Negotiating Brexit in a devolved state: the dynamics of intergovernmental relations

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Theresa May has repeatedly declared her commitment to involving the devolved governments in the Brexit process. In this post, Nicola McEwen discusses the likely dynamics of Brexit negotiations between the UK’s four governments. She argues that if the intergovernmental process fails to give a meaningful voice to the devolved governments this could have serious and long-lasting repercussions for territorial politics across the UK.

 As we ponder the forthcoming Brexit negotiations between the UK government and the EU27, another set of negotiations is already underway. The UK government and the devolved administrations have kick-started a period of intergovernmental relations which promise to be more intense than any that have gone before. This is a high stakes process. The extent to which it gives a meaningful voice to the devolved governments represents the Union’s biggest test since the Scottish independence referendum.

The Prime Minister has frequently declared her commitment to engaging with the devolved governments. After her symbolically significant visit to meet Scotland’s First Minister shortly after she assumed office, Theresa May noted: ‘I have already said that I won’t be triggering Article 50 until I think that we have a UK approach and objectives for negotiations – I think it is important that we establish that before we trigger Article 50.’ There have been some mixed messages since then, but at October’s plenary session of the Joint Ministerial Committee (JMC) – the first since December 2014 – the PM continued to insist she wanted the input of the devolved administrations in shaping Brexit: ‘The country is facing a negotiation of tremendous importance and it is imperative that the devolved administrations play their part in making it work.’ Quite what part she envisages them playing remains unclear.

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Better intergovernmental relations for better devolution

Alan Trench calls for a more systematic approach to intergovernmental relations between the devolved and UK governments. He argues that leaving matters to be handled in ad hoc, reactive, unstructured way is no longer an option.

Intergovernmental relations are key to making devolution work effectively. The Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly all operate in a wider context of governance across the UK, and how their functions overlap with those of the UK government (and each other) is vital for all four governments and all UK citizens. The Smith Commission’s recent report pays a good deal of attention to the need to ‘beef up’ intergovernmental co-ordination as part of the package of further devolution.

The UK government is not very interested in managing intergovernmental relations, however. It put in place an attenuated under-institutionalised set of mechanisms in 1999, and has allowed these to weaken or fall further into disuse since then. The key institution is the Joint Ministerial Committee (JMC). Plenary meetings of this body ceased altogether between 2002 and 2008; they have been more or less annual since then, but are characterised by grandstanding rather than productive work. The JMC’s ‘Domestic’ format has nearly ceased to function, as so few policy issues concern more than one devolved government. The only established format of the JMC which does meet regularly, and does more or less what it was expected to, is the EU format which helps formulate the UK ‘line’ for major EU Council meetings, though there are problems even there. In reality, most intergovernmental issues are bilateral, and with few exceptions they are dealt with in an ad hoc, casual way, out of sight of public or legislatures. As a result many important issues slip through the net.

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The Scottish Government lifts the veil on intergovernmental relations

This post also appears on Alan Trench’s blog, Devolution Matters, where it can be found here.

The Scottish Government has clearly, in its last few weeks, decided to stop playing nicely when it comes to intergovernmental relations. Hitherto, it’s scrupulously observed the convention that relations are, for the most part, to be conducted behind closed doors. After taking considerable amounts of criticism, it’s decided to place large quantities of correspondence and other records of its dealings with the UK Government (and other parties) into the public domain.

The documents they’ve released relate to two controversial issues. One is the debate about devolution finance: the UK Government’s proposals to implement the Calman recommendations, and its alternative of full fiscal autonomy. These cover the period from May 2010 to January this year.  The other is the release of Abdelbaset Ali Al-Megrahi, the Lockerbie bomber, following the publication of Sir Gus O’Donnell’s review of the papers. These cover the period from August 2009 to October 2010, though some relate to earlier events.  These records are going to be a treasure trove for researchers and others interested in how intergovernmental relations in the UK work, especially as they’re exempt from disclosure under the Freedom of Information Act 2000; our own version of the Wikileaks disclosures of US diplomatic cables, perhaps.

The finance papers can be found here.  The Lockerbie papers are here.

In releasing these papers, the Scottish Government appears to be sending two clear warnings to the UK Government. First, that the UK Government should assume that everything said or done in the course of those relations may be put into the public domain, so it shouldn’t assume that it can pursue one line in public and another in private. Second, the UK Government shouldn’t seek to use selective disclosure of documents and questionable précis of them as a way of trying to win the public end of that debate.  The use of that tactic by UK Government, for example over the Scottish variable rate, has significantly undermined the sort of co-operation and mutual respect for confidentiality that are much emphasised in the Memorandum of Understanding and have been regarded as underpinning intergovernmental relations up to now.  It would be an exaggeration to call this a ‘crisis’ in intergovernmental relations, but it is a serious blow to the established way of doing things, based on the UK’s assumption that there’s a broad consensus behind what it does and if not that it can out-muscle devolved governments.  It strongly suggests that the UK Government will need to take a much more coherent and strategic approach to intergovernmental relations than it has done, particularly recently.