK government meets the devolved governments. The precise composition of the English Leaders’ Forum would need careful thought, to ensure it represented all parts of England and not just those with city mayors.
IGR in the UK is notably opaque in comparison to our case studies. At present, dates of meetings are rarely publicised in advance, and afterwards only brief communiques are published.
We propose that more information should be made available, including agendas and position papers. Transparency would be greatly enhanced if these were consolidated on a single, searchable website – equivalent to that of the Council of Australian Governments, or the Italian State-Regions Conference. This would also aid parliamentary accountability.
About the author
Jack Sheldon is a Research Assistant and PhD candidate at the University of Cambridge, and a Research Fellow at the Centre on Constitutional Change, working on the ‘Between Two Unions’ project. He was previously a Research Assistant at the Constitution Unit, and editor of the Constitution Unit blog.