This blog article analyses the recent announcement of a new approach to intergovernmental relations (IGR) in the UK. ‘Intergovernmental relations’ refers to relationships between different governments within the same country. In the UK, these are the UK government and the devolved governments of Scotland, Wales, and Northern Ireland.
Intergovernmental relations now
Up until now, the core body that has supported IGR in the UK has been the Joint Ministerial Committee (JMC). The JMC considers reserved matters that impinge on devolved responsibilities and vice versa. It is meant to facilitate communication and cooperation between the UK and devolved governments. The JMC was established in 1999 by a Memorandum of Understanding, which has since been amended several times. However, in contrast to IGR structures in most other countries, the JMC has no statutory basis and meets only when deemed necessary by the UK government.
IGR structures in the UK have been widely criticised by parliamentary committees, academics, government reviews and independent commissions. Calls for reform have focussed on the fact that the JMC lacks a statutory basis, meets irregularly, that its dispute resolution process is used infrequently and not trusted by devolved governments, as well as the role of the UK Government as a representative of both the whole of the UK and England individually.
As the House of Commons Public Administration and Constitutional Affairs Committee put it in its 2018 report on devolution and Brexit, there is “growing consensus that the current UK inter-governmental relations mechanisms are not fit for purpose”. This sentiment was echoed by Lord Dunlop in his 2019 review of devolution (including IGR), in which he concluded “that the IGR machinery is no longer fit for purpose and is in urgent need for reform”. The UK and devolved governments undertook a review on intergovernmental relations in the UK. Its conclusions, though not the whole review, were published on 13 January 2022 and all governments have agreed to work to the new arrangements.
Some things are changing
The review promises to introduce:
“a new era for IGR with improved reporting on intergovernmental activity, providing greater transparency, accountability and the opportunity for improved scrutiny from each government’s respective legislatures.“
The report includes a list of principles the new IGR structures are intended to put into action:
- maintaining positive and constructive relations, based on mutual respect for the responsibilities of the governments and their shared role in governance of the UK
- building and maintaining trust, based on effective communication
- sharing information and respecting confidentiality
- promoting understanding of, and accountability for, their intergovernmental activity
- resolving disputes according to a clear and agreed process
The headline from the agreement is that the JMC will be replaced by an alternative structure to support IGR. The new structure will comprise three tiers:
In contrast to the JMC, engagement within the new structure is to take place regularly and not just ‘when needed’, though the intervals in which meetings will take place depend on the tier of engagement and range from monthly to yearly. In addition to the new three-tier structure, the report proposes changes to the provision of support mechanisms and dispute resolution.
The secretariat that provided support to the JMC has, at times, not been seen as independent by devolved governments because it was provided by the UK Government. The review proposes that a new standing secretariat be established, which will be accountable to the Council, not the UK Cabinet Office, and staffed by all four governments. The secretariat will be tasked with producing and publishing an annual report on intergovernmental engagement at all three tiers and is intended to play an important role in the dispute resolution process.
A central point of criticism of the previous dispute resolution process was that any party to a disagreement had the power to veto the decision to take a disagreement to the formal dispute resolution process. This included the UK government, who chaired meetings at which such decisions were taken. This led to cases in which devolved governments attempted to raise disputes, but this was vetoed by the UK government. Surveying these issues and their effects, the 2019 Dunlop Review noted “the strong case for the creation of a more robust and trusted dispute handling process.”
In the new dispute resolution process, the IGR Secretariat takes a central role as it, not parties to the disagreement, will decide whether a disagreement is to enter the formal dispute resolution process, based on clear criteria, such as whether the disagreement has previously been discussed by officials and whether it has implications beyond its policy area.
In terms of the UK Government chairing discussions, Carwyn Jones, former Welsh First Minister, said in 2018 that it made little sense for the Welsh Government to trust a procedure that, in his words: “leaves the final decision-making responsibilities with the UK government, empowered in what we might call its “federal” capacity, to mark its own homework. In contrast to this, the new process requires that no party to a disagreement can be appointed to chair at stage 1 or 2 of the dispute resolution process, and thus must either represent a government not party to the dispute or be independent.
The new process also includes more extensive reporting requirements about disputes. The IGR secretariat is required to report on the outcome of disputes at the final escalation stage, including on any third-party advice received. Each government is also required to lay this report before its legislature. In addition, if a dispute cannot be resolved at the highest level, each government is required to make a statement to their legislatures about why they were unable to reach a solution.
Some things stay the same
The report’s conclusions address several key concerns about IGR in the UK, including about the dispute resolution process, and reaffirm the desire to maintain positive relations and build trust between governments. However, there are remaining concerns about current IGR processes, or proposals that have been made as the result of such concerns, that the report doesn’t address.
Many have called for IGR to be put on a statutory footing to increase accountability and create enforcement mechanisms. The report, however, clarifies that the reforms will not be brought about through new legislation, but instead are “a statement of political intent”.
Decision-making by consensus
It has also been suggested that intergovernmental decision-making in the UK should not be limited to decision-making by consensus. For example, in 2017 the Welsh Government proposed that such decisions could, in the absence of consensus, be made through qualified majority voting if the UK Government and one devolved government agreed. This proposed approach was also outlined by some witnesses in a 2018 session held by the House of Common’s Public Administration and Constitutional Affairs committee on Devolution and Brexit. The review doesn’t propose any changes to decision-making and instead reiterates that “Intergovernmental decisions will continue to work on the basis of agreement by consensus.”
Representation of England
Concerns have been voiced about the role of the UK Government as both a representative of the UK as a whole and of England individually. As the review conclusions don’t engage with the wider question of English devolution, they don’t address this concern directly. However, the changes that afford the UK Government a less central role, for example in dispute resolution, may lessen this worry at least for the devolved governments.
In a blog article on the review , Professor Nicola McEwen notes that one component of the new structure, the middle-tier Financial Interministerial Standing Committee, differs from the rest of the new structure in terms of its language, but also its terms of reference and dispute resolution process. As Professor McEwen points out, the dispute resolution process for FISC states that disagreements on funding may only legitimately be escalated “where there is reason to believe a principle of the Statement of Funding Policy may have been breached” and further, that “policy decisions on funding are strictly reserved to Treasury ministers, with engagement with the devolved administrations as appropriate”. This is particularly significant given that most intergovernmental disputes in the UK have been about funding. These provisions appear to afford the UK Government, through the Treasury, a more central role in the new IGR machinery with regards to financial matters than the rest of the document would suggest.
While all four governments took part in the review and have agreed to work to new arrangements, their reactions to them differ. The UK Government described the report as a “landmark agreement”, which will “create a more equal, transparent and accountable system to support collaboration and information sharing between the UK government and the devolved governments”. However, John Swinney, Deputy First Minister in the Scottish Government, cautioned that “re-branding of existing structures will not deliver the step change in attitude and behaviour from the UK government that is needed if there is to be a genuine improvement in intergovernmental relations”. It is only when the new proposals are in place and operating that we will know how effective they are in addressing previous concerns about the operation of IGR in the UK.
Annie Bosse, SPICe Research